Monaca City Zoning Code
ARTICLE XIII
Zoning Hearing Board
§ 245-87 Purpose.
The Zoning Hearing Board (hereinafter referred to as "Board") is the authorized body that hears and decides specified subject matters that are designated in this chapter.
§ 245-88 Creation; appointment; administration.
A.
A Zoning Hearing Board is hereby created.
B.
The members of the Board shall be residents of the Borough and shall be appointed by the Borough Council through a majority vote.
C.
The Board shall consist of three members.
D.
The term of office of Board members shall be three years and shall be so fixed that the term of office of one member shall expire each year.
E.
The Board shall promptly notify the Borough Council of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the term.
F.
Board members shall not hold any other Borough office, be a member of the Borough Planning Commission or be the Zoning Officer.
G.
Board members may receive compensation for the performance of their duties but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Borough Council. If compensation is instituted, the Borough Council shall do so by resolution.
H.
If a member of the Board changes residence which results in such member not being a resident within the political subdivision boundaries of the Borough, such member shall immediately vacate such membership to the Board.
I.
The Borough Council may appoint by resolution at least one but no more than three residents of the Borough to serve as alternative members of the Board.
(1)
The term of office of an alternate member shall be three years.
(2)
When seated pursuant to the provisions of § 245-90B, an alternate member 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. The alternate member shall have the right to cast a vote as a voting member during the proceedings and shall have all the powers and duties set forth in this chapter and as otherwise provided by law.
(3)
An alternate member shall not hold any other Borough office, be a member of the Borough Planning Commission or be the Zoning Officer.
(4)
Alternate members may receive compensation for the performance of their duties but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Borough Council. If compensation is instituted, the Borough Council shall do so by resolution.
§ 245-89 Removal of members.
Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by a majority vote of the Borough Council which 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.
§ 245-90 Organization of Board.
A.
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 not be 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 § 245-93.
B.
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 to sit on the Board as may be needed to provide for 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 pursuant to this section shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.
C.
The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the Borough and laws of the commonwealth. The Board shall keep full public records of its business, which records shall be the property of the Borough, and shall submit a report of its activities to the Borough Council at the request of the Borough Council.
§ 245-91 Expenditures for services.
The Borough Council shall make provisions in its budget and appropriate funds for the operation of the Board. 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 and clerical services.
§ 245-92 Application procedures.
A.
Applications for hearings in front of the Board shall be made by the applicant on forms provided by the Borough and submitted to the Zoning Officer or Borough Secretary. Along with the application, the applicant shall file all maps, plans and text which may be relevant to the request. Six copies of the application, maps, plans and text shall be submitted.
B.
Such a fee that is prescribed by the Borough Council shall be submitted by the applicant with a complete application. Such a fee may be amended from time to time by the Borough Council through resolution.
C.
The Zoning Officer shall transmit one complete application to each Board member and the Board Solicitor in a timely manner.
D.
Upon the receipt of the application, the Board Solicitor shall schedule the hearing and provide public and written notice in accordance with this chapter.
§ 245-93 Hearing procedures.
The Board shall conduct hearings and make decisions in accordance with the following requirements:
A.
Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer and to any person who has made timely request for the same. The public notice and the written notice to the applicant shall be prepared and delivered by the Board Solicitor. Written notice shall be given through the use of certified United States mail. In addition to the written notice provided herein, written notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.
B.
The Borough Council may prescribe reasonable fees with respect to hearings before the Board. Fees for said hearings may include compensation for the Secretary and the members of the Board, notice and advertising costs and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses of the Board, expenses for engineering, architectural or other technical consultants or expert witness costs.
C.
The first hearing shall be commenced within 60 days from the date of the applicant's request, unless the applicant has agreed, in writing, to an extension of time. Each subsequent hearing before the Zoning Hearing Board or Hearing Officer 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 his case-in-chief within 100 days of the first hearing. Upon the request of the applicant, the Zoning Hearing Board or Hearing Officer 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. The applicant may, upon request, be granted an equal number of additional hearings. Persons opposed to the application may, upon the written consent or consent on the record by the applicant and the Borough, be granted an equal number of additional hearings to complete their opposition to the application provided the applicant is granted an equal number of additional hearings for rebuttal.
[Amended 9-28-2010 by Ord. No. 918]
D.
The hearings shall be conducted by the Zoning Hearing Board or the Zoning Hearing Board may appoint any member or an independent attorney as a Hearing Officer. The decision, or, where no decision is called for, the findings, shall be made by the Zoning Hearing Board; however, the appellant or the applicant, as the case may be, in addition to the Borough, may, prior to the decision of the hearing, waive decision or findings by the Zoning Hearing Board and accept the decision or findings of the Hearing Officer as final.
