Butler City Zoning Code
ARTICLE XX
Zoning Hearing Board
§ 260-128 Establishment; membership; removal from office; vacancies.
[Amended 7-11-1991 by Ord. No. 1355]
A Zoning Hearing Board is hereby established which shall consist of three members, residing within the City to be appointed by the governing body of the city. One member shall be appointed for one year, one member for two years and one member for three years, and each subsequent term shall be for three years. Members of the Board shall hold no other office in the municipality. Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the governing body of the city, taken after the member has received 15 days advance notice of the intent to take such vote. A hearing shall be held in connection with the vote if the member requests it, in writing. Vacancies shall be filled by resolution of the governing body of the City for the unexpired term of the member affected.
§ 260-129 Election of officers; proceedings.
The Zoning Hearing 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 § 260-131 hereof. Where two members of the Board are disqualified or disqualify themselves to act in a particular matter, the remaining member may act for the Board. The Board shall adopt rules necessary to the conduct of its affairs and in keeping with the provisions of this chapter. Meetings shall be called by the Chairman. The Board may cancel the regular monthly meeting if no matters are pending for its consideration. The Board shall keep full public records of its business and shall submit a report of its activities to the governing body of the City once a year.
§ 260-130 Alternate members.
[Added 7-11-1991 by Ord. No. 1355]
A.
City Council may appoint by resolution at least one but no more than three residents of the City to serve as alternate members of the Board. The term of office of an alternate member shall be three years. When seated, an alternate member shall be entitled to participate in all proceedings and discussions of the Board to the same and full extent as provided by law for Board members, including specifically the right to cast a vote as a voting member during the proceedings and shall have all the powers and duties of regular members. Any alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote as a member of the Board unless designated as a voting alternate member.
B.
If, by reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Board may designate as many alternate members of the Board to sit on the Board as may be needed to provide a quorum. Any alternate member of the Board shall continue to serve on the Board in all proceedings involving the matter or case for which the alternate was initially appointed until the Board has made a final determination of the matter or case.
C.
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 attorney retained to advise the Board shall not be the legal adviser to City Council.
§ 260-131 Hearings.
The Board shall conduct hearings and make decisions in accordance with the following requirements:
A.
Notice shall be given to the public, the applicant, the Planning Commission, the Zoning and Code Management Officer and to any person who has made timely request for the same. Notices shall be given at such time and in such manner as prescribed by § 260-132.
B.
The hearings shall commence within 60 days from the date of the applicant's request and be conducted by the Board, or the Board may appoint any member as a hearing officer. The decision, or where no decision is called for, the findings, shall be made by the Board, but the parties may waive decision or findings by the Board and accept the decision or findings of the hearing officer as final.
[Amended 7-11-1991 by Ord. No. 1355]
C.
The parties to the hearing shall be the city, 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 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 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.
[Amended 7-11-1991 by Ord. No. 1355]
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 unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surroundings after commencement of hearings with any party or his representative unless all parties are given an opportunity to be present.
I.
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 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. 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 the hearing officer's 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. The Board's decision shall be entered no later than 30 days after the report of the hearing officer. Where the Board fails to render the decision within the period required by this subsection, or fails to hold the required hearing within 60 days from the date of the applicant's request for a hearing, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed, in writing, or on the record to an extension of time. When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a decision as hereinabove provided, the Board shall give public notice of said decision within 10 days from the last day it could have met to render a decision.
[Amended 7-11-1991 by Ord. No. 1355]
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 the date that the final decision is published. 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.
K.
No proceeding before the Board shall commence until a fee as prescribed by resolution of Council has been deposited with the Secretary of the Board by the applicant. Fees for said hearings may include notice and advertising costs and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses of the Board, expenses for engineering, architectural or other technical consultants or expert witness costs.
[Amended 7-11-1991 by Ord. No. 1355]
§ 260-132 Powers and duties.
The Zoning Hearing Board shall have the following powers and duties:
A.
Appeals from the Zoning and Code Management Officer. The Board shall hear and decide appeals where it is alleged by the appellant that the Zoning and Code Management Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of this chapter or any valid rule or regulation governing the action of the Zoning and Code Management Officer.
B.
