Brady Township Butler County
City Zoning Code
City Zoning Code
ARTICLE XI
Zoning Hearing Board and Other Administrative Proceedings
[Amended 1-19-2022 by Ord. No. 2022-1; 5-21-2024 by Ord. No. 2024-01]
§ 350-1101 Operation of Board.
Formation of the Board. A Zoning Hearing Board, hereafter called the "Board," is hereby created to carry out the functions described in this article.
Membership of the Board.
The membership of the Board shall consist of three persons, all residents of Brady Township who shall be appointed by resolution of the Board of Supervisors and may succeed themselves.
Members of the Board shall hold no other office in Brady Township, either elective or appointed.
The Board of Supervisors may appoint by resolution at least one but no more than three residents of the municipality to serve as alternate members of the board. The term of office of an alternate member shall be three years. Alternates shall hold no other elected or appointed office in the Township, including service as a member of the Planning Commission or as a Zoning Officer, nor shall any alternate be an employee of the Township.
Term of office.
Members of the Board shall be appointed for three-year staggered terms, with one appointed each year to refill a completed term. In the first appointment, one member shall be given a three-year term, one member shall serve a two-year term and one member a one-year term.
Any member may be reappointed to another three-year term when a preceding term is completed.
Appointments to fill vacancies shall be made by the Board of Supervisors for the unexpired portion of a term only. The Zoning Hearing Board shall promptly notify the Board when a vacancy occurs.
Removal of members.
Any Board member may be removed by a majority vote of the Board of Supervisors for malfeasance, misfeasance or nonfeasance in office or for other just cause, taken after the Board member has received a minimum 15 days' notice that such a vote will be taken.
The Board member thus accused may request by written communication to the Township Secretary at least seven days prior to the meeting of the Board of Supervisors at which the vote for removal is to be taken, a hearing before the Supervisors after which the Supervisors, at their discretion, may vote to remove the Board member.
Organization of the Board.
The Board shall annually elect officers from among its membership, to include a Chairperson, Vice Chairperson and Secretary.
(Reserved)
The Board shall reorganize at its first meeting in each calendar year.
Board members may succeed themselves in their positions.
The chairperson (or vice chairperson, if acting), of the Board may designate alternate members of the Board to replace any absent or disqualified member and if, by reason of absence or disqualification of a member, a quorum is not reached, the chairman (or vice chairperson) shall designate as many alternate members of the Board to sit on the Board as may be needed to reach 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 decision on 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 all alternates.
The Vice Chairperson shall act in the absence of the Chairperson.
(Reserved)
For the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of all members of the Board.
(Reserved)
Members who have a conflict of interest with a case to be heard shall excuse themselves from the hearing, in which case, an alternate may be appointed by the Chairperson to hear the case in place of the excused member.
The Board may make, alter, or rescind rules and forms for its procedure consistent with this and other ordinances of Brady Township and the law of the commonwealth.
The Board shall keep full public records of its business and shall submit an annual report of its activities to the Board of Supervisors not later than 60 days after the start of the subsequent year.
In conducting its business, the Board shall utilize Robert's Rules of Order when procedural conflicts arise that are not addressed by the article.
Expenditures for services.
Within the limits of its annual budget, the Board may employ secretarial, legal, technical or other consulting services to assist it in carrying out its duties.
In setting fees for public hearings, the Board of Supervisors may not include the costs of legal services for the Board or expenses for technical consultants or expert witnesses.
The attorney retained by the Board of Supervisors shall not also provide legal services for the Zoning Hearing Board.
§ 350-1102 Jurisdiction.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
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.
Appeals from a determination by the Township 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.
Appeals from the determination of any officer or agency charged with the administration of any transfers of development rights or performance density provisions of the Zoning Ordinance.
Appeals from the determination of the Zoning Officer or Township 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 development not involving Article V or VII of the Pennsylvania Municipalities Planning Code, Act 247, as amended, applications.[5]
[5]
Editor's Note: See 53 P.S. § 10501 et seq. or 10701 et seq., respectively.
