[Ord. No. 2007-219, 7/19/2007]
1. There is hereby created for the Borough of New Stanton a Zoning Hearing
Board in accordance with the provisions of Article IX of the Pennsylvania
Municipalities Planning Code, 53 P.S. § 10901 et seq.
A. The membership of the Board shall consist of three residents of the
Borough appointed by resolution by the Borough Council. The terms
of office shall be for three 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
of the term. Members of the Board shall hold no other office in the
Borough.
B. The Borough Council may appoint by resolution at least one but no
more than three residents of the Borough to serve as alternate members
of the Board. The term of office of an alternate member shall be three
years, when seated by reason of absence or disqualification of a member;
an alternate shall be entitled to participate in all proceedings and
discussions of the Board to the same and full extent as provided by
law for Board members, including specifically the right to cast a
vote as a voting member during the proceedings, and shall have all
the powers and duties set forth in the Pennsylvania Municipalities
Planning Code, Act 247, as amended, and as otherwise provided by law.
Alternates shall hold no other office in the Borough, including members
on the Planning Commission and Zoning and Codes Officer. Any alternate
may participate in any proceeding or discussion of the Board but shall
not be entitled to vote as a member of the Board nor be compensated
unless designated as a voting alternate member.
[Ord. No. 2007-219, 7/19/2007]
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.
[Ord. 85-119, 8/22/1985, §§ 5.1 to 5.4(a); as amended by Ord. 97-173, 2/6/1997; and by Ord. No. 2007-219, 7/19/2007]
1. 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 Part.
2. 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 shall be made on a case-by-case basis in rotation according
to declining seniority among all alternates.
3. 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.
4. 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. 85-119, 8/22/1985, §§ 5.5 to 5.15; as amended by Ord. 97-173, 2/6/1997; and by Ord. No. 2007-219, 7/19/2007]
1. The Zoning Hearing Board shall conduct hearings and make decisions
in accordance with the following requirements:
A. Public notice shall be given and written notice shall be given to
the applicant, the Zoning and Codes Officer and to any person who
has made timely request for the same. Written notices shall be given
at such time and in such manner as shall be prescribed by rules of
the Board. In addition to the written notice provided herein, written
notice of said hearing shall be conspicuously posted on the affected
tract of land at least one week prior to the hearing.
B. In addition to the requirement that notice be posted, where the proposed
amendment involves a Zoning Map change, notice of the public hearing
shall be mailed by the Borough at least 30 days prior to the date
of the hearing by first class mail to the addressees to which real
estate tax bills are sent for all real property located within the
area being rezoned, as evidenced by tax records within the procession
of the Borough. The notice shall include the location, date and time
of the public hearing. A good-faith effort and substantial compliance
shall satisfy the requirements of this subsection. When the rezoning
constitutes a comprehensive rezoning, this notification requirement
shall not apply.
C. The first hearing shall be commenced within 60 days from the date
of the receipt applicant's application, unless the applicant has agreed,
in writing, to an extension of time. Each subsequent hearing shall
be held within 45 days of the prior hearing, unless otherwise agreed
to by the applicant, in writing or on the record. The hearing shall
be completed no later than 100 days after the completion of the applicant's
case in chief, unless extended for good cause upon application to
the Court of Common Pleas.
D. The hearings shall be conducted by the Board, or the Board may appoint
any member or an independent attorney as a hearing officer. The decision
or, where no decision is called for, the findings shall be made by
the Board; however, 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
or findings of the hearing officer as final.
E. The parties to the hearing 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 power to require
that all persons who wish to be considered parties enter appearances,
in writing, on forms provided by the Board for that purpose.
F. 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.
G. 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.
Applicants are entitled to at least seven hours of hearings within
the allotted 100 days and may be granted additional hearings to complete
their case. Persons opposing the applicant may also be granted additional
time to complete their opposition.
H. Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
I. 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 or 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.
J. 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
solicitor, 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.
K. 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 provisions of this chapter or of any law, 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 within 45 days and the parties shall be entitled to make written representations thereon to the Board prior to 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 commence or complete the required hearing as provided in this section, 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 the 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
1A of this section. If the Board shall fail 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.
L. 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/her 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 or findings and
a statement of the place at which the full decision or findings may
be examined.
M. The Borough Council shall establish, by resolution, fees with respect
to hearings before the Zoning Hearing Board.
