Ben Avon City Zoning Code
ARTICLE XVI
Administrative Roles and Duties
§ 2000-1600 Joint Planning Commission.
[Ord. 738, 8/18/2009]
A.
The Joint Planning Commission shall consist of nine members, made up of three representatives from each Tri-Borough Community.
B.
Upon request of each of the Borough Councils which comprise the Tri-Borough's Communities, the Joint Planning Commission shall prepare and update periodically the Joint Comprehensive Plan.
C.
The Joint Planning Commission shall receive, review and make recommendations to the applicable Borough Council on conditional use requests.
D.
The Joint Planning Commission shall maintain a file of records of its actions, such file being the property of each Borough Council.
E.
The Joint Planning Commission may prepare, hold hearings upon, and recommend for adoption a zoning ordinance for the Tri-Borough Communities and subsequently may prepare and recommend amendments thereto.
F.
The Joint Planning Commission may prepare and recommend for adoption a subdivision and land development ordinance and/or planned residential development ordinance for the Tri-Borough Communities, as well as amendments thereto.
G.
The Joint Planning Commission shall receive, review and make recommendations to the Borough Councils on commercial or industrial development proposals, planned residential developments and subdivision plans.
H.
The Joint Planning Commission shall receive, review and make recommendations to the applicable Zoning Hearing Board on special exception requests.
I.
The Joint Planning Commission may call and hold public hearings on matters relating to development in the Boroughs including amendments to the zoning and subdivision ordinances.
J.
The Joint Planning Commission may, at the request of the Borough Councils, prepare and recommend an annual capital improvements program, a building code, housing code, environmental study or similar reports or plans necessary to manage land development in the Boroughs.
K.
The Joint Planning Commission may promote public interest in and understanding of the Joint Comprehensive Plan and ordinances designed to implement the plan.
L.
The Joint Planning Commission shall hold regularly scheduled advertised meetings that are open to the public.
§ 2000-1601 Borough Councils.
[Ord. 738, 8/18/2009]
A.
Borough Councils of the Tri-Borough Communities are ultimately responsible for the adoption, amendment and enforcement of this Ordinance.
B.
The Borough Council of each Tri-Borough Community shall appoint three representatives to the Joint Planning Commission. Alternates may be appointed as necessary.
C.
The Borough Council of each Tri-Borough Community shall appoint a Zoning Hearing Board and Zoning Officer.
D.
The Borough Council of each Tri-Borough Community shall receive the recommendations of the Joint Planning Commission on matters the Commission reviews pursuant to this Ordinance, but are not obligated to act in accordance with the recommendations.
E.
The Borough Council of each Tri-Borough Community shall follow the procedures established by this Ordinance for the adoption and/or amendment of any zoning ordinance.
F.
The Borough Council of each Tri-Borough Community may remove its representatives to the Joint Planning Commission. The procedure for removal shall be in accordance the provisions defined in PA MPC § 206.
G.
The Borough Council of each Tri-Borough Community may remove its zoning officers from their jobs, or members of its Zoning Hearing Board, as appropriate. The procedure for removal of Zoning Hearing Board members shall be in accordance the provisions defined in PA MPC § 905.
H.
The Borough Council of each Tri-Borough Community shall be permitted to establish fees, individual or in cooperation with the other Tri-Borough Community Councils to administer the Joint Zoning Ordinance.
I.
The applicable Borough Council shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1)
All applications for approvals of planned residential developments under Article VII of the MPC pursuant to the provisions of § 702 of the MPC, 53 P.S. § 10702.
(2)
All applications pursuant to § 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.
(3)
Applications for conditional use under the express provisions of this Ordinance.
(4)
Applications for curative amendment to this Ordinance or pursuant to §§ 609.1 and 916.1(a) of the MPC, 53 P.S. §§ 10609.1, 10916.1(a).
(5)
All petitions for amendments to land use ordinances, pursuant to the procedures set forth in § 609 of the MPC, 53 P.S. § 10609.
(6)
Appeals from the determination of the applicable Zoning Officer or the applicable 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.
