The Zoning Hearing Board existing at the time of adoption of
this chapter shall continue under and in accordance with the terms
of office as previously appointed. Matters pending before the Board
at the time of effectiveness of this chapter shall continue and be
completed under the previous Zoning Ordinance in effect at the time
the Board took jurisdiction.
[As amended by Ord. 859, 4/19/2006]
Effective June 21, 2006, the Zoning Hearing Board shall consist
of five residents of the Borough of Stroudsburg appointed by the Borough
Council. The terms of office shall be five years and shall be so fixed
that the term of office of one member shall expire each year. Members
of the Board shall hold no other elected or appointed office in the
Borough. Vacancies shall be filled for the unexpired term of any member
whose place becomes vacant.
Any Board member may be removed for malfeasance, misfeasance
or nonfeasance in office or for other just cause by a majority vote
of the Borough Council, taken after the member has received 15 days'
advance notice of the intent to take such vote. A hearing shall be
held in connection with the vote if the member shall request it in
writing.
1.
Officers. The Board shall elect a Chairman from its membership and
appoint a secretary, who shall serve annual terms as such and may
succeed themselves. The Board shall prescribe rules for the conduct
of its officers. These rules shall be in accordance with this chapter,
and all applicable state statutes.
2.
Quorum. For the conduct of any hearing and the taking of any action,
a quorum shall be not less than a majority of all the members of the
Board, but where two members are disqualified to act in a particular
matter, the remaining member may act for the Board.
3.
Public Hearings. The Zoning Hearing Board shall conduct public hearings
and make decisions in accordance with the following requirements:
A.
Upon receipt by the Zoning Officer of an application for a special
exception, variance, interpretation, appeal from alleged error of
the Zoning Officer, challenge to the validity of the chapter or unified
appeal, the Board shall hold a hearing within 45 days.
B.
Publish a public notice, once each week for two successive weeks,
in a newspaper of general circulation in the Borough. The first publication
of such notice shall be not more than 30 days nor less than 14 days
from the date of the hearing and shall state the time and place of
the hearing and the particular nature of the matter to be considered.
Notice of the hearing shall also be conspicuously posted on the affected
tract of land.
C.
Notify the applicant, the Zoning Officer and adjoining property owners
including those across the street and any other persons or groups
requesting to be so notified.
D.
In any matter which relates to a property which lies within 500 feet
of the boundary of another municipality, the Secretary of the Board
shall transmit to the municipal clerk of this other municipality a
copy of the official notice of the public hearing on such matters,
not later than seven days after publication thereof. The other municipality
shall have the right to appear and to be heard at the public hearing.
E.
All hearings shall be open to the public and shall be held at the
call of the Chairman and at such other times as the Board shall specify
in its rules of procedure. The Chairman, or in his absence, the Acting
Chairman, shall have the power to administer oaths and compel the
attendance of witnesses.
F.
All appeals and applications made to the Board shall be in writing,
and on a form prescribed by the Board.
G.
The Board shall not communicate, directly or indirectly, with any
party or his representative in connection with any issue involved
except upon notice and opportunity for all parties to participate,
shall not take notice of any communication, reports, staff memoranda,
or other materials unless the parties are afforded an opportunity
to contest the material so noticed and shall not inspect the site
or its surroundings after the commencement of hearings with any party
or his representative unless all parties are given the opportunity
to be present.
H.
The Board shall keep a stenographic record of the proceedings: a
transcript of the proceedings and copies of graphic or written material
received in evidence shall be made available to any party at cost.
I.
The Board shall render a written decision or, when no decision is
called for, make written findings on the application within 45 days
after the last hearing before the Board. Each decision shall be accompanied
by findings of fact and conclusions based thereon together with the
reasons therefor. Conclusions based on any provisions of this act
or of any ordinance, rule or regulation shall contain a reference
to the provision relied on and the reasons why the conclusion is deemed
appropriate in the light of the facts found. Where the Board fails
to render the decision within 45 days after the conclusion of the
hearing, or fails to hold the required hearing within 45 days from
the date of the applicant's request for a hearing, the decision shall
be deemed to have been rendered in favor of the applicant unless the
applicant has agreed in writing to an extension of time. When a decision
has been rendered in favor of the applicant because of the failure
of the Board to meet or render a decision as hereinabove provided,
the municipality shall give notice of said decision within 10 days
in the same manner as provided in Subsection 3above.
