A Zoning Hearing Board is hereby established by the Township Council in accordance with the provisions of Article IX of the Pennsylvania Municipalities Planning Code,[1] as amended. Hereinafter, as used in this article, the
term "Board" shall refer to the Zoning Hearing Board, and the term
"Planning Code" shall refer to the Pennsylvania Municipalities Planning
Code.
[1]
Editor's Note: See 53 P.S. § 10901
et seq.
[Amended 1-8-1990 by Ord. No. 461]
A.
The membership of the Board shall consist of five
residents of the Township appointed by the Township Council. Their
terms of office shall be five years and shall be so fixed that the
term of office of one member shall expire each year; provided, however,
that if a three-member Board is changed to a five-member Board, the
members of the existing three-member Board shall continue in office
until their term of office would expire under their current appointment
and Township Council shall appoint two additional members to the Board
with terms scheduled to expire in accordance with the provisions of
this subsection. Appointments to fill vacancies shall be only for
the unexpired portion of the term of the member whose seat was vacated.
[Amended 3-25-2002 by Ord. No. 620]
B.
The Township Council may appoint by resolution at
least one but no more than three residents of the Township to serve
as alternate members of the Board. The term of office of an alternate
member shall be three years. When seated pursuant to the provisions
of this section, an 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 Board members, including specifically
the right to cast a vote as a voting member during the proceedings,
and shall have all the powers and duties set forth in this chapter
and as otherwise provided by law. Alternates shall hold no other office
in the Township, including membership on the Planning Commission and
Code Enforcement Office. Any alternate may participate in any proceeding
or discussion of the Board but shall not be entitled to vote as a
member of the Board nor be compensated pursuant to the Municipalities
Planning Code unless designated as a voting alternate member pursuant
to this section.
C.
Removal of members. Any Board member may be removed
for cause by a majority vote of the Township Council, 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.
Organization of Board.
(1)
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. As provided for by the Planning Code, 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 § 275-242 below.
[Amended 3-25-2002 by Ord. No. 620]
(2)
The Zoning Hearing Board shall adopt rules and
forms for its procedure in accordance with the provisions of this
chapter. Meetings of the Zoning Hearing Board shall be held at the
call of the Chairman and at such other times as the Zoning Hearing
Board may determine. Such Chairman or, in his absence, the Acting
Chairman may administer oaths and compel the attendance of witnesses.
All meetings of the Zoning Hearing Board shall be open to the public.
(3)
The Zoning Hearing 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 filed in the office of the Township Manager and shall
be a public record.
(4)
Once a year, the Zoning Hearing Board shall
submit a report of its activities to the Township Council.
(5)
If, by reason of absence or disqualification
of member, a quorum is not reached, the Chairman of the Board shall
designate as many alternate members of the Board to sit on the Board
as may be needed to provide a quorum. Any alternate member of the
Board shall continue to serve on the Board in all proceedings involving
the matter or case for which the alternate was initially appointed
until the Board has made a final determination of the matter or case.
Designation of an alternate pursuant to this section shall be made
on a case-by-case basis in rotation according to declining seniority
among all alternates.
(6)
Within the limits of funds appropriated by the
Township Council, the Board shall 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 and from a different firm than the Solicitor for the Township
Council.
[Amended 1-8-1990 by Ord. No. 461]
A.
The Zoning Hearing Board shall have exclusive jurisdiction
to hear and render final adjudications in the following matters:
(1)
Challenge to the validity of the Zoning Ordinance
or Zoning Map. The Zoning Hearing Board shall hear challenges to the
validity of the Zoning Ordinance or Map as follows:
(a)
A landowner who, on substantive grounds, desires
to challenge the validity of the ordinance or map or any provision
thereof which prohibits or restricts the use of development of land
in which he has an interest shall submit the challenge to either the
Zoning Hearing Board or the Township Council.
(b)
Persons aggrieved by a use or development permitted
on the land of another by the ordinance or map or any provision thereof
who desire to challenge its validity shall:
(c)
In addition to the procedures set forth in Section
916.1 of the Municipalities Planning Code,[2] in all such challenges, the Zoning Hearing Board shall
decide all contested questions and shall make findings on all relevant
issues of fact and of interpretation and submit such findings as part
of the record on appeal to the court.
[2]
Editor's Note: See 53 P.S. § 10916.1.
(3)
Challenges to the validity of this chapter 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.
(4)
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 or the issuance
of any cease-and-desist order.
(5)
Appeals from a determination by the Township
Engineer or the Zoning Officer with reference to the administration
of the Flood Hazard District provisions of this chapter.
