Shaler Township City Zoning Code
ARTICLE XIV
Zoning Hearing Board
§ 225-179 Appointment; organization.
The Zoning Hearing Board as now constituted is hereby continued. Each member shall serve until the expiration of his or her present term. Said Board shall consist of three residents of the Township of Shaler appointed by resolution by the Board of Commissioners. Members of the Hearing Board shall hold no other elected or appointed office in the Township nor shall any member be an employee of the Township. The members of the Board and their successors shall serve for a term of three years, and their terms shall be so fixed that the term of office of one member shall expire each year. The Board shall promptly notify the Commissioners of any vacancy which may occur. Any vacancies shall be filled for the unexpired term only. The members of the Hearing Board may be removed for malfeasance, misfeasance or nonfeasance in office by a majority vote of the Board of Commissioners, taken after the member has received 15 days' advance notice of the intention to take such a vote. A hearing shall be held in connection with the vote if the member shall request it in writing. The Board shall elect its officers from its own membership, 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 members of the Board, but the Board may appoint a hearing officer from its own membership to conduct any hearing on its behalf. The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the municipality, the Pennsylvania Municipalities Planning Code, and laws of the commonwealth. The Board shall keep full public records of its business and shall submit a report of its activities to the governing body once a year.
§ 225-180 Powers, duties and jurisdiction.
A.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(2)
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.
(4)
Applications for variances from the terms of this chapter, flood hazard ordinance or such provisions within a land use ordinance pursuant to Section 910.2 of the Municipalities Planning Code.[3] In considering requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant, the Board may grant a variance, provided that 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 to 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 applicant.
(d)
That the requested 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. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the Municipalities Planning Code and this chapter.
[3]
Editor's Note: See 53 P.S. § 10910.2.
(5)
Applications for special exceptions under this chapter, floodplain or flood hazard ordinance or such provisions within a land use ordinance pursuant to Section 912.1 of the Municipalities Planning Code.[4] In granting a special exception, the Zoning Hearing 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 Municipalities Planning Code.
[4]
Editor's Note: See 53 P.S. § 10912.1.
(6)
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 Zoning Chapter.
(8)
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 or planned residential developments applications of the Municipalities Planning Code.[6]
[6]
Editor's Note: See 53 P.S. §§ 10501 et seq. and 10701 et seq., respectively.
B.
The Zoning Hearing Board, in the performance of its duties hereunder, may from time to time refer appeals and requests for special exceptions and variances to the Planning Commission for recommendations and advice.
C.
Nothing herein contained shall be construed to deny the appellant the right to proceed directly to court, where appropriate, pursuant to the Pennsylvania Rules of Civil Procedure 1091 (relating to action in mandamus).
§ 225-181 Appeals and challenges.
Appeals and challenges under this article of this chapter may be filed with the Zoning Hearing Board in writing by the landowner affected, any officer or agency of the Township or any person aggrieved. Requests for a variance and for special exception may be filed with the Zoning Hearing Board by any landowner or any tenant with the permission of the landowner. Such appeals may be filed by presentation to the Zoning Officer, who shall promptly forward them to the Zoning Hearing Board, together with all the documentary material constituting the record upon which the matter appealed was based.
§ 225-182 Time limitations for filing proceedings.
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 Township 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 on a tentative plan pursuant to Section 709 of the Municipalities Planning Code[1] or from an adverse decision by a Zoning Officer on a challenge to the validity of an ordinance or map pursuant to Section 916.2 of the Municipalities Planning Code[2] shall preclude an appeal from a final approval, except in the case where the final submission substantially deviates from the approved tentative approval.
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.
§ 225-183 Procedure; fees.
The Zoning Hearing Board shall conduct hearings and make decisions in accordance with the Pennsylvania Municipalities Planning Code and the following requirements:
A.
Public notice shall be given and written notice shall be sent or handed to the applicant, the Zoning Officer, the Planning Commission and to such other persons as the Board of Commissioners shall designate by ordinance and to any person who has made a timely request for the same. 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. In the case of a request for a special exception or variance, such notice shall also be sent by certified mail to the registered owner of each property located within 200 feet of the boundaries of the property which is the subject of the requested special exception or variance.
B.
The Board of Commissioners 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.
C.
The first hearing before the Board or 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. 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. 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 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. 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 written consent or consent on the record by the applicant and municipality, be granted additional hearings to complete their opposition to the application, provided the applicant is granted an equal number of additional hearings for rebuttal.
D.
The hearings shall be conducted by the Board or the 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 Board; however, the appellant or the applicant, as the case may be, in addition to the Township, 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.
E.
The parties to the hearing shall be the municipality, any person affected by the application who has made timely request for 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.
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 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 the Board's 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.
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 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 the Municipalities Planning Code[1] or of any chapter, 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. 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 presentations thereon to the Board prior to the 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. Except for challenges filed under Section 916.1,[2] where the Board fails to render the decision within the period required by the subsection or fails to commence, conduct or complete the required hearing as provided in Subsection C, 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.
L.
A copy of the final decision or, where no decision is called for, of the findings shall be announced at a public meeting, which shall also be delivered to the applicant personally or mailed to him no later than the day following its date. To all other persons who have filed their names and addresses with the Board, no later than the last day of the hearing the Board shall provide by mail or otherwise a brief notice of decision or findings and a statement of the place at which the full decision or findings may be examined.
M.
The Planning Commission, at the request of the Zoning Hearing Board, shall furnish all pertinent narrative material, maps, charts and other data relative to the proceedings involved for reference by all concerned. The Zoning Hearing Board may adjourn any hearing for the purpose of reviewing such data as may be pertinent to the problem involved and to request interpretations of said data by a representative of the Planning Commission.
§ 225-184 Appeals.
Any landowner or person aggrieved by any decision of the Zoning Hearing Board may appeal therefrom as provided by law.
§ 225-185 Stay of proceedings.
A.
Upon filing of any proceeding referred to in Section 913.3 in the Municipalities Planning Code[1] 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.
[1]
Editor's Note: See 53 P.S. § 10913.3.
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 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 attorneys' fees incurred by the petitioner.