[Ord. 8811-14, 11/18/1988, § 215-34; as amended
by Ord. 924-5, 4/8/1992, § 4; and by Ord. 9711-6, 11/12/1997,
§ 215-34]
1.
Membership of Board. The membership of the Zoning Hearing Board,
hereinafter referred to as the "Board," shall, upon the determination
of Borough Council, consist of either three or five residents of the
Borough, appointed by resolution of Council. The terms of office of
a three-member Board shall be three years, and shall be so fixed that
the term of office of one member shall expire each year. The terms
of office of a five-member Board shall be five years and shall be
so fixed that the term of office of one member shall expire each year.
If a three-member Board shall be changed to a five-member Board, the
members of the existing three-member Board shall continue in office
until their term of office would expire as herein above provided.
Council shall appoint the two additional members to the five-member
Board with terms scheduled to expire promptly notify Council of any
vacancies which shall occur. Appointments to fill vacancies shall
be only for the unexpired portion of the term. Members of the Board
shall hold no other office in the Borough. At its discretion, the
Council may appoint by resolution at least one, but not more than
three, residents of the Borough to serve as alternate members of the
Board, pursuant to the provisions of Subsection (b) of § 903
of the Municipalities Planning Code, as added by the Act of 1988,
P.L. 1329, No. 170, 53 P.S. § 10903(b).
2.
Organization of Board.
A.
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 may waive further action by the Board as provided in § 908 of the Municipalities Planning Code and § 27-502 of this chapter.
B.
If, by reason of absence or disqualification of a member, a quorum
is not reached, the Chairman of the Board shall designate as many
alternate members of the Board to sit on the Board as may be needed
to provide a quorum. Any alternate member of the Board shall continue
to serve on the Board in all proceedings involving the matter or case
for which the alternate was initially appointed until the Board has
made a final determination of the matter or case. Designation of an
alternate pursuant to this paragraph shall be made on a case-by-case
basis in rotation according to declining seniority among all alternates.
C.
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 Council as requested by Council.
3.
Powers. The powers of the Zoning Hearing Board shall include the
following:
A.
Special Exceptions. To hear and decide special exceptions upon which the Board is required to pass under the Municipalities Planning Code, 53 P.S. § 10101 et seq., and § 27-504 of this chapter.
B.
Variances. To authorize, upon application, in specific cases, variances from the terms of this chapter, under the provisions of the Municipalities Planning Code, 53 P.S. § 10101 et seq., and § 27-503 of this chapter.
C.
Appeals. To hear and decide appeals where it is alleged that there
is error in any order, requirement, decision, or determination made
by the Zoning Officer in the enforcement or interpretation of this
chapter.
D.
Challenges to the Validity of the Ordinance or Map. The Board shall hear challenges to the validity of any land use ordinance of the Borough, including this chapter, which include: (1) substantive challenges except for those brought before Borough Council pursuant to §§ 609.1 and 916.1(a, b) of the Municipalities Planning Code, 53 P.S. §§ 10609.1, 10916.1(a, b); and (2) challenges raising procedural questions or alleged defects in the process of enactment of adoption, which challenges shall be raised by an appeal taken within 30 days after the effective date of that ordinance. In all challenges, the Board shall take evidence and make a record as provided in § 27-502 of this chapter. 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.
E.
Unified Appeals. Where the Board has jurisdiction over a zoning matter, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any Borough 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 nonzoning issues, but shall take evidence and make a record thereon as provided in § 27-502. 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.
F.
In exercising the powers referred to in this subsection, the Board,
in conformity with the provisions of this chapter, may reverse, affirm,
or modify the order, requirement, decision, or determination appealed
from or requested, and may make any order, requirement, decision,
or determination as ought to be made.
4.
Board Calendar. Each application or appeal filed in the proper form
with the required data must be numbered serially and be placed upon
the calendar of the Board by the Zoning Officer. Applications and
appeals must be assigned for hearing in the order in which they appear
on the calendar. However, for good reason, the Board may order the
advance of the application or appeal. The Board must fix a reasonable
time for hearings.
[Ord. 8811-14, 11/18/1988, § 215-35; as amended
by Ord. 924-5, 4/8/1992, § 5]
1.
Notices.
A.
