Edgmont Township City Zoning Code
ARTICLE XXXIII
Zoning Hearing Board
§ 365-192 Administration and procedures.
§ 365-193 Establishment and membership.
A.
There shall be a Zoning Hearing Board consisting of three members, who shall be residents of the Township. The members of the Zoning Hearing Board shall be appointed by resolution by the Board of Supervisors for a term of three years and fixed such that the term of office of one member shall expire each year. Terms begin on January 1 and end on December 31. A member may be removed by the Board of Supervisors for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote, 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 shall have requested one, in writing. The Zoning Hearing Board shall promptly notify the Board of Supervisors of any vacancies on the Board. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members shall hold no other elected or appointed office within the Township nor shall any member be an employee of the Township. The members of the Zoning Hearing Board may receive compensation for the performance of their duties, as may be fixed by the Board of Supervisors, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
B.
The Board of Supervisors may appoint by resolution at least one but no more than three residents of the Township to serve as alternate members of the Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of § 365-195B, an alternate 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 set forth in this section and as otherwise provided by law. Alternates shall hold no other office in the Township, including Zoning Officer or membership on the Planning Commission. 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 nor be compensated pursuant to the Municipalities Planning Code[1] unless designated as a voting alternate member pursuant to this section.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
C.
The appointment and removal of members of the Board and the organization of the Board and expenditures for services by the Board shall be in accordance with the provisions of the Pennsylvania Municipalities Planning Code and to the Board of Supervisors, as follows.
§ 365-194 Organization and procedure.
A.
The Board shall elect, from its own membership, its officers, who shall serve annual terms 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.
B.
If, by reason of absence of disqualification of member, a quorum is not reached, the Chairperson of the Board shall 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. 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.
C.
The Board may make, alter and rescind rules and forms for its procedure consistent with this chapter and the laws of the Commonwealth of Pennsylvania. The Board shall keep full public records of its business, which records shall be the property of the Township, and shall submit a report of its activities to the Board of Supervisors.
D.
Within the limits of funds appropriated by the Board of Supervisors, the Zoning Hearing Board may employ or contract for secretaries, clerks, attorneys, consultants and other technical and clerical services. However, the Solicitor for the Zoning Hearing Board shall be a different individual than the Solicitor for the Board of Supervisors.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
§ 365-195 Hearings and decisions.
The Board shall conduct hearings and make decisions in the following manner:
A.
All hearings shall be public.
B.
Notice of hearings shall be given to the public, and to the persons hereinafter designated, in the following manner:
(1)
To the public, by publishing notice of the time, place and purpose of the hearing once each week for two successive weeks, in a newspaper of general circulation in the Township. 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.
(2)
To the applicant, the Zoning Officer, the Township Secretary, each member of the Board of Supervisors, to owners of properties adjacent to the affected tract of land, and to all parties in interest, or their counsel, if such counsel shall have filed appearance with the Board, by mailing notice of the time, place and purpose of the hearing at least 10 days in advance of the date fixed for hearing.
(3)
Notice of hearings, both published and written, shall state, in addition to the time, place and purpose of the hearing, the location of the lot, tract or structure involved, and the nature and extent of the relief sought, and the general nature of the question involved. Notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.
(4)
The hearing shall be held within 60 days from the date of the applicant's request, unless the applicant has agreed, in writing, to an extension of time.
(5)
In the event more than one hearing is required to consider any application, or a hearing is continued while in progress to another date, announcement at the hearing to be continued shall be deemed adequate notice of said continued or subsequent hearing. In the event the date or time of the hearing is changed, then public notice must again be provided as set forth in § 365-196B(1) and (2) herein. If for any reason the continued hearing is not held within 45 days of the first hearing, then notice must be provided in accordance with § 365-196B(1) and (2), herein.
C.
Hearings shall be conducted by the Board and the Chairperson or, in his absence, the acting Chairperson, who shall administer oaths and may issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.
D.
The parties to the hearing shall be the Township, any person affected by the application who has made a timely appearance of record before the Board, and any other person, including civic or community organizations, permitted to appear by the Board. All persons who wish to be considered parties must enter appearances in writing or on the record.
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, and the Board shall keep a stenographic record of the proceedings; the appearance fee of a stenographer shall be shared equally by the applicant and Board, and a transcript of the proceedings and copy of graphic or written material received in evidence shall be made available to any party at cost.
F.
The Board 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 the commencement of hearings with any party or his respective counsel unless all parties are given an opportunity to be present.
G.
The Board 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 unless waived by the applicant according to law. 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 Township 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 Board fails to render a decision within the period required, 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.
H.