J.
A copy of the final decision or, where no decision is called for,
of the findings shall be delivered to the applicant personally or
mailed to him not later than the day following its date. To all other
persons who have filed their name and address with the Board not later
than the last day of the hearing, a Board shall provide by mail or
otherwise, brief notice of the decision or findings and a statement
of the place at which the full decision or findings may be examined.
K.
The Board shall keep a record of all proceedings which shall contain
evidence and data relevant to every case considered together with
the votes of the members and the final decisions of each case. Each
decision of the Board shall bear the signature of the Chairman or
Acting Chairman on the original thereof. These proceedings shall become
public record and the Board shall submit a report of its activities
to the Borough Council once a year.
The Zoning Hearing Board shall be authorized to perform five
major functions: 1) hear and act on appeals from the Borough Zoning
Officer; 2) hear and act on requests for special exceptions; 3) hear
and act on requests for variances; 4) hear and act on challenges to
the validity of this chapter; and 5) hear and act upon unified appeals.
1.
Appeal from the Zoning Officer. Upon appeal from a decision by the
Zoning Officer, the Board shall decide any question involving the
interpretation of any provision of this chapter, including determination
of the exact location of any district boundary line if uncertainty
exists with respect thereto; where it is alleged there is an error
in any order, requirement, decision or determination made by the Zoning
Officer in the enforcement of this chapter.
2.
Special Exception. The Board shall have the power to approve special
exceptions for any of the uses for which this chapter requires the
obtaining of such exceptions and for no other use or purpose. In granting
a special exception, the Board shall make findings of fact, consistent
with the provisions of this chapter. The Board shall grant a special
exception only if it finds adequate evidence that the proposed use
meets the special requirements and standards listed for the proposed
use. The Board shall, among other things, require that any proposed
use and location be:
A.
In accordance with the Community Development Objectives and consistent
with the spirit, purposes and intent of this chapter;
B.
In the best interests of the Borough, the convenience of the community,
the public welfare and be an improvement to property in the immediate
vicinity;
C.
Suitable for the property in question, and designed, constructed,
operated and maintained so as to be in harmony with and appropriate
in appearance with the existing or intended character of the general
vicinity;
D.
In conformance with all applicable requirements of this chapter;
E.
Suitable in terms of permitting the logical, efficient and economical
extension of public services and facilities such as public water,
sewers, police and fire protection and public schools;
F.
Suitable in terms of effects on street traffic and safety with adequate
sidewalks and vehicular access arrangements to protect major streets
from undue congestion and hazard. The Zoning Hearing Board may impose
whatever conditions regarding layout, circulation and performance
it deems necessary to insure that any proposed development will substantially
secure the objectives of this chapter.
3.
Variances. Upon appeal from a decision by the Zoning Officer, the
Board shall have the power to vary or adapt the strict application
of any of the requirements of this chapter in the case of exceptionally
irregular, narrow, shallow or steep lots, or other exceptional physical
conditions whereby such strict applications would result in practical
difficulty and unnecessary hardship depriving the owner of the reasonable
use of land or building involved but in no other case. In general,
the power to authorize a variance from the terms of this chapter shall
be sparingly exercised and only under peculiar and exceptional circumstances.
No variance in the strict application of the provisions of this
chapter shall be granted by the Board unless the Board finds that
all the below requirements and standards are satisfied:
A.
That the granting of the variance shall be in harmony with the general
purpose and intent of this chapter, and shall not be injurious to
the neighborhood or otherwise detrimental to the public welfare.
B.
That the granting of the variance will not permit the establishment
within a district of any use which is not permitted in that district.
C.