Township Supervisors or, except as to § 350-1102B(3), (4) and (5), the Planning Commission, if designated, shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
All applications for approvals of planned residential developments under Article VII of the Pennsylvania Municipalities Planning Code, Act 247, as amended, pursuant to the provisions of Section 702 of the Pennsylvania Municipalities Planning Code, Act 247, as amended.[6]
[6]
Editor's Note: See 53 P.S. § 10702.
All applications pursuant to Section 508 of the Pennsylvania Municipalities Planning Code, Act 247, as amended,[7] for approval of subdivision or land developments under Article V of the Pennsylvania Municipalities Planning Code, Act 247, as amended. Any provision in a subdivision and land development ordinance requiring that final action concerning subdivision and land development applications be taken by the Planning Commission rather than the Township Supervisors shall vest exclusive jurisdiction in the Planning Commission in lieu of the Township supervisors for purposes of the provisions of this subsection.
[7]
Editor's Note: See 53 P.S. § 10508.
All petitions for amendments to land use ordinance, pursuant to the procedures set forth in Section 609 of the Pennsylvania Municipalities Planning Code, Act 247, as amended.[10] 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.
[10]
Editor's Note: See 53 P.S. § 10609.
Appeals from the determination of the Zoning Officer or the Township 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 application for land development under Article V and VII of the Pennsylvania Municipalities Planning Code, Act 247, as amended.[11] Where such determination relates only to development not involving of Article V or VII of the Pennsylvania Municipalities Planning Code, Act 247, as amended, application, the appeal from such determination of the Zoning Officer or the Township Engineer shall be to the Zoning Hearing Board pursuant to § 350-1102A(8). Where the applicable land use ordinance vests jurisdiction for final administration of subdivision and land development applications in the Planning Commission, all appeals from determinations under this subsection shall be to the Planning Commission and all appeals from the decision of the planning agency shall be to court.
[11]
Editor's Note: See 53 P.S. §§ 10501 et seq. and 10701 et seq., respectively.
§ 350-1103 Functions of Zoning Hearing Board.
Appeals from the determination of the Zoning Officer.
The Board is vested with authority to hear appeals from the determination of the Zoning Officer, including, but not limited to, the grunting 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 non-conforming use, structure or lot.
An appeal from determination of the Zoning Officer must be filed within 30 days after notice of the determination is issued. However, if a person alleges and proves that he had no notice, knowledge, or reason to believe that such approval had been given, the appeal can be filed promptly after the aggrieved person learns of the decision, even if the 30-day time limit has expired.
Challenges to the validity of a land use ordinance or map.
A landowner who, on substantive grounds, desires to challenge the validity of a land use ordinance or map which prohibits or restricts the use or development of land in which he has an interest has two choices: (i) a request for a curative amendment or (ii) a substantive validity challenge. The Board has exclusive jurisdiction to hear the landowner's substantive validity challenge.
Persons aggrieved by the use or development permitted on land of another by any ordinance or map, who desires to challenge its validity on substantive grounds, shall first submit their challenge to the Board. The Board has exclusive jurisdiction to hear a substantive validity challenge brought by a person aggrieved by a use or development permitted on the land of another.
A substantive validity challenge must be in writing, and request that the Board conduct a hearing on the challenge. The request shall contain reasons for the challenge.
In reaching its decision on whether the challenged ordinance or map is defective, the Board must consider the testimony of record, any submitted amendments, plans and explanatory materials and the following criteria:
Impact of the proposal upon roads and other public service facilities;
If the proposed use is residential, the impact on regional housing needs and effectiveness of the proposal in providing affordable housing;
Suitability of the site for the intensity of the use proposed by the site's natural features, such as soils, slopes, woodlands, floodplains, etc.;
Impact of the proposed use on the site's natural features, the degree to which these are protected or destroyed, the tolerance of these features to development and any adverse environmental impacts; and
Impact of the proposal on preservation of agriculture and other land uses which are essential to public health and welfare.