[Ord. No. 2007-219, 7/19/2007]
1. Parties to proceedings authorized in Article IX of the Pennsylvania
Municipalities Planning Code, Act 247, as amended, may utilize mediation as an aid in completing
such proceedings. In proceedings before the Zoning Hearing Board,
in no case shall the Zoning Hearing Board initiate mediation or participate
as a mediating party. Mediation shall supplement, not replace, those
procedures in Article IX of the Pennsylvania Municipalities Planning
Code once they have been formally initiated. Nothing in this section
shall be interpreted as expanding or limiting municipal police powers
or as modifying any principles of substantive law.
2. Participation in Mediation Shall be Wholly Voluntary. The appropriateness
of mediation shall be determined by the particulars of each case and
the willingness of the parties to negotiate. Terms and conditions
for mediation shall include the following:
B. Selecting a mediator who, at a minimum, shall have a working knowledge
of municipal zoning and subdivision procedures and demonstrated skills
in mediation.
C. Completing mediation, including time limits for such completion.
D. Suspending time limits otherwise authorized in the Pennsylvania Municipalities
Planning Code, Act 247, as amended, provided there is written consent by the mediating
parties, and by an applicant or the Borough Council if either is not
a party to the mediation.
E. Identifying all parties and affording them the opportunity to participate.
F. Subject to legal restraints, determining whether some or all of the
mediation sessions shall be open or closed to the public.
G. Assuring that mediated solutions are in writing and signed by the
parties, and become subject to review and approval by Borough Council
pursuant to the authorized procedures set forth in the other sections
of the Pennsylvania Municipalities Planning Code, Act 247, as amended.
3. No offers or statements made in the mediation sessions, excluding
the final written mediated agreement, shall be admissible as evidence
in any subsequent judicial or administrative proceedings.
[Ord. 85-119, 8/22/1985, § 5.16; as amended by Ord. 97-173, 2/6/1997; and by Ord.
No. 2007-219, 7/19/2007]
1. The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
A. Substantive challenges to the validity of any land use ordinance,
except those brought before the Borough Council pursuant to Sections
609.1 and 916.1(a)(2) of the Pennsylvania Municipalities Planning
Code (hereinafter "MPC"), 53 P.S. §§ 10609.1 and 10916.1.
B. Challenges to the validity of a land use ordinance raising procedural
questions or alleged defects in the process of enactment or adoption
which challenges shall be raised by an appeal taken within 30 days
after the effective date of said ordinance. Where the ordinance appealed
from is the initial zoning ordinance of the Borough and a zoning hearing
board has not been previously established, the appeal raising procedural
questions shall be taken directly to court.
C. Appeals from the determination of the Zoning and Codes Officer, including,
but not limited to, the granting or denial of any permit, or failure
to act on the application therefor, the issuance of any cease and
desist order or the registration or refusal to register any nonconforming
use, structure or lot.
D. Appeals from a determination by the Borough Engineer or the Zoning
and Codes Officer with reference to the administration of any floodplain
or flood hazard ordinance or such provisions within a land use ordinance.
E. Applications for variances from the terms of this chapter and flood
hazard ordinance or such provisions within a land use ordinance, pursuant
to Section 910.2 of the MPC, 53 P.S. § 10910.2.
F. Applications for special exceptions under this chapter or floodplain
or flood hazard ordinance or such provisions within a land use ordinance,
pursuant to Section 912.1 of the MPC, 53 P.S. § 10912.1.
G. Appeals from the determination of any officer or agency charged with
the administration of any transfers of development rights or performance
density provisions of this chapter.
H. Appeals from the Zoning Officer's determination under Section 916.2
of the MPC, 53 P.S. § 10916.2.
I. Appeals from the determination of the Zoning and Codes Officer or
Borough Engineer in the administration of any land use ordinance or
provision thereof with reference to sedimentation and erosion control
and stormwater management insofar as the same relate to development
not involving applications under Article V or VII of the MPC, 53 P.S.
§§ 10501 et seq. and 10701 et seq.
2. The Borough Council shall have exclusive jurisdiction to hear and
render final adjudications in the following matters:
A. All applications for approvals of planned residential developments
under Article VII of the MPC pursuant to the provisions of Section
702 of the MPC, 53 P.S. § 10702.
B. All applications pursuant to Section 508 of the MPC, 53 P.S. § 10508,
for approval of subdivisions or land developments under Article V
of the MPC, 53 P.S. § 10501 et seq.
C. Applications for conditional use under the express provisions of
this chapter.