[Amended 9-28-2010 by Ord. No. 918]
E.
The parties to the hearing shall be the Borough, any person affected by the application who has made timely appearance of record before the Board and any other person, including civic and 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, on forms provided by the Board for that purpose.
F.
The Chairman or Acting Chairman of the Board or the hearing officer presiding shall have the 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.
G.
The parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond and present evidence and argument and cross-examine adverse witnesses on all relevant issues.
H.
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
I.
The Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings. The appearance fee for a stenographer shall be shared equally by the applicant and the Board. The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board or hearing officer or shall be paid by the person appealing from the decision of the Board if such appeal is made, and in either event the cost of additional copies shall be paid by the person requesting such copy or copies. In other cases the party requesting the original transcript shall bear the cost thereof.
J.
The Board or the hearing officer shall not communicate, directly or indirectly, with any party or his representatives in connection with any issue involved except upon notice and opportunity for all parties to participate, shall not take notice of any communication, reports, staff memoranda or other materials, except advice from their Solicitor, unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surroundings after commencement of hearings with any party or his representatives unless all parties are given an opportunity to be present.
K.
The Board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within 45 days after the last hearing before the Board or the hearing officer.
(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 any provision of the Pennsylvania Municipalities Planning Code (Act 247, as amended),[1] or of any Borough 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.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(2)
If the hearing is conducted by a hearing officer, and there has been no stipulation that his decision or findings are final, the Board shall make his report and recommendations available to the parties within 45 days and the parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings, and the Board's decision shall be entered no later than 30 days after the report of the hearing officer.
(3)
Where the Zoning Hearing Board fails to render a decision within the required forty-five-day period or fails to commence or complete the required hearing as provided in § 245-93C, 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.
[Amended 9-28-2010 by Ord. No. 918]
(4)
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 hereinabove provided, the Board shall give public notice of said decision within 10 days from the last day it could have met to render a decision in the same manner as provided in Subsection A. If the Board shall fail to provide such notice, the applicant may do so.
(5)
Nothing in Subsection K of 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 not later than the day following its date. To all other persons who have filed their names and addresses 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.
L.
Mediation option.
[Added 9-28-2010 by Ord. No. 918]
(1)
Parties to proceedings authorized in this article may utilize mediation as an aid in completing such proceedings. In proceedings before the Zoning Hearing Board, in no case shall the Zoning Hearing Board initiate mediation or participate as a mediating party. Mediation shall supplement, not replace, those procedures in this § 245-93 once they have been formally initiated. Nothing in this subsection shall be interpreted as expanding or limiting municipal police powers or as modifying any principles of substantive law.
(2)
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. The Borough, in offering the mediation option, shall assure that in each case the mediating parties, assisted by the mediator as appropriate, develop terms and conditions for:
(a)
Funding mediation.
(b)
Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation.
(c)
Completing mediation, including time limits for such completion.
(d)
Suspending time limits otherwise authorized in this chapter or in the Pennsylvania Municipalities Planning Code (Act 247, as amended),[2] provided there is written consent by the mediating parties, and by an applicant or Borough decision-making body, if either is not a party to the mediation.
[2]
Editor's Note: See 53 P.S. § 1010 et seq.
(e)
Identifying all parties and affording them the opportunity to participate.
(f)
Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public.
(g)
Assuring that mediated solutions are in writing and signed by the parties, and become subject to review and approval by the appropriate decisionmaking body pursuant to the authorized procedures set forth in this chapter.
(3)
No offers or statements made in the mediation sessions, excluding the final written mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceedings.
§ 245-94 Jurisdiction.
The Board shall have exclusive jurisdiction to hear and render final adjudication in the following matters:
A.
Substantive challenges to the validity of any land use ordinance, except those brought before the Borough Council by a landowner as a curative amendment (see § 245-95C).
B.
Challenges to the validity of any land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption, which challenges shall be raised by an appeal taken within 30 days after the effective date of said ordinance.
C.
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; or the registration or refusal to register any nonconforming use, structure or lot.
D.
Appeals from a determination by the Borough Engineer or the Zoning Officer with reference to the administration of any floodplain or flood hazard ordinance or such provisions within a land use ordinance.
E.
Appeals from the Zoning Officer's preliminary opinion determination under § 245-80 of this chapter.
F.
Appeals from the determination of the Zoning Officer or Borough Engineer 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 subdivision and land development applications.
