Biglerville City Zoning Code
PART 12
ZONING HEARING BOARD
§ 27-1201 Zoning Hearing Board.
[Ord. 2-89, 4/4/1989, § 1201]
1.
Creation of the Board.
A.
Zoning Hearing Board shall be appointed by the Borough Council upon the enactment of a Zoning Ordinance.
2.
Membership of Board.
A.
The membership of the Board shall consist of three residents of the Borough whose term of office shall be three years and shall be so fixed that the term of office of one member shall expire each year. Members of the Board shall hold no other office in the Borough.
3.
Vacancies.
A.
The Board shall promptly notify the Borough Council of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the term.
4.
Removal of Members.
A.
Any Board member may be removed for malfeasance in office or for other just cause by a majority vote of the 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.
5.
Organization of the Board.
A.
The Board shall elect from its own membership, its officers, who shall serve annual terms as such and may succeed themselves. For the conduct of any hearing and the taking of any action, a quorum shall be required consisting of not less than a majority of all the members of the Board. 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.
B.
The Board shall adopt such rules and forms in accordance with the provisions of this Chapter, and the provisions of the Pennsylvania Municipalities Planning Code. Meetings of the Board shall be held at the call of the Chairman and at such times as the Board may determine. Such chairman or in his absence, the acting chairman, may administer oaths, and compel the attendance of witnesses. All meetings of the Board shall be open to the public.
C.
The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicate such fact, and shall keep full public records of its examinations and other official action. The Board shall also submit an annual report of its activities to the Borough Council.
6.
Expenditure for Services.
A.
Within the limits of funds appropriated by the Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants, stenographers and other technical and clerical services. Members of the Board may receive compensation for the performance of their duties only as may be fixed by the Borough Council.
§ 27-1202 Hearings.
[Ord. 2-89, 4/4/1989, § 1202; as amended by Ord. 6-2003, 9/2/2003, § 1]
The Board shall conduct hearings and make decisions in accordance with the following requirements:
A.
Persons entitled to Initiate Action Before the Board. Appeals from a decision of the Zoning Officer pursuant to § 27-1203 hereof and proceedings to challenge the validity of any ordinance or map under § 27-1005 hereof may be filed by any officer or agency of the Borough or by any person aggrieved. Requests for a variance under § 27-1204 hereof may be filed by any landowner or tenant with the permission of such landowner.
B.
Manner of Initiating Action before the Board. All action before the Board shall be initiated by a written application for hearing which shall be filed with the Zoning Officer at least three weeks prior to the meeting at which the particular matter is to be heard. However, the Board reserves the right to hold the required hearing up to 60 days after or subsequent to the applicant's request for the hearing. All applications shall be made on forms specified by the Board, and no application form shall be accepted unless the same shall be fully and legibly completed and unless all exhibits and supplemental material required by the application shall be attached (and until all fees required under § 27-1207 of the Chapter shall have been paid).
C.
Notification of Hearings.
(1)
Whenever a hearing has been scheduled, notice shall be given to the general public by means of publication once each week for two successive weeks in a newspaper of general circulation in the Borough. Such public notice shall state the time and place of the hearing and the particular nature of the matter to be considered. The first publication shall not be more than 30 days prior to the date of the hearing, and the second publication shall not be less than seven days from the date of the hearing.
(2)
Direct individual notice shall also be given to the applicant, the Borough Planning Committee, the Adams County Planning Commission and such other persons who have made timely request for such notice. In addition to the notice provided, herein, notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.
D.
Conduct of Hearings.
(1)
The Zoning Hearing Board shall conduct hearings and make decisions in accordance with the following requirements:
(a)
Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer and to any person who has made timely request for the same. Written notices shall be given at such time and in such manner as shall be prescribed by rules of the Board. In addition to the written notice provided herein, written notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.
(b)
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. The 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 the Borough, be granted additional hearings to complete their opposition to the application provided the applicant is granted an equal number of additional hearings for rebuttal.
(c)
The hearings shall be conducted by the Board or the Board may appoint any member or an independent attorney as a hearing officer. The decision or, where no decision is called for, the findings shall be made by the Board, however, the appellant or the applicant, as the case may be, in addition to the Borough may, prior to the decision of the hearing, waive decision or findings by the Board and accept the decision or findings of the hearing officer as final.
