Westmont City Zoning Code
ARTICLE XV
Zoning Hearing Board
§ 225-71 Creation; appointment; organization; compensation.
A.
A Zoning Hearing Board is hereby established. The Board shall consist of five members, all of whom shall be appointed by the Borough Council. The term of office of the members of the Board shall be five years and shall be so fixed that the term of office of no more than one member of the Board shall expire each year. The members of the existing five-member Board shall continue in office for the unexpired balance of their terms until the expiration of each term on the first day of January of the next five years. After initial appointments of varying terms of no less than one year and no more than five years in duration, as determined necessary by the Borough Council to create the staggered terms required by this subsection, the subsequent appointments shall be for terms of five years each. Appointments to fill vacancies shall be only for the unexpired portion of a vacant term. Members may be removed for cause by the Borough Council upon written charges and after public hearing.
[Amended 10-9-1984 by Ord. No. 619; 10-13-1992 by Ord. No. 698; 8-9-1994 by Ord. No. 713]
B.
The Board shall elect its own Chairman and Vice Chairman, who shall serve for one year. The Board shall adopt from time to time such rules and regulations as it may deem necessary to carry into effect the provisions of this chapter.
C.
Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. The Chairman, or in his absence the Acting Chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed with the Borough Secretary and shall be a public record. At the Board's discretion, it may employ a reporter to take testimony at hearings held before the Board.
D.
The members of the Board shall receive such compensation, not to exceed the amount permitted by law, for each meeting, as shall be fixed by the Borough Council. No compensation shall be paid for any meeting at which only questions considered in a prior meeting are acted upon. The compensation of Board members shall be paid from the fees which are assessed under Article XIII.
E.
The Borough Council shall appoint by resolution one alternate member of the Board to serve for a three-year term. When designated by the Chairman of the Board to sit due to the absence of a quorum because of the disqualification or absence of a regular member, the alternate shall be entitled to participate in all proceedings and discussions of the Board to the same and full extent as provided by law for regular Board members, including specifically the right to cast a vote as a voting member during the proceedings, and shall enjoy and exercise all of the powers and duties set forth in this chapter and as otherwise provided by law for a regular member of the Board. An alternate member so designated to sit shall continue to serve on the Board in all proceedings involving the matter or case for which he or she was initially appointed until the Board has made a final determination of that matter or case. An alternate shall hold no other office in the Borough of Westmont, including but not limited to an exclusion from membership on the Planning Commission or service as a Zoning Officer during his or her term as alternate. When not designated by the Board Chairman to sit, the alternate may not vote and shall not be compensated but may participate in any proceeding or discussion of the Board. When designated to sit by the Chairman of the Board due to the absence of a quorum by reason of disqualification or absence of a regular Board member, the alternate shall receive the same compensation for each meeting in which he participates as the compensation fixed under this chapter by the Borough Council for the services of regular Board members at those meetings.
[Added 8-9-1994 by Ord. No. 712]
§ 225-72 Powers and duties.
[Amended 5-8-1984 by Ord. No. 618; 10-13-1992 by Ord. No. 698; 2-11-2003 by Ord. No. 774; 7-8-2025 by Ord. No. 864]
A.
Powers relative to error. The Zoning Hearing Board shall hear and decide appeals where it is alleged that there is an error in any order, requirements, decision or determination made by the Zoning Officer in the enforcement of this chapter, including any order requiring an alleged violator to stop, cease and desist.
B.
Powers relative to variations.
(1)
When it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant, the Board may grant a variance if the following conditions are found 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.
C.
Powers relative to special exceptions. Upon appeal, the Board shall be empowered to permit the following special exceptions, in addition to those otherwise specifically set forth in other parts of this chapter.
(1)
To permit the extension of a district where the boundary line of a district divides a lot of record in single ownership.
(2)
To permit the reconstruction of a nonconforming building which has been damaged by explosion, fire, act of God or the public enemy to the extent of less than 75% of its fair market sales value when the Board finds some compelling public necessity requiring a continuance of the nonconforming use.
(3)
To interpret the provisions of this chapter where the street layout actually on the ground varies from the street layout as shown on the map fixing the several districts, which map is attached to and made a part of this chapter.[1]
[1]
Editor's Note: The Zoning Map is included in a pocket at the end of this chapter.
(4)
To vary parking regulations of this chapter whenever the character or use of the building is such as to make unnecessary the full provision of parking facilities or when such regulations would impose an unreasonable hardship upon the use of the lot, as contrasted with merely granting an advantage or a convenience.
