Northampton City Zoning Code
ARTICLE VIII
Zoning Hearing Board and Zoning Officer
§ 250-40 Organization and expenditures.
B.
Appointment.
(1)
The Board shall consist of five members to be appointed by Council. The terms of office of the five-member Board shall be five years and shall be so fixed that the term of office of one member shall expire each year. In order to achieve this one-Board-member-per-year replacement, the Council shall follow a revised schedule of Board member terms.
Term Expiration Dates | ||
|---|---|---|
Start of Initial Term | Initial Term (years) | |
12-31-1992 | 3 | |
12-31-1993 | 4 | |
12-31-1994 | 4 | |
12-31-1995 | 5 | |
12-31-1996 | 5 | |
(2)
After this initial term, the successors to all five Board members shall be appointed on the expiration of their respective terms to serve five years. An appointment to fill a casual vacancy shall be only for the unexpired portion of the term. Such appointments to fill such vacancies shall be made in the same manner as the original appointment.
(3)
The Borough Council may appoint by resolution at least one but no more than three residents of the Borough 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 this section, 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 this chapter and as otherwise provided by law. Alternates shall hold no other office in the Borough, including membership on the Planning Commission and Zoning Officer. 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 nor be compensated pursuant to Subsection E, Expenditures for services, unless designated as a voting alternate member pursuant to Subsection D, Organization of Board.
C.
Removal of members. A member of the Zoning Hearing Board may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Borough Council taken after such member has received 15 days' advance notice of intent to take such vote. A hearing shall be held in connection with the vote if the member shall request it in writing.
D.
Organization of Board.
(1)
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 § 205-44, Hearings and decisions.
(2)
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 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.
(3)
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 as requested by the Borough Council.
E.
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 and clerical services. Members of the Board may receive compensation for the performance of their duties, as may be fixed by the Borough Council, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Borough Council. Alternate members of the Board may receive compensation, as may be fixed by the Borough Council, for the performance of their duties when designated as alternate members pursuant to Subsection D above, but in no case shall compensation exceed the rate of compensation authorized to be paid to the members of the Borough Council.
§ 250-41 Jurisdiction and functions.
A.
Zoning Hearing Board jurisdiction.
(1)
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(a)
Substantive challenges to the validity of any land use ordinance, except those brought before the Borough Council pursuant to curative amendments in Article IX of this chapter.
(b)
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 taken within 30 days after the effective date of said ordinance. Where the ordinance appealed from is the initial zoning ordinance of the Borough and a Zoning Hearing Board has not been previously established, the appeal raising procedural questions shall be taken directly to court.
(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 a municipal engineer or the Zoning Officer with reference to the administration of any floodplain or flood hazard ordinance.
(g)
Appeals from the determination of any officer or agency charged with the administration of any transfers of development rights or performance density provisions of this chapter.
(i)
Appeals from the determination of the Zoning Officer or municipal 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 ordinances nor planned residential development ordinance applications.
(2)
The Borough Council shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(a)
All applications pursuant to approval of subdivisions or land developments.
(b)
Applications for curative amendment to a zoning ordinance.
(c)
Appeals from the determination of the Zoning Officer or the municipal engineer in the administration of any land use ordinance or provisions thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to application for land development under Chapter 215, Subdivision and Land Development. Where such determination relates only to development not involving Chapter 215, Subdivision and Land Development, application, the appeal from such determination of the Zoning Officer or the municipal engineer shall be to the Zoning Hearing Board pursuant to Subsection A(1)(i) above.
B.
Zoning Hearing Board's functions; variances.
(1)
The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. 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 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 or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of this chapter in the neighborhood or district in which the property is located.
(b)
That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this chapter and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.
(c)
That such unnecessary hardship has not been created by the appellant.
(d)
That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
(e)
That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
(2)
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this act and this chapter.
C.
Zoning Hearing Board's function; interpretation. The Board shall, upon appeal of a decision by an administrative official, decide any question involving the interpretation of any provision of this chapter, including determination of the exact location of any district boundary if there is uncertainty with respect thereto.
D.
Zoning Hearing Board's function; special uses. Where this chapter states that special uses or special exceptions shall be granted or denied by the Board pursuant to express standards and criteria, the Board shall hear and decide requests for such special uses in accordance with such standards and criteria. 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 and the Pennsylvania Municipalities Planning Code.[4]
[4]
Editor's Note: See 53 P.S. § 10101 et seq.
E.
Referral to Planning Commission.
(1)
The Zoning Officer or the Board may refer the application to the Borough Planning Commission for review and recommendations to the Board. The Zoning Officer and/or the Hearing Board shall delineate those issues which they feel should be the focus of the review. If the Board or Zoning Officer has not submitted the application to the Borough Planning Commission, then the applicant may ask the Planning Commission for its review and comment; however, the time required for this applicant request review shall not affect the time requirement for Zoning Hearing Board action. The Board may refer any other pertinent matters for review and recommendations, and defer any decision thereon for a period of not more than 45 days pending a report from the Planning Commission. Upon failure to submit such report with the Commission's recommendation, the Planning Commission shall be deemed to have recommended approval of the application for appeal.
(2)
Nothing in this section shall require the approval of Borough Council of any Planning Commission recommendations.
(3)
The Zoning Officer should receive a copy of any Planning Commission recommendations to the Board or to Borough Council in regard to a property and/or applicant who has a decision pending before the Board. Therefore, a complete record of pending or potential changes related to a Board issue under consideration will be available for the Board to consider.
§ 250-42 Procedure for Zoning Hearing Board.
A.