(7)
Appeals from the determination of the Zoning
Officer or Township Engineer in the administration of this chapter
or provision thereof with reference to sedimentation and soil erosion
control and stormwater management, insofar as the same relate to development.
(8)
Requests for variances where it is alleged that
the provisions of this chapter inflict unnecessary hardship upon the
applicant, subject to the standards prescribed by law and contained
in § 272-243 below.
(9)
Requests for special exceptions where this chapter
states that a special exception may be granted or denied by the Board
in accordance with express standards and criteria contained in this
chapter.
[Amended 1-8-1990 by Ord. No. 461]
The Board shall conduct hearings and make decisions
in accordance with the requirements of the Planning Code and any pertinent
provisions of this chapter or the Rules of the Board:
A.
Upon the filing of an appeal with the Board, an application for a special exception or variance from the terms of this chapter or a challenge, the Board shall fix a time and place for a public hearing thereon, subject to the provisions of the Planning Code, and shall give notice thereof in accordance with the provisions of Subsection E below.
B.
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 decisions or findings of the hearing officer as final.
The parties to the hearing shall be the Township, any person affected
by the application who has made timely appearance or record before
the Board and any other person including civic or community organizations
permitted to appear by the Board.
C.
The Chairman, 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. The parties shall have the right to be represented
by counsel and shall be afforded the opportunity to respond and present
evidence and cross-examine adverse witnesses on all relevant issues.
At the hearing, any party may appear in person, by agent or by attorney.
D.
The Board or the hearing officer, as the case may
be, shall keep a stenographic record of the proceedings; and a transcript
of the proceedings and copies of graphic or written material received
in evidence shall be made available at cost to any party requesting
such materials.
E.
Notice requirements. In any case where the Zoning
Hearing Board shall hold a public hearing, the Board shall, at the
minimum, give notice of such hearing as follows, which notice shall
state the time and the place of the hearing and the particular nature
of the matter to be considered at the hearing:
(1)
By publishing a notice thereof once each week
for two successive weeks in a newspaper of general circulation in
the Township, provided that the first publication shall be not more
than 30 days or less than 14 days from the date of the hearing.
(2)
By mailing or delivering due notice thereof
to the applicant and other parties in interest, who shall be at least
those persons whose properties adjoin the property in question, to
the Township Council, the Township Manager, the Chairman of the Township
Planning Commission and to every association of residents of the Township
who shall have registered their names and addresses for this purpose
with the Zoning Hearing Board for the current year.
(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, tract 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 at
least one week prior on the affected tract of land. 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.
F.
Notice of decision.
(1)
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, subject to all
additional requirements of the Planning Code. Where the Board has
power to render a decision and the Board or the hearing officer, as
the case may be, fails to render the same within the period required
by the Planning Code, 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.
(2)
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.
(3)
Unless otherwise specified by the Board, a special
exception or variance shall expire if the applicant fails to obtain
a building permit within one year from the date of authorization thereof.
The opinion of the Zoning Hearing Board shall set forth the date on
which relief granted shall expire.
(a)
The applicant shall have the right to seek an
extension of the one-year limitation for a period not to exceed one
additional year by making application to the Zoning Hearing Board
at least 30 days prior to the expiration date set forth in the Zoning
Board opinion or decision. A hearing shall be thereafter promptly
scheduled to hear evidence on the application for an extension.
(b)
The filing of the application and the hearing
thereon shall be advertised and notice given as provided in the Municipalities
Planning Code for other applications before the Zoning Hearing Board.
Applications for a one-year extension shall be granted unless opposition
is registered in person or by letter.
(c)
At the time of the hearing, the Zoning Hearing
Board shall consider whether the evidence presented demonstrates a
change of circumstances which has occurred since the time relief was
originally granted and whether such change in circumstances would
have an adverse impact on the health, safety and welfare of the citizens
of the Township of Middletown. Evidence offered by the applicant at
the prior hearing shall be received into evidence as prima facie proof
of the applicant's right to relief.
(d)
In no event shall the Zoning Hearing Board extend
the relief granted more than one time. The relief granted is void,
not voidable, two years beyond the date relief was first granted.
A.
Appeals before Zoning Board and to court. All appeals, applications or challenges which properly come before the Board in accordance with the requirements of the Planning Code and all appeals to courts shall be subject to the time limitations and requirements of Article X and any other applicable provision of said code. Appeals and proceedings to challenge an ordinance may be filed with the Board, in writing, by the landowner affected, any officer or agency of the Township 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. 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 the appropriate
Township officer, 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 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.
In any instance where the Zoning Hearing Board
is required to consider a special exception or variance in the Zoning
Ordinance or Zoning Map in accordance with the provisions of this
chapter, the Board shall, among other things, consider the following
standards:
A.
