[Ord. 315, 9/11/1974, § 501]
The Board shall hold meetings, keep minutes, conduct hearings pursuant to notice, compel the attendance of witnesses, take testimony under oath, and render decisions in writing after the hearing or continued hearings, all as required by law.
[Ord. 315, 9/11/1974, § 502]
The Board is hereby created and is hereby designated as the Zoning Hearing Board, as provided by Article IX of the Municipalities Planning Code, 53 P.S. § 10901 et seq., the basic authority for the entire chapter.
[Ord. 315, 9/11/1974, §§ 503, 504; as amended by Ord. 472, 12/13/2000; and by A.O.]
There is hereby created for the Borough a Zoning Hearing Board in accordance with the provisions of Article IX of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10901 et seq.
The membership of the Board shall consist of five residents of the Borough appointed by resolution 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. The Board shall promptly notify the Borough Council of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion. Members of the Board shall hold no other office in the Borough.
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 which appointed the member, taken after the member has received 15 days' advance notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member shall request it in writing.
The Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves. 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 the Board may appoint a hearing officer from its own membership to conduct any hearing on its behalf and the parties may waive further action by the Board as provided in this chapter.
The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the Borough and laws of the commonwealth. The Board shall keep full public records of its business, which records shall be the property of the Borough and shall submit a report of its activities to the Borough Council as requested by the Borough Council.
Within the limits of funds appropriated by the Borough Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. Members of the Board may receive compensation for the performance of their duties, as may be fixed by the Borough Council, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Borough Council.
[Ord. 315, 9/11/1974, § 505]
The Board shall keep full public records of its business and shall submit a report of its activities to the Council once a year.
[Ord. 315, 9/11/1974, § 507; as amended by A.O.]
The Board shall conduct hearings after required fees shall first be paid, which shall also enable a landowner to be considered an applicant before the Board. The Board shall make decisions in accordance with the following requirements:
Hearing Officer. The hearings shall be conducted by the Board or the Board may appoint any member as a Hearing Officer. The decision or, where no decision is called for, the findings shall be made by the Board, but the parties may waive decisions or findings by the Board accepting those of the Hearing Officer as final.
Notice. Notice of such hearings shall be published twice in a newspaper of general circulation in the Borough. Notices shall be given at least 14 days but not more than 30 days in advance of a public hearing in such manner as prescribed by this chapter or by subsequent rules established by the Board. Applicants, the Council Members, the Zoning Officer and the Zoning Hearing Board members shall be notified by mail for each meeting. Any person who, in writing, has requested notice of a particular meeting 15 to 30 days in advance of such meeting shall be notified by mail for such meeting. See the end of this part for a sample notice.
Participants. The parties to the hearing shall be:
Oaths. The Chairman or acting Chairman of the Board or the Hearing Officer presiding shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.
Legal Council. The parties shall have the right to be represented by legal counsel and shall be afforded the opportunity to respond and present evidence and argument, and cross-examine witnesses on all relevant issues. Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.
Records. The Board or the Hearing Officer, as the case may be, shall keep a record of the proceedings, either stenographically or by sound recordings, for three months. A transcript of the proceedings and copies of graphic or written material received in evidence shall be made available to any party at the cost stated in Subsection 1J.
Mandatory Review by the Commission.
The Commission shall be notified of each request for a special exception, in writing, by the Zoning Officer, and shall be afforded opportunity to review and recommend upon each request, prior to final decision by the Board, provided such recommendation is forthcoming not more than 30 days after notification is received from the Zoning Officer. Site plans shall show, as proposed, the location of main and accessory structures on the site and in relation to one another; traffic circulation features within the site; the location of vehicular access onto the site; the height and bulk of structures; the provision of automobile parking space; the provision of other open space on the site; the landscaping, paving, and the display of signs on the site.
In reviewing site plans, the Commission may act on site plans submitted to it or may act on its own initiative in proposing and recommending a site plan.
In considering any site plan hereunder, the Commission shall endeavor to assure the safety and convenience of traffic movement (pedestrian and vehicular), both within the site covered and in relation to access streets, and the harmonious and beneficial relationship of structures and uses on the site as well as to those on contiguous properties. To this end, the Commission may suggest control of vehicular access.
In appropriate cases, the Commission shall also have the right to suggest adequate pedestrian walks within the site. See Amendment Procedure, Section 690.
Communications. The Board or the Hearing Officer shall not communicate directly or indirectly with any party or his representatives in connection with any issue involved in a hearing, 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 with any party or his representatives unless all parties are given an opportunity to be present.
Decisions. The Board or the Hearing Officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within 45 days. Each decision shall be accompanied by findings of fact and based thereon together with the reasons therefor. A conclusion based on any provisions of the Municipalities Planning Code, 53 P.S. § 10101 et seq., 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. If the hearing is conducted by a Hearing Officer, and there has been no stipulation that his decision or findings are final, the Board shall make his report and recommendations available to the parties, and the parties shall be entitled to make written recommendations thereon to the Board prior to final decision, or entry of findings. Where the Board has power to render a decision, and the Board or the Hearing Officer, as the case may be, fails to render the same within the period required by this paragraph, the decision shall be deemed to have been rendered in favor of the applicant.
Notice of Decisions. A copy of the final decision or the findings, where no decision is called for, 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, the Board shall provide by mail or otherwise, brief notice of the decision of findings and a statement of the place at which the full decision or findings may be examined. The Board shall charge applicants a fee in an amount as established, from time to time, by resolution of Borough Council, per page for the furnishing of a complete transcript via the stenographic or sound recording. A copy of the minutes, paraphrasing the activities of the public hearing, will be made available for copying, free to anyone who requests it.
[Ord. 315, 9/11/1974, § 508]
The Board shall hear and decide appeals from an order, requirement, decision, grant or refusal made by the Zoning Officer in the administration of this chapter, where it is alleged by the appellant that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of a valid ordinance or map or any valid rule or regulation governing the action of the Zoning Officer.
Right of Appeal. Nothing contained herein shall be construed to deny to the appellant the right to proceed directly in court, where appropriate, pursuant to PA R.C.P. 1091-1098, relating to mandamus.
Courts Having Jurisdiction. As used in this part, "court" means the Common Pleas Court of Westmoreland County with respect to zoning appeals.
Who May Appeal. Zoning appeals may be taken to court by any party before the Board, or any officer or agency of the Borough.
[Ord. 315, 9/11/1974, § 509]
Except as provided in the following section relating to variances, the Board shall have no power to pass upon the validity of any provision of an ordinance or map adopted by the Borough Council. Recognizing that challenges to the validity of Council, an ordinance or map may present issues of fact and interpretation which may lie within the special competence of the Board, and to facilitate the rapid disposition of such challenges by a court, the Board may hear all challenges wherein the validity of the ordinance or may presents any issue of fact or of interpretation, not hitherto properly determined at a hearing before another competent agency or body, and shall take evidence and make a record thereon as provided in the previous section on hearings. At the conclusion of the hearing, the Board shall decide all contested questions of interpretation and shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
[Ord. 315, 9/11/1974, § 510]
Challenges to the validity of the Land Development Ordinance [Chapter 22] adopted pursuant to Article V of the Municipalities Planning Code, 53 P.S. § 10501 et seq., and appeals from any action of the Zoning Officer thereunder shall be governed by §§ 27-506 and 27-507. But when the Commission or the Council have held a hearing upon an application for development under the Land Development Ordinance [Chapter 22], such hearing shall be deemed in lieu of a hearing by the Board provided for under § 27-507 and appeal from any decision or determination of the Commission or Council (including challenge to the validity of any provision of such ordinance) shall lie directly to court as provided in provisions of the Municipalities Planning Code, 53 P.S. §§ 10512, 10712, 11001.
[Ord. 315, 9/11/1974, § 511]
The Board, upon appeal, shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. Subject to the provisions of parties appellant before the Board, § 27-511, the Board may, by rule, prescribe the written form of application and may require preliminary applications to the Zoning Officer. The Board shall have the power to attach such conditions to the variances as it deems necessary to assume compliance with the purposes of this chapter. The Board may grant a variance provided the following findings are made where relevant in a given case:
There are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property (see § 27-311, "Problem Development Land"), and that the unnecessary hardship is due to such conditions, and not the circumstances or conditions generally created by the provisions of this chapter in the neighborhood or zoning district in which the property is located.
Because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this chapter and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.
Such unnecessary hardship has not been created by the applicant.
The variance, if authorized, will not alter the essential character of the neighborhood or zoning district in which the property is located, not substantially or permanently impair the appropriate use or development of adjacent properties, nor be detrimental to the public welfare.
