There shall be a Zoning Hearing Board, which shall consist of
three members who shall be appointed by resolution of the Borough
Council and who shall be residents of the municipality. The Borough
Council shall designate one such member to serve until the first day
of January following the effective date of this chapter, one until
the first day of the second January thereafter, and one until the
first day of the third January thereafter; shall appoint their successors
on the expiration of their respective terms to serve three years,
and shall fill any vacancy for the unexpired term of any member whose
term becomes vacant. Any Board member may be removed for malfeasance,
misfeasance or nonfeasance in office or for other just cause by majority
vote of the governing body which appointed the member, taken after
the member has received 15 days' advance notice of the intent to take
such a vote. A hearing will be held in connection with the vote if
the member shall request it in writing. When used hereafter in this
article, the word "Board" shall mean the Zoning Hearing Board.
The Board shall elect from its members, 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 not be
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 § 250-118. The Board may make,
alter and rescind rules and forms for its procedure consistent with
the provisions of this chapter and the laws of the Commonwealth. The
Board shall keep full public record 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.
A.
Applications for hearings before the Board shall be filed with the
Board together with the proper fee.
B.
An application for a special exception or variance from the terms
of this chapter shall state:
(1)
The name and address of the applicant.
(2)
The name and address of the owner of the real estate to be affected
by the proposed exception or variance.
(3)
A brief description and location of the real estate to be affected
by such proposed change.
(4)
A statement of the present zoning classification of the real
estate in question, the improvements thereon, and the present use
thereof.
(5)
A statement of the section of this chapter under or from which
the exception or variance requested may be authorized, and reasons
why it should be granted.
(6)
A reasonably accurate description of the present improvements
and the additions intended to be made under the application or appeal,
if any, indicating the size of such proposed improvements, material,
and general construction thereof. In addition, there shall be attached
a plot plan to scale of the real estate to be affected, indicating
the location and size of the lot and size of improvements now erected
and proposed to be erected thereon.
C.
Applications for other than special exception or variance from terms
of this chapter shall contain sufficient written information to fully
describe the intended use. Where, in the sole discretion of the Zoning
Officer, it is appropriate for the applicant to furnish plans and/or
specifications or any other relevant information incident to intended
use, such information shall be required to be submitted with the application.
D.
In the event that any required information is not furnished, the
application shall be refused and the fee returned to the applicant.
E.
The hearing shall be held within 60 days from the date of the applicant's
request, unless the applicant has agreed in writing to an extension
of time.
The Board shall give notice as follows:
A.
By publishing a notice thereof in a newspaper of general circulation
within the Borough once a week for two successive weeks prior to the
date fixed for the hearing.
B.
By mailing notice thereof to the applicant and to any person who
has made timely request for same. In addition, notice of said hearing
shall be conspicuously posted on the affected tract of land.
C.
By mailing notice thereof to the Borough's Zoning Officer, to
the President of the Borough Council and to the Chairman of the Borough
Planning Commission.
D.
The Board may mail notice thereof to the owner of every lot on the
same street within 500 feet of the lot or building in question or
every lot not on the same street within 200 feet of said lot or building.
But failure to give notice, either in part or in full, as stated by
this subsection shall not invalidate any action taken by the Board.
E.
The notice herein required shall state the name of the applicant,
the location of the lot or building and the general nature of the
question involved, and the date, time and location of the hearing.
In addition thereto, when a hearing is required under Subsection B,
the notice shall state that the validity of the landowners request,
including plans and proposed amendments, may be examined by the public
at the Borough Building during regular business hours.
A.
Within the limits of funds appropriated by the Borough Council, the
Zoning Hearing Board may employ or contract for secretaries, clerks,
legal counsel, consultants and other technical and clerical services.
Members of the Zoning Hearing Board may receive compensation for the
performance of their duties, as may be fixed by the Borough Council.
B.
The applicant before the Board shall deposit with the Treasurer of
the Borough, such a sum of money as set forth in the fee schedule
adopted by the Borough Council to pay the cost of the hearing.