D. Applications for curative amendment to this chapter or pursuant to
Sections 609.1 and 916.1(a) of the MPC, 53 P.S. §§ 10609.1
and 10916.1(a).
E. All petitions for amendments to land use ordinances, pursuant to
the procedures set forth in Section 609 of the MPC, 53 P.S. § 10609.
F. Appeals from the determination of the Zoning and Codes Officer or
the Borough Engineer in the administration of any land use ordinance
or provisions thereof with reference to sedimentation and erosion
control and stormwater management insofar as the same relate to applications
for land development under Articles V and VII of the MPC, 53 P.S.
§§ 10501 et seq., 10701 et seq. Where such determination
relates only to development not involving an Article V or VII application,
the appeal from such determination of the Zoning and Codes Officer
or the Borough Engineer shall be to the Zoning Hearing Board pursuant
to this section. Where the applicable land use ordinance vests jurisdiction
for final administration of subdivision and land development applications
in the Planning Commission, all appeals from determinations under
this subsection shall be to the Planning Commission and all appeals
from the decision of the Planning Commission shall be to court.
[Ord. 85-119, 8/22/1985, § 5.17; as amended by Ord. 97-173, 2/6/1997; and by Ord.
No. 2007-219, 7/19/2007]
1. The Zoning Hearing Board shall hear requests for variances where
it is alleged that the provisions of this chapter inflict unnecessary
hardship upon the applicant. The Board may by rule prescribe the form
of application and may require preliminary application to the Zoning
and Codes Officer. 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 district
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 applicant.
D. That the variance, if authorized, will not alter the essential character
of the neighborhood or district 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.
2. In granting any variance, the Board may attach such reasonable conditions
and safeguards as it may deem necessary to implement the purposes
of this chapter and the Pennsylvania Municipalities Planning Code,
53 P.S. § 10101 et seq.
[Ord. No. 2007-219, 7/19/2007]
1. The following provisions shall apply to all nonconforming uses:
A. "Nonconforming use" means a use, whether of land or a structure,
which does not comply with the applicable use provisions in a zoning
ordinance or amendment heretofore or hereafter enacted, when such
use was lawfully in existence prior to the enactment of such ordinance
or amendment, or prior to the application of such ordinance or amendment
to its location by reason of annexation.
B. "Nonconforming structure" means a structure or part of a structure
manifestly not designed to comply with the applicable provisions in
a zoning ordinance or amendment heretofore or hereafter enacted, where
such structure lawfully existed prior to the enactment of such ordinance
or amendment or prior to the application of such ordinance or amendment
to its location by reason of annexation. Such nonconforming structures
include, but are not limited to, nonconforming signs.
C. Any nonconforming structure damaged to an extent of not more than
50% of its reproduction value by fire, flood, explosion or other casualty
may be reconstructed and used as before if such reconstruction is
commenced within 12 months of such casualty and if the restored structure
covers no greater area and contains no greater cubic content than
before such casualty. If so damaged to a greater extent, any new structure
and its use shall conform to all requirements of this chapter, except
that if a single-family residence located in any district is damaged
or destroyed, it may be reconstructed if such construction is commenced
within 12 months of such casualty.
D. In the event that any nonconforming use ceases for a period of one
year, such nonconforming use shall not be resumed, unless the property
owner can demonstrate to the satisfaction of the Zoning and Codes
Officer that the use was not intentionally abandoned.
E. Nonconforming uses and nonconforming structures may be registered
by the Zoning and Codes Officer, who shall also identify all such
nonconforming lots or parcels.
F. A nonconforming use which occupies a portion of a structure or premises
may be extended within such structure or premises as they existed
when the prohibitory provision took effect, but not in violation of
the area and yard requirements of the district in which such structures
or premises are located. No change of a nonconforming use shall entail
structural alterations or any additions other than those required
by law for the purpose of safety and health. Where the applicant demonstrates
that an expansion of a nonresidential use is a logical consequence
of increased commerce, the structure accommodating said use may be
increased by a maximum of 30% where the minimum yard requirements
can be met.
[Ord. 85-119, 8/22/1985, § 5.18; as amended by Ord. 97-173, 2/6/1997; and by Ord.
No. 2007-219, 7/19/2007]
Where the Borough Council, in this chapter, has stated special exceptions to be granted or denied by the Zoning Hearing Board pursuant to express standards and criteria, the Board shall hear and decide requests for such special exceptions in accordance with such standards and criteria as per the provisions of Part
6. 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 Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq.
