Topton City Zoning Code
ZONING HEARING
BOARD
§ 154.150 CREATION, APPOINTMENT AND ORGANIZATION.
(A) Creation of Board. The Borough Council hereby creates a Zoning Hearing Board, herein referred to as the Board consisting of three residents of the municipality appointed by the Borough Council pursuant to the Pennsylvania Municipalities Planning Code, as amended, who shall perform all the duties and have all the powers prescribed by said Code and as herein provided.
(B) Appointment. One member of the Board shall be designated to serve until the first day of January following the adoption of this chapter, one until the first day of the second January thereafter and one until the first day of the third January thereafter. Their successors shall be appointed on the expiration of their respective terms to serve for a term of three years. Members of the Board shall hold no other office in the municipality except that no more than one member may also be a member of the Borough Planning Commission.
(C) Removal. 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, taken after the member has received 15 days advance notice of the intent to take such a vote. A hearing shall be held if the Board member requests one in writing.
(D) Vacancies. Vacancies shall be filled by appointment by the Borough Council for the unexpired portion of the vacated term.
(E) Compensation and expenditures for service. The members of the Board shall receive such compensation as shall be fixed by the Borough Council by resolution, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Borough Council. 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.
(F) Organization. The Board may promulgate such rules and forms for its procedure, not inconsistent with this and other ordinances of the municipality and laws of the commonwealth, as it may deem necessary to the proper performance of its duties and to the proper exercise of its powers. Such rules shall be continued in force and effect until amended or repealed by the Board or by law. The Board shall elect from its own membership its officers; who shall serve annual terms as such, and may succeed themselves.
(G) Meetings. Meetings and hearings of the Board shall be held at the call of the Chairperson and at such other times as the Board, by majority vote, may determine.
(H) Minutes and records. The Board shall keep full public records of its proceedings showing the vote of each member upon each question or if absent or failing to vote indicating such fact. The Board shall also keep full public records of its business and other official action, copies of which shall be filed with the Secretary of the Borough Council. The Board shall submit an annual report of its activities each year to the Borough Council.
(Ord. passed 7-13-2015)
§ 154.151 HEARINGS.
(A) 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 where two members are disqualified to act in a particular matter, the remaining member may act for the Board. The Board may appoint a Hearing Officer from its own membership to conduct any hearing on its behalf and the parties may waive decisions or findings by the Board and accept the decision or findings by the Board and accept the decision of the Hearing Officer as final as provided in the State Municipalities Planning Code, as amended.
(B) The Board shall conduct hearings and make decisions in accordance with the following requirements.
(1) Pursuant to 53 P.S. § 1090.1.2, 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 or her 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 may, upon the 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.
(2) For the hearing of any appeal, the Board shall give notice to the public, the applicant, the Zoning Officer and such other persons as the Borough Council shall designate by ordinance and to any person who has made timely request for the same. Notice to the public shall be in accordance with the provisions of § 154.139. Notice to others herein provided for shall be by mail, mailed to the designated person or agency not less than 15 days prior to the date of the hearing. In addition to the notice provided herein, notice of said hearing shall be conspicuously posted on the affected tract of land.
(3) 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, but the parties may waive decision or findings by the Board and accept the decision or findings of the Hearing Officer as final.
(4) The parties to the hearing shall be the municipality, 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 appearance in writing on forms provided by the Board for that purpose.
(5) The Chairperson or Acting Chairperson 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.
(6) 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 all adverse witnesses on all relevant issues.
(7) Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
(8) The Board or the Hearing Officer, as the case may be, shall keep stenographic records of the proceedings, and a transcript of the proceedings and copies of graphic or written material received in evidence shall be made available to any party at cost.
(9) The Board or the Hearing Officer shall not communicate, directly or indirectly, with any party or his or her 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 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 or her representative unless all parties are given an opportunity to be present.
(10) 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 hearing, or if said hearing is continued, within 45 days after said continued hearing. 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 State Municipalities Planning Code, as amended, or of this chapter 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. If the hearing is conducted by a Hearing Officer, and there has been no stipulation that his or her decision or findings are final, the Board shall make its report and recommendations available to the parties 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 45 days after the decision of the Hearing Officer. Where the Board fails to render the decision within the period required by this division (B)(10) or fails to hold the required hearing within 45 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 to an extension of time. When a decision has been rendered in favor of the applicant because of failure of the Board to meet or render a decision as hereinabove provided, the Borough shall give public notice of said decision within ten days in the same manner as provided in division (B)(1) above. Nothing in division (B)(10) shall prejudice the right of any party opposing the application to urge that such decision is erroneous.
(11) 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 or her 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.
(Ord. passed 7-13-2015)
§ 154.152 FUNCTIONS OF THE ZONING HEARING BOARD.
The Zoning Hearing Board shall have the following powers.
(A) Appeals from the Zoning Officer: interpretation and review.
(1) To hear and decide appeals where it is alleged by the appellant that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of this chapter or the official zoning map or any valid rule or regulation governing the action of the Zoning Officer.
(2) Nothing contained herein shall be construed to deny the appellant the right to proceed directly to court, where appropriate, pursuant to State Rules of Civil Procedure §§ 1091 to 1098 relating to mandamus.
