Smith Township Washington County
City Zoning Code
City Zoning Code
PART 16
Zoning Hearing Board
§ 1600 Membership.
[Ord. 2007-2, 5/22/2007]
The membership of the Zoning Hearing Board shall consist of three residents of the Township appointed by the Board of Supervisors. Their terms of office shall be three years and shall be so fixed that the term of office of one member shall expire each year. The Zoning Hearing Board shall promptly notify the Board of Supervisors when vacancies 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 elected or appointed office in the Township, nor shall any member be an employee of the Township. The membership of the Zoning Hearing Board may be increased to five members in accordance with the provisions of Section 903(a) of the Pennsylvania Municipalities Planning Code (Act 247, as amended).
§ 1601 Alternate Members.
[Ord. 2007-2, 5/22/2007]
1.
Appointment of alternate members. The Board of Supervisors may appoint, by resolution, at least one, but no more than three, residents of the Township to serve as alternate members of the Zoning Hearing Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of § 1601, Subsection 2, an alternate shall be entitled to participate in all proceedings and discussions of the Zoning Hearing Board to the same and full extent as provided by law for Zoning Hearing Board members, including specifically the right to cast a vote as a voting member during the proceedings, and shall have all the power and duties set forth in this chapter and as otherwise provided by law. Alternates shall hold no other office in the Township, including service as a member of the Planning Commission or as a Zoning Officer, nor shall any alternate be an employee of the Township. Any alternate may participate in any proceedings or discussion of the Zoning Hearing Board but shall not be entitled to vote as a member of the Zoning Hearing Board unless designated as a voting alternate member pursuant to § 1601, Subsection 2, of this chapter.
2.
Participation by alternate members. The Chairman of the Zoning Hearing Board may designate alternate members of the Zoning Hearing Board to replace any absent or disqualified member; and if, by reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Zoning Hearing Board shall designate as many alternate members of the Zoning Hearing Board to sit on the Zoning Hearing Board as may be needed to reach a quorum. Any alternate member of the Zoning Hearing Board shall continue to serve on the Zoning Hearing Board in all proceedings involving the matter or case for which the alternate was initially appointed until the Zoning Hearing Board has made a final determination of the matter or case. Designation of an alternate pursuant to this subsection shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.
§ 1602 Removal of Members.
[Ord. 2007-2, 5/22/2007]
Any Zoning Hearing Board member may be removed for malfeasance, misfeasance or nonfeasance in the office or for other just cause by a majority vote of the Board of Supervisors taken after the member has received 15 days' advance notice of the intent to take such vote. A hearing shall be held in connection with the vote if the member shall request it in writing.
§ 1603 Organization of the Zoning Hearing Board.
[Ord. 2007-2, 5/22/2007]
1.
Officers. The Zoning Hearing Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves.
2.
Quorum. 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 Zoning Hearing Board; except that, when member(s) of the Zoning Hearing Board are disqualified to act in a particular matter, alternate members shall be appointed to provide a quorum.
3.
Hearing officer. 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 and accept the findings or decision of the hearing officer as final.
4.
Procedures. The Zoning Hearing Board may make, alter and rescind rules and forms for its procedure, consistent with the ordinances of the Township and the laws of the Commonwealth of Pennsylvania.
5.
Files and annual report. The Zoning Hearing Board shall keep full public records of its business and shall submit a report of its activities to the Board of Supervisors once a year.
§ 1604 Jurisdiction of the Board.
[Ord. 2007-2, 5/22/2007]
The Zoning Hearing 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 curative amendments brought before the Board of Supervisors.
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 the 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 Township 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.
Applications for variances from the terms of this chapter and the Flood Hazard Ordinance[1] or such provisions within a land use ordinance, pursuant to § 1605.
[1]
Editor's Note: See Ch. 22, Subdivision and Land Development.
F.
Applications for special exceptions under this chapter or the Floodplain or Flood Hazard Ordinance[2] or such provisions within a land use ordinance, pursuant to Part 11 and § 1606.
[2]
Editor's Note: See Ch. 8, Floodplains.
G.
Appeals from the Zoning Officer's determination under Section 916.2 of the Pennsylvania Municipalities Planning Code. (Act 247, as amended).
H.
Appeals from the determination of the Zoning Officer or Township 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 development.
§ 1605 Variances.
[Ord. 2007-2, 5/22/2007]
1.
The Zoning Hearing Board, upon appeal, shall have the power to authorize variances from the requirements of this chapter and to attach such conditions to the variance 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:
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 necessary to afford relief and will represent the least modification possible of the regulation in issue.
2.
In granting any variance, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter and protect the public health, safety and welfare.
§ 1606 Uses by Special Exception.
[Ord. 2007-2, 5/22/2007]
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 its general purpose and intent and in accordance with the standards set forth in Part 11. 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 Part 11. 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 this chapter and protect the public health, safety and welfare.
§ 1607 Notice and Conduct of Hearings.
[Ord. 2007-2, 5/22/2007]
1.
Notice.
A.
