West Chester City Zoning Code
ARTICLE XI
Zoning Hearing Board
§ 112-1101 Establishment.
§ 112-1102 Membership; appointment; terms; removal.
A.
There shall be a Zoning Hearing Board consisting of five residents of the Borough who shall be appointed by the Borough Council to serve a term of five years. The terms shall be so fixed that the term of office of one member shall expire each year. Borough Council shall fill any vacancy on the Board by appointing a new member to serve for the unexpired portion of such vacant term. The Borough Council may reappoint members at the expiration of their term. Members of the Board shall hold no other office in the Borough.
B.
Any member of the 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 the Board member has received 15 days' advance written notice of the intent to take such a vote, and a hearing shall be held in connection with such vote if the member shall so request in writing.
§ 112-1103 Organization and procedure.
A.
The Board shall elect from its own membership its officers, who shall serve annual terms and may succeed themselves. For the conduct of any hearing and the taking of any action, a quorum shall be required, consisting of 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. The Board may make, alter and rescind rules and forms for its procedure consistent with this chapter and the laws of the Commonwealth of Pennsylvania. The Board shall keep full public records of its business and shall submit a report of its activities to the Borough Council once each year.
B.
Within the limits of funds appropriated by the Borough Council, the Zoning Hearing Board may employ or contract for secretaries, clerks, attorneys, consultants and other technical and clerical services. However, the Solicitor for the Zoning Hearing Board shall be a different individual than the Solicitor for the Borough Council. Members of the Zoning Hearing 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.
§ 112-1104 Hearings and decisions.
A.
The Board shall conduct hearings and make decisions in the following manner:
(1)
The first hearing before the Zoning Hearing Board 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.
(2)
Each hearing subsequent to the initial hearing shall be held within 45 days of the prior hearing, unless otherwise agreed by the applicant in writing or on the record.
(3)
The applicant shall complete the presentation of his case-in-chief within 100 days of the first hearing.
(4)
The applicant shall be given at least seven hours of hearing time within that 100-day period, assuming that number of hours is required or requested.
(5)
Protestants, if any, shall complete their case in opposition to the application within 100 days of the first hearing held after completion of the applicant's case-in-chief.
(6)
The applicant may request additional hearings to complete his case-in-chief, provided protestants are given an equal number of additional hearings.
(7)
Protestants may be given additional hearings to complete their opposition, provided the applicant is granted an equal number of additional hearings for rebuttal and both the applicant and the Zoning Hearing Board give their written consent or their consent is stated on the record.
B.
Notice of hearings shall be given in the following manner:
(1)
To the public, by providing public notice, which is notice published once each week for two successive weeks in a newspaper of general circulation in the Borough. Such notice shall state the time and place of the hearing and the particular nature of the matter to be considered at the hearing. The first publication shall not be more than 30 days and the second publication shall not be less than seven days from the date of the hearing.
(2)
To the applicant, the Zoning Officer, the Borough Secretary, the Secretary of the Planning Commission, to abutting owners and owners within 500 feet along the frontage of the lot and within a 150-foot radius of the side and rear lot lines and to any person who has made timely request for the same, or their legal counsel, if such counsel shall have filed appearance with the Board, by mailing notice of the time, place and purpose of the hearing at least 14 days in advance of the date fixed for hearing.
(3)
Notice of hearings, both published and written, shall state, in addition to the time, place and purpose of the hearing, the location of the lot or structure involved and the nature and extent of the relief sought and the general nature of the question involved. Notice of said hearing shall be conspicuously posted on the affected tract of land.
(4)
In the event that more than one hearing is required to consider any application or a hearing is continued while in progress to another date, announcement at the hearing to be continued of the next hearing date shall be deemed adequate notice of said continued or subsequent hearing. In the event that the date or time of the hearing is changed, then public notice must again be provided as set forth above.
C.
Hearings shall be conducted by the Board, or hearing officer, and the Chairperson or, in his absence, the Acting Chairperson, shall administer oaths and may issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.
D.
The parties to the hearing shall be the Borough, any person affected by the application who has made a timely appearance of record before the Board and any other person, including civic or community organizations, permitted to appear by the Board. All persons who wish to be considered parties must enter appearances in writing.
E.
The parties shall have the right to be represented by legal counsel and shall be afforded the opportunity to respond and present evidence and argument and cross-examine adverse witnesses.
F.
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 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 copies or copy. In all other cases, the party requesting the original transcript shall bear the cost thereof.
G.
The Board, or 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 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 respective counsel unless all parties are given an opportunity to be present.
H.
The Zoning Hearing Board or 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 this chapter, the Pennsylvania Municipalities Planning Code ("MPC"),[1] or any rule or regulation in the Borough Code 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 its 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. Except for challenges filed under Section 916.1 of the MPC,[2] where the Zoning Hearing Board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided in § 112-1104A, 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 Zoning Hearing Board to meet or render a decision as hereinabove 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. If the Zoning Hearing 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.
I.
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 in accordance with the law; and to all other persons who have filed their names and addresses 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 where the full decisions or findings may be examined.
§ 112-1105 Powers and duties.
A.
The Board shall have and perform the following functions:
B.
Appeals from the Zoning Officer. The Board shall hear and decide appeals where it is alleged by the applicant that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of any ordinance or map or any rule or regulation governing the action of the Zoning Officer.
C.
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 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 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 applicant.
(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 or ordinance in issue.
D.
Special exceptions. The Board shall hear and decide special exceptions in accordance with the standards set forth below, and, in granting special exceptions, 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:
(1)
Whenever the Board hears a special exception for uses specified in this chapter, the standards of § 112-1008 applicable to conditional uses shall apply. Special exceptions related to areas regulated by the requirements of the FP Floodplain Conservation District shall be evaluated in accordance with such requirements.
E.
Unified appeals. The Board shall also hear all appeals which an applicant may elect to bring before it with respect to any Borough 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 nonzoning issues but shall take evidence and make a record thereon. 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.
§ 112-1106 Time limit after variance or special exception granted; extension.
Any variance or special exception granted in accordance with this chapter shall be void if the applicant fails to obtain the necessary Borough approvals and permits within 12 months from the date of the grant of a variance or special exception or, having obtained the necessary approvals or permits, fails to commence work thereunder within six additional months. If the Zoning Hearing Board finds that a good reason exists for the failure to comply with the time periods specified above, an extension may be granted.
§ 112-1107 Appeals and application procedures.
A.
The rules of the Zoning Hearing Board of West Chester Borough of March 1987, and as may be amended from time to time, shall be followed.
B.
All appeals and applications made to the Board shall be in writing, on forms prescribed by the Board.
C.
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.
D.
Applications and appeals, together with the required filing fee as established by the Borough, shall be submitted to the Zoning Officer.
E.
No action by the Zoning Hearing Board will begin until a complete application form is filed along with the required fee.
F.
All applications and appeals shall be forwarded to the Borough Planning Commission, which may review and offer comment on such applications and appeals at its discretion. At his own discretion, an applicant or appellant may appear before the Planning Commission to review his submission. Similarly, the Planning Commission shall not be required to schedule such appearances prior to taking action, if any, on a particular application or appeal. The failure of the Planning Commission to offer comment on any application or appeal shall not invalidate any action taken by the Board.