The Zoning Hearing Board shall give public notice, as defined in § 27-203 of this chapter, of every hearing on an application or appeal and shall also give written notice of that hearing and posted notice as required in this subsection. In all instances, the notice shall state the nature of the request for the hearing, the location of the property and the time and place set for the hearing. In addition to the public notice, the following are required:
(1)
Notice by ordinary first-class mail to the applicant, the Borough
planning agency, and to any person or persons who have made timely
request to be notified.
(2)
Notice by mail to the owner of each property located within
200 feet of the exterior limits of the property involved. Provided,
however, the failure to give notice in this manner shall not invalidate
any action by the Board on the action or appeal.
(3)
Posting a notice (a) in the Borough offices; and (b) in a conspicuous
location on the property involved.
B.
Council may establish reasonable fees, based on cost of notice, to
be paid by the applicant and by persons requesting any notice to them
not required by this chapter.
2.
Conduct of Hearings.
A.
Every hearing shall be held within 60 days from the date of the applicant
request, unless the applicant has agreed in writing to an extension
of time.
B.
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 appellant
or the applicant, as the case may be, in addition to the Borough,
may, prior to the decision of the hearing, waive decision or findings
by the Board and accept the decision of the hearing officer as final.
C.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
D.
The Board or the hearing officer shall not communicate, directly
or indirectly, with any party or his representatives 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, except advice from their
solicitors, 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 an opportunity to be present.
3.
Representation; Statements.
A.
Parties to the hearings shall be the Borough, any person affected
by the application who has made timely appearance of record before
the Board and any other person including civic or community organizations
permitted to appear by the Board. The Board shall have the power to
require that all persons who wish to be considered parties to enter
appearances in writing on forms provided by the Board for that purpose.
B.
The parties shall have the right to be represented by counsel and
shall be afforded the opportunity to respond and present evidence
and argument and cross-examine adverse witnesses on all relevant issues.
D.
The applicant or appellant must be given an opportunity for rebuttal.
4.
Witnesses. The Chairman or acting chairman of the Board or the hearing
officer presiding shall have 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.
5.
Decision Procedure.
A.
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 after the last hearing before the Board or hearing officer. Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Conclusions based on any provision of the Pennsylvania 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 of findings is final, the Board shall make his report and recommendations available to the parties within 45 days and the parties shall be entitled to make written representations thereon to the Board prior to the final decision or entry of findings, and the Board's decision shall be entered no later than 30 days after the report of the hearing officer. Where the Board fails to render the decision within the period required by this subsection, or fails to hold the required hearing within 60 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 or on the record 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 Board shall give public notice of said decision within 10 days from the last day it could have met to render a decision in the same manner as provided in Subsection 1 of this section. If the Board fails to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
B.
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 no 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 or findings and a statement
of the place at which the full decision or findings may be examined.
C.
Whenever the Board imposes a condition or conditions with respect
to the granting of an application or appeal, this condition must be
stated in the order of the Board and in the permit issued pursuant
to the order by the Zoning Officer. This permit remains valid only
as long as the condition or conditions upon which it was granted or
the conditions imposed by this chapter are adhered to.
6.
Records.
A.
The Board or the hearing officer, as the case may be, shall keep
a stenographic record of the proceedings. The appearance fee for a
stenographer shall be shared equally by the applicant and the Board.
The cost of the original transcript shall be paid by the Board if
the transcript is ordered by the Board of the hearing officer, or
shall be paid by the person appealing from the decision of the Board
if such appeal is made, and in either event the cost of additional
copies shall be paid by the person requesting such copy or copies.
In other cases the party requesting the original transcript shall
bear the cost thereof.
B.
A verbatim record of the hearing shall be taken when:
(1)
By written letter to the Secretary of the Zoning Hearing Board
in advance of a public hearing, a person requests that a verbatim
record of all testimony be taken. He must agree to pay all costs involved.
(2)
A person requests to have such testimony taken at a hearing
at his own expense.
(3)
The legality of this chapter is in issue. If this chapter is
subsequently legal, the appellant pays the cost of the recording.
(4)
The Board, on its own motion, requests verbatim record of testimony
be taken at a hearing.
C.
The Board must provide for the taking of a verbatim records of testimony
by electronic or other means and by rules drawn to protect the integrity
of these records. However, the Board may adopt, as the official record,
a verbatim record of testimony made by a court reporter or other verbatim
reporter considered qualified by the Board. Where the Board has made
a verbatim record of testimony at a public hearing, it must provide
copies at cost to any person who requests the record within 48 hours
after the hearing.
D.