§ 245-95 Variances, special exceptions and substantive challenges.
A.
Variances. The Board shall hear requests for variances where it is alleged that this chapter or other applicable ordinances inflict unnecessary hardship upon the applicant. The Board may by rule prescribe the form of the application and may require preliminary application to the Zoning Officer. In granting any variances, the Board may attach, in addition to the express standards and criteria as detailed in Article IX, such reasonable conditions and safeguards as it may deem necessary to implement the purpose of this chapter. The Board may grant a variance, provided that all of the following findings are made where relevant in a given case:
(1)
There are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topography, or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of this chapter in the neighborhood or district in which the property is located.
(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 applicant.
(4)
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)
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.
B.
Special exceptions. Where special exceptions are to be considered as specified by the Borough Council in this chapter, the Board shall grant or deny special exceptions pursuant to express standards and criteria as detailed in Article IX. 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 chapter.
C.
Substantive challenges.
(1)
A landowner who on substantive grounds desires to challenge the validity of this chapter, Zoning Map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest; or persons aggrieved by a use or development permitted on the land of another by this chapter, Zoning Map or provision thereof who desires to challenge its validity on substantive grounds shall submit their challenge to the Board as governed by the following:
(a)
The challenging party shall make a written request to the Board that it hold a hearing on its challenge. The request shall contain the reasons for the challenge.
(b)
Based upon the testimony presented at the hearing or hearings, the Board shall determine whether the challenged ordinance or map is defective, as alleged by the landowner. If a challenge heard by the Board is found to have merit, the decision of the Board shall include recommended amendments to the challenged ordinance which will cure the defects found. In reaching its decision, the Board shall consider the amendments, plans and explanatory material submitted by the landowner and shall also consider:
[1]
The impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities.
[2]
If the proposal is for a residential use, the impact of the proposal upon regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to and affordable by classes of persons otherwise unlawfully excluded by the challenged provisions of the ordinance or map.
[3]
The suitability of the site for the intensity of use proposed by the site's soils, slopes, wetlands, woodlands, floodplains, aquifers, natural resources and other natural features.
[4]
The impact of the proposed use on the site's soils, slopes, wetlands, woodlands, floodplains, natural resources and natural features, the degree to which these are protected or destroyed and the tolerance of the resources to development and to any adverse environmental impacts.
[5]
The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.
(c)
The Board shall render its decision within 45 days after the conclusion of the last hearing.
(d)
If the Board fails to act on the landowner's request within the time limits referred to above, a denial of the request is deemed to have occurred on the 46th day after the close of the last hearing.
(e)
The Board shall commence its hearings within 60 days after the request is filed unless the landowner requests or consents to an extension of time.
(f)
Public notice of the hearing shall include notice that the validity of the ordinance and/or map is in question and shall give the place where and the times when a copy of the request, including any plans, explanatory material or proposed amendments, may be examined by the public.
(g)
The challenge shall be deemed denied when:
[1]
The Board fails to commence the hearing within the time limit set forth in Subsection C(1)(e); or
[2]
The Board falls to act on the request 45 days after the close of the last hearing on the request, unless the time is extended by mutual consent by the landowner and the Board.
[3]
Where a validity challenge is sustained by the Board pursuant to this section or the court acts finally on appeal from denial of a curative amendment proposal or a validity challenge, and the proposal or challenge so approved requires a further application for subdivision or land development, the developer shall have two years from the date of such approval to file an application for preliminary or tentative approval subject to the Monaca Borough Subdivision and Land Development Ordinance, as amended.[1] Within the two-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant sustained in the validity challenge. Upon the filing of a preliminary or tentative plan, the provisions of Section 508(4) of the Pennsylvania Municipalities Planning Code (Act 247, as amended) shall apply. Where the validity challenge is approved but does not require further application under the Monaca Borough Subdivision and Land Development Ordinance, as amended, the developer shall have one year within which to file for a building permit. Within the one-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the sustained validity challenge. During these protected periods, the court shall retain or assume jurisdiction for the purpose of awarding such supplemental relief as may be necessary.
§ 245-96 Time limitations.
A.
All appeals from the determinations adverse to the landowner or applicant shall be filed by the landowner or applicant, as the case may be, within 30 days after notice of the determination is issued, including but not limited to, determinations by the Zoning Officer, Municipal Engineer, Borough Council, Borough Planning Commission or any other duly authorized organization enforcing and/or interpreting land use regulations.
B.
No person shall be allowed to file any proceeding with the Board later than 30 days after an application for development, whether it be 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 has no notice, knowledge or reason to believe that such approval has been given.