C.
The following administrative costs incurred by the Borough relative
to hearing before the Board shall be paid from the application filing
fee:
(1)
Cost of preparation of required notices.
(2)
Cost of mailing notices, including postage.
(4)
Cost of posting notice or verification.
(5)
Duplication or copying costs.
(6)
An equal share of the court reporter's attendance fee.
(7)
Cost of stenographic record, if such record is requested by
the Board or the applicant.
(8)
Other costs related to the application.
D.
Continued hearings and collection of fees.
(1)
In the event more than one hearing is necessary on any application,
as promptly as may be possible following the initial hearing, the
Board Secretary shall determine the total amount of all taxable costs
incurred, and shall deduct same from the application fee. In the event
the application fee is, at any time, insufficient to cover the costs
incurred or reasonably anticipated to be incurred, the Board Secretary
shall notify the applicant, provide the applicant with a written copy
of each item of taxable cost, and shall require the applicant to pay,
within 10 days of such notification, any balance then due together
with a further minimum deposit of 1/2 of the initial filing fee. In
the event of multiple hearings, all taxable costs shall be reported
and collected in accordance with this procedure.
(2)
The failure of the Board Secretary to demand additional deposits
from time to time shall not relieve the applicant of liability for
costs, charges, expenses and fees in excess of deposit; and in the
event of default, such shall be recovered by such action as is by
law provided.
(3)
All funds deposited by the applicant in excess of the actual
cost of the hearing or hearings shall be returned to the applicant
upon completion of the proceeding.
The Board shall conduct hearings and make decisions in accordance
with the following requirements:
A.
Hearings of the Board shall be held at the call of the Chairman and
at a reasonable time and place for public hearings and notification
of said hearing shall be as provided by § 250-104.
B.
The hearings shall be conducted by the Board or the Board may appoint
any member as the Hearing Officer. The decision or, where no decision
is called for, the findings, shall be made by the Board; however,
the applicant or appellant, as the case may be, in addition to the
Borough, may, prior to the decisions of the hearing, waive decision
or findings by the Board and accept the decision or findings of the
Hearing Officer as final.
C.
The parties to the hearings shall be any person who is entitled to
notice under § 250-104, without special request therefor,
who has made timely appearance of record before the Board and any
other person permitted to appear by the Board.
D.
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.
E.
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.
F.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
unduly repetitious and hearsay evidence shall be excluded and other
inadmissible evidence may be excluded at the discretion of the Board.
G.
The Board or Hearing Officer, as the case may be, shall keep a stenographic
record of the proceedings and a transcript of the proceedings and
copies of graphic or written material received in evidence shall be
made available to any party at cost.
H.
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 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 representative
after the commencement of the hearing unless all parties are given
an opportunity to be present. At any time prior to rendering its written
decision, the Board may consult with the Planning Commission, Borough
Engineer, or any other body for the purpose of resolving technical
consideration relative to an application before it, and may at its
discretion include the recommendation of said consultants in its final
decision.
I.
The first hearing before the Board shall be commenced within 60 days
from the date of receipt of the applicant's application, unless
the applicant has agreed in writing to an extension of time. Each
subsequent hearing before the Board shall be held within 45 days of
the prior hearing, unless otherwise agreed to by the applicant in
writing or on the record. An applicant shall complete the presentation
of his case-in-chief within 100 days of the first hearing. Upon the
request of the applicant, the Board shall assure that the applicant
receives at least seven hours of hearings within the 100 days, including
the first hearing. Persons opposed to the application shall complete
the presentation of their opposition to the application within 100
days of the first hearing held after the completion of the applicant's
case-in-chief. An applicant may, upon request, be granted additional
hearings to complete his case-in-chief, provided the persons opposed
to the application are granted an equal number of additional hearings.
Persons opposed to the application may, upon the written consent or
consent on the record by the applicant and municipality, be granted
additional hearings to complete their opposition to the application
provided the applicant is granted an equal number of additional hearings
for rebuttal.