The Board shall commence its public hearings, pursuant to the public notice and written notice requirements of § 350-1104, within 60 days after the request is filed unless the applicant requests or grants an extension of time.
Based on testimony presented at the hearing, the Board shall determine whether the challenged ordinance or map is defective. If the challenge is found to have merit, the decision of the Board shall include recommended amendments to the challenged ordinance or map which will cure the defects found.
If the Board fails to conduct a hearing on the substantive validity challenge within 60 days of its filing or fails to render a written decision 45 days after the close of the last hearing on the challenge, the result is a deemed denial of the challenge.
Variances.
The Board is vested with the authority to hear requests for variances where it is alleged that the provisions of this chapter, if strictly applied, would cause an unnecessary hardship upon the applicant.
Variance from the terms of this chapter shall not be granted by the Board unless a written application for a variance is submitted in advance of the hearing to the Secretary of the Board demonstrating all the following findings where relevant:
That there are unique physical circumstances or conditions, including but not limited to 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 condition generally created by the provisions of this chapter in the neighborhood in which the property is located;
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;
That such unnecessary hardship has not been created by the appellant;
That the variance, if authorized, will not alter the essential character of the neighborhood in which the property is located nor substantially or permanently impair the appropriate use or development of adjacent property and is not detrimental to the public welfare.
If authorized, the variance shall represent the least deviation from the regulations that will afford relief and will represent the least modification possible of the regulation in question.
In granting a variance the Board may attach appropriate conditions necessary to protect the intent of this chapter, the Comprehensive Plan of Brady Township and the public health and safety.
(Reserved)
Special exceptions.
A special exception is a use that the governing body has determined is in the public health, safety, and welfare in the zoning district proposed, but is subject to specific standards and more detailed review.
The Board shall hear and decide such requests in accordance with such standards and criteria. In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in the chapter, as it may deem necessary to implement the purposes of this chapter.
The Board may not grant any use as a special exception. Rather, it may only consider as a special exception a use specifically permitted by this chapter as a special exception.
The applicant for a special exception must first show that the proposed use is a use allowed under this chapter as a special exception. The applicant must next show that the specific standards and criteria contained in this chapter for that use are met by the proposed development. Specific criteria, for example, may refer to such factors as lot size, increased setbacks, buffering or landscaping requirements or additional parking spaces, or to special studies such as traffic studies and environmental impact studies.
An applicant for special exception is not required to carry the burden of proof of general or non-specific criteria. Examples of non-specific criteria include such provisions that the use may not be more detrimental to the neighborhood or, that the use be in harmony with the spirit and purposes of the district. An opponent bears the burden of proving nonspecific requirements, that is, sufficient evidence that the use would be detrimental to public health, safety, or general welfare. The mere possibility of an adverse impact or speculation or belief of harm is not enough. The objector must show that there is a high probability that the proposed use will generate a harm greater than normally generated by that type of use. An opponent must prove harm by offer of credible and particularized — often expert — evidence.
Advisory opinions. The Board is not authorized to render advisory opinions.
§ 350-1104 Public hearings.
After receiving a zoning appeal, challenge to the validity of the Zoning Ordinance, variance request or other zoning-or floodplain-related application properly before the Zoning Hearing Board, the Board shall hold public hearings on and decide the request in accordance with the statutory and common law of the Commonwealth of Pennsylvania and the express standards and criteria of this chapter for the applicable zoning district.
Public notice requirements. Public notice of the hearings shall be published once each week for two successive weeks in a newspaper of general circulation in the Township. Such notice shall state the time and place of the hearing and the particular nature of the matter to be considered at the hearing. The first publication shall not be more than 30 days and the second publication shall not be less than seven days from the date of the hearing.