(B) Challenges to the validity of zoning chapter or the official zoning map. The Board shall hear challenges to the validity of this chapter or the official zoning map except as indicated in 53 P.S. §§ 101003 and 1004(1)(b), as amended. In all such challenges, the Board shall take evidence and make a record thereon as provided in § 154.151. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
(C) Unified appeals. Where the Board has jurisdiction over zoning matters pursuant to divisions (A) and (B) above and (D) below, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any municipal ordinance or requirement pertaining to the same development plan or development. In any such case, the Board shall have no power to pass upon the non-zoning issues, but shall take evidence and make a record thereon as provided in § 154.151. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
(D) Variances.
(1) To authorize, upon appeal in specific cases, such variance(s) from the terms of this chapter as will not be contrary to public interest, where a literal enforcement of the provisions of this chapter will result in unnecessary hardship. In granting any variance the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter and the State Municipalities Planning Code, as amended. The Board may, by rule, prescribe the form of application and may require preliminary application to the Zoning Officer.
(2) The Board may grant a variance provided the following findings are made where relevant in a given case:
(a) 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 circumstances or conditions generally created by the provisions of the zoning chapter in the neighborhood or district in which the property is located;
(b) Because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning chapter and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;
(c) Such unnecessary hardship has not been created by the appellant, subsequent to the adoption of this chapter; whether in violation of the provisions hereof or not, and that such circumstances or conditions are such that strict application of the provisions of this chapter would deprive the applicant of the reasonable use of such land, structure or building;
(d) For reasons fully set forth in the findings of the Board, the granting of the variance is necessary for the reasonable use of the land or buildings and that the variance as granted by the Board is the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue; and
(e) 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.
(3) The existence of nonconforming uses of land, structures or buildings in the same or other zoning districts, shall in and of itself not be considered grounds for the granting of a variance.
(4) In addition, economic gain or economic hardship shall not be considered grounds for a variance.
(E) Special exceptions.
(1) To issue, upon application, only such special exceptions to the terms of this chapter which the Board by the provisions of this chapter is specifically authorized to issue.
(2) The granting of a special exception when specifically authorized by the terms of the chapter shall be subject to the following standards and criteria.
(a) Such use shall be one which is specifically authorized as a special exception use in the zoning district wherein the applicant seeks a special exception.
(b) Such permit shall only be granted subject to any applicable condition and safeguards as required by this chapter.
(c) Such permit may be granted subject to additional reasonable conditions and safeguards as may be deemed by the Board to be advisable and appropriate.
(d) Such use shall be found by the Board to be in harmony with the general purposes and intent of this chapter.
(e) Such use shall not adversely affect the character of the zoning district, nor the conservation of property values, nor the health and safety of residents or workers on adjacent properties and in the general neighborhood.
(f) Such use shall be of such size and so located and laid out in relation to its access streets that vehicular and pedestrian traffic to and from such use will not create undue congestion or hazards prejudicial to the general neighborhood.
(g) Such use shall not conflict with the direction of building development in accordance with any comprehensive plan or portion thereof which has been adopted by the governing body.
(3) All applications for special exceptions and any exhibits that were submitted with the application shall be submitted to the Planning Commission for its review and recommendations. If the Planning Commission does not make any recommendations within 30 days, it shall be deemed that the Planning Commission has recommended approval of the application for special exception.
(Ord. passed 7-13-2015)
§ 154.153 PROCEDURES FOR APPLICATION TO THE ZONING HEARING BOARD.
(A) The Board shall act in strict accordance with the procedures specified by the State Municipalities Planning Code, being 53 P.S. §§ 10101 et seq., as amended, and by this chapter. In the event the procedures set forth in this chapter shall be in conflict with or contrary to the procedures set forth in the State Municipalities Planning Code, being 53 P.S. §§ 10101 et seq., as amended, the procedures set forth in the latter shall prevail. 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 grounds for any challenges to the validity of this chapter, the use for which a special exception 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.
(B) Applications and appeals together with the required filing fee, as established by resolution of Borough Council, shall be submitted to the Secretary of the Zoning Hearing Board.
(1) Parties appellant before the Zoning Hearing Board. Appeals under § 154.152(A) and proceedings to challenge the chapter under § 154.152(B) may be filed with the Board in writing by the landowner affected, by any officer or agency of the municipality, or any person aggrieved. Requests for a variance under § 154.152(D) and for special exception under § 154.152(E) may be filed with the Board by any landowner or any tenant with the permission of such landowner.
(2) Time limitations. No person shall be allowed to file any proceeding with the Board later than 30 days after any application for development, preliminary or final, has been approved by an appropriate officer of the municipality, 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 or she had no notice, knowledge or reason to believe that such approval has been given. If such person has succeeded to his or her interest after such approval, he or she shall be bound by the knowledge of his or her predecessor in interest.
(Ord. passed 7-13-2015)
§ 154.154 STAY OF PROCEDURES.
Upon filing of any proceeding referred to in § 154.153(B)(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. 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.
(Ord. passed 7-13-2015)