Bern Township City Zoning Code
ARTICLE XX
Zoning Hearing Board
§ 184-188 Creation and organization.
A.
Creation of Board. The Township Supervisors hereby create a Zoning Hearing Board, herein referred to as the "Board," consisting of residents of the Township appointed by the Township Supervisors pursuant to the Pennsylvania Municipalities Planning Code, as amended,[1] who shall be appointed and serve and shall perform all the duties and have all the powers as prescribed by said code and this chapter.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
Organization. The Board may promulgate such rules and forms for its procedures, not inconsistent with this chapter and other ordinances of the Township and laws of the Commonwealth of Pennsylvania, as it may deem necessary to the proper performance of its duties and to the proper exercise of its powers. Such rules shall be continued in force and effect until amended or repealed by the Board or by law. The Board shall elect from its own membership its officers who shall serve annual terms as such and may succeed themselves. The Board shall have its own counsel, who shall, whenever possible, attend all hearings of the Board and review all decisions of the Board so they conform to the law.
C.
Meetings. Meetings and hearings of the Board shall be held at the call of the Chairman and at such other times as the Board, by majority vote, may determine.
D.
Minutes and records. The Board shall keep full public records of its proceedings showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact. The Board shall also keep full public records of its business and other official action, copies of which shall be filed with the Township Supervisors and the Township Planning Commission.
§ 184-189 Hearings.
The 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 Officer, such other persons as the Township 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 the absence of ordinance provision, 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.
(1)
The Township may prescribe reasonable fees with respect to hearings before the Zoning Hearing Board. 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.
(2)
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.
B.
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 municipality 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.
[Amended 6-17-2003 by Ord. No. 204-2003]
C.
The parties to the hearing shall be the municipality, 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.
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 or unduly repetitious evidence may be excluded.
G.
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.
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 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.
I.
Presentation of case; decision or findings.
[Amended 6-17-2003 by Ord. No. 204-2003]
(1)
The first hearing before the Board or hearing officer 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 or hearing officer 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 or hearing officer 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.
(2)
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 ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusions are 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. Except for challenges filed under Section 916.1 of the Pennsylvania Municipalities Planning Code,[1] where the Board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided in Subsection I(1), 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 A 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.
[1]
Editor's Note: See 53 P.S. § 10916.1.
J.
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 names 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.
§ 184-190 Mediation option.
A.
Parties to proceedings authorized in this chapter 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 this chapter 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 or substantive law.
B.
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. Any municipality offering the mediation option shall assure that, in each case, the mediating parties, assisted by the mediator as appropriate, develop terms and conditions for:
(1)
Funding mediation.
(2)
Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation.
(3)
Completing mediation, including time limits for such completion.
(4)
Suspending time limits otherwise authorized in this chapter, provided that there is written consent by the mediating parties and by an applicant or municipal decisionmaking body if either is not a party to the mediation.
(5)
Identifying all parties and affording them the opportunity to participate.
(6)
Subject to legal restraints, determine whether some or all of the mediation sessions shall be open or closed to the public.
(7)
Assuring that mediated solutions are in writing and signed by the parties and become subject to review and approval by the appropriate decisionmaking body pursuant to the authorized procedures set forth in the Pennsylvania Municipalities Planning Code, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
C.
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.
§ 184-191 Jurisdiction.
A.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(2)
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 this chapter. 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.
(3)
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.
(4)
Appeals from a determination by a Municipal Engineer or the Zoning Officer with reference to the administration of any floodplain or flood hazard ordinance or such provisions within a land use ordinance.
(5)
Applications for variances from the terms of this chapter and any flood hazard ordinance or such provisions within a land use ordinance, pursuant to § 184-193.
(6)
Applications for special exceptions under this chapter or any floodplain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to § 184-193.
(7)
Appeals from the determination of the Zoning Officer or Municipal 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 and zoning applications.
B.
The Township Supervisors or, except as to Subsection A(3), (4) and (5), the Township Planning Commission, if designated, shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1)
All applications pursuant to approval of subdivisions or land developments.
(2)
Applications for conditional use under the express provisions of this chapter pursuant to § 184-194.
(4)
All petitions for amendments to this chapter, pursuant to the procedures set forth in § 184-203. Any action on such petitions shall be deemed legislative acts, provided that nothing contained in this clause shall be deemed to enlarge or diminish existing law with reference to appeals to court.
(5)
Appeals from the determination of the Zoning Officer or the Municipal Engineer in the administration of this chapter or provisions thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to application for subdivision and land development. Where such determination relates only to development not involving a subdivision or land development application, the appeal from such determination of the Zoning Officer or the Municipal Engineer shall be to the Zoning Hearing Board pursuant to this chapter.
§ 184-192 Applicability of judicial remedies.
Nothing contained in this chapter shall be construed to deny the appellant the right to proceed directly to court where appropriate, pursuant to the Pennsylvania Rules of Civil Procedure No. 1091 (relating to action in mandamus).
