Emsworth City Zoning Code

Based on the testimony presented at the hearing or hearings, the Board shall determine whether the challenged ordinance, ordinance provision, or map is defective as alleged by the applicant. If the challenge is found to have merit, then the final decision of the Board shall include recommended amendments to the challenged ordinance which will cure the involved defects.

In reaching its decision on a substantive challenge to validity of this chapter or its amendments, the Board shall consider:

The challenge shall be deemed to be denied if the Board fails to commence the hearing within 60 days, or fails to act on the application within 45 days of the close of the last involved hearing. In the latter two of these cases, the involved time limit may be extended by mutual consent of the applicant and the municipality. If no such consent is reached, the challenge shall be denied on the day after the last day that the Board could have taken the involved action.

Each hearing that is to be held shall begin within 60 days of the date that the request for that hearing was filed.

The Zoning Hearing 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 of the close of the last involved hearing.[2]

If the hearing is conducted by a hearing officer (see Subsection D above), and there has been no stipulation that his or her decisions or findings are final, the Zoning Hearing Board shall make his or her report and recommendations available to all of the involved parties within 45 days of the end of the hearing. The parties are then entitled to make written responses to this report. The Zoning Hearing Board shall make a final decision after reading these responses, but no later than 30 days after the hearing officer's report is issued.

Where the Zoning Hearing Board fails to render this decision within the required period, or where the Board fails to hold the hearing within the required period, the decision shall be deemed to have been rendered in favor of the applicant or appellant (as the case may be), unless either the applicant/appellant has agreed in writing or on the record to an extension of time, or the hearing concerns a challenge to the substantive validity of the ordinance[3] (see § 245-21, Substantive challenges). When a deemed decision is rendered in favor of the applicant, the Board shall give notice of this, within 10 days of the last day that it could have met to render a decision, to the parties and at the locations listed under "required public notice" below. If the Board fails to provide such notice, the applicant/appellant may do so. Note that protesting or aggrieved parties cannot obtain a deemed decision. In the case of a challenge to the substantive validity of the ordinance by a landowner, a denial of the request is deemed to have occurred on the 46th day after the close of the last hearing unless the time is extended by mutual consent by the landowner and the municipality.

A notice containing the information listed under "contents of required public notice" below shall be published once each week for two successive weeks in a newspaper of general circulation in the Borough. The first of these publications shall not be more than 30 days before the date of the hearing, and the second shall not be less than seven days before the date of the hearing.

Written notice shall be mailed to the applicant, the Zoning Officer, any other party that Borough Council has designated by ordinance, and any party that has requested such notice. The timing and manner of this notice shall follow rules adopted by the Zoning Hearing Board.

Written notice shall be conspicuously posted on the involved tract of land at least one week prior to the hearing.

The notice shall state that the Zoning Hearing Board of the Borough of Emsworth will hold a public hearing on the appropriate date, at the proper time, and at the pertinent location.

The purpose of the hearing and the particular issue or issues that will be discussed there shall be summarized.

The name of the applicant or appellant (as the case may be) shall be given, as well as a brief summary of his or her proposal or appeal.

The location or locations of the involved property or properties shall be provided.

Any applicable sections of the chapter shall be cited.

If the involved hearing involves a substantive challenge to the validity of this chapter or one of its amendments, then the notice shall state that the validity of the chapter is being questioned and note where the public may examine a copy of the challenge, including any plans, explanatory materials, or proposed amendments.

The following statement shall be included: "All persons having an interest in these matters are encouraged to attend this meeting. Persons with a disability who wish to attend this hearing and require an auxiliary aid, service, or other disability accommodation to participate in the proceedings can be accommodated by contacting the Borough Manager's office."

The date of the publication shall be given.

An appeal to the Zoning Hearing Board automatically stops all affected land development. However, if the Zoning Officer certifies that such a halt would cause an imminent danger to life or property, then the development may be stopped only with a restraining order granted by the Zoning Hearing Board or by any court with competent jurisdiction, following notice to the Zoning Officer.

An applicant or appellant may petition a court of competent jurisdiction to force those contesting an authorized permit or approval to either post bond or drop their appeal. The burden of proof shall be on the applicant/appellant to prove that the appeal is frivolous. If the party contesting an authorized permit or approval refuses to post bond as ordered by the involved court, appeals to an appellate court, and loses, then that party is liable for all reasonable costs, expenses, and attorney fees incurred by the applicant/appellant.

The Borough Council may prescribe reasonable fees for a Zoning Hearing Board hearing which may include:

The cost of the original transcript shall be paid by the Board if the original is ordered by the Board or the hearing officer, and shall be paid by the applicant/appellant if he or she orders it. Additional copies shall be paid for by the parties requesting them.