E.
Parties. The parties to the hearing shall be the Borough, any person affected by the application who has made timely appearance of record before the Board and any other person including civic or community organizations permitted to appear by the Board. The Board shall have the power to require that all persons who wish to be considered parties enter appearances in writing on forms provided by the Board.
F.
Witnesses. The Chairman or acting chairman of the Board or the hearing officer president, shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers including witnesses and documents requested by the parties.
G.
Representation. The parties shall have the right to be represented by counsel and shall be afforded to opportunity to response 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. The Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings. The appearance fee for a stenographer shall be shared equally by the applicant and the Board. The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board or hearing officer or shall be paid by the person appealing from the decision of the Board if such appeal is made, and in either event the cost of additional copies shall be paid by the person requesting such copy or copies. In other cases the party requesting the original transcript shall bear the cost thereof.
J.
Communications. The Board or the hearing officer shall not communicate, directly or indirectly, with any party or his representative 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 advise 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 be present.
K.
Notice of Decision or Findings.
(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.
(2)
Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefore. 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 conclusion is deemed appropriate in the light of the facts found.
(3)
If the hearing is conducted by a hearing officer, and there has been no stipulation that his decisions 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 presentations 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.
(4)
Except for challenges to the validity of this Chapter filed under § 10916.1 of the Municipalities Planning Code, 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 § 27-1202D of this Section, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing or on the record to an extension of time.
(5)
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 Borough Council shall give public notice of the said decision within 10 days from the last day it could have met to render a decision in the same manner as provided in § 27-1202C(1) of this Section. If Borough Council shall fail to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
L.
Copies of Decision.
(1)
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.
§ 27-1203 Powers and Duties.
[Ord. 2-89, 4/4/1989, § 1203]
The Zoning Hearing Board shall have the following powers and duties:
A.
Appeals from the Zoning Officer. The Board shall hear and decide appeals where it is alleged by the appellant that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provisions of a valid ordinance or map or any valid rule or regulation governing the action of the Zoning Officer. Nothing contained herein shall be construed to deny to the applicant the right to proceed directly to Pennsylvania Rules of Civil Procedure, §§ 1091 to 1098, relating to mandamus.
B.
Variances. The Board shall hear requests for variances where it is alleged that the provisions of the Zoning Ordinance inflict unnecessary hardship upon the applicant. The Board may, by rule, prescribe the form of application to the Zoning Officer. All requests for variances shall then be sent by the Board to the Planning Committee for an advisory review and recommendations.
§ 27-1204 Standards for Zoning Hearing Board Action.
[Ord. 2-89, 4/4/1989, § 1204]
In any instance where the Board is required to consider a variance in accordance with the provisions of this Chapter, the Board shall, among other factors, apply the following standards:
A.
For Variances.
(1)
The Board shall not grant a variance unless it has determined:
(a)
That there are unique physical circumstances or conditions, including irregularity, narrowness or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions generally created by the provisions of the Zoning Ordinance 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 the Chapter and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.
(c)
That such unnecessary hardship has not been created by the applicant.
(d)
That the variance, if granted will not alter the essential character of the neighborhood or district in which it is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
(e)
That the variance, if granted, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
(f)
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes and intent of the Chapter and the Statement of Goals and Objectives.
(g)
No variance shall be granted for any development which may endanger human life.
§ 27-1205 Other Board Functions.
[Ord. 2-89, 4/4/1989, § 1205; as amended by Ord. 6-2003, 9/2/2003, § 1]
1.
Jurisdiction of the Zoning Hearing Board.
A.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1)
Substantive challenges to the validity of any land use ordinance, except those brought before the Borough Council pursuant to § 27-1303.
(2)
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 this Chapter. Where the Chapter appealed from is the initial zoning ordinance of the Borough and a Zoning Hearing Board has not been previously established, the appeal raising procedural questions shall be taken directly to court.
(3)
Appeals from the determination of the Zoning Officer including, but not limited to, the granting of denial of any permit or failure to act on the application therefore, the issuance of any cease to 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 this Chapter.
