Avondale City Zoning Code
ARTICLE XVII
Zoning Hearing Board
§ 430-115 Membership of the Board.
The Zoning Hearing Board shall consisting of three members appointed by the Borough Council.
§ 430-116 Term of office.
The term of each member shall be three years and shall be so fixed that the term of office of one member shall expire each year. Should any member resign prior to the expiration of his or her term, the Zoning Hearing Board shall promptly notify the Borough Council so that the Borough Council may fill the unexpired term of the vacant Zoning Hearing Board position.
§ 430-117 Alternate members.
The governing body may appoint, by resolution, at least one but not more than three residents of the municipality to serve as alternate members of the Board according to the following:
A.
The term of office of an alternate shall be three years.
B.
When seated pursuant to the provisions of § 430-118B(2), 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 this act as otherwise provided by law.
C.
Alternates shall hold no other office in the Borough, including membership on the Planning Commission or as Zoning Officer.
D.
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 pursuant to § 430-119 unless designated as a voting alternate member pursuant to § 430-118B(2).
§ 430-118 Organization of the Board.
A.
Officers. The Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves.
B.
Quorum.
(1)
For the conduct of any hearing and the taking of any action, a quorum of the members shall be required, with the exception that 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 § 430-121.
(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 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 section shall be made on a case-by-case basis in rotation according to declining seniority among alternates.
C.
Record of proceedings. 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 Borough Council.
D.
Removal of members. Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Borough Council, taken after the member has received 15 days' advance notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member shall request it in writing.
E.
In accordance with the Pennsylvania Municipalities Planning Code, as amended,[1] the Board may make, alter and rescind rules and forms for its procedure, consistent with the ordinances of the Borough of Avondale and the laws of the Commonwealth of Pennsylvania.
[Added 2-16-1999 by Ord. No. 184]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
§ 430-119 Expenditures for services.
A.
Within the limits of the funds appropriated by the Borough Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services.
B.
Members of the Board may receive compensation for the performance of their duties, as may be fixed by the governing body, but in no case shall it exceed the rate of compensation authorized to be paid to the members of Borough Council.
C.
Alternate members of the Board may receive compensation, as may be fixed by Borough Council, for performance of their duties when designated as alternate members pursuant to § 430-118B(2), but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of Borough Council.
§ 430-120 Jurisdiction.
[Amended 2-16-1999 by Ord. No. 184]
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
A.
Appeals from the Zoning Officer. The Board shall hear and decide appeals from the determination of the Zoning 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, and from the Zoning Officer's determination under MPC Section 916.2.[1]
[1]
Editor's Note: See 53 P.S. § 10916.2.
D.
Validity of land use ordinances. The Board shall hear 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.[4] Also, the Board shall hear 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.
[4]
Editor's Note: See 53 P.S. § 10609.1 and 10916.1(a)(2), respectively.
E.
Appeals from determination by the Zoning Officer or Borough Engineer. The Board shall hear appeals from a determination by the Township Engineer or the Zoning Officer with reference to the administration of this chapter or such provisions within a land use ordinance; and shall hear appeals from the determination of the Zoning 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 MPC Article V or VII applications.[5]
[5]
Editor's Note: See 53 P.S. § 10501 et seq., and § 10701 et seq., respectively.
F.
Any other applications or appeals authorized by law to be submitted to and/or heard by the Zoning Hearing Board.
§ 430-121 Hearings.
The Board shall conduct hearings and make decisions in accordance with the following requirements:
A.
Notice of hearings. Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer, such other persons as Borough Council shall designate by ordinance 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 ordinance or, in absence of ordinance provisions, 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.
Fees. Borough Council may prescribe reasonable fees with respect to hearings before the Zoning Hearing Board by resolution. Fees for said hearings may include compensation for the secretary and members of the Zoning Hearing Board, notice and advertising costs and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses of the Zoning Hearing Board, expenses for engineering, architectural or other technical consultants or expert witness costs.
C.
Timing. 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.
D.
Decision. The hearing 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; 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 the decision or findings by the Board and accept the decision or findings of the Zoning Hearing Officer as final.
E.
F.
Powers of the Chairman. 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 document and papers, including witnesses and documents requested by the parties.
G.
Rights of the parties. 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.
H.
Rules of evidence. Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.
I.
Record of proceedings. 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.
[Amended 2-16-1999 by Ord. No. 184]
J.
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 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.
[Amended 2-16-1999 by Ord. No. 184]
K.
