Evans City City Zoning Code
ARTICLE IV
Zoning Hearing Board; Appeals
§ 195-12 Membership.
[Amended 8-1-1994 by Ord. No. 455]
A Zoning Hearing Board is hereby established which shall consist of three members, residing within the Borough, to be appointed by the Council. 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, except that no more than one member of the Board may also be a member of the Planning Commission. Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Council, taken after the member has received 15 days' advance notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member shall request it in writing. Vacancies shall be filled by resolution of the Council for the unexpired term of the member affected.
§ 195-13 Proceedings.
A.
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 Subsection B hereof. The Board shall adopt rules necessary to the conduct of its affairs and in keeping with the provisions of this chapter. Meetings shall be scheduled at a regular time each month and may also 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 Council once a year.
B.
Hearings. The Board shall conduct hearings and make decisions in accordance with the following requirements:
[Amended 8-1-1994 by Ord. No. 455]
(1)
Notice shall be given to the public, the applicant, the Code Official, such other persons as the Borough Council shall designate by ordinance and any other person who has made timely request for notice. Written notices shall be sent to the recipient's last known address of record not less than 15 days before the hearing.
(2)
Public notice shall be published twice, once in each of two consecutive weeks, in a newspaper of general circulation in the Borough. The first publication shall be not more than 30 days and the second notice shall be not less than seven days from the date of the hearing. The notice shall state the date, time and place of the hearing and the particular nature of the matter to be considered. A written notice shall also be posted at the municipal building not less than seven days before the date of the hearing until the hearing. If the hearing involves a particular property, a notice of the hearing shall be conspicuously posted on the affected location at least seven days before the hearing.
(3)
Fees, as set forth in Chapter A200, Fees, shall be established and collected in order to cover advertising costs and administrative overhead. Such costs shall not include legal expenses, expert witness costs or fees charged by consultants retained by the Board.
(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)
The hearings shall 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. However, the applicant or appellant, as the case may be, in addition to the Borough, may, prior to the decision of the hearing, waive the decision or findings by the Board and accept the decision or findings of the hearing officer as final.
(6)
The parties to the hearings shall be the Borough, any person affected by the application who has made timely appearance of record before the Board and any person or civic or community organization permitted to appear by the Board. All persons or organizations who or which wish to be considered parties shall enter appearances in writing on forms provided by the Board.
(7)
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.
(8)
The parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond and present evidence and arguments and to cross-examine adverse witnesses on all relevant issues.
(9)
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
(10)
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 the 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.
(11)
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, 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.
(12)
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 day of the 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 the Municipalities Planning Code,[1] or of this chapter or 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 his report and recommendations available to the parties within 45 days of the last day of the hearing, 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.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(13)
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, the Board shall give public notice of said decision within 10 days from the last day it could have met to render a decision in the same manner as provided in Subsection B(2) above. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
(14)
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 of the decision. To all other persons who have filed their name and address 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.
§ 195-14 Powers and duties.
[Amended 8-1-1994 by Ord. No. 455]
The Zoning Hearing Board shall have the following powers and duties:
A.
Appeals from rulings of the Code Official. The Board shall hear and decide appeals where it is alleged by the appellant that the Code Official has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of this chapter or the Zoning Map, including but not limited to the granting or denial of any permit or the failure to act on a permit application or the issuance of any cease-and-desist order.
B.
Procedural challenges to any ordinance or map. Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or amendment shall be brought by an appeal taken to the Board within 30 days after the effective date of the ordinance or amendment.
C.
Substantive challenges to any ordinance or map. Persons aggrieved by a use or development permitted on the land of another by any provision of an ordinance or map and who desire to challenge the validity of such use or development on substantive grounds shall first submit their challenge to the Zoning Hearing Board. The challenging party shall make a written request to the Board containing the reasons for the challenge. Based on the testimony presented at the hearing, the Board shall determine whether the challenged ordinance section or map is defective as alleged. If the challenge is found to have merit, the Board's decision shall include recommended amendments to the challenged ordinance or map which will cure the defects found. In making its decision, the Board shall consider the plans and explanatory material submitted by the challenging party, as well as the proposal's impact on local streets, utilities and schools; its effect on the availability of affordable housing; and the suitability of the proposed site to receive development of the intensity of the proposed use. If the Board fails to schedule a hearing within 60 days of receiving the challenge or fails to make a decision within 45 days after the hearing, the challenge shall be considered denied. If the Board finds that the challenge has merit, the Board's recommended amendments may become the basis for appeal by the challenging party to the Borough Council to formally adopt the amendments.