That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
[Ord. 315, 9/11/1974, § 512]
Where the Borough Council, in this chapter, has stated special exceptions to be granted or denied by the Board, pursuant to express standards and criteria stated in Parts 2, 3 and 4, the Board shall hear and decide upon written requests for such special exceptions in accordance with such standards and criteria. In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter as it may deem necessary to implement the purposes of this chapter and the Municipalities Planning Code, 53 P.S. § 10101 et seq. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is granted, shall be deemed a violation of this chapter and punishable under the provisions of enforcement penalties, in § 27-407 of this chapter.
The special exception shall be in accordance with the standards specified for such classes of special exceptions as stated in Part 2.
The special exception shall not involve any element or cause any condition that may be dangerous, injurious or noxious, to any other property or persons, and shall comply with performance standards in Part 3.
The special exception shall be sited, oriented and landscaped to produce a harmonious relationship of buildings and grounds to adjacent buildings and properties.
The special exception shall produce a total visual impression and environment which is consistent with the environment of the neighborhood.
The special exception shall organize vehicular access and parking to minimize traffic congestion in the neighborhood.
The special exception shall preserve the spirit, intent and purpose of this chapter.
A public hearing shall be held prior to the Board deciding each request for a special exception, as provided in § 27-510.
The Board shall not approve a special exception unless and until:
If the Board determines that the application for a special exception meets all the requirements of this chapter, the Board shall direct the Zoning Officer to issue a zoning certificate and thereafter shall instruct the applicant to apply where applicable for the Borough building permit for such special exception.
[Ord. 315, 9/11/1974, § 513; as amended by Ord. 363, 6/2/1982; and by Ord. 519, 4/21/2010, § V]
Appeals under Board Functions; Appeals, § 27-506, and proceedings to challenge an ordinance under Board Functions; Challenges, § 27-507, may be filed with the Board in writing, by any officer or agency of the Borough or any person aggrieved.
A landowner desiring to challenge the validity of this chapter or any amendment thereof shall be subject to the requirements of the Municipalities Planning Code, Article VIII, 53 P.S. § 10801.
Fees. A fee shall be paid to the Borough for all applications made to the Board for any matters coming before the Board under this chapter. The fee shall be in accordance with a schedule of fees established by resolution by the Borough Council. The fee is payable to the Borough at the time of application and shall accompany each application to the Board.
[Ord. 315, 9/11/1974, § 514]
The time limitations for raising certain issues and filing certain proceedings with the Board shall be the following:
Time Limitations Upon Enactment or Amendment. No issue of alleged defect in the process of enactment of this chapter or of any amendment thereto shall be raised in any proceeding filed with the Board later than 30 days from the time each ordinance, map or amendment takes effect unless the person raising such issue alleges and proves that he failed to receive adequate notice of the enactment or amendment. If such person has succeeded to his interest after the enactment of this chapter, adequate notice to his predecessor in interest shall be deemed adequate notice to him.
Time Limitations Upon Appeal. All zoning appeals shall be filed not later than 30 days after issuance of notice of the decisions or report of the Board.
Time Limitations, Upon Appeal for Reversal. 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 an appropriate Borough officer, agency or body if such proceedings are designed to secure reversal or to limit the approval in any manner unless such person alleges and proves that he failed to receive adequate notice of such approval. If such person has succeeded to his interest after such approval, adequate notice to his predecessor in interest shall be deemed adequate notice to him.
[Ord. 315, 9/11/1974, § 515]
Upon filing of any proceeding referred to in § 27-511 and during its pendency before the Board all land development, pursuant to any challenged ordinance, order or approval of the Zoning Officer or any appropriate 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 application for development, preliminary or final, has been duly approved and proceedings designated 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.
[Ord. 315, 9/11/1974, § 516]
Meetings of the Board shall be held once a month or at such other times as the Board may determine. All meetings other than executive sessions shall be open to the public. Quarters for the Board (office space with light and heat, necessary supplies, clerical and other services as required) shall be provided by the Borough Council. The Board shall appoint a Secretary who shall keep its records. The Board shall adopt its own rules of procedure and keep minutes of its proceedings. The vote of each member upon each question shall be shown in the minutes; if a member is absent or fails to vote, such fact shall also be so indicated. The Board shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record.