Kingston City Zoning Code
ARTICLE VIII
Zoning Hearing Board
§ 181-51 Establishment.
§ 181-52 Appointment of members; vacancies; removal.
A.
Members of the Board shall be residents of the municipality, appointed by the governing body. The Zoning Hearing Board shall consist of three members, one of whom shall be designated to serve until the first day of January following the adoption of this Zoning Ordinance, one until the first day of the second January thereafter, and one until the first day of the third January thereafter. Their successors shall be appointed on the expiration of their respective terms to serve three years. Members of the Board shall hold no other public office in the municipality, except that no more than one member of the Board may also be a member of the Planning Commission.
B.
Appointment to fill vacancies. The Board shall promptly notify the governing body of any vacancies which occur. Appointments to fill vacancies shall be for the unexpired term of the member or members whose term or terms become vacant, and such appointments to fill such vacancies shall be made in the same manner as the original appointment.
C.
Removal. Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the governing body who appointed the member, 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.
D.
Organization of Board. 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 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 § 181-54. The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the municipality and laws of the Commonwealth. The Board shall keep full public records of its business and shall submit a report of its activities to the governing body once a year.
E.
The governing body may appoint by resolution at least one but no more than three residents of the Municipality 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 Subsection F, 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 the Pennsylvania Municipalities Planning Code[1] and as otherwise provided by law. Alternates shall hold no other elected or appointed office in the Municipality, including service as a member of the Planning Commission or as a Zoning Officer, nor shall any alternate be an employee of the Municipality. 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 unless designated as a voting alternate member pursuant to Subsection F.
[Added 2-5-2007 by Ord. No. 2006-9]
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
F.
The Chairman of the Board may designate alternate members of the Board to replace any absent or disqualified member. Additionally, if, by reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Board shall designate as many alternate members of the Board as may be needed to reach 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 shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.
[Added 2-5-2007 by Ord. No. 2006-9]
§ 181-53 Compensation.
Within the limits of funds appropriated by the governing body, the Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services.
§ 181-54 Hearings.
The Board shall conduct hearings and make decisions in accordance with the following requirements:
A.
Notice shall be given to the public, the applicant, the county planning agency, the Zoning Officer, such other persons as the governing body shall designate by ordinance and to any person who has made a timely request for the same. Notices shall be given at such time and in such manner as shall be prescribed by ordinance or, in the absence of an ordinance provision, by rules of the Board. The governing body may establish reasonable fees, based on cost, to be paid by the applicant and by persons requesting any notice not required by ordinance. In addition to the notice provided herein, notice of said hearing shall be conspicuously posted on the affected tract of land.
B.
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, but the parties may waive decision or findings by the Board and accept the decision or findings of the Hearing Officer as final.
C.
The parties to the hearing shall be any person who is entitled to notice under § 181-54A, without special request therefor who has made timely appearance of record before the Board and any other person permitted to appear by the Board. 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.
D.
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 on all relevant issues. Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
E.
The Board of the hearing officer, as the case may be, shall keep a stenographic record of the proceedings, and copies of graphic or written material received in evidence shall be made available to any party at cost.
F.
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 memorandums or other materials for all parties to participate; shall not take notice of any communication, reports, staff memorandums 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 representative unless all parties are given an opportunity to be present.
G.
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 with 45 days. 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 Pennsylvania Municipality Planning Code or of 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, and the parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings. Where the Board has power to render a decision and the Board or the Hearing Officer, as the case may be, fails to render the same within the period required by this clause, the decision shall be deemed to have been rendered in favor of the applicant. Notice of said hearing shall be conspicuously posted on the affected tract of land.
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 not later than the day following its date. 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. Notice of said hearing shall be conspicuously posted on the affected tract of land.
§ 181-55 Functions and duties.
A.
Special exceptions. The Board shall hear and decide requests for special exceptions in accordance with the standards and criteria set forth herein. In granting a special exception, 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 Zoning Ordinance.
B.
Unified appeals. Where the Board has jurisdiction over a zoning matter, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any municipal ordinance or requirement pertaining to the same development plan or development. In any such case, the Board shall have no power to pass upon the nonzoning issued, but shall take evidence and make a record thereon. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact which shall become part of the record on appeal to court.
C.
Challenge to the validity of any ordinance or map. Except as provided in § 181-55D, relating to variances, the Board shall have no power to pass upon the validity of any provision of an ordinance or map adopted by the governing body. Recognizing that challenges to the validity of an ordinance or map may present issues of fact and of interpretation which may lie within the special competence of the Board, and to facilitate speedy disposition of such challenges by a court, the Board may hear all challenges wherein the validity of the ordinance or map presents any issue of fact or of interpretation, not hitherto properly determined at a hearing before another competent agency or body, and shall take evidence and make a record thereon as provided in § 181-54. At the conclusion of the hearing, the Board shall decide all contested questions of interpretation and shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
D.