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 in accordance with the law, and 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 where the full decisions or findings may be examined.
I.
Notice of all hearings by the Zoning Hearing Board shall be given to the Township Planning Commission and the Board of Supervisors.
§ 365-196 Functions of Board.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudication in the following matters:
A.
Challenges to the validity of this chapter or the Zoning Map. The Zoning Hearing Board shall hear such challenges as follows:
(1)
A landowner who, on substantive grounds, desires to challenge the validity of this chapter or the Zoning Map or any provision thereof which prohibits or restricts the use of development of land in which he has interest shall submit the challenge to either the Zoning Hearing Board under Section 909.1(a) of the Pennsylvania Municipalities Planning Code or the Board of Supervisors under Sections 909.1(b)(4) and 609.1 of the Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10909.1(a) and (b)(4) and § 10609.1, respectively.
(2)
Persons aggrieved by a use or development permitted on the land of another by this chapter or the Zoning Map or any provision thereof who desire to challenge its validity shall first submit their challenge to the Zoning Hearing Board for a decision thereon under Section 909.1(a)(1) of the Pennsylvania Municipalities Planning Code.[2]
[2]
Editor's Note: See 53 P.S. § 10909.1(a)(1).
(3)
In addition to the procedures set forth in Section 916.1 of the Municipalities Planning Code,[3] in all such challenges the Zoning Hearing Board shall decide all contested questions and shall make findings on all relevant issues of fact and of interpretation, and submit such findings as part of the record to the court.
[3]
Editor's Note: See 53 P.S. § 10916.1.
B.
Variances. The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. The Board may grant a variance, provided the following findings are made where relevant in a given case:
(1)
That there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of this chapter in the neighborhood or district in which the property is located;
(2)
That, because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this chapter and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;
(3)
That such unnecessary hardship has not been created by the applicant;
(4)
That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
(5)
That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation or ordinance in issue, and in granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.
C.
Special exceptions. The Board shall hear and decide special exceptions in accordance with the standards set forth below and, in granting special exceptions, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of this chapter.
(1)
Whenever the Board hears a special exception for uses specified in this chapter, the following general standards shall be considered in addition to those set forth in Article XXXII, § 365-191:
(a)
If the use(s) is in accordance with the Township Comprehensive Plan and consistent with the purposes of this chapter.
(b)
If the use(s) is in the best interest of the Township and promotes the public health, safety and general welfare.
(c)
If the use(s) is suitable for the property in question and designed, constructed, operated and maintained so as to be in harmony with and appropriate in appearance with the character of the general vicinity.
(d)
If the use(s) is suitable in terms of the logical, efficient, and economical extension of public services and facilities, such as public water, public sewer, police and fire protection, public schools, and the like.
(e)
If the use is suitable in terms of effects on street traffic and safety with adequate pedestrian and vehicular access arrangements to protect streets from undue congestion and hazard. The Zoning Hearing Board may impose whatever conditions regarding layout, circulation and performance it deems necessary to ensure that any proposed development will substantially secure the objectives of this chapter.
E.
Challenges to the validity of this chapter raising procedural questions or alleged defects in the process of enactment or adoption, which challenges shall be raised by an appeal taken within 30 days after the effective date of the chapter.
F.
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.
G.
Appeals from a determination by the Township Engineer or the Zoning Officer with reference to the administration of the Flood Hazard District provisions of this chapter.
I.
Appeals from the determination of the Zoning Officer or Township Engineer in the administration of this chapter or provision thereof with reference to sedimentation and soil erosion control and stormwater management insofar as the same relate to development.
J.
Applications for variances from the terms of the Flood Hazard District of this chapter.
K.
Applications for special exceptions under the Flood Hazard District of this chapter.
§ 365-197 Time limit after granting variance or special exception; effect of special exception.
A.
Any variance or special exception granted in accordance with this chapter is void if action in compliance therewith is not commenced within one year from the date of the written decision granting the same.
B.
If a special exception is granted, which has the effect of permitting a new or different principal use upon the property, the prior use of the property shall no longer be considered a principal use, and shall be abandoned, and cannot become an accessory use to the principal use permitted by the special exception.
§ 365-198 Rules and procedures for application to Zoning Hearing Board.
A.
All appeals and applications made to the Board shall be in writing on forms prescribed by the Board.
B.
Every appeal or application shall refer to the specific provision of this chapter involved and shall exactly set forth the interpretation that is claimed, the grounds for any challenges to the validity of this chapter, the use for which a special exception is sought, or the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be.
C.
Applications and appeals, together with the required filing fee, as established by the Township elected officers, shall be submitted to the Zoning Officer for referral to the Zoning Hearing Board.