Written notice requirements. Written notice of the hearing shall be mailed at least 14 days before the hearing to the applicant, the Zoning Officer, such other persons as the governing body shall designate by ordinance, any person who has made timely request to the Board for such notice and to owners or properties adjacent to or directly across the street from the property affected by the hearing. In addition, a copy of the written notice shall be conspicuously posted on the affected tract of land and at the Township building at least one week prior to the hearing.
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, 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.
The chairperson or acting chairperson 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.
The parties to the hearing shall be the applicant, the Township and any person affected by the application who has made a timely appearance of record before the Board or hearing officer and any other person permitted to appear by the Board or hearing officer.
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.
The Board or 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 Township. The cost of the original transcript shall be paid by the Township if the transcript is ordered by the Board or hearing officer or shall be paid by the person appealing from the final decision 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.
The Board or 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.
The first hearing shall commence 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 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 that 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 Township, be granted additional hearings to complete their opposition to the application provided the applicant is granted an equal number of additional hearings for rebuttal.
The Board or 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. 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 any statute, 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.
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 decision of the Board shall be entered no later than 30 days after the report of the hearing officer.
Where the Board or hearing officer, as the case may be, fails to render the decision within the period required by this section or fails to commence, conduct or complete the required hearings as provided by 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. When a decision has been rendered in favor of the applicant because of the failure of the Board or hearing officer 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 requirements of § 350-1104. If the Board fails to provide such notice, the applicant may do so.
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 the applicant not later than the day following its date. To all other persons who have filed their name and address with the Board or hearing officer 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.
§ 350-1105 Conditional use hearings; Board of Supervisors.
After receiving recommendations from the Planning Commission, the governing body shall hold public hearings, pursuant to the public notice and written notice requirements of § 350-1104, on and decide requests for conditional uses in accordance with the statutory and common law of the Commonwealth of Pennsylvania and the express standards and criteria of this chapter for the applicable zoning district.
The hearing shall be conducted by the governing body, or the governing body 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 governing body. 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 governing body and accept the decision or findings of the hearing officer as final. In granting a conditional use, the governing body or hearing officer, as the case may be, may attach such reasonable conditions and safeguards, in addition to those expressed in this Chapter, as it may deem necessary.
The governing body or hearing officer 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. 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 any statute, 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.
Where the governing body or hearing officer fails to render the decision within the period required by this section or fails to commence, conduct or complete the required hearing as required in 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. When a decision has been rendered in favor of the applicant because of the failure of the governing body or hearing officer to meet or render a decision as required by this section, the governing body 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 requirements of this act. If the governing body fails to provide such notice, the applicant may do so.
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.
Nothing in this section shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
§ 350-1106 Zoning appeals; time limitations.
No person shall be allowed to file an appeal with the Zoning Hearing Board later than 30 days after an application for development, preliminary or final, has been approved by the Zoning Officer 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. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest.
All appeals to the Board from zoning enforcement notices issued by the Zoning Officer shall be filed by the appellant within 30 days after the notice is issued.
All appeals from all land use decisions rendered by the Zoning Hearing Board or governing body pursuant to this chapter shall be taken to the Butler County Court of Common Pleas and shall be filed within 30 days after entry of the decision or, in the case of a deemed decision, within 30 days after the date upon which notice of the deemed decision is given.
Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption shall be raised by appeal taken directly to the Butler County Court of Common Pleas.
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.
§ 350-1107 Mediation.
Parties to proceedings authorized in this article and Article X-A, Appeals to Court, of the Pennsylvania Municipalities Planning Code, Act 247, as amended,[1] 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 article and Article X-A once they have been formally initiated. Nothing in this section shall be interpreted as expanding or limiting municipal police powers or as modifying any principals of substantive law.
[1]
Editor's Note: See 53 P.S. § 11001-A et seq.
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:
Funding mediation.
Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation.
Completing mediation, including time limits for such completion.
Suspending time limits otherwise authorized in this act, provided 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.
Identifying all parties and affording them the opportunity to participate.
Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public.
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 other sections of this act.
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.