West Mifflin City Zoning Code
ARTICLE XI
Zoning Hearing Board
§ 290-113 Creation; membership; removal; officers; rules and regulations.
A.
There is hereby created for the Borough a Zoning Hearing Board in accordance with the provisions of Article IX of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10901 et seq.
B.
The membership of the Board shall consist of three residents of the Borough appointed by resolution by the Borough Council. The terms of office shall be for three years and shall be so fixed that the term of office of one member shall expire each year. The Board shall promptly notify the Borough Council of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Board shall hold no other office in the Borough.
C.
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 which appointed the member, 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.
The 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 Board, but the 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 Board as provided in this chapter.
E.
The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the Borough and laws of the commonwealth. The Board shall keep full public records of its business, which records shall be the property of the Borough, and shall submit a report of its activities to the Borough Council as requested by the Borough Council.
F.
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. Members of the 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.
§ 290-114 Hearings.
The Zoning Hearing Board shall conduct hearings and made decisions in accordance with the following requirements:
A.
Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer and to any person who has made timely request for the same. Written notices shall be given at such time and in such manner as shall be prescribed by rules of the Board. 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.
B.
The hearing shall be held within 60 days from the date of the applicant's request, unless the applicant has agreed in writing to an extension of time.
C.
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; however, the appellant or the applicant, as the case may be, in addition to the Borough, 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.
D.
The parties to the hearing shall be the Borough, 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 appearances in writing on forms provided by the Board for that purpose.
E.
The Chairman or Acting Chairman 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.
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 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.
I.
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 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 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 this chapter or of any law, ordinance, rule or regulation shall contain a reference to the provision 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 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 representations thereon to the Board prior to 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. Where the Board fails to render the decision within the period required by this subsection, 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. 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 the 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.
K.
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 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.
L.
The Borough Council shall establish, by resolution, fees with respect to hearings before the Zoning Hearing Board.
§ 290-115 Jurisdiction.
A.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1)
Substantive challenges to the validity of any land use ordinance, except those brought before the Borough Council pursuant to Sections 609.1 and 916.1(a)(2) of the Pennsylvania Municipalities Planning Code (hereinafter "MPC"), 53 P.S. §§ 10609.1 and 10916.1.
(2)
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. Where the ordinance appealed from is the initial zoning ordinance of the Borough and a Zoning Hearing Board has not been previously established, the appeal raising procedural questions shall be taken directly to court.
(3)
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)
Appeals from a determination by the Borough 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.
(5)
Applications for variances from the terms of this chapter and flood hazard ordinance or such provisions within a land use ordinance, pursuant to Section 910.2 of the MPC, 53 P.S. § 10910.2.
(6)
Applications for special exceptions under this chapter or floodplain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to Section 912.1 of the MPC, 53 P.S. § 10912.1.
(7)
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 chapter.
(8)
Appeals from the Zoning Officer's determination under Section 916.2 of the MPC, 53 P.S. § 10916.2.
(9)
Appeals from the determination of the Zoning Officer or Borough 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 applications under Article V or VII of the MPC, 53 P.S. §§ 10501 et seq. and 10701 et seq.
B.
The Borough Council shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1)
All applications for approvals of planned residential developments under Article VII of the MPC pursuant to the provisions of Section 702 of the MPC, 53 P.S. § 10702.
(2)
All applications pursuant to Section 508 of the MPC, 53 P.S. § 10508, for approval of subdivisions or land developments under Article V of the MPC, 53 P.S. § 10501 et seq.
(3)
Applications for conditional use under the express provisions of this chapter.
(4)
Applications for curative amendment to this chapter or pursuant to Sections 609.1 and 916.1(a) of the MPC, 53 P.S. §§ 10609.1 and 10916.1(a).
(5)
All petitions for amendments to land use ordinances, pursuant to the procedures set forth in Section 609 of the MPC, 53 P.S. § 10609.
(6)
Appeals from the determination of the Zoning Officer or the Borough Engineer in the administration of any land use ordinance or provisions thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to applications for land development under Articles V and VII of the MPC, 53 P.S. §§ 10501 et seq. and 10701 et seq. Where such determination relates only to development not involving an Article V or VII application, the appeal from such determination of the Zoning Officer or the Borough Engineer shall be to the Zoning Hearing Board pursuant to this section. Where the applicable land use ordinance vests jurisdiction for final administration of subdivision and land development applications in the Planning Commission, all appeals from determinations under this subsection shall be to the Planning Commission, and all appeals from the decision of the Planning Commission shall be to court.
