Harmar Township City Zoning Code
PART 11
ZONING HEARING BOARD
§ 27-1101 Operation and Organization of Board.
[Ord. 331, 11/17/1999, § 11.100]
1.
Membership of the Zoning Hearing Board.
A.
The membership of the Board shall be three persons, all residents of Harmar Township, who shall be appointed by resolution of the Board of Supervisors and may be reappointed at the conclusion of a term of office.
B.
Members of the Zoning Hearing Board shall hold no other office in Harmar Township, either elective or appointed.
2.
Term of Office.
A.
Members of the Board shall be appointed for three-year staggered terms, with one appointment each year to refill a completed term.
B.
Appointments to fill vacancies shall be made by the Board of Supervisors for the unexpired portion of a term only. The Zoning Hearing Board shall promptly notify the Board of Supervisors when a vacancy occurs.
3.
Alternate Members.
A.
The Board of Supervisors may appoint by resolution one, two or three persons who are residents of Harmar Township as alternate members of the Zoning Hearing Board for three-year terms. Alternate members shall hold no other office in the Township, either elective or appointed.
B.
An alternate member may, at the direction of the Chairman of the Zoning Hearing Board, replace a regular member who is unable to participate in a proceeding before the Board because of a conflict of interest, illness or previously planned absence from the Township.
C.
The alternate member shall have the full authority of a regular Board member throughout the proceeding.
D.
Alternate members shall be appointed to replace regular members on a case by case basis in rotation beginning with the first alternate appointed.
E.
Any alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote unless designated as a voting replacement member.
4.
Removal of Members.
A.
Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of all members of the Board of Supervisors, taken after the Zoning Hearing Board member has received at least 15 days' notice such vote will be taken.
B.
Malfeasance implies a deliberate illegal act; misfeasance means acting mistakenly when there is a clearly correct way to act; and nonfeasance means failure to act when an act is required. Generally a pattern of misfeasance or nonfeasance could result in Board of Supervisors action, but one alleged act of malfeasance would be sufficient for Supervisor investigation.
C.
The Zoning Hearing Board member thus accused may request by written communication to the Township Secretary no later than seven days prior to the meeting of the Board of Supervisors at which the vote for removal is to be taken, a hearing before the Supervisors after which the Supervisors, at their discretion, may take a vote for removal of the Zoning Hearing Board member.
5.
Organization of the Zoning Hearing Board.
A.
The Board shall elect officers from its regular membership annually at its first meeting of each year, to include a Chairman, vice-Chairman and secretary. Board members may succeed themselves in their positions.
B.
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.
C.
If a quorum of regular members is not available to hear a particular proceeding, the Board shall either appoint a hearing officer from its membership to conduct the hearing on the Board's behalf, or designate one or more alternate members, if they exist, to complete the quorum.
D.
The Board may make, alter and rescind rules and forms for its procedures consistent with this and other ordinances of Harmar Township and the laws of the commonwealth.
E.
The Board shall keep full public records of its business, which shall be the property of the Township, and shall submit an annual report of its activities to the Board of Supervisors not later than 60 days after the start of the next year.
F.
All applications for matters to be heard shall be sent to the Secretary of the Board, who, in consultation with the Chairman, shall establish a date and time for the hearing, and arrange for the appropriate public and letter notices, and for the public stenographer.
G.
The Secretary shall keep minutes of the Board's meetings, noting the vote of each member on every motion, and shall distribute the Board's decisions and copies of the hearing record requested by the parties.
6.
Expenditures for Services.
A.
Within the limits of its annual budget, the Zoning Board may employ secretarial, legal, technical, or other consulting services to assist it in carrying out its duties.
B.
In setting fees for public hearings, the Supervisors may not include the costs of legal services for the Zoning Board or expenses for technical consultants or expert witnesses.
C.
The attorney retained by the Board of Supervisors shall not also provide legal services for the Zoning Hearing Board.
§ 27-1102 Functions of the Board.
[Ord. 331, 11/17/1999, § 11.200]
1.
Appeals from Decisions of the Zoning Officer.
A.
The Board shall hear and decide appeals where it is alleged by the appellant that the Zoning Officer has failed to follow prescribed procedures or has misrepresented or misapplied any provision of this or any other ordinance governing land development adopted by Harmar Township.
B.