Decisions.
[Amended 2-16-1999 by Ord. No. 184]
(1)
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, except when an applicant agrees to an extension of time. Each decision shall be accompanied by findings and conclusions together with the reasons for such conclusions. Conclusions based on any provisions of this chapter or of any act, 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.
(2)
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 hold the required hearing within 60 days from the date of the applicant's request for 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 K(1) 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.
(3)
A copy of the final decision or, where no decision is called for, of the findings shall be delivered to the applicant personally or mailed to him not later than the day following its date. To all other persons who have filed their name and addresses 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.
§ 430-122 Appeals to court.
Any person or persons aggrieved by any decision of the Zoning Hearing Board, or any Borough taxpayer, or any officer of the Borough, may, within 30 days after such decision of the Board, appeal to the court of common pleas of the county by petition, duly verified, setting forth that such decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and specifying the grounds upon which he relies.
§ 430-123 Variances.
A.
The 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 Officer. The Board may grant a variance, provided that all of the following findings are made where relevant in a given case:
(1)
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.
(2)
That because of 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.
(3)
That such unnecessary hardship has not been created by the appellant.
(4)
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.
(5)
That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulations in issue.
B.
In granting a variance, the Board may attach such reasonable conditions and safeguards as it deems necessary to implement the purposes of the MPC and this chapter.
[Amended 2-16-1999 by Ord. No. 184]
C.
All owners of land within 500 feet of the property which is the subject of an application shall be notified by the Borough by ordinary mail of the application for the variance.
[Amended 2-16-1999 by Ord. No. 184]
§ 430-124 Special exceptions.
[Amended 2-16-1999 by Ord. No. 184]
A.
Procedure for special exception hearings. The Zoning Hearing Board shall conduct hearings on special exceptions in accordance with the provisions of § 430-121 of this chapter. In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those set forth in this chapter, if any, as it may deem necessary to implement the purposes of the MPC and this chapter.
B.
Criteria.
(1)
In any instance where the Zoning Hearing Board is required to consider a special exception in accordance with the provisions of this chapter, the applicant shall be required to establish that all of the following criteria have been met:
(a)
The proposed use at the location in question shall be in the public interest and best serve the public health, safety, and general welfare;
(b)
The proposed change will serve the best interests of the Borough, the convenience of the community (where applicable), and the public welfare;
(c)
The proposed use shall be consistent with the goals and objectives of the Borough Comprehensive Plan and those of the Borough Open Space, Recreation, and Environmental Resource Plan;
(d)
The size, scope, extent and character of the proposed use shall be consistent with the spirit, purpose and intent of this chapter;
(e)
Applicant shall take into consideration the character and type of development in the area surrounding the tract, and determine that the proposed change will not injure or detract from the use of surrounding properties or from the character of the neighborhood;
(f)
The proposed change will not substantially injure or detract from the use of neighboring property or from the character of the neighborhood and that the use of the property adjacent to the area included in the proposed change or plan is adequately safeguarded;
(g)
Consider the effect of the proposed use with respect to the most appropriate use of land, conserving building, and safety from fire and other dangers;
(h)
Sufficient land area shall be made available to be able to effectively screen the proposed special exception from adjoining different uses;
(i)
The location of the proposed use creates a logical, efficient, and economical extensions of public services and facilities such as streets, public water, sewers, police and fire protection, and public schools;
(j)
Sufficient safeguards for parking, traffic control, screening, setbacks and other design requirements can be implemented to remove any potential adverse influences created by the proposed use;
(k)
There will be limited impact and effect on buildings or districts of historical or architectural significance; and
(l)
The historic nature and atmosphere of residential neighborhoods shall be retained.
(2)
The Zoning Hearing Board may impose such conditions, in addition to those required, as are necessary to assure that the intent of this chapter is complied with, which conditions may include, but are not limited to, harmonious design of buildings, planting and its maintenance as a sight or sound screen, the minimizing of noxious, offensive or hazardous elements, adequate standards of parking, and sanitation.
§ 430-125 Expiration of special exceptions and variances.
[Added 2-16-1999 by Ord. No. 184]
After the grant of a special exception or variance, an applicant must apply within six months for a building permit or a use and occupancy permit, and unless the construction or use shall commence within one year from the granting of the special exception or variance, the special exception or the variance shall expire automatically; further, if construction has begun pursuant to a special exception and/or a variance and construction is abandoned for a period of one year, the special exception and/or variance shall automatically expire.