Variances. The Board shall hear requests for variances where it is alleged that the provisions of this Zoning Ordinance inflict unnecessary hardship upon the applicant. Subject to the provisions of § 181-60A, the Board may, by rule, prescribe the form of application and may require preliminary application to the Zoning Officer. The Board may grant a variance, provided that 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 of 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 Zoning Ordinance in the neighborhood or district in which the property is located.
(2)
That because of such physical circumstances or conditions, there is no reasonable possibility that the property can be developed in strict conformity with provisions of this Zoning Ordinance and that the authorization of a variance is therefor necessary to enable the reasonable use of the property.
(3)
That such unnecessary hardship has not been created by the appellant.
(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.
(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 in issue.
(6)
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this Zoning Ordinance.
E.
Refiling of disapproved or withdrawn cases. If a case is disapproved by the Board, thereafter the Board shall take no further action on another case for substantially the same proposal on the same property until one year after the date of such proposal. If a case before the Board is advertised and thereafter withdrawn by the applicant before or at the meeting of the Board, he, the applicant, shall be precluded from filing another application for substantially the same proposal on the same premises for six months.
[Added 7-7-1986]
§ 181-56 Filing of appeals and requests for variance.
Appeals under § 181-55A and proceedings to challenge an ordinance under § 181-55B may be filed with the Board in writing by any officer or agency of the municipality, or any person aggrieved. Requests for a variance under § 181-55D may be filed with the Board by any landowner or any tenant with the permission of such landowner.
§ 181-57 Time limitations.
The time limitations for raising certain issues and filing certain proceedings that the Board shall be the following:
A.
No issue of alleged defect in the process of enactment of any ordinance or map or any amendment thereto shall be raised in any proceeding filed with the Board later than 30 days from the time such ordinance, map or amendment takes effect, unless the person raising such issue alleges and proves that he failed to receive adequate notice of the enactment or amendment. If such person has succeeded to his interest after the enactment of the ordinances, adequate notice to his predecessor in interest shall be deemed adequate notice to him.
B.
No person shall be allowed to file any proceeding with the Board later than 30 days after any application for development, preliminary or final, has been approved by an appropriate municipal 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 failed to receive adequate notice of such approval. If such person has succeeded to his interest after such approval, adequate notice to his predecessor in interest shall be deemed adequate notice to him.
§ 181-58 Stay of proceedings.
Upon filing of any proceeding referred to in § 181-56 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 certified 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 of 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.
§ 181-59 General grant of power.
The Zoning Hearing Board shall perform all the duties and have all the powers prescribed by the Pennsylvania Municipalities Planning Code and as herein more particularly provided.
§ 181-60 Zoning challenges.
A.
Landowner. A landowner desiring to challenge the validity of any provision of this Zoning Ordinance, or any amendment thereof, shall not be required to make or file any application for development as a condition to pursuing any available judicial or administrative relief, except in the following cases:
B.
Scope of judicial relief. Notwithstanding any provision contained in Subsection A of this chapter, a landowner desiring to challenge the validity of any provision of this Zoning Ordinance, or any amendment thereof, may elect to file a complete application for development, either preliminary or final, with the appropriate agency or officer and demand that such agency or officer decide in what respects the application accords with the provisions of the governing ordinance or map and in what respects it conflicts therewith:
(1)
The determination pursuant to such demand shall be made in accordance with the procedures and within the time prescribed by this chapter for acting upon the application in question. But where the procedures otherwise applicable do not require this, a decision pursuant to a demand made under this section shall be in writing and shall note the matters deemed to be in conflict with the ordinance or map relied upon. A copy of the decision shall be furnished the applicant personally or mailed to him not later than the day after the decision is rendered.
(2)
Upon receipt of the decision, the landowner may immediately pursue the administrative and judicial proceedings available to challenge the provisions found to be in conflict with his application. In addition, he may elect to serve a copy of the decision upon the governing body, together with copies of his application and notice of his intention to secure the special relief authorized by § 181-61I. If the landowner elects to serve such notice, the governing body shall have 60 days from the receipt thereof within which it may amend the challenged provisions of the ordinance or map. If no amendment is adopted within the sixty-day period, the court rendering the decision upon the challenge shall disregard any subsequent amendment and may, if it holds the challenged provisions invalid, enter judgment ordering the appropriate agency or officer to approve the landowner's application as filed. If an amendment is adopted within the sixty-day period, the landowner may accept the amendment and dismiss his action without prejudice to his right to raise the same issues in another action, or he may amend his complaint and challenge the amendment provisions, and if such amended provisions are held invalid by the court, the court shall have power to enter judgment ordering the appropriate agency or officer to approve the landowner's application as filed.