D.
Appeals from the decision of the Municipal Engineer or the Code Official. The Board shall hear and decide appeals from the determinations of the Municipal Engineer or the Code Official with reference to the administration of the Borough's floodplain regulations[1] or sedimentation and erosion control and stormwater management requirements.
E.
Variances from the terms of this chapter or the floodplain regulations. The Board shall hear requests for variances where it is alleged that the provisions of this chapter or other ordinance inflict unnecessary hardship upon the applicant.
(1)
The applicant shall submit to the Secretary of the Board prior to the scheduling of the hearing a written statement demonstrating where relevant that all the following criteria are applicable to the particular case:
(a)
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.
(b)
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.
(c)
That such unnecessary hardship has not been created by the appellant.
(d)
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, not be detrimental to the public welfare.
(e)
That 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.
(2)
In addition to written and public notices [see § 195-13B(1) and (2) above], property owners of record within 200 feet of the exterior boundaries of the property for which the variance is sought shall be notified by mail at least 15 days before the hearing.
(3)
The Board shall make findings that the relevant requirements of Subsection E(1) have been met by the applicant and shall further make a finding that the granting of a variance will be in harmony with the general purpose and intent of this chapter and the Comprehensive Plan of the Borough of Evans City.
(4)
In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with this chapter.
(5)
The Zoning Hearing 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 begin or complete, or both, such action within the time limit set shall void the variance.
(6)
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 that District.
F.
Special exceptions under the terms of this chapter or the floodplain regulations. The Zoning Hearing Board shall hear and decide requests for special exceptions as stated in this chapter.
(1)
A special exception shall not be granted by the Board until:
(2)
The Board, before it grants a special exception, shall make findings of fact and state its reasons for granting the special exception. The findings of fact shall include:
(a)
That the use will not endanger the public health or safety if located where proposed and developed, and that the use will not allow conditions which will tend to generate nuisance conditions such as noise, dust, glare or vibration.
(b)
That the use meets all required conditions and specifications set forth in the district where it proposes to locate.
(c)
That the location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with the comprehensive plan for the Borough.
(3)
To ensure the establishment of the above conditions, the Zoning Hearing Board shall have the authority to require and approve specific plans and to increase the requirements set forth above and requirements 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 it proposes to locate. Any such decrease in the requirements of this chapter shall only be granted upon the issuance of a variance. 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 the special exception.
(4)
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 both, such action within the time limit set shall void the special exception permit.
§ 195-15 Stay of proceedings.
[Amended 8-1-1994 by Ord. No. 455]
Upon 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 Code Official or of any agency or body and all official action thereunder shall be stayed unless the Code Official 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 Code Official 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.
§ 195-16 Appeals from Zoning Hearing Board.
Any person or persons or any board, taxpayer, department or bureau of the Borough 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.
§ 195-17 Rehearing.
[Amended 8-1-1994 by Ord. No. 455]
If an application for a variance, appeal from the Code Official or special exception is denied by the Zoning Hearing Board, another application 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.
§ 195-18 Time limitations.
[Added 8-1-1994 by Ord. No. 455]
No person shall be allowed to file any proceedings with the Board later than 30 days after an application for development, preliminary or final, has been approved by the appropriate Borough official or agency, 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.
§ 195-19 General appeals procedures.
A.
It is the intent of this chapter that all questions of interpretations and enforcement be first presented to the Code Official and/or Planning Commission and that such questions shall be presented to the Zoning Hearing Board only on appeal from the decision of the Code Official and that recourse from the decisions of the Zoning Hearing Board shall be to the courts as provided by state law.
[Amended 8-1-1994 by Ord. No. 455]
B.
It is further the intent of this chapter that the duties of the Council in connection with this chapter shall not include hearing and deciding questions of interpretations and enforcement that may arise. The procedure for deciding such questions shall be as stated in this section and this chapter. Under this chapter, the Council shall have only the duties of: