Scranton City Zoning Code
ARTICLE X
Zoning Hearing Board
§ 445-65 Organization and procedure.
A.
Organization.
(1)
The City of Scranton Zoning Hearing 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 Zoning Hearing Board, but the Zoning Hearing 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 Zoning Hearing Board as provided in Subsection E.
(2)
The Zoning Hearing Board may make, alter, and rescind rules and forms for its procedure, consistent with the ordinances of the City of Scranton and the laws of the Commonwealth of Pennsylvania. The Zoning Hearing Board shall keep full public records of its business, records of which shall be the property of the City of Scranton. The Zoning Hearing Board shall submit reports of its activities to the Scranton City Council when requested.
B.
Membership, terms, and vacancies. The membership of the Zoning Hearing Board shall consist of five residents of the City of Scranton appointed by the Scranton City Council by resolution. Their terms of office shall be five years and shall be so fixed that the term of office of no more than one member shall expire each year. The Zoning Hearing Board shall promptly notify the Scranton City Council of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Zoning Hearing Board shall hold no other office in the City of Scranton.
C.
Removal of members. Any Zoning Hearing Board member may be removed for malfeasance, misfeasance, or nonfeasance in office or for other just cause by majority vote of the Scranton City Council, taken after the member has received 15 days' advance notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member shall request it in writing.
D.
Appeals and applications to the Zoning Hearing Board. Appeals and applications to the Zoning Hearing Board from the terms of this chapter shall be filed with the Zoning Officer and shall contain:
(1)
The name and address of the applicant;
(2)
The name and address of the owner of the real estate involved in the appeal;
(3)
A brief description and location of the real estate involved in the appeal;
(4)
A statement of the present zoning classification of the involved real estate and a description of the improvements thereon and the present use thereof;
(5)
Reference to the section or sections of this chapter under which the appeal or application is filed; or, reference to the section or sections of this chapter governing the situation in which the alleged erroneous ruling is being appealed and reasons for the appeal;
(6)
An accurate description of the present and/or proposed use intended to be made, indicating the size and use of such proposed use;
(7)
A plot plan of the involved real estate as required to accompany applications for permits; and
(8)
An application fee, in an amount as established from time to time by resolution of the Scranton City Council, payable to the City of Scranton.
E.
Conduct of hearings. The Zoning Hearing Board shall conduct hearings and make decisions in accordance with § 445-70 and with Section 908 of the Pennsylvania Municipalities Planning Code (MPC).
F.
Expenditures for services. Within the limits of funds appropriated by the Scranton City Council, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services. Members of the Zoning Hearing Board may receive compensation for the performance of their duties, as may be fixed by resolution of the Scranton City Council, but in no case shall it exceed the rate of compensation authorized to be paid to members of the Scranton City Council.
§ 445-66 Zoning hearing board functions.
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 when a curative amendment is brought before the Scranton City Council;
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;
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-deist order or the registration or refusal to register any nonconforming use, structure, or lot;
D.
Appeals from a determination by the City Engineer or the Zoning Officer with reference to any floodplain or flood hazard ordinance or such provisions within a land use ordinance;
E.
Applications for variances from the terms of this chapter;
F.
Applications for uses by special exception under the terms of this chapter;
G.
Appeals from the determination of any officer or agency charged with the administration of any transfer of development rights or performance density provisions of this chapter;
H.
Appeals from the Zoning Officer's determination under Section 916.2 of the Pennsylvania Municipalities Planning Code (MPC); and
I.
Appeals from any determination of the City Engineer or the Zoning Officer 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 or applications for a planned residential development.
§ 445-67 Variances.
A.
The Zoning Hearing Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. Upon appeal, the Zoning Hearing Board shall have the power to authorize variances from the requirements of this chapter and to attach conditions to such variances as it deems necessary to assure compliance with the purposes of this chapter. A variance may be granted if all of the following findings are made, where relevant in a given case:
(1)
That there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular lot 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 lot is located;
(2)
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 lot;
(3)
That such unnecessary hardship has not been created by the appellant;
(4)
That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the lot is located, nor substantially or permanently impair the appropriate use or development of adjacent lots, nor be detrimental to the public welfare; and
(5)
That the variance, if authorized, will represent the minimum variance necessary to afford relief and will represent the least modification possible of the regulation in issue.
