Lewisburg City Zoning Code
ARTICLE VII
Administration, Enforcement and Hearings
§ 360-39 Interpretation.
The provisions in this article are based on the Pennsylvania Municipalities Planning Code Act of 1968, P.L. 805, No. 247,[1] as amended. In any conflict between the provisions herein and those of the aforementioned act, whichever is more restrictive shall prevail.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
§ 360-40 Zoning Officer.
A.
Appointment. A Zoning Officer shall be appointed by the Borough Council to administer and enforce this Zoning chapter. The Zoning Officer shall not hold any elective office within the Borough.
B.
Duties and powers of the Zoning Officer. It shall be the duty of the Zoning Officer to enforce literally the provisions of this chapter. To carry out this charge, the Zoning Officer shall have all the duties and powers conferred by or reasonably inferred from this Zoning Ordinance, as well as those that may be conferred from time to time by the Borough Council. These powers and duties shall include, but are not limited to, the following:
(1)
Instruct applicants in necessary procedures, receive applications for and issue zoning permits, as permitted by the terms of this chapter.
(2)
Keep an official record of all business and activities, including complaints of violation(s) of any of the provisions of this chapter, along with photographs of the violation and the action taken consequent to each such complaint. All such records shall be open and available for public inspection. File copies of all applications received, permits issued and reports of inspections made in connection with any structure, building, sign and/or land shall be retained in hard copy in accordance with Borough policies and state requirements.
(3)
Examine, or cause to be examined, all buildings, structures, signs and/or land or portions thereof for which an application has been filed for the erection, construction, alteration, repair, extension, replacement and/or use of same before issuing any permit. Thereafter, he/she may make such inspections as necessary during the completion of work for which a permit has been issued to determine that the work is progressing in compliance with the information provided on the permit application and with all applicable laws and Ordinances of the Borough. Upon completion of the building, structure, sign and/or change, a final inspection shall be made. The Zoning Officer may also make inspections as otherwise necessary to fulfill her/his duties. In order to make inspections, the Zoning Officer shall have the power to enter upon any property at any reasonable hour in the course of his/her duties. Should any property owner, lessee or other person prevent access to the property in question, the Zoning Officer shall have the authority, with the approval of the Borough Manager, to obtain a search warrant for said property.
(4)
Issue permits for special exception uses, conditional uses and/or variances only after applications for such uses and/or buildings have been approved in writing by either the Zoning Hearing Board, in the case of special exceptions and/or variances, or the Borough Council, in the case of conditional uses.
(5)
Issue certificates of zoning compliance in accordance with the provisions of this chapter.
(6)
Investigate alleged violations and address violations of this chapter.
(7)
Prepare and submit monthly reports to the Borough Council and provide a copy to the Borough Planning Commission.
(8)
Identify and register nonconforming uses and structures created as a result of the adoption of this chapter or created as a result of amendments thereto.
(9)
Advertise public hearings related to this chapter.
(10)
Perform any other such duties as directed by Borough Council, or as required, to implement and verify compliance with decisions by the Zoning Hearing Board (ZHB) and Borough Council.
§ 360-41 Administration.
A.
Zoning permits. No building, structure or sign shall be erected, constructed, moved, added to or structurally altered, nor shall land or any structure be put to any use, nor shall there be a change in use of land or any structure without the obtaining of a zoning permit, issued by the Zoning Officer. No zoning permit shall be required for repairs to or maintenance of any building, structure or grounds provided such repairs do not change the use or structure or otherwise violate the provisions of this chapter, as determined by the Zoning Officer.
(1)
No permit shall be issued, except in conformity with the provisions of this chapter, or upon written order from the Zoning Hearing Board in the form of a special exception or variance, or upon written order from the Borough Council in the form of a conditional use, or upon written order from any court of competent jurisdiction.
(2)
Applications for a permit shall be submitted in writing in such form as the Zoning Officer may prescribe. All applicable fees shall accompany all applications and two sets of drawings or plans showing, at a minimum, the following information if applicable:
(a)
Actual dimensions and shape of the lot to be used;
(b)
The exact size and location on the lot of buildings, structures or signs, existing and/or proposed, including any extensions thereto;
(c)
The number of dwelling units;
(d)
Parking plan, indicating the number, size and location of all off-street parking spaces and/or required loading areas;
(e)
Statement indicating any existing or proposed use(s);
(f)
Height of any structure, building or sign existing or proposed;
(g)
The name, address and telephone number of the property owner, the applicant (if different from the owner) and the estimated value of any proposed improvements;
(h)
Any other information deemed necessary by the Zoning Officer in order to determine compliance with this and any other applicable ordinances.
(3)
Within 30 days from the date of submission of a complete application, the Zoning Officer shall review the application and the accompanying site plan, shall perform a site visit to confirm compliance of the application with the provisions of this chapter and other applicable ordinances, and either grant or deny the permit. The Zoning Officer must grant a permit if compliance is confirmed. If the permit is denied, the applicant must receive a written statement of the reasons for denial as well as notification of his/her rights of appeal along with a ZHB hearing application. For applications involving the review and a recommendation by the HARB, the thirty-day period begins on the date the Borough Council approves the HARB's final recommendation.
(4)
A zoning permit shall expire 180 days from the date of issuance if the construction and/or development for which the permit was issued has not begun. If such construction and/or development did begin within this one-hundred-eighty-day period but is not completed, said permit shall expire after two years from the date of issuance thereof. One-year extension(s) shall be granted, at the discretion of the Zoning Officer, for a maximum of two additional years.
(a)
Construction and/or development shall be considered to have started with the preparation of land; land clearing; grading; filling; excavation for basement, footings, piers or foundations; erection of temporary forms; installation of piling under proposed subsurface footings or installation of sewer, gas and water pipes or electrical or other service lines from the street.
(b)
Time extensions shall be granted only if a written request and applicable fee is submitted by the applicant, which sets forth sufficient and reasonable cause for the Zoning Officer to approve such request.
(c)
If work is not initiated and/or completed within the time frames noted herein, the application will be considered void. New applications for zoning permits, variances, special exceptions or conditional uses, with all applicable fees as outlined in § 360-49, shall be submitted for review and approval before work can proceed on a project whose original application has been voided.
(5)
After the issuance of a zoning permit by the Zoning Officer, no changes of any kind shall be made to the application, permit or any of the plans, specifications or other documents submitted with the application without the written consent or approval of the Zoning Officer. Requests for any such change shall be in writing and shall be submitted by the applicant to the Zoning Officer for consideration.
B.
Certification of zoning compliance. Zoning compliance shall be certified upon the completion of any work permitted under this chapter. It shall be unlawful to use and/or occupy any structure, building and/or land or portions thereof for which a zoning permit has been issued until such certification of zoning compliance has also been issued.
(1)
The applicant shall notify the Zoning Officer in writing upon completion of the work. The Zoning Officer shall inspect any use, structure, building, sign and/or land or portions thereof and shall determine the compliance therewith to the provisions of this chapter and with any conditions listed on the zoning permit.
(2)
Certification of zoning compliance shall be given or refused in writing, within 30 days of notification of completion of work.
(a)
In the event that certification of zoning compliance is refused, the reasons for said refusal shall be included in the written notice of refusal and a notice of violation may be issued.
(b)
If the Zoning Officer fails to determine zoning compliance within 30 days of notification of completion of work, the work for which the permit was issued shall be considered compliant.
(3)
In the case of permits where performance standards outlined in § 360-31 may pertain, certification of zoning compliance shall be considered provisional until 30 days after the use is fully operational and there has been a determination that such standards have been met.
(a)
The applicant shall submit documentation of compliance with all relevant performance standards, as requested by the Zoning Officer.
(b)
Upon completion of the 30 days, if the use is in compliance with all applicable performance standards, the Zoning Officer shall notify the applicant, in writing, as to that finding and that the certificate of zoning compliance is permanent. If within the thirty-day period the use is found not to be fully compliant with the applicable performance standards, the applicant will be notified in writing about any standards that still have not been met.
(c)
In the event that the required performance standards are not met within 90 days after the start of operation of said use, the certificate of zoning compliance shall be withdrawn and the use shall be ordered to cease and desist from operations until such time as compliance with the performance standards can be determined by the Zoning Officer.
§ 360-42 Enforcement.
A.
Enforcement notice. If the Zoning Officer deems that a violation of this chapter or of any detailed statement or plan approved thereunder has occurred, the Zoning Officer shall initiate enforcement proceedings by sending a written enforcement notice to the person, firm, corporation or partnership deemed responsible for the violation and to the owner of record of the parcel on which the violation has occurred.
(1)
Such written notice, signed by the Zoning Officer, shall be served personally or sent by certified mail or other method requiring signed receipt and shall state at a minimum the following:
(a)
The party deemed responsible for the violation and the name of the owner of record of the property in question;
(b)
The date and location of the violation;
(c)
The specific section of this chapter that has been violated;
(d)
The specific action required to correct such violation;
(e)
The date by which or the time period within which the violation must be corrected;
(f)
The right of the party to appeal the decision of the Zoning Officer to the Zoning Hearing Board within the period of time specified in this chapter, from receipt of notice of the violation, and the procedures to be followed to file such appeal;
(g)
That failure to comply with the notice within the time specified, unless extended by appeal to the Zoning Hearing Board, constitutes a violation, with the possible sanctions clearly described.
(3)
In any appeal of an enforcement notice to the Zoning Hearing Board, the Zoning Officer shall have the responsibility of presenting the Borough's evidence first.
(4)
Any filing fees paid by a party to appeal an enforcement notice to the Zoning Hearing Board shall be returned to the appealing party by the Borough if the Zoning Hearing Board, or any court in a subsequent appeal, rules in the appealing party's favor.
B.
Causes of action. If the property owner or other party who has received an enforcement notice fails to bring the property in question into compliance within the time frame specified in the notice and unless the property owner or party has filed an application for a hearing appealing the Zoning Officer's determination within the specified period of time from receipt of the notice of violation, the Zoning Officer shall refer the matter to the Borough Solicitor, who may initiate an action or proceeding to prevent, restrain, correct or abate such building, structure, sign, landscaping or land use, or to prevent, in or about such premises, any act, conduct, business or use constituting a violation.
(1)
Jurisdiction. The district magistrate shall have initial jurisdiction for proceedings brought under this section. Any further subsequent legal action shall be taken to the Union County Court of Common Pleas, in accordance with the Pennsylvania Municipalities Planning Code Act of 1968, P.L. 805, No. 247,[1] as reenacted and amended.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(2)
Violation remedies.
(a)
Any person, partnership or corporation that has violated or permitted the violation of the provisions of this chapter shall, upon being found liable therefor in a civil enforcement proceeding commenced by the Borough, pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by the Borough as a result thereof. No judgment shall commence or be imposed, levied or payable until the date of the determination of a violation by the district justice. If the defendant neither pays nor appeals in a timely way the judgment, the Borough may enforce the judgment pursuant to the applicable rules of civil procedure.
(b)
Each day that a violation continues beyond the fifth day after the judgment shall constitute a separate violation.
(c)
All judgments, costs and reasonable attorney fees collected by the court for the violation of this chapter shall be paid to the Borough.
(d)
The Court of Common Pleas, upon petition, may grant an order of stay upon cause shown, tolling the per diem fine pending a final adjudication of the violation and judgment.
(3)
Nothing contained in this section shall be construed or interpreted to grant to any person or entity other than the Borough Council the right to commence any action pursuant to this section.
§ 360-43 Zoning Hearing Board.
Pursuant to Article IX of the Pennsylvania Municipalities Planning Code Act of 1968, P.L. 805, No. 247,[1] as reenacted and amended, the Borough Council has created a Zoning Hearing Board, herein referred to as the "Board," which shall perform all the duties and have all the powers prescribed by said statute and as herein provided.
A.
Membership of the Board.
(1)
The Board shall consist of three residents of the Borough appointed by the Borough Council.
(2)
The terms of office shall be three years, and the terms shall be so fixed that the term of one member shall expire each year.
(3)
Members of the Board shall hold no other office in the Borough, elected or appointed.
B.
C.
Compensation of members of the Board. Members shall receive such compensation as shall be fixed from time to time by Borough Council by resolution, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Borough Council.
D.
Organization of the Board.
E.
General conduct of Board business.
(1)
Meetings and hearings of the Board shall be held at the call of the chairperson and at such other times as the Board by majority vote may determine.
(2)
For the conduct of any hearing and the taking of any action, a quorum of not less than a majority of all members of the Board shall be present.
(3)
The Board may make, alter and rescind rules and forms for its procedure, consistent with this chapter of the Borough and the laws of Pennsylvania. Upon adoption, such rules as may be established by the Board shall continue in force and effect until amended or repealed by the Board, by municipal ordinance or by federal or state law.
(4)
The Board shall keep full public records of its business, which records shall be the property of the Borough.
(5)
The Board shall submit a report of its activities to the Borough Council as may be requested by the Borough Council. The Board shall also submit an annual report of its activities to the Borough Council.
F.
Expenditures for services. Within the limits of funds appropriated by the Borough Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical or legal staff.
G.
Jurisdiction of the Zoning Hearing Board regarding the Borough's zoning and other land use ordinances. The Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1)
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; the registration or refusal to register any nonconforming use, structure or lot; the interpretation of any district boundary line or any other official map; compliance with any performance standards, required impact study, or density requirements of this chapter.
(a)
In exercising this power, the Board may reverse or affirm, wholly or in part, or may modify the order, requirement, decision, determination or permit appealed from.
(b)
Nothing in this section shall be construed to deny the appellant the right to proceed directly to court, when appropriate, pursuant to the Pennsylvania Rules of Civil Procedure relating to mandamus.
(3)
Applications for special exceptions under this chapter pursuant to the special exception criteria in § 360-45B of this chapter.
(4)
(5)
Appeals from the determination of the Zoning Officer or a professional engineer retained by the Borough in the administration of any land use ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management, insofar as the same relate to development not involving the Subdivision and Land Development Ordinance.[4]
(6)
Substantive challenges to the validity of any land use ordinance, except those that are brought before the Borough Council involving a curative amendment.
(7)
Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption, which challenges shall be raised by an appeal made within 30 days after the effective date of said Ordinance.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
§ 360-44 Jurisdiction of Borough Council.
The Borough Council shall have exclusive jurisdiction to hear and render final adjudication in the following matters:
§ 360-45 Standards and criteria for proceedings requiring hearings.
A.
Standards and criteria for variances.
(1)
The Board shall, by rule, prescribe the form of application and may require the submission of a preliminary application to the Zoning Officer.
(2)
The Board may grant a variance, provided that all of the following findings are made where relevant in a given case.
(a)
That there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size and 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 created by the provisions of this chapter in the 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 applicant.
(d)
That the variance 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 welfare.
(e)
That the variance will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
(f)
That no nonconforming use of neighboring lands, structures or buildings in the same district, and no permitted or nonconforming use of land, structure or buildings in other districts, shall be considered grounds for the granting of any variance.
(g)
That in no case shall a variance be granted solely for reasons of financial hardship or additional financial gain on the part of the applicant.
(3)
When applications for a variance within any identified floodplain area are being considered, the following provisions also apply:
(a)
Variances may be granted for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places, provided that the proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure and that the variance is the minimum necessary to preserve the historic character and design of the structure.
(b)
Variances may not be granted for any construction, development, use or activity within any floodway area that would result in any increase in flood levels during a one-hundred-year flood, as certified by a professional engineer retained by the applicant and verified by the Borough Engineer.
(c)
Except for a possible modification of the one-and-one-half-foot freeboard requirement involved, no variance shall be granted for any of the other requirements pertaining specifically to § 360-37F.
(d)
In reviewing any request for a variance, the Board shall consider that there is a good and sufficient cause; that failure to grant the variance would result in exceptional hardship to the applicant; and that the granting of the variance will neither result in an unacceptable or prohibited increase in flood heights, additional threats to public safety or extraordinary public expense nor create nuisances, cause fraud on or victimize the public or conflict with any other applicable state or local ordinances or regulations.
(e)
If a variance from the floodplain management requirements is granted, the Board shall notify the applicant in writing that the erection, construction, development, alteration, extension, use or activity for which the variance is being granted may result in:
(f)
Notwithstanding any of the above, all structures shall be designed and constructed so as to have the capability of resisting a one-hundred-year flood, as certified by a professional engineer retained by the applicant and verified by the Borough Engineer.
(4)
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to protect the public health, safety and welfare, and to achieve the purposes of this chapter.
(5)
All applications for variances shall be submitted to the Planning Commission for review and recommendation before application for a hearing is submitted. Lack of recommendation by the Planning Commission shall be deemed as recommended approval of the application for a hearing.
B.
Standards and criteria for special exceptions.
(1)
The Board may grant a special exception, provided the use meets the following criteria:
(a)
The special exception use shall be specifically authorized in the zoning district, shall meet the special exception criteria established in Article IV and shall comply with all zoning standards for that district.
(b)
The special exception use shall be consistent with the duly adopted Lewisburg Borough Comprehensive Plan and Article I of this chapter, as well as the general purposes and intent of this chapter.
(c)
The special exception use shall not adversely affect the character of the district, the conservation of property values, nor the health and safety of residents or workers on adjacent properties and in the general neighborhood.
(2)
In reviewing applications for special exceptions within any identified floodplain area, the Board shall consider all the criteria listed above in § 360-45B(1), Article VI, Floodplain Management, and the following:
(a)
The danger to life and property due to increased flood heights or velocities caused by encroachments in the floodway.
(b)
The danger that materials may be swept onto other lands or downstream causing injury to others.
(c)
The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination and unsanitary conditions.
(d)
The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owners.
(e)
The importance of the services provided by the facility to the community.
(f)
The requirements of the facility for a waterfront location.
(g)
The availability of alternate locations not subject to flooding for the proposed use.
(h)
The compatibility of the proposed use with existing development and development anticipated in the foreseeable future.
(i)
The safety of access to the property in times of flooding by ordinary and emergency vehicles.
(j)
The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters expected at the site.
(k)
Any other factors that are relevant to the purposes of the floodplain management provisions of this chapter.
(3)
The Board may attach any reasonable conditions and safeguards as it may deem advisable and appropriate to any special exception permit. Refusal of the applicant to accept such conditions shall result in the revoking of the special exception permit.
(4)
If a special exception use requires a variance from this or any other Ordinance, the special exception use shall not be granted until such time as the variance may be authorized.
(5)
All applications for special exception shall be submitted to the Planning Commission for review and recommendation. Lack of recommendation by the Planning Commission shall be deemed as recommended approval of the application to the Zoning Hearing Board.
(6)
Whenever a special exception use of any land, structure or building has been discontinued and/or not verifiably marketed for a period of one year, such use shall thereafter revert to permitted uses of the applicable zoning district.
C.
Standards and criteria for conditional uses.
(1)
The Borough Council may grant a conditional use provided the use meets the following criteria:
(a)
The conditional use shall be specifically authorized in the zoning district, shall meet the conditional use criteria established in Article IV, and shall comply with all zoning standards for that district.
(b)
The conditional use is compatible with the provisions contained in the duly adopted Lewisburg Borough Comprehensive Plan and Article I of this chapter.
(c)
The conditional use will not detract from permitted uses in the district.
(2)
In reviewing applications for conditional uses within any identified floodplain area, the Borough Council shall consider all the criteria listed above in § 360-45C(1), Article VI, Floodplain Management, and the following:
(a)
The danger to life and property due to increased flood heights or velocities caused by encroachments in the floodway.
(b)
The danger that materials may be swept onto other lands or downstream, causing injury to others.
(c)
The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination and unsanitary conditions.
(d)
The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owners.
(e)
The importance of the services provided by the facility to the community.
(f)
The requirements of the facility for a waterfront location.
(g)
The availability of alternate locations not subject to flooding for the proposed use.
(h)
The compatibility of the proposed use with existing development and development anticipated in the foreseeable future.
(i)
The safety of access to the property in times of flooding by ordinary and emergency vehicles.
(j)
The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters expected at the site.
(k)
Any other factors that are relevant to the purposes of the floodplain management provisions of this chapter.
(3)
The Borough Council may attach to any conditional use permit any reasonable conditions and safeguards it may deem advisable and appropriate to implement the purposes of this Zoning Ordinance.
(4)
When the Zoning Officer determines that a conditional use requires a variance(s) from the requirements of this or any other Ordinance, the conditional use hearing shall not be scheduled until such time as the necessary variances have been granted.
(5)
Applications for conditional use shall be submitted to the Planning Commission for review and recommendation prior to the public hearing. Lack of recommendation by the Planning Commission shall be deemed as recommended approval of the application to the Borough Council.
(6)
Whenever a conditional use of any land, structure or building has been discontinued and/or not verifiably marketed for a period of one year, such use shall thereafter revert to permitted uses of the applicable zoning district.
§ 360-46 Procedures for hearings.
The procedures discussed in this section shall apply to all proceedings before the Board and, where applicable, shall apply to proceedings before the Borough Council.
B.
Filings.
(1)
All appeals and applications shall be in writing in a form prescribed by the Board. Such applications shall contain at a minimum:
(a)
The specific ordinance and provision(s) of said ordinance involved;
(b)
The interpretation that is claimed for any challenges to the validity of said ordinance or of the determination of the Zoning Officer;
(c)
The use for which special exception or conditional use is sought; or;
(d)
The details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted.
(2)
All appeals and applications shall be accompanied by all required filing fees as may be established by the Borough Council.
(3)
Time limitations for appeals to the Board.
(a)
No person shall be allowed to file an appeal with the Board later than 30 days after an application has been approved by the Zoning Officer or other municipal official, unless such person alleges and proves that he/she had no notice, knowledge or reason to believe that such approval had been given. If such person has succeeded to his/her interest after such approval, he/she shall be bound by the knowledge of his predecessor in interest.
(b)
All appeals from determinations adverse to landowners shall be filed by the landowner within 30 days after the determination is issued.
(4)
Stay of proceedings.
(a)
Upon filing of any proceeding referred to in this article, and while such proceeding is pending before the Board, all activities pursuant to any challenged ordinance, order or approval of the Zoning Officer or any agency or body and all official action thereunder shall be stayed unless the Zoning Officer or any appropriate agency or bodies 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 that may be granted by the Board or by a court of competent jurisdiction on petition, after notice to the Zoning Officer or other appropriate agency or body.
(b)
When an application for development 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 a court of competent jurisdiction to order such appellant(s) to post bond as a condition to continuing the proceedings before the Board. At the hearing it shall be the burden of the applicant to prove the appeal is frivolous. The question of whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court. An order denying a petition for bond shall not be subject to appeal. An order directing the responding party to post a bond shall not be subject to appeal.
C.
Notice.
(1)
Written notice of a hearing shall be provided a minimum of 15 days prior to the hearing and shall consist of a letter prepared by the Zoning Officer and given to the following: the applicant; Planning Commission secretary; adjoining property owners; persons making a timely request and others as designated by the Board. The written notice of said hearing shall also be conspicuously posted on the affected tract at least one week prior to the hearing.
(2)
Public notice of a hearing shall also be given and shall consist of an advertisement published once per week for two successive weeks in a newspaper of general circulation in the municipality not more than 30 nor less than seven days from the date of said hearing or meeting.
(3)
Notices of hearings shall state the time, place and purpose of the hearing; the location of the lot or structure involved and the nature of the relief sought.
(4)
In the event that more than one hearing is required or a hearing is continued to another date, announcement of the next hearing date at the hearing to be continued shall be deemed adequate notice of said continued hearing. In the event that the date or time of the continued hearing subsequently changed, then public notice must again be provided, as set forth in § 360-46C(1) through (3). If for any reason the continued hearing is not held within 45 days of the prior hearing, then public notice must be provided, as set forth in § 360-46C(1) through (3).
D.
Scheduling of hearings.
(1)
Hearings shall be commenced within 60 days from the date of receipt of the applicant's request, unless the applicant has agreed in writing or on the record to an extension of time.
(2)
Any subsequent hearing shall be held within 45 days of the prior hearing, unless otherwise agreed to by the applicant in writing or on the record. An applicant shall complete the presentation of the case-in-chief within 100 days of the first hearing. Upon the request of the applicant, the Board shall assure that the applicant receives at least seven hours of hearings within the 100 days, including the first hearing. Persons opposed to the application shall complete the presentation of their opposition to the application within 100 days of the first hearing held after the completion of the applicant's case-in-chief. An applicant may, upon request, be granted additional hearings to complete the case-in-chief provided the persons opposed to the application are granted an equal number of additional hearings. Persons opposed to the application may, upon the written consent or consent on record by the applicant and the Borough, be granted additional hearings to complete their opposition to the application, provided the applicant is granted an equal number of additional hearings for rebuttal.
E.
Conduct of hearings.
(1)
Hearings shall be conducted by the Board. The Board shall not appoint a member to serve as a hearing officer.
(2)
The parties to any hearing shall be the Borough, the applicant, any person affected by the application who has made timely appearance of record before the Board and any other person including civic or community organizations permitted to appear by the Board. The Board shall have the power to require that all persons who wish to be considered parties enter appearances in writing in a form acceptable to the Board.
(3)
The chairperson or acting chairperson of the Board shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and production of relevant documents and papers, including any witnesses and/or documents requested by the parties.
(4)
The parties shall have the right to be represented by counsel and shall be afforded the opportunity to present evidence and argument, to respond and to cross-examine adverse witnesses on all relevant issues.
(5)
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
(6)
The Board shall keep a stenographic record of the proceeding.
(a)
The appearance fee for a stenographer shall be shared equally by the applicant and the Borough.
(b)
The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board.
(c)
The cost of the transcript shall be paid by any person or party who might appeal from the decision of the Board.
(d)
Additional copies of the transcript shall be paid for by the person requesting such copy.
F.
The Board shall not communicate, directly or indirectly, with any party or his/her representatives in connection with any issue involved except upon notice and opportunity for all parties to participate.
(1)
The Board shall not take notice of any communication, reports, staff memoranda or other materials, except advice from its solicitor, unless the parties are afforded an opportunity to contest the material so noticed.
(2)
The Board shall not inspect the site or its surroundings after the commencement of hearings with any party or his/her representative 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.
(1)
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 the provisions of the Pennsylvania Municipalities Planning Code Act of 1968, P.L. 805, No. 247,[2] as from time to time reenacted and amended, or of this chapter or of any other ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in light of the facts found.
[2]
Editor's Note: See 53 P.S. § 10101 et seq.
(2)
If the Board finds that a substantive challenge to the validity of any land use ordinance has merit, the decision of the Board shall include recommended amendments to the challenged ordinance that will cure the defects found. In making its decision, the Board shall take into consideration the factors listed in § 360-53E of this chapter.
(3)
Where the Board fails to render the decision within the required forty-five-day period, or fails to hold a hearing within the required sixty-day period, or fails to complete the hearing within 100 days of the completion of the applicant's case in chief, unless extended for good cause upon application to the Court of Common Pleas or unless no action was taken by the Board due to nonpayment by the applicant of the required fees, 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.
(4)
In such case when a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a decision as herein provided, the Board shall give public notice of said decision within 10 days from the last day it could have met to render such decision, as provided in this chapter. If the Board should fail to provide such notice, the applicant may do so.
(5)
Nothing in this section shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
(6)
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/her 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 time and place at which the full decision or findings may be examined.
§ 360-47 Mediation option.
Parties to proceedings authorized in this chapter may utilize mediation as an aid in completing such proceedings. Mediation shall supplement, not replace, the procedures delineated in this article once they have been formally initiated.
A.
In proceedings before the Board, in no case shall the Board initiate mediation or participate as a mediating party.
B.
Participation in mediation shall be wholly voluntary. The appropriateness of mediation shall be determined by the particulars of each case and the willingness of the parties to negotiate.
C.
The Borough shall assure that, in each case, the mediating parties, assisted by the mediator as appropriate, develop terms and conditions for: funding the mediation; selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation; completing the mediation, including time limits; suspending time limits otherwise authorized in this article, provided there is written consent by the mediating parties and by the applicant or Borough Council if either is not a party to the mediation; identifying all parties and affording them the opportunity to participate; subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public; and assuring that mediated solutions are in writing and signed by the parties and become subject to review and approval by the appropriate decision-making body, pursuant to the authorized procedures set forth in the Pennsylvania Municipalities Planning Code Act of 1968, P.L. 805, No. 247,[1] as amended.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
D.
No offers or statements made in the mediation sessions, excluding the final mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceedings.
§ 360-48 Appeals from decisions of Board.
Any person aggrieved by any decision of the Zoning Hearing Board may appeal to the Union County Court of Common Pleas under the procedure set forth in Article X-A of the Pennsylvania Municipalities Planning Code Act of 1968, P.L. 805, No. 247,[1] as from time to time reenacted and amended. Appeals must be filed within 30 days after the date upon which the decision was rendered by the Board or, in the case of a deemed decision, within 30 days after the date upon which notice of said deemed decision is given.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
§ 360-49 Schedule of fees, charges and expenses.
A.
The Borough Council shall establish a schedule of fees, charges and expenses for zoning permits, certificates of zoning compliance, Zoning Hearing Board hearings and conditional use hearings and any other matters pertaining to this chapter. Fees for hearings may include compensation for Zoning Hearing Board members and notice, advertising and administrative costs but fees shall not include legal expenses, consultant expenses or expert witness costs, which shall be borne by the applicant.
B.
The schedule of fees shall be available for inspection in the office of the Zoning Officer and no action shall be taken on any application or appeal until such time as all fees, charges and expenses have been paid in full.
C.
The schedule of fees may be altered or amended by resolution of Borough Council.
§ 360-50 Nonconforming lots, uses, structures and buildings.
A.
Statement of intent. Within the zoning districts established pursuant to this chapter or subsequent amendments thereto, there exist or will exist certain nonconformities that, if lawful before this chapter was enacted or amended, may be continued, subject to certain limitations, although such nonconformities would be prohibited, regulated or restricted under the terms of this chapter or subsequent amendments thereto. In order to avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction or designated use of any buildings or structures on which actual construction was lawfully begun prior to the effective date of adoption or amendment to this chapter and upon which actual building construction has been diligently carried on.
B.
Nonconforming lots of record.
(1)
Undeveloped lots of record existing at the date of adoption or amendment of this chapter that do not conform to the regulations of the Zoning District in which they are located may be used for primary structures or dwellings and accessory uses upon application for and approval by the Zoning Hearing Board of a special exception. In granting such a special exception, the Zoning Hearing Board should specify setback requirements that approximate the predominant setback of the developed lots on the block.
(2)
If two or more undeveloped lots, or combinations of undeveloped lots and portions of lots with continuous frontage in single ownership, are of record at the time of adoption of this chapter or amendment thereto, and if all or part of the lots do not meet the requirements established for lot width and/or area, the land shall be considered to be an undivided parcel for the purpose of this chapter. No portion of said parcel shall be developed or sold in a manner that diminishes compliance with lot width and/or area requirements established by this chapter, nor shall any division of any parcel be made that creates a lot with width or area below the minimum requirements established in this chapter.
C.
Nonconforming uses.
(1)
The lawful use of land or a building or structure that at the effective date of this chapter or as a result of subsequent amendments thereto does not conform to the use requirements contained therein may be continued by the present or any subsequent owner so long as such use remains otherwise lawful, subject to the following provisions:
(a)
Whenever a nonconforming use of any land, structure or building has been discontinued and/or not verifiably marketed for a period of one year, such land, structure or building or any portion thereof shall thereafter be used only in a manner in full compliance with this chapter.
(b)
Voluntary removal or destruction of the structure or building in which any nonconforming use is located shall eliminate the use of the land upon which the structure or building was erected for such nonconforming use. "Destruction," for the purpose of this subsection, is defined as damage to an extent of 75% or more of the market value of said structure or building immediately prior to such damage or destruction as appraised for tax assessment purposes utilizing the State Tax Equalization Board (STEB) report. The determination of the extent of damage in terms of percent replacement value due to damage or destruction shall be made by comparing estimates made by two certified appraisers appointed by the Borough and the insurance adjuster's estimate of repair cost. The cost of such appraisals shall be borne by the property owner of the affected property.
(c)
Should the structure or building in which any nonconforming use is located be destroyed by fire, flood, wind or other means not of the owner's decision, the nonconforming use may be continued in the reconstructed structure or building, but the structure or building shall not be reconstructed in any manner that increases the use's nonconformity, except as provided in § 360-50D(2). If reconstruction has not commenced within one year of the date of such destruction, reconstruction and subsequent use shall be in full compliance with this chapter and all other applicable regulations.
(2)
A nonconforming use may be altered or expanded upon application for and approval by the Zoning Hearing Board of a special exception provided that the following conditions are met:
(a)
Expansion of the nonconformity shall be confined to the lot on which it is located on the effective date of this chapter or any amendment thereto creating the nonconformity.
(b)
Extension of any nonconforming use shall be permitted only once and shall not exceed 25% of the gross floor area of any building or, if an outdoor use, 25% of the gross land area occupied by said nonconforming use at the time of the adoption and/or amendment of this chapter.
(c)
Provision for building height, building area and impervious surface shall be consistent with the standards required for any permitted structure or building in the zone in which the nonconformity in question is located; however, the existing nonconforming setback may be continued or extended but not increased.
(3)
Any nonconforming use, if changed to a conforming use, shall not thereafter be changed back to any nonconforming use.
(4)
A nonconforming use may be changed to another nonconforming use upon application for and approval by the Zoning Hearing Board of a special exception provided that the Zoning Hearing Board shall find that the proposed use is equally or more appropriate in the Zoning District in which the use is located than the existing nonconforming use and that the proposed use will have no more adverse effect on adjacent properties than the existing nonconforming use in relation to signs and lighting, traffic generation and movement, parking and loading, and any applicable performance standards.
D.
Nonconforming structures or buildings.