[Ord. 85-119, 8/22/1985, § 5.19; as amended by Ord. No.
2007-219, 7/19/2007]
The Board shall hear challenges to the validity of this chapter
or map except as indicated in Section 1003 and Subsection (1b) of
Section 1004 of the Pennsylvania Municipalities Planning Code. In all such challenges, the Board shall take evidence
and make a record thereon as provided in Section 908 of the Pennsylvania
Municipalities Planning Code. 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.
[Ord. 85-119, 8/22/1985, § 5.20; as amended by Ord. 97-173, 2/6/1997; and by Ord.
No. 2007-219, 7/19/2007]
Appeals raising the substantive validity of any land use ordinance
(except those to be brought before the Borough Council pursuant to
the Pennsylvania Municipalities Code), procedural questions or alleged defects in the process
of enactment or adoption of a land use ordinance; or from the determination
of the Zoning and Codes Officer, including, but not limited to, the
granting or denial of any permit, or failure to act on the application
therefor, the issuance of any cease and desist order or the registration
or refusal to register any nonconforming use, structure or lot; from
a determination by the Borough Engineer or the Zoning and Codes Officer
with reference to the administration of any floodplain or flood hazard
ordinance or such provisions within a land use ordinance; from the
determination of any officer or agency charged with the administration
of any transfer of development rights or performance density provisions
of this chapter; or from the determination of the Zoning and Codes
Officer or Borough Engineer in the administration of any land use
ordinance or provision thereof with reference to sedimentation and
erosion control and stormwater management insofar as the same relate
to development not involving subdivision and land development or planned
residential development may be filed with the Zoning Hearing Board,
in writing, by the landowner affected, any officer or agency of the
Borough, or any person aggrieved. Requests for a variance and for
special exception may be filed with the Board by any landowner or
any tenant with the permission of such landowner.
[Ord. 85-119, 8/22/1985, § 5.20; as amended by Ord. 97-173, 2/6/1997; and by Ord.
No. 2007-219, 7/19/2007]
1. No person shall be allowed to file any proceeding with the Zoning
Hearing Board later than 30 days after an application for development,
preliminary or final, has been approved by the Borough, if such proceeding
is designed to secure reversal or to limit the approval in any manner
unless such person alleges and proves that he/she had no notice, knowledge
or reason to believe that such approval had been given. If such person
has succeeded to his interest after such approval, he/she shall be
bound by the knowledge of his predecessor in interest. The failure
of anyone other than the landowner to appeal from an adverse decision
on a tentative plan or from an adverse decision by the Zoning and
Codes Officer on a challenge to the validity of this chapter or an
amendment hereto or map or an amendment thereto shall preclude an
appeal from a final approval except in the case where the final submission
substantially deviates from the approved tentative approval.
2. All appeals from determinations adverse to the landowner shall be
filed by the landowner within 30 days after notice of the determination
is issued.
[Ord. 85-119, 8/22/1985, § 5.20; as amended by Ord. 97-173, 2/6/1997; and by Ord.
No. 2007-219, 7/19/2007]
1. Upon filing of any appeal proceeding before the Zoning Hearing Board
and during its pendency before the Board, all land development pursuant
to any challenged ordinance, order or approval of the Zoning and Codes
Officer or of any agency or body, and all official action thereunder,
shall be stayed unless the Zoning and Codes 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 and Codes 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.
2. After the petition is presented, the court shall hold a hearing to
determine if the filing of the appeal is frivolous. At the hearing,
evidence may be presented on the merits of the case. It shall be the
burden of the applicant for a bond to prove the appeal is frivolous.
After consideration of all evidence presented, if the court
determines that the appeal is frivolous, it shall grant the petition
for a bond. The right to petition the court to order the appellants
to post bond may be waived by the appellee, but such waiver may be
revoked by him/her if an appeal is taken from a final decision of
the court.
3. 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.
An order denying a petition for bond shall be interlocutory. An order
directing the responding party to post a bond shall be interlocutory.
4. If an appeal is taken by a respondent to the petition for a bond
from an order of the court dismissing a zoning appeal for refusal
to post a bond and the appellate court sustains the order of the court
below to post a bond, the respondent to the petition for a bond, upon
motion of the petitioner and after hearing in the court having jurisdiction
of zoning appeals, shall be liable for all reasonable costs, expenses
and attorney fees incurred by the petitioner.