There must be proof of unique circumstances: there are special circumstances
or conditions, fully described in the findings, applying to the land
or buildings for which the variance is sought, which circumstances
or conditions are peculiar to such land or buildings and do not apply
generally to land or buildings in the neighborhood, and that said
circumstances or conditions are such that the strict application of
the provisions of this chapter would deprive the applicant of the
reasonable use of such land or building.
D.
There must be proof of unnecessary hardship: if the hardship is general,
that is, shared by neighboring property, relief can be properly obtained
by legislative action or by court review of an attack on the validity
of the chapter.
E.
That the granting of the variance is necessary for the reasonable
use of the land or building and that the variance as granted by the
Board is the minimum variance that will accomplish this purpose. It
is not sufficient proof of hardship to show that greater profit would
result if the variance were awarded.
Furthermore, hardship complained of cannot be self-created;
it cannot be claimed by one who purchases with or without knowledge
of restrictions and it must be suffered directly by the property in
question; and evidence of variance granted under similar circumstances
shall not be considered. The Board may prescribe any safeguard that
it deems to be necessary to secure substantially the objectives of
the regulation or provisions to which the variance applies.
4.
Challenges to the Validity of this chapter. The Board shall hear challenges to the validity of this chapter from persons aggrieved by a use or development permitted on the land of another person by this chapter or by any provision of this chapter. In all such challenges, the Board shall take evidence and make a record thereon as provided for in § 27-1304. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
5.
Unified Appeals. When the Board has jurisdiction over zoning matters pursuant to Subsections 1, 3 and 4 above of this section, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any ordinance or requirement pertaining to the same development plan or development. In any such case, the Board shall have no power to pass upon the non-zoning issues, but shall take evidence and make a record thereon as provided in § 27-1304. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
All appeals and applications made to the Board shall be in writing,
on forms prescribed by the Board. Every appeal or application shall
refer to the specific provision of this chapter involved and shall
exactly set forth the interpretation that is claimed, the grounds
for any challenges to the validity of this chapter, the use for which
a special exception is sought, or the details of the variance that
is applied for and the grounds on which it is claimed that the variance
should be granted, as the case may be. Applications and appeals together
with the required filing fee, as established by resolution of the
Borough Council, shall be submitted to the Secretary of the Zoning
Hearing Board.
1.
Parties Appellant Before the Zoning Board. Appeals under § 27-1305, Subsection 1, and proceedings to challenge the chapter under § 27-1305, Subsection 1, may be filed with the Board in writing by any officer or agency of the Borough or any person aggrieved. Requests for a variance under and for special exception may be filed with the Board by any landowner or any tenant with the permission of such landowner.
2.
Time Limitations. No person shall be allowed to file any proceeding
with the Board later than 30 days after any application for development,
preliminary or final, has been approved by the appropriate Borough
officer, agency or body if such proceeding is designed to secure reversal
or to limit the approval in any manner unless such person alleges
and proves that he had no notice, knowledge or reason to believe such
approval had been given. If such person has succeeded to his interest
after such approval, he shall be bound by the knowledge of his predecessor
in interest.
3.
Stay of Proceedings. Upon filing of any proceeding referred to in § 27-1306, Subsection 1, and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or of any agency or body, and all official action thereunder shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies to the Board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order which may be granted by the Board or by the court having jurisdiction of zoning appeals on petition after notice to the Zoning Officer or other appropriate agency or body.
When an application for development, preliminary or final, has
been duly approved and proceedings designed to reverse or limit the
approval are filed with the Board by persons other than the applicant,
the applicant may petition the court having jurisdiction of zoning
appeals to order such persons to post bond as a condition to continuing
the proceedings before the Board. The question whether or not such
petition should be granted and the amount of the bond shall be within
the sound discretion of the court.
4.
Court Appeals. Any person aggrieved by any decision of the Zoning
Hearing Board or any taxpayer or the Borough Council may, within 30
days after such decision of the Board, appeal the Court of Common
Pleas of Monroe County, setting forth that such decision is illegal
in whole or in part, specifying the grounds of the illegality.