Written notice of the hearing shall be given to the public, the applicant, the Zoning Officer, the Board of Supervisors, the Planning Commission and to any person who has made timely request for the same. A notice of the hearing shall be given to other persons at such a time and in such manner as the Board of Supervisors or the Zoning Hearing Board shall designate.
B.
Public notice, as defined herein, shall be given for the public hearing. In addition, written notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the public hearing.
C.
At least 14 days prior to the public hearing, the Zoning Hearing Board shall mail a copy of the notice by certified mail to each property owner within 300 feet of the entire perimeter of the property, including those across a street right-of-way. The cost of mailing the certified notices shall be paid by the applicant.
2.
Conduct of hearing. The Zoning Hearing Board shall conduct hearings in accordance with the following requirements:
A.
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.
B.
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. And the applicant may, upon request, be granted additional hearings to complete his case-in-chief, provided that 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 Township, be granted additional hearings to complete their opposition to the application, provided that the applicant is granted an equal number of additional hearings for rebuttal.
C.
The hearings shall be conducted by the Zoning Hearing Board, or the Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing Board and accept the decision or findings of the hearing officer as final.
D.
The parties to the hearing shall be the Township, 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 have the power to require that all persons who wish to be considered parties enter appearances, in writing, on forms provided by the Zoning Hearing Board for that purpose.
E.
The Chairman or Acting Chairman of the Zoning Hearing 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.
F.
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.
G.
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
H.
The Zoning Hearing Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings. Fees for the stenographer and transcript are governed by § 1610, Subsection 2, of this chapter.
I.
The Zoning Hearing 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.
J.
The Zoning Hearing 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 Zoning Hearing 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 any 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. If the hearing is conducted by a hearing officer and there has been no stipulation that his decision or findings are final, the Zoning Hearing 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 Zoning Hearing Board prior to final decision or entry of findings; and the Zoning Hearing Board's decision shall be entered no later than 30 days after the report of the hearing officer.
§ 1608 Failure to Render a Decision.
[Ord. 2007-2, 5/22/2007]
1.
Where the Zoning Hearing Board fails to render a decision within the required forty-five-day period or fails to commence, conduct or complete the required hearings within the time periods specified by Section 908(1.2) of the Pennsylvania Municipalities Planning Code (Act 247, as amended), 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.
2.
When a decision has been rendered in favor of the applicant because of failure of the Zoning Hearing Board to meet or render a decision, the Zoning Hearing Board shall give public notice of the decision, within 10 days from the last day it could have met to render a decision, in the same manner prescribed in § 1607. 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 Court of Common Pleas.
§ 1609 Mediation Option.
[Ord. 2007-2, 5/22/2007]
1.
Parties to proceedings authorized in this Part 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 Part 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.
2.
Participation in mediation shall be wholly voluntary. The appropriateness of the mediation shall be determined by the particulars of each case and the willingness of the parties to negotiate. The Township, 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), provided that there is written consent by the mediating parties, and by an applicant or Township decision-making body, if either is not a party to the mediation.
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 decision-making body pursuant to the authorized procedures set forth in this chapter.
3.
No offers or statements made in the mediation session, excluding the final written mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceedings.
§ 1610 Fees and Expenditures.
[Ord. 2007-2, 5/22/2007]
1.
Fees. The Board of Supervisors 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.
Stenographer's appearance fee and transcripts. 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 from the decision of the Zoning Hearing 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.
3.
Expenditures. Members of the Zoning Hearing Board may receive compensation for the performance of their duties as may be fixed by the Board of Supervisors, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors. Within the limits of funds appropriated by the Board of Supervisors, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services.
§ 1611 Time Limitations.
[Ord. 2007-2, 5/22/2007]
1.
No person shall file any proceeding before the Zoning Hearing Board later than 30 days after a preliminary or final application for development 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.
2.
The failure of anyone, other than the landowner, to appeal from an adverse decision on an application for tentative approval of a planned residential development or from an adverse decision by the Zoning Officer on a challenge to the validity of an ordinance or map filed pursuant to Section 916.2 of the Pennsylvania Municipalities Planning Code (Act 247, as amended) shall preclude an appeal from a final approval, except in the case where the final submission substantially deviates from the approved tentative approval.
3.
All appeals from determinations adverse to the landowner shall be filed by the landowner within 30 days after notice of the determination is issued.
§ 1612 Stay of Proceedings.
[Ord. 2007-2, 5/22/2007]
Upon filing of any proceeding and during its pendency before the Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing Board by persons other than the applicant, the applicant may petition the court having jurisdiction of the zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Zoning Hearing Board. 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.
§ 1613 Appeals.
[Ord. 2007-2, 5/22/2007]
All appeals from decisions rendered by the Zoning Hearing Board shall be taken to the Washington County Court of Common Pleas and shall be filed within 30 days after the entry of the decision or, in the case of a deemed decision, within 30 days after the date upon which notice of said deemed decision is given as required by Subsection 908(9) of the Pennsylvania Municipalities Planning Code (Act 247, as amended).