J.
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. 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 the Municipalities Planning
Code or any ordinance, rule or regulation shall contain a reference
to the provision relied on and the reasons why the conclusion is deemed
appropriate in light of the facts found. Except for challenges filed
pursuant to Section 916.1 of the Municipalities Planning Code
where the Board fails to render the decision within the
time required by this subsection or fails to commence, conduct or
complete the required hearing as provided herein, 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 I 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.
The Board shall have the following functions:
A.
Substantive challenges to the validity of this chapter, except those
brought before the Board pursuant to Sections 609.1 and 916.1(a)(2)
of Act 247, as amended by Act 170.
B.
Challenges to the validity of this chapter 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 municipality 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 Administrative 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
Administrative Officer with reference to administration of any floodplain
or flood hazard ordinance or such provisions within a land use ordinance.
E.
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.
F.
Appeals from the Zoning Administrative Officer's determination
under § 250-116.
G.
Appeals from the determination of the Zoning Administrative Officer
or Borough Engineer in the administration of this chapter or provision
thereof with reference to sedimentation and erosion control and stormwater
management insofar as the same relate to development.
H.
Challenge the validity of this chapter or the Zoning Map. The Zoning
Hearing Board shall hear challenges to the validity of a Zoning Ordinance
or Map as follows:
(1)
A landowner who, on substantive grounds, desires to challenge
the validity of an ordinance or map or any provision thereof which
prohibits or restricts the use of development of land in which he
has an interest shall submit the challenge to either the Zoning Hearing
Board of the Borough Council.
(2)
Persons aggrieved by a use or development permitted on the land
of another by an ordinance or map or any provision thereof, who desires
to challenge its validity shall submit their challenge pursuant to
the Sections 909.1. and 609.1. of Act 247, as amended by Act 170.
(3)
In all such challenges, the Zoning Hearing Board shall decide
all contested questions and shall make findings on all relevant issues
of fact and of interpretation, and submit such findings as part of
the record on appeal to the court.
I.
Variances.
(1)
The Board shall hear and decide requests for variances where
it is alleged that the provisions of this chapter inflict unnecessary
hardship on the applicant. The Board may by rule prescribe the form
of application as provided by § 250-106. The Board may grant
a variance provided 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
property.
(c)
That such unnecessary hardship has not been created by the applicant.
(d)
That the variance, if authorized, will neither 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 in the case where the property in part or totally is located
within the regulatory floodway, the granting of a variance will not
increase the base flood elevation:
[1]
Where the issuing of a variance will permit the construction
of a structure or portion thereof below the base flood elevation in
the Floodplain District, the applicant shall be notified in writing
over the signature of the Borough Zoning Officer that the construction
or location of a structure below the base flood elevation will increase
the risk to life and property and that flood insurance premium rates
for the affected structure will increase. A record of all variance
actions including the reasons and justification for the issuance of
the variance shall be maintained.
(f)
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 Hearing Board may attach such
reasonable conditions and safeguards as it may deem necessary to implement
the purposes of this chapter.
J.
Special exceptions. The Board shall hear and decide requests for
special exceptions where the ordinance has stated special exceptions
are to be granted by the Board pursuant to the following express standards
and criteria, in addition to such other considerations and determinations
as may be required by law and other provisions of this chapter. The
Board shall:
(1)
Give full consideration to the size, scope, extent, and character
of the exception desired and sure itself that such request is consistent
with the plan for future land use in Stockertown and with the spirit,
purpose and intent of this chapter.
(2)
Take into consideration the character and type of development
in the area surrounding the location for which the request is made
and determine that the proposed change or modification, if permitted,
will constitute an appropriate use in the area and will not substantially
injure or detract from the use of surrounding property or from the
character of the neighborhood.
(3)
Consider the public interest in, or the need for, the proposed
use or change, to determine that the proposal will serve the best
interest of the Borough, the convenience of the community (where applicable)
and the public health, safety, morals and general welfare.