The Board shall act in strict accordance with the procedure specified by law, by this chapter and by any procedural resolutions adopted by the Board. All appeals and applications made to the Board shall be in writing, on forms prescribed by the Board. Every appeal or application shall refer to the specific provision of this chapter involved, and shall exactly set forth the interpretation that is claimed, the use for which the special permit is sought, or the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be. The application shall be completely filled out by the applicant or the application may be returned to the applicant before any action is scheduled by the Board.
B.
All meetings and hearings shall be public and in accordance with state and local law.
C.
Every decision of the Board shall be by written order, each of which shall contain a full record of the findings of the Board in the particular case.
§ 250-43 Time limitations.
A.
No person shall be allowed to file any proceedings with the Board later than 30 days after an application for development, preliminary or final, has been approved by 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 had no notice, knowledge, or reason to believe that such approval had been given. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest.
B.
The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan finding (pursuant to any future planned residential development) or from an adverse decision by the Zoning Officer on a challenge to the validity of an ordinance or map pursuant to § 250-48 shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative or preliminary approval.
C.
All appeals from determinations adverse to the landowner(s) shall be filed by the landowner within 30 days after notice of the determination is issued.
§ 250-44 Hearings and decisions.
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, such other persons as the Borough Council shall designate by ordinance and to any person who has made timely request for the same. Written notices shall be given at such time and in such manner as shall be prescribed in this section and in Article VII of this chapter. 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 the hearing.
(1)
The Borough Council may prescribe reasonable fees with respect to hearings before the Zoning Hearing Board. Fees for said hearings may include compensation for the secretary and members of the Zoning Hearing Board, notice and advertising costs and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses of the Zoning Hearing Board, expenses for engineering, architectural or other technical consultants or expert witness costs.
(2)
The hearing shall be held within 60 days from the date of the applicant's request, unless the applicant has agreed in writing to an extension of time.
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; 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 Board and accept the decision or findings of the hearing officer as final.
C.
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 or community organizations permitted to appear by the Board. The Board shall have 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.
D.
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.
E.
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.
F.
Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.
G.
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.
H.
The Board or the hearing officer shall not communicate, directly or indirectly, with any party or his representatives in connection with any issue involved except upon notice and opportunity for all parties to participate, shall not take notice of any communication, reports, staff memoranda, or other materials, except advice from their solicitor, unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surroundings after the commencement of hearings with any party or his representative unless all parties are given an opportunity to be present.
I.
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 hearing officer. Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Conclusions based on any provisions of this chapter 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 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. Where the Board fails to render the decision with the period required by this subsection, or fails to hold the required hearing within 60 days from the date of the applicant's request for a hearing, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing or on the record to an extension of time. When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a decision 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 of this section. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
J.
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.
§ 250-45 Parties appellant before the Board.
Appeals under Section § 250-41A(1) may be filed with the Board in writing by the landowner affected, any officer or agency of the Borough, or any person aggrieved. Requests for a variance under § 250-41B and for special exception under § 250-41D may be filed with the Board by any landowner or any tenant with the permission of such landowner.
§ 250-46 Stay of proceedings.
A.
Upon filing of any proceeding referred to in § 250-45 and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or of any agency or body, and all official action thereunder, shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies to the Board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the Board or by the court having jurisdiction of zoning appeals, on petition, after notice to the Zoning Officer or other appropriate agency or body. When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board.
B.
After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the applicant for a bond to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for a bond. The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him if an appeal is taken from a final decision of the court.
C.
The question whether or not such a 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 be interlocutory. An order directing the responding party to post a bond shall be interlocutory.
D.
If an appeal is taken by a respondent to the petition for a bond from an order of the court dismissing a zoning appeal for refusal to post a bond and the appellate court sustains the order of the court below to post a bond, the respondent to the petition for a bond, upon motion of the petitioner and after hearing in the court having jurisdiction of zoning appeals, shall be liable for all reasonable costs, expenses and attorney fees incurred by the petitioner.
§ 250-47 Appointment and powers of Zoning Officer.
For the administration of this chapter, a Zoning Officer shall be appointed and shall not hold any elective office in the Borough. The Zoning Officer shall meet qualifications established by the Borough and shall be able to demonstrate to the satisfaction of the Borough a working knowledge of municipal zoning. The Zoning Officer shall administer this chapter in accordance with its literal terms, and shall not have the power to permit any construction or any use or change of use which does not conform to this chapter. The Zoning Officer may be authorized to institute civil enforcement proceedings as a means of enforcement when acting within the scope of his employment.
§ 250-48 Procedure to obtain preliminary opinion.
In order not to unreasonably delay the time when a landowner may secure assurance that the ordinance or map under which he proposed to build is free from challenge, and recognizing that the procedure for preliminary approval of his development (through Chapter 215, Subdivision and Land Development, or any planned residential development requirements) may be too cumbersome or may be unavailable, the landowner may advance the date from which time for any challenge to the ordinance or map will run under § 250-43 above by the following procedure:
A.
The landowner may submit plans and other materials describing his proposed use or development to the Zoning Officer for a preliminary opinion as to their compliance with the applicable ordinances and maps. Such plans and other materials shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a building permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis for a preliminary opinion as to its compliance.
B.
If the Zoning Officer's preliminary opinion is that the use or development complies with the ordinance or map, notice thereof shall be published once each week for two successive weeks in a newspaper of general circulation in the Borough. Such notice shall include a general description of the proposed use or development and its location, by some readily identifiable directive, and the place and times where the plans and other materials may be examined by the public. The favorable preliminary approval consistent with § 250-43 and the time therein specified for commencing a proceeding with the Board shall run from the time when the second notice thereof has been published.