§ 290-116 Powers and duties.
A.
Applicability of judicial remedies. Nothing contained in this article shall be construed to deny the appellant the right to proceed directly to court where appropriate, pursuant to the Pennsylvania Rules of Civil Procedure No. 1091 (relating to action in mandamus).
B.
Variances.
(1)
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. The Board may by rule prescribe the form of application and may require preliminary application to the Zoning Officer. The Board may grant a variance, provided that 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 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 in issue.
(2)
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 Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq.
C.
Special exception. Where the Borough Council, in this chapter, has stated special exceptions to be granted or denied by the Zoning Hearing Board pursuant to express standards and criteria, located in this section and Article X, as applicable, the Board shall hear and decide requests for such special exceptions in accordance with such standards and criteria. In granting a special exception, 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 and the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq. In any instance where the Board is required to consider a special exception in accordance with the provisions of this chapter, the Board shall, among other things, consider the following standards:
(1)
Determine that the proposed special exception will not substantially injure or detract from the use of neighboring property or from the character of the neighborhood, and that the use of property adjacent to the area included in the proposed change or plan is adequately safeguarded.
(2)
Determine that the proposed special exception will serve the best interest of the Borough of West Mifflin, the convenience of the community, and the health, safety, morals, and public welfare of the residents of the area.
(3)
Consider the effect of the proposed special exception upon the logical, efficient and economical extension of public services and facilities, such as public water, sewers, police and fire protection, and public schools.
(4)
Impose such conditions, in addition to those required, as are necessary to assure that the intent of this chapter is complied with, which conditions may include, but are not limited to, harmonious design of buildings, planting and its maintenance as a sight or sound screen, the minimizing of noxious, offensive or hazardous elements, adequate standards of parking, sanitation, traffic conditions in the area and utility availability.
(5)
Determine that the unique circumstances for which the special exception is sought were neither created by the owner of the property nor were due to or the result of general conditions in the zoning district in which the property is located.
(6)
Financial hardship shall not be construed as the basis for granting special exceptions.
D.
Interpretation; building location; use. Whenever an issue before the Board involves the question of location of a building or use in relation to the Borough's long-range Comprehensive Plan, the Board may request and may consider a report thereon from the Borough Planning Commission, in appropriate cases and on appeal, and, after receiving recommendations from the Planning Commission, when requested, the Board shall interpret the provisions of this chapter, where the actual street layout varies from the street layout shown on the Zoning District Map, in such a way as to carry out the intent and purpose of the map.
E.
Challenges to the validity of any ordinance or map. The Board shall hear challenges to the validity of zoning ordinances or the map except as indicated in § 290-59. In all such challenges, the Board shall take evidence and make a record thereon as provided in § 290-55. 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.
F.
Unified appeals. Where the Board has jurisdiction over a zoning matter pursuant to this section, 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 as provided in § 290-55. 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.
§ 290-117 Appeals to Zoning Hearing Board.
A.
Parties appellant before the Board. Appeals raising the substantive validity of any land use ordinance (except those to be brought before the Borough Council pursuant to the Pennsylvania Municipalities Code), procedural questions or alleged defects in the process of enactment or adoption of a land use ordinance; or 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; from a determination by the Borough 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; from the determination of any officer or agency charged with the administration of any transfers of development rights or performance density provisions of this chapter; from the determination of the Zoning Officer or Borough 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 may be filed with the Zoning Hearing Board in writing by the landowner affected, any officer or agency of the Borough, or any person aggrieved. Requests for a variance and for special exception may be filed with the Board by any landowner or any tenant with the permission of such landowner.
B.
Time limitations.
(1)
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 the Borough 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 or from an adverse decision by the Zoning Officer on a challenge to the validity of this chapter or an amendment hereto or map or an amendment thereto shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.
(2)
All appeals from determinations adverse to the landowner shall be filed by the landowner within 30 days after notice of the determination is issued.
C.
Stay of proceedings.
(1)
Upon filing of any appeal proceeding before the Zoning Hearing Board 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.