Fees may not compensate for the legal expenses of the Board. Furthermore, fees may not be used to compensate engineering, architectural, planning, or other technical consultants or expert witnesses.

The Zoning Hearing Board may hire its own solicitor.

The Zoning Hearing Board's solicitor shall be a different person, and shall be from a different law firm, than the Borough's Solicitor.

Either the Zoning Hearing Board or a hearing officer (see Subsection D above) shall conduct all hearings.

A stenographic record that conforms with civil trial transcripts must be taken in all hearings. Furthermore, written minutes shall be taken of all Board meetings. The substance of all official actions, the names of people who appear officially, and the subject of their testimony must be recorded.

Each party has the right to be represented by counsel, to present and respond to evidence, and to cross-examine adverse witnesses on all relevant issues.

The Chairman of the Zoning Hearing Board (if a hearing officer has not been appointed) or the hearing officer (if one has been appointed, see Subsection D above) has the power to administer oaths and issue subpoenas to compel both the attendance of relevant witnesses and the production of relevant papers. All testimony should be sworn, as unsworn statements do not constitute legal evidence to make a record.

Formal rules of evidence do not apply to hearings. However, the Zoning Hearing Board may exclude any irrelevant, immaterial, or unduly repetitious evidence. Hearsay evidence, if not objected to, may be given its natural probative value. Yet, the Board has the power to reject even uncontradicted testimony if it finds this testimony to be lacking in credibility.

In the time following the beginning of a hearing and prior to a rendering of the decision or findings, the Board shall not communicate with any party or party representatives unless all parties are given an opportunity to participate. No communication, reports, staff memoranda, or other materials, except advice from the Board's own solicitor, may be accepted or noticed by the Board unless all parties are given an opportunity to contest that information. The Board should not inspect the involved site or its surroundings during the hearings unless all parties are given an opportunity to be present. Any reports by the Zoning Officer shall be filed with all involved parties.

A case should not be postponed to a later date without substantial or compelling reasons, especially if the issue is of great concern and has attracted an audience. However, where a new issue is raised for the first time at a hearing, and the applicant/appellant had no notice of this issue, the hearing should be continued at a later date to give the applicant/appellant an opportunity to react properly. When a case is continued at a second hearing, a notice shall be prominently posted at the hearing site, and all involved parties must be notified.

Mediation is "a voluntary negotiating process in which parties in a dispute mutually select a neutral mediator to assist them in jointly exploring and settling their differences, culminating in a written agreement which the parties themselves create and consider acceptable" (from the Pennsylvania Municipalities Planning Code[4]). Mediation is intended to supplement, but not replace, the procedures for Zoning Hearing Board hearings specified here. It can provide a potentially less costly mechanism for resolving land use disputes, as well as a less polarized process.

In no case may the Zoning Hearing Board initiate mediation or participate as a mediating party.

Participation in mediation must be voluntary, and the involved parties must agree to:

No offers or statements made in the mediation sessions, excluding the final written mediated agreement, can be admissible as evidence in any subsequent judicial or administrative proceedings.

The decision or, where no decision is called for, the findings shall be made by the Zoning Hearing Board. However, the applicant/appellant and the Borough may agree before this decision to waive this and instead accept the decision or findings of the hearing officer as final (if a hearing officer has been appointed).

In voting on a final decision, the vote cast by each member of the Board (or the hearing officer, where appropriate) shall be made publicly.

Where an application or appeal is contested or denied, the resulting decision must be accompanied by a finding of fact, the conclusions based on these facts, and the reason that such conclusions were drawn. This will show that the decision was reasoned, and not arbitrary. References to any provisions of any ordinance, rule, or regulation relied on for any conclusion must be made, along with the reason that the conclusion is appropriate for the particular case at hand.

Even where an application or appeal is not contested, the resulting decision should be accompanied by a statement of findings or an opinion that is detailed enough to substantiate the Zoning Hearing Board's decision.

A copy of the final decision, or where no decision is called for, the findings must be delivered or mailed to the applicant/appellant no later than the day after the date of the report.

All other parties to the hearing, as well as all of the parties that are listed under "required public notice" above, shall be sent a brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.

The Borough Council shall commence a hearing on an application for a temporary use within 60 days of that application's being filed, in a complete state, with the Zoning Officer.

The Zoning Officer shall provide public notice of this hearing in the same manner as the public notice of a special exception hearing before the Zoning Hearing Board would be provided (see § 245-64H).

Council shall render a written decision on the temporary use application within 45 days of the last involved hearing before Council.

Where Council fails to commence the hearing within the first period stipulated above, or where Council fails to render the decision within the second period stipulated above, 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 deemed in this manner, Council shall give public notice of the decision within 10 days of the last day that it could have met to render a decision.

