Clifton Heights City Zoning Code
ARTICLE XVIII
Zoning Hearing Board
§ 340-104 Creation; membership; removal; organization.
B.
Membership of the Board. The membership of the Board shall consist of five residents of the Borough appointed by resolution by the Borough Council. The terms of office shall be five years and shall be so fixed that the term of office of one Board member shall expire each year. The Board shall promptly notify Borough Council of any vacancies. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Board shall hold no other elected or appointed office in the Borough.
[Amended 2-21-1994 by Ord. No. 742]
C.
Removal of members. Any member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Borough Council 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.
D.
Organization of the Board.
(1)
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 not less than the majority of all members of the Board, but where a majority of members are disqualified to act in a particular matter, the remaining members may act for the Board. As provided for in the MPC, 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 Section 908 of the MPC.[2]
[2]
Editor's Note: See 53 P.S. § 10908.
(2)
The Board shall adopt rules and forms for its procedure in accordance with the provisions of this chapter. Meetings shall be held at the call of the Chairman. The Chairman or Acting Chairman may administer oaths and compel the attendance of witnesses. Meetings of the Board shall be open to the public.
(3)
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 records of its examination and other official actions, all of which shall be immediately filed in the office of the Borough Secretary and shall be a public record.
(4)
The Board shall submit a report of its activities to the Borough Council as requested.
E.
Expenditures for services. Within the limits of funds appropriated by the Borough Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services. Members of the Board may receive compensation for the performance of their duties at a rate fixed by Borough Council.
§ 340-105 Powers and duties.
A.
Appeals from the Code Enforcement Officer. The Board shall hear and decide appeals where it is alleged that the Borough Code Enforcement Officer has misinterpreted or misapplied any provision of this chapter or map or any valid rule or regulation governing the action of the Code Enforcement Officer.
B.
Applications. Applications for variances or special exceptions shall include, as a minimum, the following information:
C.
Variances. The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship on the applicant. In granting a variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the MPC[1] and this chapter.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
D.
Special exceptions. The Board shall hear and decide requests for special exceptions authorized by this chapter in accordance with the standards and criteria set forth in § 340-109 below. The Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the MPC and this chapter.
E.
Challenge to the validity of this chapter and/or map. The Board shall conduct hearings and make decisions and findings in connection with challenges to the validity of any provision of this chapter as authorized by the MPC.
§ 340-106 Hearings.
A.
Requirements and procedures. The Board shall conduct hearings and make decisions in accordance with the following requirements:
(2)
The Board may establish reasonable fees, based on cost, to be paid by the applicant and by persons requesting any notice not required by this chapter.
(3)
The public 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.
(4)
The parties to the hearing shall be the Borough and the 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.
(5)
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.
(6)
The parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond and present evidence and to cross-examine adverse witnesses on all relevant issues. At the hearings, any party may appear in person or by agent or by attorney.
(7)
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 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 with any party or his representatives unless all parties are given an opportunity to be present.
§ 340-107 Notice of hearing.
In any case where the Board shall hold a public hearing, the Board shall, at a minimum, give notice of such hearing as follows, which notice shall state the time and the place of the hearing and the particular nature of the matter to be considered at the hearing:
A.
By publishing a notice thereof once each week for two successive weeks in a newspaper of general circulation in the Borough, provided that the first publication shall be not more than 30 nor less than seven days prior to the hearing.
B.
By mailing or delivering due notice thereof to the applicant and other parties in interest, who shall be at least those persons whose properties adjoin the property in question or be within a two-hundred-foot radius of the property in question.
C.
By mailing or delivering notice thereof to Borough Council, the Borough Secretary and the Code Enforcement Officer.
D.
By conspicuously posting notice of said hearing on the affected tract of land at least one week prior to the hearing.
§ 340-108 Notice of decisions.
A.
The following requirements shall be observed in reporting of decisions of the Board:
(1)
The Board or hearing officer 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, subject to the requirements of the MPC.[1] Where a decision is not rendered within the prescribed time period or when the required hearing is not held within the prescribed time period, the decision shall be deemed to have been rendered in favor of the applicant, unless the applicant has agreed, in writing, to an extension of time.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(2)
A copy of any final decision shall be delivered to the applicant personally or mailed to the applicant not later than the day following the day on which the decision was made. At the same time, the Board will mail or deliver a brief notice of the decision or findings and a statement of the place where the full decision or findings may be examined to all other persons who have filed their name and address with the Board.
B.
Decision of the Board shall include the following elements:
(1)
Findings of fact, including a brief summary of relevant testimony and information entered during the proceedings of the Board.
(2)
Citation by quotation or by reference to the specific sections of the local ordinances and/or the MPC which are relevant to the case.
(3)
Conclusions of the Board enumerating the reasons why such conclusions are deemed appropriate in light of the facts found.