(4)
Make certain that the proposed change is reasonable in terms
of the logical, efficient, and economical extension of public services
and facilities, including, but not limited to, public water, sewers,
police and fire protection, transportation and public schools.
(5)
Be guided in its study, review and recommendations by sound
standards or subdivision practice where applicable.
(6)
Review the recommendations of the Planning Commission on the
proposed development plan, where such plan is required. The Board
shall not be bound by such recommendations nor shall the Board be
bound by the action of the Borough Council in relation to the development
plan.
(7)
Guide the development of highway frontage insofar as possible
to limit the total number of access points, reduce the need for on-street
parking, and encourage the frontage of buildings on parallel marginal
roads or on roads perpendicular to the highway.
(8)
Consider, where pertinent, the effects of the proposal with
respect to congestion on the roads or highway, the most appropriate
use of land, conserving the value of buildings, safety from fire,
panic, and other dangers, adequacy of light and air, the prevention
of overcrowding of land, congestion of population and adequacy of
public and community services and determine that approval of the application
will not have a substantially adverse effect thereon.
(9)
Be assured that the natural features and processes characterizing
the proposed site and its surroundings shall not suffer unmitigated
degradation, that the management of stormwater, the provision of water
or sewer service, and any other alterations to the site's predevelopment
condition shall be consistent with the Borough goals, practices, and
plans in these regards, and that demand for water and energy by the
proposed use shall be minimized to the optimal extent.
(10)
Impose such conditions, in addition to those required, as are
necessary to assure that the intent of this chapter is complied with,
and which are reasonably necessary to safeguard the health, safety,
morals and general welfare of the residents of the Borough at large
and the residents and owners of the property adjacent to the area
in which the proposed use is to be conducted. Conditions may include,
but are not limited to, harmonious design of buildings, aesthetics,
hours of operation, lighting, numbers of persons involved, noise,
sanitation, safety, smoke and fume control and the minimizing of noxious,
offensive or hazardous elements.
(11)
Special conditions. In addition to conforming with the general
standards, above, and all other applicable regulations contained in
this chapter, the proposed special exception must conform with all
conditions for that use as follows:
(a)
Require that all commercial or industrial parking, loading,
access or service areas shall be adequately illuminated at night while
in use, and that such lighting, including sign lighting, shall be
arranged so as to protect the highway and neighboring properties from
discomfort or hazardous interference of any kind.
K.
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 municipal 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. 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.
Unless otherwise specified by the Board, a special exception,
variance or conditional use shall expire if the applicant fails to
obtain a building permit or a use and occupancy permit, as the case
may be, within six months from the date of authorization thereof.
An appeal to the Board under § 250-110A and proceedings
to challenge an ordinance under § 250-110B may be filed
with the Board in writing by the landowner affected, any officer of
the Borough or any person aggrieved. Requests for a variance under
§ 250-110C and for a special exception under § 250-110J may be filed with the Board by any landowner or any tenant with the
permission of such landowner.
No aggrieved person shall be allowed to file any proceedings
with the Board later than 30 days after:
A.
Any permit
has been issued or refused or any other decision made by the Zoning
Officer; and
B.
Any application
for development, preliminary or final, has been approved by the Borough
Council if such proceeding is designed to secure reversal or to limit
approval in any matter.
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 enter
appearances in writing on forms provided by the Board for that purpose.
The aforementioned 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.
Upon filing of any proceeding referred to in § 250-109,
and during its pendency before the Hearing 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 such 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 person 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.
The conditions and proceedings set forth in Article X-A of Act
247,
as amended, shall constitute the exclusive mode for securing
review of any ordinance, decision, determination or order of the governing
body, its agencies or officers adopted or issued pursuant to Act 247,
as amended by Act 170 of 1988.
The provisions of this article of this chapter are intended
to parallel the Pennsylvania Municipalities Planning Code and said
provisions are amended as the MPC is amended.
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