(5)
To permit a public and/or charitable group, including but not limited to churches, schools, and/or governmental units, to make temporary periodic use of the property owned by it in a manner not directly related to its principal permitted use, provided that such use is demonstrated to be in the best interests of the community, is not detrimental to the neighborhood in which it is situate and the applicant includes in its use application a plan showing that adequate safeguards are included to ensure sufficient parking, access, traffic control, lighting, litter control and cleanup provisions, and provided further that such use may not occur in excess of one time per week nor more than five times in any one month, and further provided that a special exception use permit is obtained.
(6)
The standards for review of uses permitted by special exception. In any instance where the Zoning Hearing Board is required to consider a request for special exception for a use authorized in §§ 225-8F, 225-17A(2), 225-17A(4), 225-18A(2) and (4), 225-19A(2) and (4), 225-20A(2) and (4), 225-21A(1)(x), 225-21A(2), 225-41A(2) or 225-20.1, the Zoning Hearing Board should determine that the following guidelines are met before granting the request:
(a)
The size, scope, extent and character of the special exception, variance or use requested is consistent with the Comprehensive Plan of the Borough and promotes the harmonious and orderly development of the zoning district involved.
(b)
The proposed change protects and promotes the safety, health, morals and general welfare of the Borough.
(c)
The proposed change or modification constitutes an appropriate use consistent with the character and type of development in the area surrounding the location for which the request is made and will not substantially impair, alter or detract from the use of surrounding property or the character of the neighborhood in light of the zoning classification of the area affected; the effect on other properties in the area; the number, extent and scope of nonconforming uses in the area; and the presence or the absence in the neighborhood of conditions or uses which are the same or similar in character to the condition of use for which applicant seeks approval.
(d)
The proposed change is suitable with respect to traffic and highways in the area and provides for adequate access and off-street parking arrangements in order to protect major streets and highways from undue congestion and hazard.
(e)
Major street and highway frontage will be developed so as to limit the total number of access points and encourage the frontage of buildings on parallel marginal roads or on roads perpendicular to the major street or highway.
(f)
The proposed change is reasonable in terms of the logical, efficient and economical extension of public services and facilities, such as public water, sewers, police, fire protection and public schools, and assures adequate arrangements for sanitation in specific instances.
(g)
All commercial or industrial parking, loading, access or service areas will be adequately illuminated at night while in use and arranged so as to comply with the requirements of Article X dealing with special regulations and relating to access and highway frontage.
(h)
Conditions are being imposed on the grant of the request necessary to ensure that the general purpose and intent of this zoning chapter are complied with and that the use of the property adjacent to the area included in the proposed change or modification is adequately safeguarded with respect to harmonious design of buildings, aesthetics, planting and its maintenance as a sight or sound screen, landscaping, hours of operation, lighting, numbers of persons involved, allied activities, ventilation, noise, sanitation, safety, smoke and fume control and the minimizing of noxious, offensive or hazardous elements.
D.
Challenge to the validity of any ordinance or map. The Zoning Hearing Board shall hear challenges to the validity of a zoning ordinance or map except as indicated in 53 P.S. § 10916.1. In all such challenges, the Zoning Hearing Board shall take evidence and make a record thereon as provided in § 225-73 of this chapter. 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.
E.
Exercise of powers. In exercising the above powers, the Board may, in conformity with the provisions of this chapter, reverse or affirm, wholely or partly, or may modify the order, requirement decision or determination as ought to be made and to that end shall have all the powers of the officer from whom the appeal is taken. In considering all appeals to this chapter, the Board shall, before making any finding in a specific case, first determine that the proposed change will not permit a nonpermitted use for the district and will not impair an adequate supply of light and air to adjacent property or increase the danger of fire or materially diminish or impair established property values within the surrounding area or in any other respect impair the public health, safety, comfort, morals and welfare of the Borough. Every change granted or denied by the Board shall be accompanied by a written finding of fact based on sworn testimony and evidence, specifying the reason for granting or denying the variance or special exception. The decision of the Board shall be made a part of any building permit or occupancy certificate in which a variance or special exception is allowed.
F.
Conditions. In arriving at its decision, the Board may impose reasonable conditions, restrictions or safeguards in the furtherance of the general intent of this chapter, including requiring a bond to assure compliance with such conditions, restrictions or safeguards.
G.
Required action. The concurring vote of a majority of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Zoning Officer or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter or to allow any variance or special exception under this chapter.
H.
Appeal from action of the Board. Any person aggrieved by any decision of the Zoning Hearing Board or any taxpayer or the Borough Council may appeal to the Court of Common Pleas by petition duly verified, setting forth that such decision is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law and specifying the grounds relied upon.
§ 225-73 Appeals procedure.