B.
In granting any variance, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the policy, goals, and community development objectives of this chapter.
C.
Unless specifically authorized by the Zoning Hearing Board, the grant of a variance shall expire if a zoning permit, building, permit, certificate of use and occupancy, or grading permit is not obtained within 12 months from the date of the grant of the variance. However, the Zoning Hearing Board, in its discretion, may grant an extension of up to 12 additional months upon written request by the applicant prior to the initial expiration date.
§ 445-68 Uses by special exception.
The Zoning Hearing Board shall have the power to hear and decide on applications for uses by special exception as authorized by this chapter, in harmony with the purpose and goals of this chapter and of the Scranton-Abingtons Planning Association Comprehensive Plan, and in accordance with the provisions set forth in Article VI. The Zoning Hearing Board shall approve a use by special exception only if it meets all applicable requirements of this chapter and the express standards and criteria set forth in § 445-41. In granting a use by special exception, the Zoning Hearing Board may attach such reasonable safeguards, in addition to those expressed in this chapter, as it may deem necessary to properly implement the purpose and goals of this chapter and to protect the public health, safety, and welfare.
§ 445-69 Parties appellant before the Board.
§ 445-70 Hearings and decisions.
The Zoning Hearing Board shall conduct hearings and make decisions in accordance with Section 908 of the Pennsylvania Municipalities Planning Code (MPC). The rules and procedures for such hearings shall be as follows:
A.
Public notice shall be placed in the classified section of a newspaper of general local circulation once in each of two successive weeks, the first notice appearing not more than 30 days or less than seven days prior to the hearing and shall be conspicuously posted at highly visible locations along the perimeter of the subject lot at least one week prior to the hearing. In addition, written notice of the hearing shall be sent by first-class mail to the owners of lots abutting the subject lot or within 300 linear feet of the subject lot and other recognized parties at least one week prior to the date of the hearing. Notices shall indicate the date, time, and place of the hearing, the particular nature of the matter to be considered, and the street address of the specific lot involved.
B.
The parties to the hearing shall be the applicant, the municipality, any person affected by the application who has made timely appearance of record before the Zoning Hearing Board, and any other person, including civic or community organizations, permitted to appear by the Zoning Hearing Board. The Zoning Hearing Board shall require all persons who wish to be considered parties to enter such request on an appearance form provided by the Zoning Hearing Board for that purpose.
C.
The Chairman of the Zoning Hearing Board or the hearing officer presiding shall conduct the hearing and shall have the power to administer oaths and issue subpoenas to compel attendance of witnesses and/or the production of relevant documents and papers, including witnesses and documents requested by the parties.
D.
The parties in a hearing shall have the right to be represented by counsel and shall be afforded the opportunity to respond, present evidence and cross-examine adverse witnesses on all relevant issues.
E.
Formal rules of evidence shall not apply and irrelevant or redundant evidence may be excluded.
F.
The first hearing before the Zoning Hearing Board or the hearing officer shall be commenced within 60 days from the date of receipt of the applicant's application unless the applicant has agreed in writing to an extension of time.
G.
Each subsequent hearing before the 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.
H.
An applicant shall complete the presentation of his case-in-chief within 100 days of the first hearing.
I.
Upon the request of the applicant, the board or hearing officer shall assure that the applicant receives at least seven hours of hearings within the 100 days, including the first hearing.
J.
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 his 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 the record by the applicant and the City, be granted additional hearings to complete their opposition to the application, provided the applicant is granted an equal number of additional hearings for rebuttal.
K.