Any costs assessed under the authority of this section are in addition
to the fees for application or appeal. The Board must keep all materials
and decision relating to each case as part of its record. These records,
however, are open to public inspection.
[Ord. 8811-14, 11/18/1988, § 215-36; as amended
by Ord. 924-5, 4/8/1992, § 6]
1.
Filing of Variance.
A.
An application may be made to the Zoning Hearing Board for a variance
where it is alleged that the provisions of this chapter inflict unnecessary
hardship upon the applicant. The application must be on a form provided
for that purpose by the Zoning Officer. It must be filed with the
Board and copies given to the Zoning Officer and Borough Planning
Commission. The applicant must provide all the information and data
that may be required to advise the Board of the variance, whether
such information is called for by the official form or not.
B.
Unless otherwise specified or extended by the Board, a variance authorized
by it expires if the applicant fails to obtain a zoning permit or
use certificate within six months from the date of authorization of
the variance.
2.
Referral to Planning Commission. All applications for a variance
shall be referred to the Planning Commission for a report.
3.
Standards for Variance. Where it is alleged that the provisions of
this chapter inflict unnecessary hardship upon the applicant, the
Board may grant a variance, provided that all of the following findings
are made where relevant in a given case:
A.
That 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, 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 zone
in which the property is located.
B.
That 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.
C.
That such unnecessary hardship has not been created by the appellant.
D.
That the variance, if authorized, will not alter the essential character
of the neighborhood or zone in which the property is located, nor
substantially or permanently impair the appropriate use or development
of adjacent property, nor be detrimental to the public welfare.
E.
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.
4.
Conditions. In granting any variance, the Board may attach such conditions
and safeguards as it may deem necessary to implement the purposes
of the Municipalities Planning Code, 53 P.S. § 10101 et
seq., and this chapter.
[Ord. 8811-14, 11/18/1988, § 215-37]
1.
Filing of Special Exceptions.
A.
For any use permitted by special exception, a special exception must
be obtained from the Zoning Hearing Board. In addition to the information
required on the zoning permit application, the special exception application
must show:
B.
Unless otherwise specified or extended by the Zoning Hearing Board,
a special exception authorized by the Board expires if the applicant
fails to obtain, where required to do so, a zoning permit or use certificate
within six months of the date of the authorization of the special
exception.
[Amended by Ord. 2017-01-01, 1/9/2017]
2.
Temporary Special Exceptions.
A.
A temporary special exception must be obtained from the Zoning Hearing
Board for any nonconformity which is or will be seasonal or is or
will be in the public interest. The Zoning Hearing Board may grant
a temporary special exception for a nonconforming use or structure,
existing or new, which:
B.
The temporary special exception may be issued for a period not exceeding
one year and may be renewed for an aggregate period not exceeding
three years. The nonconforming structure or use must be completely
removed upon the expiration of the special exception without cost
to the Borough.
3.
Referral to Planning Commission. All applications for a special exception
must be referred to the Borough Planning Commission.
4.
Conditions. The Zoning Hearing Board, in passing upon special exception
applications, may attach conditions considered necessary to protect
the public welfare and the Comprehensive Plan, including conditions
which are more restrictive than those established for other uses in
the same zone.
5.
Application of Extent-of-Use Regulations. The extent-of-use regulations
as set forth in this chapter must be followed by the Zoning Hearing
Board. Where no extent-of-use regulations are set forth for the particular
use, the Board must impose extent-of-use requirements as necessary
to protect the public welfare and the Comprehensive Plan.
6.
General Standards. A special exception may be granted when the Zoning
Hearing Board finds, from a preponderance of the evidence produced
at a hearing, that:
A.
The proposed use, including its nature, intensity, and location,
is in harmony with the orderly and appropriate development of the
zone.
B.
That adequate water supply, sewage disposal, storm drainage and fire
and police protection are or can be provided for the use.
C.
That the use of adjacent land and buildings will not be discouraged
and the value of adjacent land and buildings will not be impaired
by the location, nature, and height of buildings, walls, and fences.
D.
That the use will have proper location with respect to existing or
future streets giving access to it and will not create traffic congestion
or cause industrial or commercial traffic to use residential streets.
E.
That the specific standards set forth for each particular use for
which a special exception may be granted have been met. The applicant
for a special exception shall have the burden of proof, which shall
include the burden of going forward with the evidence and the burden
of persuasion on all questions of fact which are to be determined
by the Zoning Hearing Board.