(8)
Where the applicable land use ordinance vests jurisdiction for final administration of subdivision and land development applications in the Joint Planning Commission, all appeals from determinations under this paragraph shall be to the Planning Commission and all appeals from the decision of the Joint Planning Commission shall be to court.
J.
Conditional Uses. Where the applicable Borough Council, in this Ordinance, has stated conditional uses to be granted or denied by the applicable Borough Council pursuant to express standards and criteria, the applicable Borough Council shall hold hearings on and decide requests for such conditional uses in accordance with such standards and criteria. In granting a conditional use, the applicable Borough Council may attach such reasonable conditions and safeguards, in addition to those expressed in this Ordinance, as it may deem necessary to implement the purposes of this Ordinance and the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq.
§ 2000-1602 Zoning Hearing Boards.
[Ord. 738, 8/18/2009]
A.
Each Tri-Borough Community shall establish and maintain an independent Zoning Hearing Board (Board) consisting of members appointed by each respective Borough Council.
B.
A Zoning Hearing Board shall receive recommendations on special exceptions from the Joint Planning Commission and shall act thereon.
C.
There is hereby created for each Borough a Zoning Hearing Board in accordance with the provisions of Article IX of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10901 et seq.
(1)
The membership of each Board shall consist of three residents of the applicable 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 applicable Board shall promptly notify the applicable Borough Council of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the applicable Board shall hold no other office in the Borough.
(2)
Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the applicable 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.
(3)
Each 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 Ordinance.
(4)
Each 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.
(5)
Within the limits of funds appropriated by the applicable 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 applicable Borough Council, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the applicable Borough Council.
D.
Hearings. The applicable Zoning Hearing Board will conduct hearings and make decisions in accordance with the Municipalities Planning Code. A copy of the Municipalities Planning Code is available for review in the applicable Borough Building. The applicable Borough Council shall establish, by resolution, fees with respect to hearings before the applicable Zoning Hearing Board.
E.
Jurisdiction.
(1)
Each Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters within the physical boundaries of its Borough:
(a)
Substantive challenges to the validity of any land use ordinance, except those brought before the applicable Borough Council pursuant to §§ 609.1 and 916.1(a)(2) of the Pennsylvania Municipalities Planning Code (hereinafter "MPC"), 53 P.S. §§ 10609.1, 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.
(c)
Appeals from the determination of the applicable Zoning Officer, including, but not limited to, the granting or denial of any permit, or failure to act on the application therefore, 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 applicable Borough Engineer or the applicable Zoning 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 Ordinance and flood hazard ordinance or such provisions within a land use ordinance, pursuant to § 910.2 of the MPC, 53 P.S. § 10910.2.
(f)
Applications for special exception under this Ordinance or floodplain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to § 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 Ordinance.
(h)
Appeals from the applicable Zoning Officer's determination under § 916.2 of the MPC, 53 P.S. § 10916.2.
(i)
Appeals from the determination of the applicable Zoning Officer or applicable 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., 10701 et seq.
F.
Variances.
(1)
The applicable Zoning Hearing Board shall hear requests for variances where it is alleged that the provisions of this Ordinance inflict unnecessary hardship upon the applicant. The Board may by rule prescribe the form of application and may require preliminary application to the applicable Zoning Officer. The Board may grant a variance, provided that all of the following findings are made where relevant in a given case:
(a)
There are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot area or shape, or exceptional topographical or other physical conditions peculiar to the particular lot and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of this Ordinance in the neighborhood or district in which the lot is located.
(b)
Because of such physical circumstances or conditions, there is no possibility that the lot can be developed in strict conformity with the provisions of this Ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the lot.
(c)
Such unnecessary hardship has not been created by the applicant.
(d)
The variance, if authorized, will not alter the essential character of the neighborhood or district in which the lot is located, nor substantially or permanently impair the appropriate use or development of adjacent lot, nor be detrimental to the public welfare.
(e)
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 Ordinance and the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq.
G.