Appeals may include, but are not limited to, the granting or denial of a permit or failure to act on the application therefor; the issuance or failure to administer, or improper administration of, the flood hazard area regulations.
2.
Variances.
A.
The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant.
B.
Variance from the terms of this chapter shall not be granted by the Board unless a written application for a variance is submitted in advance of the hearing to the Secretary of the Board demonstrating all of the following findings where relevant:
(1)
There are unique physical circumstances or conditions including, but not limited to, 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 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 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 health and welfare.
C.
If authorized, the variance shall represent the least deviation from the regulations that will afford relief and will represent the least modification possible of the regulation in question.
D.
In granting a variance the Board may attach appropriate conditions necessary to protect the intent of this chapter, the Comprehensive Plan of Harmar Township, and the public health and safety.
E.
The Board shall not grant a variance to approve a use that is not listed as permitted in the zone district where such use is proposed to be located.
3.
Challenges to the Validity of a Land Development Ordinance, Including this chapter.
A.
The Board shall hear substantive challenges to the validity of any land use ordinance, except those brought as curative amendments, which shall be considered by the Board of Supervisors; and, challenges raising procedural questions on alleged defects in the process of enactment or adoption of an ordinance or an amendment; provided, such challenge is brought to the Board within 30 days after the effective date of the ordinance, amendment, or final approval.
B.
A substantive challenge may be brought by a landowner who contends that any part of a land development ordinance prohibits or restricts the proposed use or development of his/her land, or by persons aggrieved by a use or development permitted on lands of another party by any part of such an ordinance.
C.
The appellant shall file a written request with the Secretary of the Board for a hearing on his/her challenge. Such a request shall include the reasons for the challenge, the use or development proposed in lieu of that permitted by the challenged section of the ordinance, and other relevant materials in support of the challenge.
D.
In making its decision on a substantive challenge, the Board shall consider, in addition to the filed statement, evidence of the impact of the proposed use or development on municipal services and facilities; the extent to which the use or development provides low and/or moderate-income housing units if it is a residential plan; the suitability of the site for the proposed intensity of the use; and the effect of the development or use upon soils, slopes, woodlands, drainage, floodplains, aquifers, and natural features.
E.
If the Board finds the challenge has merit, the Board's decision shall include recommended amendments to the challenged ordinance which will cure the defects found.
F.
The public notice on a hearing for a challenge shall state that the validity of the ordinance is challenged and shall specify the part of the particular ordinance whose validity is in question. The notice shall also indicate where and when plans, documents and/or proposed amendments may be examined prior to the hearing.
G.
The challenge shall be deemed to have been denied if the Board fails to commence the hearing within 60 days of receiving the request, or the Board fails to act on the request within 45 days after the end of the hearing.
§ 27-1103 Hearings, Preliminary Activities.
[Ord. 331, 11/17/1999, § 11.300]
1.
An appeal, challenge, or request for a variance or other action may be filed in writing with the Zoning Officer by, or on behalf of, any owner of land in the Township, by any tenant wishing a variance with the permission of his/her landowner, by any officer or agency of the Township, or by any aggrieved person.
2.
When a request for a hearing is received by the Secretary of the Zoning Hearing Board, the Board shall schedule and commence the hearing within 60 days, unless the applicant has agreed in writing to an extension.
3.
Hearings shall be conducted by the Board or by a Hearing Officer member, whose decision, or findings where no decision is required, may be considered final by the parties prior to the decision, requiring no further action by the Board.
4.
The parties to a hearing shall be the Township, the appellant, and anyone affected by the application and/or any civic or community organization who or which requests in writing the opportunity to appear prior to the hearing, or on appearance forms provided at the hearing.
5.
Notice of a hearing shall be mailed to all parties of the hearing, and in addition to the Zoning Officer, Board of Supervisors, owners of properties abutting and directly across an intervening street from the boundary of the property or properties affected by the hearing, and others who have filed a timely request to receive notice.
6.
Public notice shall be placed twice in a newspaper of general local circulation, once in each of two consecutive weeks, the first not more than 30 days and the second notice not less than seven days before the hearing. In addition, if a variance or special exception approval or hearing of a substantive challenge is sought, or an appeal requested, notice shall be placed conspicuously on the affected property and posted at the Township Building at least seven days before the hearing.
