Chapter 20.32 APPEALS

Chapter 20.32
APPEALS

Sections:

20.32.010 Appeals from determination of the planning director.

20.32.020 Appeals from determination of planning and zoning commission.

20.32.010 Appeals from determination of the planning director.

Any person dissatisfied with any action of the planning director on a site plan review, request for variance, or other action resulting from the administration of this title may appeal therefrom to the planning and zoning commission at any time within five days after the decision of the planning director is made, unless additional time is granted by the planning and zoning commission. The appeal is taken by filing a notice of appeal with the planning director. Upon the filing of notice of appeal, the planning director must, within ten days, transmit to the planning and zoning commission all exhibits, notices, affidavits, orders, and other papers and documents on file with the planning director. (Ord. 2010-04(part), 2010: Ord. 90-15 §7.1, 1991).

20.32.020 Appeals from determination of planning and zoning commission.

Any person dissatisfied with any action of the planning and zoning commission of an amendment or petition for rezoning, variance, conditional use permit, or any other commission action or permit may appeal therefrom for borough assembly action as a board of adjustment at any time within fifteen days after rendition of the decision of the planning and zoning commission, unless additional time is granted by the planning and zoning commission. The appeal is taken by filing a notice of appeal with the planning director. Upon the filing of a notice of appeal, the planning director must, within ten days therefrom, transmit to the borough clerk all exhibits, notices, affidavits, orders, and other papers and documents on file with the planning and zoning commission, together with the findings of the planning and zoning commission. (Ord. 2010-04(part), 2010: Ord. 90-15 §7.2, 1991).

20.32.030 Board of adjustment.

On zoning matters affecting land, the borough assembly shall constitute a board of adjustment. The presiding officer of the assembly shall be the presiding officer of the board of adjustment. The assembly may convene as a board of adjustment, which is listed on the assembly meeting agenda. The presiding officer may administer oaths, and compel the attendance of witnesses at meetings of the board of adjustment, which shall be open to the public.

A. Duties. The respective board shall keep minutes of its proceedings, showing the vote of each member on each question, or if a member is absent or fails to vote, indicating that fact. It shall keep records of its examinations and other official actions. The minutes and records shall be promptly filed in the office of the borough clerk, and shall be public records.

B. Powers.

1. To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by an administrative official, a board, or a commission of the borough in the enforcement or interpretation of the zoning ordinance.

2. On appeal from the planning and zoning commission, to allow conditional uses consistent with the terms of this title, in accordance with general or specific rules herein contained, subject to additional conditions and safeguards required by the public interest, and in harmony with the general purpose and intent of this title.

3. To authorize, upon appeal, in specific cases not expressly prohibited by ordinance codified in this title, such variances as will not be contrary to the public interest, where, upon good cause shown, a strict enforcement of the provisions of the title will result in undue hardship, other than pecuniary or self-imposed hardship, and so that the spirit of this title shall be observed and substantial justice done.

In exercising its appellate powers, the board may, in conformity with these provisions and the terms of this title, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination sought to be made, and for this purpose, has the powers of the officer, board, or commission from whom the appeal is taken. The concurring vote of a majority of the fully constituted membership of the board shall be necessary to reverse an order, requirement, decision, or determination of an administrative official, or a citizen board or commission, or to decide in favor of the applicant or appellant on any matter on which the board is required to pass under the terms of this title, or to make a variance or special exception in the application of the title on appeal from the planning and zoning commission.

C. Appeals Alleging Error in Enforcement or Interpretation --Procedure. Appeals alleging error by the administrative official in enforcement or interpretation of the provisions of this title may be taken by any party affected by the proceedings. Such appeal shall be made by notice in writing to the borough manager within ten days of the action appealed from.

If appeal is not taken as specified in this section, the right of appeal shall have been forfeited. The appeal notice shall be in writing, and shall state specifically wherein the alleged error is, and the interpretation the appellant believes should have been given, or the exact nature of the interpretation sought.