Special Exception. Where the applicable Borough Council, in this Ordinance, has stated special exception to be granted or denied by the applicable Zoning Hearing Board pursuant to express standards and criteria, the applicable Board shall hear and decide requests for such special exception in accordance with such standards and criteria. In granting a special exception, the applicable Board may attach such reasonable conditions and safeguards, in addition to those expressed in this Ordinance, as it may deem necessary to implement the purposes of this Ordinance and the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq.
H.
Parties Appellant Before the Board. Appeals raising the substantive validity of any land use ordinance (except those to be brought before the applicable 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 applicable Zoning Officer, including, but not limited to, the granting or denial of any permit, or failure to act on the application therefore, 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 applicable Borough Engineer or the applicable Zoning 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 transfers of development rights or performance density provisions of this Ordinance; from the determination of the applicable Zoning Officer or applicable 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 applicable Zoning Hearing Board in writing by the landowner affected, any officer or agency of the applicable Borough, or any person aggrieved. Requests for a variance and for special exception may be filed with the applicable Board by any landowner or any tenant with the permission of such landowner.
I.
Time Limitations.
(1)
No person shall be allowed to file any proceeding with the applicable Zoning Hearing Board later than 30 days after an application for development, preliminary or final, has been approved by the applicable 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 has 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 shall be bound by the knowledge of his predecessor in interest. The failure of anyone other than the landowner to appeal an adverse decision on a tentative plan or from an adverse decision by the applicable Zoning Officer on a challenge to the validity of this Ordinance 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.
J.
Stay of Proceedings.
(1)
Upon filing of any appeal proceeding before the applicable Zoning Hearing Board and during its pendency before the applicable Board, all land development pursuant to any challenged ordinance, order or approval of the applicable Zoning Officer or of any agency or body, and all official action thereunder, shall be stayed unless the applicable Zoning Officer or any other appropriate agency or body certifies to the applicable Board facts indicating that such stay would cause imminent peril to life or lot, in which case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the applicable Board or by the court having jurisdiction of zoning appeals, on petition, after notice to the applicable 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 applicable 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 applicable 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 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.
K.
Accommodations under the Fair Housing Amendments Act and/or the Americans with Disabilities Act.
(1)
The applicable Board shall hear and determine appeals from decisions of the applicable Zoning Officer with respect to requests for reasonable accommodation under the Fair Housing Amendments Act or the Americans with Disabilities Act. In hearing such an appeal, the applicable Board shall apply the criteria set for in this Ordinance. In granting a request for reasonable accommodation, the applicable Board may attach such reasonable safeguards and/or limitations as it may deem necessary to properly implement this Ordinance and protect the public health, safety and welfare in a manner consistent with the requirements of the Fair Housing Amendments Act or the Americans with Disabilities Act. In handling a request for reasonable accommodation, the applicable Board shall be governed by the criteria set forth in this Ordinance to the fullest extent as may be consistent with the Fair Housing Amendments Act and the Americans with Disabilities Act.
§ 2000-1603 Applicable Zoning Officer.
[Ord. 738, 8/18/2009]
A.
The applicable Zoning Officer shall receive applications for building permits and occupancy permits.
B.
The applicable Zoning Officer shall review such applications after site visits before deciding to issue a permit or refer the proposal to the Joint Planning Commission or applicable Zoning Hearing Board.
C.
The applicable Zoning Officer shall testify at meetings of each Borough's Zoning Hearing Board on any contested decision he has made.
D.
The applicable Zoning Officer shall halt construction where it is not proceeding in accordance with permit, or permit has expired, or never existed.
E.
The applicable Zoning Officer shall visit approved construction in progress to verify continued compliance with permit.
F.
The applicable Zoning Officer shall investigate alleged violations of performance standards or other requirements of this Ordinance and, if allegations are correct, demand compliance with this Ordinance.
G.
The applicable Zoning Officer shall interpret this Ordinance literally.
H.
The applicable Zoning Officer shall keep a current record of nonconforming uses throughout all Boroughs.
I.
The applicable Zoning Officer may be delegated the job of preparing advertisements for public hearings, preparing lists of lot owners to be notified by mail of hearings and posting notices and reason of hearings.