(2)
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.
(3)
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.
(4)
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 attorney fees incurred by the petitioner.
§ 290-118 Appeals procedure.
A.
Venue of appeals. Appeals to a court shall be taken to the Common Pleas Court of the County of Allegheny.
B.
Validity of ordinance or map; procedural questions. Where it is alleged that there are defects in the process of enactment or adoption of any zoning ordinance or map, such questions shall be raised by appeal to the Allegheny County Court of Common Pleas filed not later than 30 days from the effective date of the ordinance or map.
C.
Validity of ordinance or map; substantive questions; landowner appeals.
(1)
A landowner who desires to challenge, on substantive grounds, the validity of this chapter or map thereof, which prohibits or restricts the use or development of land in which he has an interest, shall submit the challenge either:
(2)
The submission referred to in Subsection A shall be governed by the following:
(a)
The landowner shall make a written request to the Board or Borough Council that it hold a hearing on his challenge. The request shall contain a short statement reasonably informing the Board or Borough Council of the matters that are in issue and the grounds for the challenge.
(b)
The request may be submitted at any time after the ordinance or map takes effect, but if an application for permit or approval is denied thereunder, the request shall be made not later than the time provided for appeal from the denial thereof. In such case, if the landowner elects to make the request to Borough Council and the request is timely, the time within which he may seek review of the denial of the permit or approval on other issues shall not begin to run until the request to Borough Council is finally disposed of.
(c)
The request shall be accompanied by plans and other materials describing the use or development proposed by the landowner in lieu of the use or development permitted by the challenged ordinance or map. Such plans and other materials shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis for evaluating the challenged ordinance or map in the light thereof. Nothing contained herein shall preclude the landowner from first seeking a final permit or approval before submitting his challenge to the Board or Borough Council.
(d)
If the submission is made to the Borough Council under § 290-118C(1)(b), the request shall be accompanied by an amendment or amendment to the ordinance proposed by the landowner to cure the alleged defects therein.
(e)
Notice of the hearing required by § 290-59 or § 290-116E or F, whichever is applicable, shall include notice that the validity of this chapter or map is in question and shall give the place where and the times when a copy of the landowner's request, including the plans submitted pursuant to Subsection C(2)(c) and the proposed amendments, if any, submitted under Subsection C(2)(d), may be examined by the public.
(3)
Filing of appeal to court.
(a)
(b)
Failure to appeal the denial of a request for a curative amendment under Subsection C(3)(a)[2] shall not preclude the landowner from thereafter presenting the same validity questions by commencing a proceeding as provided in Subsection C(1)(a) of this section.
(4)
For the purpose of Subsection C(3)(a)[2], the landowner's request for a curative amendment is denied when:
(a)
Borough Council notifies the landowner that it will not adopt the amendment which is unacceptable to the landowner; or
(b)
Borough Council fails to act on the landowner's request, in which event the denial is deemed to have occurred on the 30th day after the close of the last hearing on the request, unless the time is extended by mutual consent between the landowner and Borough.
D.
Validity of ordinance or map; substantive questions; appeals by persons aggrieved.
(1)
Persons aggrieved by a use or development permitted on the land of another by this chapter or the map or any provision thereof who desire to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a report thereon under § 290-116E.
(2)
The submission to the Board shall be governed by the following:
(a)
The aggrieved person shall submit a written request to the Board that it hold a hearing on the challenge. The request shall contain a short statement reasonably informing the Board of the matters that are in issue and the grounds for the challenge.
(b)
The request shall be submitted within the time limitation prescribed in § 290-117B. In order not to unreasonably delay the time when a landowner may secure assurance that this chapter or the map under which he proposes to build is free from challenge, and recognizing that the procedure for preliminary approval of his development may be too cumbersome or may be unavailable, the landowner may advance the date from which time for any challenge to this chapter or the map will run under § 290-117B by the following procedures:
[1]
The landowner may submit plans and other materials describing his proposed use of development to the Building Inspector (Zoning Officer) for a preliminary opinion as to their compliance with the applicable ordinances and maps. Such plans and other materials shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a building permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis for a preliminary opinion as to its compliance;
[2]
If the Building Inspector's (Zoning Officer's) preliminary opinion is that the use or development complies with this chapter or the map, notice thereof shall be published once each week for two successive weeks in a newspaper of general circulation in the Borough. Such notice shall include a general description of the proposed use or development and its location, by some readily identifiable directive, and the place and times where the plans and other materials may be examined by the public. The favorable preliminary opinion of the Building Inspector (Zoning Officer) shall be deemed to be a preliminary approval under § 290-117B, and the time therein specified for commencing a proceeding with the Board shall run from the time when the second notice thereof has been published.