A.
Appeals to the Board may be taken by any person or Borough official aggrieved or affected by any decision of the Zoning Officer. Such appeal shall be taken within 30 days after notice of a decision or order is issued or within such other time as allowed under the Pennsylvania Municipalities Planing Code[1] by filing with the Zoning Officer and the Board a notice of appeal specifying the grounds thereof. The Zoning Officer shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from is taken.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Zoning Officer certifies to the Board after the notice of appeal was filed with him that, by reason of the facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the Board or by a court of record on application, on notice to the Zoning Officer and due cause shown.
C.
The Board shall fix a reasonable time for the hearing of the appeal, within 45 days of the date the appeal was filed. A public notice of such hearing shall be published once each week for two successive weeks in a newspaper of general circulation. Such notice shall state the time and place of the hearing as well as the nature of the matter to be considered at the hearing. The first publication shall be not less than 14 days from the date of the hearing. A similar notice shall be mailed to the owners of all properties contiguous to the tract or parcel for which the appeal was filed, shall be given to all parties who have stated an interest in said hearing, and a notice of said hearing shall also be conspicuously posted on the affected tract of land, A decision must be rendered within 14 days after the hearing, or if such hearing is continued, within 14 days after such continued hearing. Upon the hearing, any party may appear in person or by agent or by their attorney. Failure of the Board to hold a hearing within 45 days, or failure to render a decision within 14 days, shall under no circumstances result in the decision being deemed in favor of the applicant.
[Amended 10-9-1984 by Ord. No. 620; 9-14-2004 by Ord. No. 779]
D.
Upon receipt of an appeal or petition involving a variance or special exception and before conducting a hearing thereupon, the Board shall refer the matter to the Planning Commission/Committee for its recommendation, unless the Board decides that such reference is inappropriate. The Planning Commission/Committee shall report the result of its study to the Board within 10 days following its receipt of the appropriate documents. If no such report is filed with the Zoning Hearing Board, the Board shall assume that the Planning Commission/Committee has acted favorably; but in any event the recommendation of the Planning Commission/Committee shall be advisory, and not obligatory, upon the Zoning Hearing Board.
E.
The Board may also hear all challenges to the validity of this chapter or the Zoning Map under the provisions of 53 P.S. § 10909.1. Any landowner who desires to challenge on substantive grounds the validity of an ordinance or map or any provisions thereof which prohibits or restricts the use or development of land in which he has an interest may submit a curative amendment to the governing body with a written request that his challenge and proposed amendment be heard and decided under Section 609.1 of the Pennsylvania Municipalities Planning Code.[2] The Board or the governing body shall, in such cases, comply with all requirements set forth in the Pennsylvania Municipalities Planning Code.[3], [4]
F.
The Board shall conduct hearings and make decisions in accordance with the following requirements:
(1)
Notice shall be given to the public, the applicant, the Planning Commission/Committee, the Borough Council, the Zoning Officer, such other persons as the governing body shall designate by ordinance and to any person who has made timely request for the same. Hearing notices shall be given at such time and in such manner as prescribed in Subsection C above. A hearing notice shall also be posted conspicuously on the affected tract of land. The governing body may establish reasonable fees based on cost, to be paid by the applicant and by persons requesting any notice not required by ordinance.
(2)
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 accept the decision or findings of the hearing officer as final.
(3)
The parties to the hearing shall be the municipality or any person who is entitled to notice under Subsection F(1) above without special request, anyone who has made timely appearance of record before the Board and any other person permitted to appear by the Board.
(4)
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.
(5)
The parties shall have the right to be represented by counsel and shall be afforded an opportunity to respond and present evidence and argument and cross-examine adverse witnesses on all relevant issues.
(6)
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
(7)
The Board or the hearing officer, as the case may be, shall keep a record of the proceedings, either stenographically or by sound recording, 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.
(8)
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 unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surroundings with any party or his representatives unless all parties are given an opportunity to be present.
(9)
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. Each decision shall be accompanied by findings of fact and conclusions based thereon, together with the reasons therefor. Conclusions based on any provision of this act or of any ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons 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 and the Board shall make a final decision and entry of findings.
(10)
If the Board fails to render its decision or findings within 45 days after the last hearing or fails to hold a requested hearing within 60 days after 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 the failure of the Board to meet or render a decision as hereinabove provided, the municipality shall give public notice of said decision within 10 days in the same manner as provided in Subsection F(1). Nothing in this subsection 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 not later than the day following its date. To all other persons who have filed their name and address with the Board shall provide, by mail or otherwise, brief notice of the decision or findings and a statement of the place at which the decision or findings may be examined.