(3)
When the landowner is unaware of the conflict between his application for development and the provisions of the ordinance or map at the time of filing thereof and files a complete application, preliminary or final, without serving demand for a decision thereon, as provided in this section, and thereafter the application is disapproved on the grounds that it conflicts with provisions of the governing ordinance or map, the landowner may elect, at that time, to demand a decision in the terms required by this section, whereupon the procedures set forth in this section and the powers granted to the court shall be applicable as if a demand had been served at the time the application was filed.
§ 181-61 Appeals.
A.
Zoning appeals. Zoning appeals shall include appeals from the decisions of the Zoning Hearing Board and appeals upon reports of the Board in proceedings to challenge the validity of the ordinance or map.
B.
Courts having jurisdiction. As used in this Article, "court" means the Court of Common Pleas of Luzerne County.
C.
Who may appeal. Zoning appeals may be taken to court by any party before the Board or any officer or agency of the municipality.
D.
Time limitation upon appeal. All zoning appeals shall be filed not later than 30 days after issuance of notice of the decision or report of the Board.
E.
Commencement of zoning appeals.
(1)
Zoning appeals shall be entered as of course by the prothonotary or clerk upon the filing of a zoning appeal notice which concisely set forth the grounds on which the appellant relies, verified to the extent that it contains averments of fact. The zoning appeal notice shall be accompanied by a true copy thereof.
(2)
Upon filing of a zoning appeal, the prothonotary or clerk shall forthwith as of course send to the Board by registered or certified mail the copy of the zoning appeal notice, together with writ of certiorari, commanding the Board within 20 days after receipt thereof to certify to the court its entire record in the matter in which the zoning repeal has been taken, or a true and complete copy thereof, including any transcript of testimony in existence and owned by the Board at the time it received the writ of certiorari.
(3)
If the appellant is a person other than the owner of property directly involved in the decision or report of the Board, the appellant, within five days after the zoning appeal is filed, shall serve a true copy of the zoning appeal notice upon such owner in the manner specified by the Rules of Civil Procedure for the service of a complaint in equity and shall file proof of such service. For identification of such owner, the appellant may rely upon the record of the Board and, in the event of good faith mistakes as to such identity, may make such service nunc pro tunc by leave of court.
F.
Intervention. Within the 30 days first following the filing of a zoning appeal, the municipality and any owner or tenant of property directly involved in the decision or report of the Board may intervene as of course by filing a notice of intervention, accompanied by proof of service of the same upon each appellant or each appellant's counsel or record. All other intervention shall be governed by the Rules of Civil Procedure relating to intervention in actions.
G.
Transcript of Board testimony. The appellant, before proceeding to hearing or argument upon the zoning appeal, shall obtain and file with the court transcript thereof.
H.
Supersedeas. At any time during the pendency of a zoning appeal, the court or a judge thereof may grant an order of supersedeas upon such terms and conditions, including the filing of security, as the court or judge thereof may prescribe.
I.
Hearing and argument of zoning appeal. If no verbatim record of testimony before the Board was made or, if upon motion, it is shown that proper consideration of the zoning appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive such evidence or may remand the case to the Board or refer it to a referee to receive such evidence. Final decision of each zoning appeal shall be made by the court, or a judge thereof, considering the record and the findings of fact made by the Board as supplemented and replaced by findings of fact made by judge or referee. The final decision shall contain conclusions of law, and:
(1)
Where the appeal is from the decision of the Board, the court may reverse, affirm or modify the decision appealed.
(2)
Where the appeal involves a challenge to the validity of any ordinance or map, the court shall have power to declare the ordinance, map or any provisions thereof invalid and, in addition thereto, shall have power to: enter judgment in favor of the landowner as provided in § 181-60B or stay the effect of its judgment for a limited time to give the governing body an opportunity to modify or amend the ordinance or map in accordance with the opinion of the court.
J.
Costs. No costs shall be allowed against the Board, unless it shall appear to the court that the Board acted with gross negligence or in bad faith or with malice.
K.
Appellate review. Appeals from decisions of courts made under this chapter shall be taken to the Commonwealth Court of Pennsylvania in the manner provided for other civil cases, but no such appeal shall be entertained unless it is filed within 30 days after the date of entry of the decision of the lower court.