(c)
The Board shall hold a hearing upon the aggrieved person's request pursuant to § 290-116E, commencing not later than 60 days after the request is filed. If a hearing has been held by Borough Council covering the same matters, at which a stenographic record has been taken, the Board shall, upon motion of any party, accept said record as the record in the case before the Board, but the Board shall not be precluded from taking additional evidence, unless such evidence ought to be excluded under § 290-114.
(3)
After submitting his challenge to the Board, as provided in § 290-116C(1)(a) and (b), any party aggrieved may take the same to court by appeal filed not later than 30 days after notice of the report of the Board is issued.
E.
Applications, decisions and orders not involving the validity of ordinance; landowner appeals.
(1)
A landowner who desires to file a zoning application or to secure review or correction of a decision or order of Borough Council or of any officer or agency of the Borough which prohibits or restricts the use or development of land in which he has an interest on the grounds that such decision or order is not authorized by or is contrary to the provisions of this chapter or the map shall proceed as follows:
(b)
From the decision of Borough Council or the Planning Commission denying tentative approval of a development plan under § 290-41, or, if tentative approval has been granted, from any adverse decision on an application for final approval, the landowner may appeal directly to court or to the Zoning Hearing Board under § 290-116F in cases where that section is applicable.
(3)
Appeals.
(a)
Appeals to court may be taken by the landowner from any decision of Borough Council or the Planning Commission under Subsection E(1)(a) and (b) by appeal filed within 30 days after notice of the decision is issued or, if no decision is made, 30 days after the date when a decision is deemed to have been made under this chapter.
(b)
Appeals to court from any decision of the Zoning Hearing Board may be taken by any party aggrieved by appeal filed within 30 days after notice of the decision is issued.
F.
Decisions and orders not involving the validity of ordinance; appeals by persons aggrieved.
(1)
Persons aggrieved by a use or development permitted on the land of another who desire to secure review or correction of a decision or order of Borough Council or of any officer or agency of the Borough which has permitted the same, on the grounds that such decision or order is not authorized by or is contrary to the provisions of this chapter or the map shall first submit their objections to the Zoning Hearing Board under §§ 290-116A and 290-117B. The submission shall be governed by the provisions of § 290-118D.
(2)
Appeals to court from the decision of the Zoning Hearing Board may be taken by any party aggrieved by appeal filed not later than 30 days after notice of the decision is issued.
G.
Appeals to court; commencement; stay of proceedings.
(1)
Zoning appeals shall be entered as of course by the prothonotary or Clerk upon the filing of a zoning appeal notice which concisely sets forth the grounds on which the appellant relies. The appeal notice need not be verified. The zoning appeal notice shall be accompanied by a true copy thereof.
(2)
Upon filing of a zoning appeal, the prothonotary or Clerk shall forthwith, as of course, send to Borough Council, the Board or the Planning Commission, as the case may be, whose decision or action has been appealed, by registered or certified mail, the copy of the zoning appeal notice, together with a writ of certiorari commanding said Borough Council, the Board or the Planning Commission, as the case may be, within 20 days after receipt thereof, to certify to the court its entire record in the matter in which the zoning appeal has been taken, or a true and complete copy thereof, including any transcript of testimony in existence and available to Borough Council, the Board or the Planning Commission, as the case may be, at the time it received the writ of certiorari.
(3)
If the appellant is a person other than the landowner of the land directly involved in the decision or action appealed from, the appellant, within seven days after the zoning appeal is filed, shall serve a true copy of the zoning appeal notice by mailing said notice to the landowner or his attorney at his last known address. For identification of such landowner, the appellant may rely upon the record of the Borough and, in the event of good faith mistakes as to such identity, may make such service nunc pro tunc by leave of court.