The Zoning Hearing 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 Zoning Hearing Board. The cost of the original transcript shall be paid by the Zoning Hearing Board if the transcript is ordered by the Zoning Hearing Board or hearing officer or shall be paid by the person appealing the decision of the Zoning Hearing Board if such an 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.
L.
The Zoning Hearing Board, or the hearing officer, as the case may be, shall not communicate, directly or indirectly, with any party and/or representative of any party in connection with any issue relevant to the hearing except upon notice and opportunity for all parties to participate; shall not take notice of any communications, reports or other materials, except advice from the Zoning Hearing Board's legal counsel, unless all parties are afforded an opportunity to contest the material so noticed; and shall not inspect the site or its surroundings with any party and/or representative of any party after the start of hearings unless all parties are given an opportunity to be present.
M.
The Zoning Hearing Board, or the hearing officer, as the case may be, shall render a written decision, or, when no decision is required, a written finding on the application, within 45 days after the last hearing. Decisions 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 any other ordinance or regulation shall contain a reference to the provisions relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found.
N.
If the hearing is conducted by a hearing officer and there has been no stipulation that his or her decisions or findings are final, the Zoning Hearing Board shall make the hearing officer's report and recommendations available to the parties within 45 days, and the parties shall be entitled to make written representations thereon to the Zoning Hearing Board prior to final decision or entry of findings. The Zoning Hearing Board may concur in the hearing officer's decision, overturn it, or order a new hearing, provided that such decision by the Zoning Hearing Board is entered no later than 30 days after the report of the hearing officer.
O.
Where the Zoning Hearing Board fails to render the decision within the period required by this Section 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.
P.
When a decision has been rendered in favor of the applicant because of the failure of the Zoning Hearing Board to meet or render a decision as herein provided, the Zoning Hearing 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 this Section. If the Zoning Hearing Board shall fail to provide such notice, the applicant may do so. Nothing in this Section shall prejudice the right of any party opposing the application to appeal the decision to the Lackawanna County Court of Common Pleas.
Q.
A copy of the final decision, or the findings, if no decision is required, shall be mailed to the applicant not later than the day after the date of the decision. All others requesting notice of the decision not later than the last day of the hearing shall receive by mail a summary of the findings or decision and a statement of the place at which the full decision or findings may be examined.
§ 445-71 Mediation.
A.
Parties to proceedings authorized in this Section 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 Section once they have been formally initiated. Nothing in this Section shall be interpreted as expanding or limiting municipal police powers or as modifying any principles of substantive law.
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. The City, 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:
(1)
Funding mediation;
(2)
Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation;
(3)
Completing mediation, including time limits for such completion;
(4)
Suspending time limits otherwise authorized by this chapter or the Pennsylvania Municipalities Planning Code (MPC), provided that there is written consent by the mediating parties, and by an applicant or decision-making body of the City, if either is not a party to the mediation;
(5)
Identifying all parties and affording them the opportunity to participate;
(6)
Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public; and
(7)
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 this chapter or the Pennsylvania Municipalities Planning Code (MPC).
C.
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.
§ 445-72 Time limitations.
A.
No person shall be allowed to file any proceeding with the Zoning Hearing Board later than 30 days after an application for development, preliminary or final, has been approved by an appropriate City 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. The failure of anyone other than the landowner to appeal from an adverse decision by the Zoning Officer on a challenge to the validity of an ordinance or map pursuant to Section 916.2 of the Pennsylvania Municipalities Planning Code (MPC), shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the preliminary submission.
B.
All appeals from determinations adverse to the landowners shall be filed by the landowner within 30 days after notice of the determination is issued.
§ 445-73 Appeals to court and other administrative proceedings.
Nothing contained in this Article shall be construed to deny the appellant the right to proceed directly to a court where appropriate, pursuant to the Pennsylvania Rule of Civil Procedure No. 1091, relating to action in mandamus. Appeals to court from any decision of the Zoning Hearing Board may be taken by any party aggrieved in accordance with the time frame and manner provided by Article X-A of the Pennsylvania Municipalities Planning Code (MPC).