(1)
Structures or buildings that at the effective date of this chapter or subsequent amendments thereto do not conform to the requirements contained therein by reason of restrictions on area, maximum impervious coverage, height, setbacks, location on the lot or other requirements concerning the building or structure may be continued to be used, maintained and repaired so long as such structure or building remains otherwise lawful. However, no nonconforming structure or building shall be for any reason moved any distance unless it shall thereafter conform to the zoning regulations for the district in which it is located after it is moved.
(2)
A nonconforming building or structure may be altered or expanded subject to the following provisions:
(a)
Such alteration or expansion is confined to the lot on which the nonconforming structure is located on the effective date of this chapter or any amendment thereto creating the nonconformity.
(b)
Such alteration or expansion does not create other or additional nonconformities or further increase existing nonconformities, although nonconforming setbacks may be continued or extended.
(c)
Such alteration or expansion is in conformance with the provisions of this chapter or only extends any existing nonconformity relative to a setback or setbacks and does not enlarge said nonconformity. (An example is if a landowner proposes enlarging his residence along the existing front building line which is set back two feet less than the required 20 feet).
(3)
There may be additions or improvements to dimensional nonconformities upon application for and approval of a special exception by the Zoning Hearing Board provided that the following conditions are met:
(a)
Such addition or improvement is confined to the lot on which the nonconforming structure is located on the effective date of this chapter or any amendment thereto creating the nonconformity.
(b)
The addition or improvement shall not create other or additional nonconformities.
(c)
Appearance is harmonious with surrounding properties.
(d)
Landscaping and buffer yards in accordance with applicable requirements should be provided to protect neighboring properties.
(4)
Should a nonconforming structure or building be destroyed by fire, flood, wind or other means not of the owner's decision, it shall not be reconstructed in any manner that increases its nonconformity. If reconstruction has not commenced within one year of the date of such destruction, reconstruction shall be in full compliance with this chapter and all other applicable regulations.
(5)
In cases where two or more uses or principal structures, exclusive of any accessory structures, exist on a single parcel, all such buildings or uses shall comply with all requirements of this chapter and subsequent amendments that would normally apply to each building or use if each were on a separate lot. In cases where existing multiple uses and/or primary buildings are nonconforming, any alterations or modifications shall be consistent with § 360-50B and C of this chapter.
E.
Registration of nonconformities. To facilitate the administration of this chapter, it shall be the duty of the Zoning Officer to prepare and maintain an accurate listing of all nonconforming uses and structures in all districts. As far as records make possible, any previous permitted extensions of any nonconforming uses should be noted in the listing of those uses. The listing of nonconformities shall be a matter of public record.
(1)
Uses permitted by right, special exception, conditional use and/or variance shall be so noted on a permanent record of the subject parcel.
(2)
All nonconforming uses and structures shall be registered separately and an accurate listing maintained. The Zoning Officer shall submit an annual report to the Planning Commission regarding the status of all nonconforming uses and structures.
(3)
This listing shall constitute sufficient notice of the nonconforming status of said uses and/or structures and the limitations therein expressed and implied to any transferee acquiring any right to use or own such property.
F.
Buildings under construction. Nothing in this chapter shall be deemed to require a change in the plans, construction or designated use of any building or structure of which the construction or use was lawfully begun prior to the effective date of adoption of or amendment to this chapter and of which construction or use has been diligently carried on.
G.
Status of subdivision or land development plan.
(1)
From the time an application for approval of a plan, whether preliminary or final, is duly filed as provided for in the Subdivision and Land Development Ordinance (SALDO),[1] and while such application is pending approval or disapproval, no change or amendment of the Zoning Ordinance shall affect the decision on such application adversely to the applicant, and the applicant shall be entitled to a decision in accordance with the provisions of the Zoning Ordinance as it stood at the time the application was duly filed. In addition, when a preliminary application has been duly approved, the applicant shall be entitled to final approval in accordance with the terms of the approved preliminary application as hereinafter provided. However, if such an application is properly and finally denied, any subsequent application shall be subject to the intervening change in the Zoning Ordinance.
(2)
When an application for approval of a SALDO plan, whether preliminary or final, has been approved without conditions or approved by the applicant's acceptance of conditions, no subsequent change or amendment in the zoning shall be applied to affect adversely the right of the applicant to commence and to complete any aspect of the approved development in accordance with the terms of such approval within five years from such approval. The five-year period shall be extended for the duration of any litigation, including appeals, which prevent the commencement or completion of the development and for the duration of any sewer or utility moratorium or prohibition which was imposed subsequent to the filing of an application for preliminary approval of a plan. In the event of an appeal filed by any party from the approval or disapproval of a plan, the five-year period shall be extended by the total time from the date the appeal was filed until a final order in such matter has been entered and all appeals have been concluded and any period for filing appeals or requests for reconsideration have expired, provided, however, that no extension shall be based upon any water or sewer moratorium which was in effect as of the date of the filing of a preliminary application. Where final approval is preceded by preliminary approval, the five-year period shall be counted from the date of the preliminary approval.