(4)
The filing of an appeal in court under this section shall not stay the action appealed from, but the appellants may petition the court having jurisdiction of zoning appeals for a stay. If the appellants are persons who are seeking to prevent a use or development of the land of another, whether or not a stay is sought by them, the landowner whose use or development is in question may petition the court to order the appellants to post bond as a condition to preceding with the appeal. 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.
H.
Intervention. Within 30 days first following the filing of a zoning appeal, if the appeal is from the Zoning Hearing Board or the Planning Commission, the Borough and any owner or tenant of property directly involved in the action appealed from may intervene as of course by filing a notice of intervention, accompanied by proof of service of the same upon each appellant or each appellant's counsel of record. All other intervention shall be governed by the Rules of Civil Procedure.
I.
Hearing and argument of zoning appeal. If, upon motion, it is shown that proper consideration of the zoning appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence or may remand the case to the body, agency or officer whose decision or order has been brought up for review or may refer the case to a referee to receive additional evidence, provided that appeals brought before the court pursuant to § 290-118C and D shall not be remanded for further hearings before any body, agency or officer of the Borough. If the record below includes findings of fact made by Borough Council or the Zoning Hearing Board or the Planning Commission, as the case may be, whose decision or action is brought up for review, and the court does not take additional evidence or appoint a referee to take additional evidence, the findings of Borough Council or the Zoning Hearing Board or the Planning Commission, as the case may be, shall not be disturbed by the court if supported by substantial evidence. If the record does not include findings of fact, or if additional evidence is taken by the court or by a referee, the court may make its own findings of fact based on the record below as supplemented by the additional evidence, if any.
J.
Judicial relief.
(1)
In a zoning appeal, the court shall have power to declare any ordinance or map invalid and to set aside or modify any action, decision or order of Borough Council or the Zoning Hearing Board or the Planning Commission or any officer of the Borough brought up on appeal.
(2)
If the court finds that an ordinance or map or a decision or order thereunder which has been brought up for review unlawfully prevents or restricts a development or use which has been described by the landowner through plans and other materials submitted to Borough Council or the Zoning Hearing Board or the Planning Commission or any officer of the Borough whose action or failure to act is in question on the appeal, it may order the described development or use approved as to all elements or it may order it approved as to some elements and refer other elements to Borough Council or the Zoning Hearing Board or the Planning Commission having jurisdiction thereof for further proceedings, including the adoption of alternative restrictions, in accordance with the court's opinion and order. The court shall retain jurisdiction of the appeal during the pendency of any such further proceedings and may, upon motion of the landowner, issue such supplementary orders as it deems necessary to protect the rights of the landowner as declared in its opinion and order.
(3)
The fact that the plans and other materials referred to in Subsection J(1) are not in a form or are not accompanied by other submissions which are required for final approval of the development or use in question or for the issuance of permits shall not prevent the court from granting the definitive relief authorized in Subsection J(1), and the court may act upon preliminary or sketch plans by framing its decree to take into account the need for further submissions before final approval is granted.
§ 290-119 Time limitations for conditional uses, variances and special exceptions.
A.
Expiration.
(1)
Whenever Borough Council shall grant a conditional use or whenever the Zoning Hearing Board shall grant either a variance or special exception in accordance with all terms and conditions of this chapter, and in accordance with any other special conditions or requirements which are or may be set forth in said conditional use, variance or special exception, the applicant shall be duly notified at the time of notification of approval that said conditional use, variance or special exception shall expire at the end of six months from the date of notification of approval if:
(a)
The applicant has not secured the building permits or occupancy permits as required within said six-month period.
(b)
The conditional use, variance or special exception required construction, and the applicant has failed to begin construction within said six-month period.
(c)
The conditional use, variance or special exception does not involve construction, and no utilization of said conditional use, variance or special exception has been made within said six-month period.
(2)
In the event of such expiration, the conditional use, variance or special exception previously granted shall be null and void, and the Building Inspector (Zoning Officer) shall revoke all permits which may have been issued.
B.
Request for extension. An applicant whose conditional use, variance or special exception has expired under the provisions of § 290-119A of this article may file a written request for an extension of said conditional use to Borough Council or a written request for an extension of said variance or special exception to the Zoning Hearing Board. Such written request must be filed within 15 days of the date of expiration of the conditional use, variance or special exception.