Challenge to the validity of any ordinance or map on substantive and procedural grounds.
[Amended 7-11-1991 by Ord. No. 1355]
(1)
A landowner who desires to challenge any provision of an ordinance or map which prohibits or restricts the use or development of land in which he has an interest may submit his challenge to the Board, or to City Council as a curative amendment (see § 260-138). Persons aggrieved by a use or development permitted on the land of another person by any provision of an ordinance or map and who desires to challenge the ordinance or map validity on substantive grounds shall submit their challenge to the Board. The challenging party shall make a written request that the Board schedule a hearing within 60 days of filing. The request shall contain the reasons for the challenge.
(2)
The Board shall hold a properly noticed hearing. Within 45 days after the end of the hearing the Board shall render a decision determining whether the challenged ordinance or map is defective as alleged. If so, the decision shall include recommended amendments which will cure the defects found. In reaching its decision the Board shall consider, in addition to the materials provided by the applicant, the impact of the development proposal on roads, utilities and other public services, the impact upon provision of low and moderate income housing if a residential development and the impact of the proposal on its site's soils, slopes, woodlands, floodplains and other natural features.
(3)
The challenge shall be deemed denied if the Board fails to act within the 45 day limit after the hearing, or fails to schedule the hearing within 60 days of the request.
(4)
The Board may also hear procedural challenges where the applicant alleges that there were defects in the process of adoption of amendments to this chapter or any other land use ordinance of the city. Such challenges shall be made within 30 days after the effective date of the amendment.
C.
Variances; conditions governing applications and procedures.
(1)
The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. The variance from the terms of this chapter shall not be granted by the Board unless:
(a)
To allow time for legal advertising, written application for a variance must be submitted to the Secretary of the Board not less than 30 days prior to the regular monthly meeting demonstrating that:
[Amended 11-21-2013 by Ord. No. 1679]
[1]
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]
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]
Such unnecessary hardship has not been created by the appellant.
[4]
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]
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)
Public notice shall be given by the Board in a newspaper of general local circulation once each week for two consecutive weeks, the first notice to be not more than 30 and the second notice no less than seven days prior to the hearing. The owner of the property for which a variance is sought or his agent shall be notified by mail. In addition, property owners of record within 200 feet of the exterior boundaries of the property for which variance is sought shall be notified by mail at least seven days prior to the hearing. Notice of such hearings shall be posted on the property for which a variance is sought, at the City Building, and one notice shall be placed in a prominent location on the affected tract of land at least seven days prior to public hearing.
[Amended 7-11-1991 by Ord. No. 1355; 2-20-1997 by Ord. No. 1430]
(c)
The public hearing shall be held. Any party may appear in person or by agent.
(d)
The Board shall make findings that the requirements of Subsection C(1) hereof have been met by the applicant for variance and shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this chapter and with the comprehensive plan of the city.
(2)
In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with this chapter.
(3)
The Board shall prescribe a time limit within which the action for which the variance is required shall be begun or completed, or both. Failure to comply with the time limit set shall void the variance.
(4)
Under no circumstances shall the Board grant a variance to allow a use not permissible under the terms of this chapter in the district involved or any use expressly or by implication prohibited by the terms of this chapter in the district.
D.
Special exceptions; conditions governing application and procedure.
(1)
The Board shall hear and decide requests for such special exceptions as stated in this chapter. A special exception shall not be granted by the Board unless:
(a)
To allow time for legal advertising, written application for a special exception must be submitted to the Secretary of the Board not less than 30 days prior to the regular monthly meeting demonstrating that the development:
[Amended 11-21-2013 by Ord. No. 1679]
[1]
Will not endanger the public health or safety if located where proposed and that the use will not generate nuisance conditions such as traffic congestion, noise, dust, glare or vibration.
[2]
Meets all requirements of this chapter in the zoning district where the use is proposed.
[3]
Is in general conformity with the Comprehensive Plan for the City and in harmony with the area in which it is proposed.
(b)
The developer shall submit drawings to the Board indicating the boundaries of the property, location of adjacent streets, the location and height of proposed buildings on the property with dimensions from property lines, access to the property and the location and number of proposed parking spaces.