(5)
Applications for variances from the terms of the zoning ordinance and flood hazard ordinance or such provisions within this Chapter, pursuant to § 27-1204.
(6)
Applications for special exceptions under the zoning ordinance or floodplain or flood hazard ordinance or such provisions within this Chapter.
(7)
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.
(9)
Appeals from the determination of the Zoning Officer or 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 related to development.
2.
Jurisdiction of Borough Council.
A.
The Borough Council or, except to subsection (C) below, the Planning Committee, as so delegated by 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 in accordance with the Pennsylvania Municipalities Planning Code.
(2)
All applications for approval of subdivisions or land developments in accordance with the Pennsylvania Municipalities Planning Code.
(3)
Applications for conditional use under the expressed provisions of this Chapter pursuant to Part 10.
(4)
Applications for curative amendments to this Chapter.
(5)
All petitions of amendments to this Chapter.
(6)
Appeals from the determination of the Zoning Officer or the Borough 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 land development. Where such determination relates only to development not involving a subdivision or planned residential development, the appeal from such determination of the Zoning Officer or the Municipal Engineer shall be to the Zoning Hearing Board.
(7)
Applications for a special encroachment permit and applications for a permit on time limitations on reservations for future acquisition.
3.
4.
Time Limitations.
A.
No person shall be allowed to file any proceeding with the Board later than 30 days after any application for development, preliminary or final, has been approved by an appropriate Borough Officer, agency or body. If such proceeding is designed to secure reversal or to limit the approval in any manner unless such person alleges and proves that he had no notice, knowledge, or reason to believe that such approval had been given.
B.
If such person had succeeded in this interest after such approval, he shall be bound by the knowledge of his predecessor in interest.
C.
The failure of anyone other than the landowner to appeal from an adverse decision on:
(1)
A tentative or preliminary plan pursuant to the Pennsylvania Municipalities Planning Code.
(2)
An adverse decision by a Zoning Officer on a challenge to the validity of an ordinance or map pursuant to the Pennsylvania Municipalities Planning Code, shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative or preliminary approval.
5.
Stay of Proceedings.
A.
Upon filing of any proceeding referred to in §§ 27-1203 and 27-1205 and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or any agency or body, and all official action thereunder shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies the Board facts indicating that such a stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the Board or by the court having jurisdiction of zoning appeals on petition after notice to the Zoning Officer or other appropriate agency or body.
B.
When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as condition to continuing the proceedings before the Board.
C.
When the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous and is for the purpose of delay. At the hearing, evidence may be presented on the merits of the case. After consideration of all evidence presented, if the court determines that the appeal is frivolous and for the purpose of delay, 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 appellate, but such waiver may be revoked from a final decision of the court.
D.
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.
E.
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, the respondent to the petition for a bond, upon motion of the petitioner and after hearing the court having jurisdiction of zoning appeals shall be liable for all reasonable costs, expenses and attorney fees incurred by the petitioner.
§ 27-1206 Court Appeals.
[Ord. 2-89, 4/4/1989, § 1206]
Appeals may be taken to the Court of Common Pleas of Adams County by any party before the Board or any officer or agency of Biglerville Borough within 30 days as provided for an in accordance with the Pennsylvania Municipalities Planning Code.
§ 27-1207 Fees.
[Ord. 2-89, 4/4/1989, § 1207]
1.
Permit Fees. Fees for permits shall be paid in accordance with the provisions of a fee schedule adopted by resolution of the Borough Council.
2.
Zoning Hearing Board and Other Fees. Each applicant for an interpretation, variance or other appeal before Borough Council, shall at the time of making application, pay a fee in accordance with a schedule to be adopted by resolution of the Borough Council.
3.
Cost. The amount of the fee shall be predicated upon the average cost to the Borough or the application of appeal, as nearly as it can reasonably be determined, including advertising, mailing, reproduction, stenographic and similar expenses.
4.
Return of Excess Fees. The amount by which the fee exceeds the actual costs of the proceeding shall be returned to the applicant or appellant following the filing of the decision of the Board of Council.
5.
Prior payment. Payment of all fees must be made in full before any application is processed or permit issued.