7.
Newspaper and letter notices shall indicate the date, time, and place of the hearing and the nature of the matter to be heard.
§ 27-1104 Hearings, Conduct.
[Ord. 331, 11/17/1999, § 11.400]
1.
The Chairman, member of the Board designated as Chairman, the Hearing Officer, or the Solicitor appointed as Chairman, shall conduct the hearing and shall have the power to administer oaths and issue subpoenas to compel attendance of witnesses and the production of relevant documents, including those witnesses and documents requested by the parties. Hearings may be continued over two or more sessions if agreeable to the parties without the need for advertisement.
2.
The parties shall have the right to be represented by counsel and shall have the opportunity to respond and present evidence and arguments, and to cross-examine adverse witnesses on all relevant issues. Formal rules of evidence shall not apply but irrelevant, immaterial or unduly repetitious evidence may be excluded.
3.
The Board shall cause to have kept 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 for by the Board if the Board requests it, or by the appellant if contesting a decision of the Board. Any other transcript of the proceedings and/or copies of graphic or written material received in evidence shall be made available to any party at cost to that party.
4.
The Board, or the Hearing Officer, shall not communicate, directly or indirectly, with any party and/or representatives of any party in connection with any issue relevant to the hearing, except upon notice and opportunity for all parties to participate; shall not take notice of any communications, reports or other materials, except advice from the Board's Solicitor, unless all parties are afforded an opportunity to contest the material so noticed; and shall not inspect any site or its surroundings with any party and/or representative of any party after the start of hearings unless all parties are given an opportunity to be present.
5.
The Board or Hearing Officer shall render a written decision, or, when no decision is required, written findings on the application within 45 days after the conclusion of the hearing before the Board or Hearing Officer. When the application is contested or denied, the decision shall be accompanied by findings of fact and conclusions based on them together with the reasons therefor. The Board or Hearing Officer may attach reasonable conditions to approval intended to protect the neighborhood and the public health, safety and welfare.
6.
If the hearing is conducted by a Hearing Officer and there has been no stipulation that the Hearing Officer's decision or findings are final, the Board shall make the Officer's report and recommendations available within 45 days after the hearing to the parties who shall be entitled to make written representations thereon to the Board which shall convene as a whole and render a final decision and entry of findings not later than 30 days after the Hearing Officer's decision.
7.
A copy of the final decision, or the findings if no decision is required, shall be mailed to the applicant no later than the day after the date of the decision. All others requesting notice of the decision not later than the last day of the hearing shall receive by mail a brief summary of the findings or decision and a statement of the place at which the full decision or findings may be examined.
8.
When the Board or Hearing Officer fails to render a decision and notify the applicant within 45 days after hearing the application, or fails to hold the public hearing within 60 days of receiving the request for one, the decision shall be deemed to have been rendered in favor of the applicant, unless the applicant and Board have agreed in writing to a specific time extension. If the Board fails to schedule a hearing or render a decision within the prescribed time limits, the Board shall place a public notice in a newspaper of general local circulation within 10 days of the expiration of the period for commencing the hearing or making the decision, indicating that the request or appeal has been decided in favor of the applicant. In addition, the affected property shall be posted with this information, and those who have requested written notice shall be mailed the same information within the 10-day period.
§ 27-1105 Zoning Appeals and Time Limitations.
[Ord. 331, 11/17/1999, § 11.500; as amended by Ord. 344, 10/28/2002, § 3]
1.
No person shall be allowed to file any proceeding with the Zoning Hearing Board later than 30 days after an application for development, preliminary or final, has been approved by an appropriate Township 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.
2.
The failure of anyone, other than the landowner, to appeal from an adverse decision by the Zoning Officer on a challenge to the validity of this chapter or Zoning Map pursuant to the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq., as amended, shall preclude an appeal from a final approval, except in the case where the final submission substantially deviates form the approved tentative or preliminary approval.
3.
All appeals from determinations adverse to the landowner shall be filed by the landowner within 30 days after notice of the determination is issued, except appeals of the Zoning Officer's issuance of an enforcement notice, which shall be filed within 10 days after receipt of the enforcement notice.
4.
Upon filing of any proceeding referred to in § 27-1102 and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or of any agency or body, and all official action thereunder, shall be stayed unless the Zoning 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 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.