(4)
Ruling of the Board, indicating in writing any stipulation or conditions attached to the ruling.
§ 340-109 Review criteria for variances and special exceptions.
In any instance where the Zoning Hearing Board is required to consider a variance or special exception, the Board shall, among other things, consider the following standards:
A.
MPC[1] criteria for variances.
(1)
An applicant for a variance shall have the burden of establishing:
(a)
That there are unique physical conditions or circumstances peculiar to the subject property, and that the unnecessary hardship is not due to the circumstances or conditions generally created by this chapter in the district in which the property is located.
(b)
That, because of such physical conditions or circumstances, the property cannot be developed in strict conformity with the provisions of this chapter, and, therefore, a variance is necessary.
(c)
That such unnecessary hardship has not been created by the applicant.
(d)
That the variance, if authorized, will not alter the character of the neighborhood or district, nor impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
(2)
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the MPC and this chapter.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
Standards for review of special exceptions.
(1)
In any instance where the Board is required to consider a request for a special exception, the Board shall consider the following factors:
(a)
That the proposed use is appropriate for the site in question in terms of size, topography, natural features, drainage, accessibility, and availability of public services, and that adequate provisions will be made to protect sensitive environmental features, including slopes and mature trees.
(b)
That the proposed use is compatible with the character of the surrounding neighborhood and will not interfere with or detract from other legitimate uses and adjacent properties, and that adequate measures will be provided through building design, site layout, landscaping, planting, and operational controls to minimize any adverse impacts caused by noise, lights, glare, odors, smoke, fumes, traffic, parking, loading, signage or other proposed features.
(c)
That the proposed special exception will serve the best interest of the Borough and convenience of the community and the public, health, safety and welfare.
(d)
That the proposed use is consistent with the Clifton Heights Borough Comprehensive Plan.
(e)
That the proposed use promotes orderly development, proper population density, and the provision of adequate community facilities and services, including fire and police protection.
(f)
That the proposed use is suitable in terms of its effect on highway safety and traffic circulation, and that access, on-site circulation, and parking are adequate in view of anticipated traffic.
(2)
In cases where uses permitted by special exception are not accompanied by standards for such uses, the regulations in Article XIV of this chapter shall apply.
(3)
Financial hardship shall not be construed as a basis for granting a special exception.
(4)
In granting any special exception, the Board may attach reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of the MPC and this chapter. Such special exception shall be clearly authorized by a provision of this chapter and shall comply with the more specific standards relating to such special exception contained in the sections of this chapter relating to uses by special exception.
§ 340-110 Standards of proof for variances and special exceptions.
A.
Standards of proof for variances. An applicant for a variance shall have the burden of establishing both:
B.
Standards of proof for special exceptions. An applicant for a special exception shall have the burden of establishing both:
C.
Evaluation of the impact of an application on the public interest. In determining whether the allowance of a special exception or variance is contrary to the public interest, the Board shall consider whether the application, if granted, will:
(1)
Adversely affect the public health, safety and welfare due to changes in traffic conditions, drainage, air quality, noise levels, neighborhood property values, natural features, and neighborhood aesthetic characteristics.
(2)
Be in accordance with the Clifton Heights Borough Comprehensive Plan.
(4)
Adversely affect the logical, efficient and economical extension or provision of public services and facilities such as public water, sewers, refuse collection, police, fire protection and public schools.
(5)
Otherwise adversely affect the public health, safety or welfare.
§ 340-111 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 building permit within six months from the date of authorization thereof.
§ 340-112 Appeals.
A.
Appeals before the Zoning Hearing Board and to court. All appeals, applications or challenges which properly come before the Board in accordance with the requirements of the MPC[1] and all appeals to court shall be subject to the time limitations and requirements of the MPC. Appeals to court shall be taken to the Court of Common Pleas of Delaware County.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
Parties appellant before the Zoning Hearing Board. Appeals under Section 909.1 of the MPC[2] and proceedings to challenge an ordinance under Section 909.1 may be filed with the Board in writing by the landowner affected, any office or agency of the Borough, or person aggrieved. Request for a variance under Section 910.2 and for a special exception under Section 912.1[3] may be filed with the Board by any landowner or any tenant with the permission of such landowner.
C.
Time limitations. No persons shall be allowed to file any proceedings with the Board later than 30 days after any application for development, preliminary or final, has been approved by the 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. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest.
D.
Stay of proceedings. Upon filing of any proceeding referred to in Section 913.3 of the MPC[4] and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Code Enforcement Officer, or any agency or body, and all official action thereunder shall be stayed unless the Code Enforcement Officer or 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 of the Code Enforcement 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 persons other than the applicant, the applicant may petition the court having jurisdiction over zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board. The question of whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court, as prescribed in Section 915.1 of the MPC.[5]