(d)
The public hearing shall be held. Any party may appear in person or by agent.
(2)
The Board, before it grants a special exception, shall make findings of fact and state its reasons for granting the special exception.
(a)
The Board shall have the authority to require and approve specific plans, to increase the requirements set forth above and elsewhere in this chapter, but in no case shall the Board have the authority to decrease the requirements of this chapter for any use in the district in which a special exception is proposed to locate. Any such decrease in the requirements of this chapter shall only be granted upon the issuance of a variance or an amendment to the chapter.
(b)
All conditions required by the Board shall be entered in the minutes of the meeting at which the permit is granted and also on the certificate of special exception.
(3)
The Board shall prescribe a time limit within which the action for which the special exception is required shall be begun or completed, or both. Failure to begin or complete or begin and complete such action within the time limit set shall void the special exception permit.
(4)
The following special exceptions are subject to special conditions as listed:
(a)
Conversion of an existing single-family residence to two or more dwelling units does not require review by the Zoning Hearing Board unless a variance is requested:
[1]
Such structures shall contain at least 450 square feet of living space per dwelling unit.
[2]
Each dwelling unit shall conform to the Housing Code of the City as well as all other codes of the city.
[3]
Adequate ingress and egress shall be provided in accordance with state and local law.
[4]
If no exterior alteration such as enlarging the structure is made, the existing structure shall be presumed to be in accordance with yard, height, coverage and setback requirements. However, if exterior additions are made, all lot, yard, height and all other requirements of this chapter for the zone in which the conversion is located shall be complied with.
[5]
In R-2 Zone Districts, the minimum lot area for a two-family conversion with no exterior addition shall be 3,000 square feet. In R-3 Districts the minimum lot area for a two-family conversion with no exterior addition shall be 3,000 square feet, plus an additional 1,500 square feet of lot area for each dwelling unit in excess of two.
(b)
Boarding and lodging houses, funeral homes, membership clubs and tourist homes.
[1]
A rooming house shall be permitted on a zoning lot having a minimum area of 7,200 square feet, plus 300 square feet for each sleeping room in excess of four, provided that the prescribed yard, lot width and height requirements for a one-family dwelling are met.
[2]
A membership club shall be permitted, provided that neither restaurant nor bar facilities are established, and provided that the time of operation and the intensity of the use will not be disturbing to the adjacent residential uses.
[3]
A funeral home shall be permitted on a zoning lot having a minimum area of 7,200 square feet, plus 300 square feet for each chapel, provided that the prescribed yard, lot width and height requirements for a one-family dwelling are met, the main building is located not nearer than 100 feet to an R-1 District, there is no crematory, receiving vault or preparation as part of the operation, there is no display of merchandise or advertising visible from outside the main or accessory building, there is no loading or unloading of merchandise or bodies of deceased persons on public property and there is no parking or standing of motor vehicles on public property.
[4]
A tourist home shall be permitted on a zoning lot having a minimum area of 7,200 square feet, plus 300 square feet for each sleeping room in excess of four, provided that the prescribed yard, lot width and height requirements for a one-family dwelling are met, only overnight accommodations for not more than five transient guests are offered and the location of the use with respect to other dwelling uses is such as to be not disturbing to such uses.
§ 260-133 Stay of proceedings.
Upon the filing of any proceeding and during its pendency before the Zoning Hearing Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning and Code Management Officer or of any agency or body and all official action thereunder shall be stayed unless the Zoning and Code Management Officer or any other appropriate agency or body certifies to the Board facts indicating that such 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 and Code Management 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 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 Board. 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.
§ 260-134 Appeals.
Any person or persons, or any board, taxpayer, department or bureau of the City aggrieved by any decision of the Zoning Hearing Board may seek review by the Court of Common Pleas. Such appeal shall be initiated by serving and filing a petition for the writ within 30 days after the Board's decision has become final.
§ 260-135 Rehearing.
If an application for a variance, appeal from the Zoning and Code Management Officer or special exception is denied by the Zoning Hearing Board, another application for the same variance, appeal or special exception on the same property shall not be filed within a period of one year from the date of denial, except upon the initiation of the Zoning Hearing Board after a showing of a change of circumstances which would warrant a rehearing.