Where the application is contested or denied, it shall be accompanied by findings of facts, the conclusions based on these facts, and the reason that such conclusions were drawn. This will show that the decision was reasoned, and not arbitrary. References to any provisions of any ordinance, rule, or regulation relied on for any conclusion must be made, along with the reason that the conclusion is appropriate for the particular case at hand.

A copy of the final decision shall be delivered to the applicant personally or mailed to him no later than the day following its date.

The Council's decision concerning an application for a temporary use may be appealed to any court of competent jurisdiction.

The Borough Council shall commence a hearing on an application for a conditional use within 60 days of that application's being filed, in a complete state, with the Zoning Officer.

The Zoning Officer shall provide public notice of this hearing in the same manner as the public notice of a special exception hearing before the Zoning Hearing Board would be provided (see § 245-64H).

The Borough Council shall render a written decision within 45 days of the last involved hearing before Council.

Where Council fails to commence the hearing within the first period stipulated above, or where Council fails to render the decision within the second period stipulated above, 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 deemed in this manner, Council shall give public notice of the decision within 10 days of the last day that it could have met to render a decision.

In granting a conditional use, Borough Council may attach reasonable conditions and safeguards, in addition to those expressed in Article III, Special Exceptions and Conditional Uses, as it may deem necessary to implement the purposes of this chapter.

Where the application is contested or denied, it shall be accompanied by findings of facts, the conclusions based on these facts, and the reason that such conclusions were drawn. This will show that the decision was reasoned, and not arbitrary. References to any provisions of any ordinance, rule, or regulation relied on for any conclusion must be made, along with the reason that the conclusion is appropriate for the particular case at hand.

A copy of the final decision shall be delivered to the applicant personally or mailed to him no later than the day following its date.

Applications for conditional uses may be appealed to any court of competent jurisdiction.

Before voting on the enactment of such an amendment, the Borough Council shall hold a public hearing.

Public notice of this hearing shall be provided according to the rules below:

A proposed amendment shall be submitted to the county planning agency at least 30 days prior to that amendment's hearing so that the planning agency may submit its recommendations.

A proposed amendment shall be submitted to the county planning agency within 30 days after that amendment's enactment.

If the amendment was prepared by a group other than the Planning Commission, then Borough Council shall submit it to the Planning Commission at least 30 days prior to that amendment's hearing so that the Planning Commission may submit its recommendations.

The Borough may offer a mediation option as an aid in completing this section's proceedings. Mediation is described in the rules[1] set forth in § 245-64, Zoning Hearing Board, Subsection H.

The Council shall commence a hearing on a proposed landowner curative amendment within 60 days of the filing of a complete application for that amendment.

Public notice of this hearing shall be given according to the requirements of Subsection B(4)(b) above. This notice shall include:

Borough Council shall submit the proposed amendment to the Planning Commission at least 30 days prior to that amendment's hearing so that the Planning Commission may submit its recommendations.

A proposed amendment shall be submitted to the county planning agency at least 30 days prior to that amendment's hearing so that the planning agency may submit its recommendations.

A proposed amendment shall be submitted to the county planning agency within 30 days after that amendment's enactment.

The Borough Council shall render a written decision within 45 days of the end of the hearing.

The Borough Council may prescribe reasonable fees for such a hearing which may include compensation for the secretary, public notice and advertising costs, necessary administrative overhead connected with the hearing, and 1/2 of the stenographer's appearance fee. The cost of the original transcript shall be paid by the Borough if the original is ordered by the Borough, and shall be paid by the applicant if he or she orders it. Additional copies shall be paid for by the parties requesting them. Fees may not compensate for the legal expenses of the Council. Furthermore, fees may not be used to compensate engineering, architectural, planning, or other technical consultants or expert witnesses.

The hearing itself shall be conducted according to the rules below.

The Council's decision may be appealed the applicable court.

Council shall first:

Within 30 days of the declaration and proposal, Council shall:

Within 180 days of the declaration and proposal, Council shall either:

During this one-hundred-eighty-day period, the Borough of Emsworth, its Council, and its Zoning Hearing Board shall not be required to entertain or consider any substantive challenges to the validity of this chapter (as laid out in § 245-21, Substantive challenges) that are based on the same invalidities declared under Subsection B(7)(b) above.

The Borough may not initiate another municipal curative amendment for 36 months after the date that either the curative amendment is enacted or the validity of this chapter is reaffirmed. However, if a new duty or obligation is imposed on the Borough by a statute or a Pennsylvania Appellate Court decision, then the Borough may ignore this rule in order to amend this chapter to fulfill said duty or obligation.