D. Board Findings--Record Required. The findings of the board of adjustment on any appeal, where they involve matter of general interpretation, shall be recorded in the office of the administrative official so as to provide a convenient and continuing guide for future reference.

E. Appeals for Variances--Procedures--Criteria for Decision. Procedure in appeals for variances shall be as follows:

1. Appeals seeking variances shall be made, by notice in writing, to the borough manager within fifteen days of the action appealed from. If appeal is not taken as specified herein, the right of appeal shall have been forfeited.

2. The appeal notice, in cases where a variance is sought, shall be in writing, shall include supporting drawings, and shall state specifically and show graphically the variance being applied for. The notice, and accompanying drawings, which shall be filed with the borough manager, shall allege and purport to show that:

a. Special conditions exist which are peculiar to the land, structure, or building involved, and which are not applicable to other lands, buildings, or structures in the same district;

b. Strict interpretation of the provisions of this title would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of this title;

c. The special conditions and circumstances do not result from the actions of the applicant, and such conditions and circumstances do not merely constitute a pecuniary hardship or inconvenience;

d. Granting the variance will be in harmony with the objectives of this title, and not injurious to the neighborhood, or otherwise detrimental to the public welfare.

3. A date shall be set for a public hearing on the variance, no fewer than ten days after application for such is received. No fewer than five days before the hearing, a public notice shall be posted, and due notice shall be given to affected parties, as determined by the administrative officer. A public hearing shall be held before action is taken on any variance.

4. The board of adjustment shall find whether each of the requirements enumerated in subsection (E)(2) of this section have been met. A concurring vote of a majority of the fully constituted membership of the board shall be required to grant a variance.

5. A nonconforming use of neighboring lands, buildings, or structures in the same district, and a permitted use of lands, buildings or structures in other districts, shall not be considered grounds for issuance of a variance, nor shall the existence of any other variance granted in the same general area constitute grounds for issuance of a similar variance.

6. In granting any variance, the board of adjustment may prescribe conditions and safeguards to assure conformity with the purposes of this title. Violation of such conditions and safeguards, when made part of the terms under which the variance is granted, shall be deemed a violation of this title.

7. Any variance granted shall be the minimum variance that will make possible a reasonable use of the land, building, or structure, equivalent to, but not exceeding, the use of similar lands, buildings, or structures permitted generally in the same zoning district. The board of adjustment may reduce the extent of the variance requested.

8. No variance shall be granted which will permit a use not permitted in the pertinent district by this title.

9. Any variance shall become null and void if:

a. The variance is not exercised within one year after being granted; and

b. Any structure, characteristic, or use permitted by the variance is moved, removed, or discontinued.

10. A request for variance may be initiated only by the property owner or owners, or his/her authorized agent and none other.

11. Only those issues specified in the appeal notice shall be considered by the board of adjustment. Only the record concerning the specific issue shall be considered germane, and no new evidence or issues shall be considered by the board of adjustment.

F. Appeals From the Board of Adjustment. An appeal from any action, decision, ruling, judgment, or order of the board of adjustment may be taken by any person or persons, jointly or severally aggrieved, or by any taxpayer, or any officer, department, board, or commission of the borough, to the Third Judicial District of the Superior Court of the state. These appeals will not be a trial de novo, but will be based on the record before the board of adjustment.

Upon filing written notice with the borough clerk within thirty days of the action appealed from, an appeal shall be considered timely, otherwise the decision of the board is final. When the notice of appeal is timely and properly filed, the borough clerk shall at once transmit to the superior court clerk the original, or certified copies, of all papers constituting the record in the case, together with the order, decision, or ruling of the board. A transcript of the record in the proceedings before the board of adjustment shall be filed with record on appeal. The cost of the transcript shall be borne by the appellant. (Ord. 2010-04(part), 2010: Ord. 90-15 §7.3, 1991).