§ 184-193 Zoning Hearing Board functions; 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 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.
(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 regulation in issue.
B.
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.
C.
Special exceptions. To issue, upon application, only such special exceptions which the Board by the provisions of this chapter is specifically authorized to issue. The granting of a special exception when specifically authorized by the terms of this chapter shall be subject to the following standards and criteria. The applicant for a special exception shall demonstrate, as a condition to approval of his application, compliance with these criteria and those criteria specified elsewhere in this chapter for the use in question.
(1)
Such use shall be one which is specifically authorized as a special exception use in the zoning district wherein the applicant seeks a special exception.
(2)
Such special exception shall only be granted subject to any applicable condition and safeguards as required by this chapter.
(3)
Such use shall not adversely affect the character of the general neighborhood, nor the conservation of property values, nor the health and safety of residents or workers on adjacent properties and in the general neighborhood.
(4)
Such use shall be of such size and so located and laid out in relation to its access streets that vehicular and pedestrian traffic to and from such use will not create undue congestion or hazards prejudicial to the general neighborhood.
(5)
Services and utilities shall be made available to adequately service the proposed use.
(6)
The granting of the special exception shall be consistent with the Township Comprehensive Plan.
(7)
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 purpose of this chapter and the Pennsylvania Municipalities Planning Code, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
D.
To exercise any other power specifically granted to the Board under the terms of this chapter.
§ 184-194 Township Supervisors' functions; conditional uses.
[Amended 6-17-2003 by Ord. No. 204-2003]
A.
Where the Board, in this chapter, has stated conditional uses to be granted or denied by the Board pursuant to express standards and criteria, the Board shall hold hearings on and decide requests for such conditional uses in accordance with such standards and criteria. The hearing 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 may be made by the Board. However, the appellant or the applicant, as the case may be, in addition to the municipality 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. In granting a conditional use, 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 act in this chapter.
B.
Decision; appeals.
(1)
The Board shall render a written decision or, when no decision is called for, make written findings on the conditional use 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 or conclusions based thereon, together with any reasons therefor. Conclusions based on any provisions of this act or of any ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found.
(2)
Where the Board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided in § 184-189I(1), 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 decision within 10 days from the last day it could have met to render a decision in the same manner as required by the public notice requirement of this section. If the Board shall fail to provide such notice, the applicant may do so.
(3)
Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction. A copy of the final decision or, where no decision is called for, of the findings shall be delivered to the applicant personally or mailed to him no later than the day following its date.
§ 184-195 Procedures for application to the Zoning Hearing Board.
A.
The Board shall act in accordance with the procedures specified by the Pennsylvania Municipalities Planning Code, as amended,[1] and by this chapter. All appeals and applications made to the Board shall be in writing, on forms prescribed by the Board. Every appeal or application shall refer to the specific provision of this chapter involved and shall exactly set forth the interpretation that is the grounds for any challenges to the validity of this chapter, the use for which a special exception is sought or the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be. All appeals and any stay of proceedings shall be in accordance with the Pennsylvania Municipalities Planning Code, as amended.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
Applications and appeals, together with the required filing fee as established by the Township Supervisors, shall be submitted to the Secretary of the Zoning Hearing Board. As a minimum, all material required for a zoning permit shall be submitted with the application. The applicant shall also submit a description of the operations proposed in sufficient detail to indicate the effects of those operations proposed in producing traffic congestion, noise, glare, water pollution, fire hazards, safety hazards or other potentially harmful activities.
§ 184-196 Expiration of special exceptions and variances.
Unless otherwise specified by the Board, a special exception or variance shall expire if the applicant fails to obtain a zoning permit, where required, within 18 months from the date of authorization of the special exception or variance.
§ 184-197 Review of applications for special exceptions and variances by Planning Commission and Supervisors.
The Secretary of the Zoning Hearing Board shall forward a copy of any application for a special exception or variance to the Township Planning Commission and Township Supervisors for the opportunity to review and comment at least 30 days prior to the hearing held by the Board on such application.
§ 184-198 Time limitations.
When an application for either a special exception, variance or a conditional use has been filed with either the Zoning Hearing Board or Township Supervisors and the subject matter of such application would ultimately constitute either a land development or a subdivision, as defined, no change or amendment of the zoning, subdivision or other governing ordinance or plans shall affect the decision on such application adversely to the applicant, and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed. Provided, further, that should such an application be approved by either the Zoning Hearing Board or Township Supervisors, as relevant, the applicant shall be entitled to proceed with the submission of either land development or subdivision plans within a period of six months or longer or as may be approved by either the Zoning Hearing Board or the Township Supervisors following the date of such approval in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed before either the Zoning Hearing Board or Township Supervisors, as relevant. If either a land development or subdivision plan is so filed within said period, such plan shall be subject to the provisions of the Township land regulations.