In the case of a variance:
(1)
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 generally created by the provisions of this chapter
in the neighborhood or district in which the property is located;
(2)
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;
(3)
That such unnecessary hardship has not been
created by the appellant;
(4)
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 or adjacent property, not be detrimental to the
public welfare; and
(5)
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.
B.
In the case of a special exception, the Board shall consider all standards and criteria as set forth in Article XXXIV and the following matters in determining whether or not the proposed special exception is appropriate and in harmony with the general purpose and intent of the ordinance:
(1)
The size, scope, extent and character of the
exception desired.
(2)
The character and type of development in the
area surrounding the location for which the exception is desired.
(3)
Whether or not the proposed exception would
be an appropriate use in the area or whether it would be detrimental
to the surrounding area.
(4)
The zoning classification of the area affected.
(5)
The number, extent and scope of nonconforming
uses, if any, in the area.
(6)
The anticipated future development of the area.
(7)
The effect, if any, of the proposed exception
on other properties in the area.
(8)
Whether or not the proposed exception would
affect the health, safety, morals and general welfare of the people
of the residents in the surrounding area.
(9)
The effect of the proposed exception on traffic
in the area and the nature of the surrounding traffic conditions,
so that appropriate regulations may be imposed on any proposed uses
to provide for off-street parking either equal to or greater than
the off-street parking facilities required within the area by any
other then applicable ordinance.
(10)
Whether the special exception authorized will
represent the minimum modification to use the area requirements to
afford necessary relief.
(11)
The effect of the proposed exception upon the
logical, efficient and economical extension of public services and
facilities such as public water, sewers, police, fire protection and
schools.
C.
In granting any variance or 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 the Planning Code and Zoning Ordinance, which conditions
and safeguards may relate to, but are not limited to, the harmonious
design of buildings, planting and its maintenance as a sight or sound
screen, lighting, noise, safety and the minimizing of noxious, offensive
or hazardous elements.
D.
In the case of a special exception or variance, it
shall be the responsibility of the applicant to present such evidence
as is necessary to demonstrate that the proposed use or modification
complies with the pertinent criteria and standards set forth in this
section.
The following are specific physical requirements
governing the granting of special exceptions:
A.
Private school, parochial school, school dormitory,
church, religious use, philanthropic use, hospital or sanitarium for
human beings not heretofore erected or established shall provide for
adequate off-street parking in the rear or at the sides of the building
to accommodate its staff, visitors or persons in any way accommodated
or using the grounds and buildings of such institutions.
B.
Nonprofit club, lodge, public stable or riding academy
in Residential Districts shall be permitted only under the following
limitations: Where the club or organization proposes the operation
of a swimming pool, the Zoning Hearing Board shall determine whether
or not appropriate arrangements are made for the following items,
and if so, shall impose conditions and restrictions with respect to:
(1)
Location of pool and buildings such as club,
change or pump house on tract;
(2)
Hours of operation;
(3)
Off-street parking facilities;
(4)
Lighting;
(5)
Amplification system;
(6)
Landscaping;
(7)
Sanitary and safety regulations and noise control;
(8)
Allied activities;
(9)
Number of members;
(10)
Drainage regulations;
(11)
Regulations governing water supply;
(12)
Operation of pool including requirements for
lifeguard, watchman or supervision; and
(13)
Such other regulations as may be determined
by the Zoning Hearing Board.
C.
With respect to all other clubs, lodges, public stables
or riding academies, the Zoning Hearing Board shall determine whether
or not appropriate arrangements are made for the following items and
if so shall impose conditions and restrictions with respect to:
(1)
Location of the buildings;
(2)
Hours of operation;
(3)
Off-street parking facilities;
(4)
Lighting;
(5)
Landscaping;
(6)
Sanitary and safety regulations and noise control;
(7)
Allied activities;
(8)
Drainage regulations;
(9)
Screening and planting to avoid unnecessary
interference with enjoyment of adjoining premises; and
(10)
Such other regulations as may be determined
by the Zoning Hearing Board.
D.
Public garage, motor vehicle sales, service or repair
shop, gasoline service station and motor vehicle parking lot:
(1)
No body and fender vehicle sales, service or
repair shop, gasoline service station and motor vehicle parking lot.
(2)
Major repair and sales of automobiles shall
not be permitted in gasoline service stations.
(3)
Lights must be shielded so that they do not
reflect toward adjacent residential properties.
(4)
If such premises are adjacent to any other premises
used or zoned for residential purposes, any special exception, if
granted, shall be conditioned upon the applicant and/or the owner
or owners of such premises to provide, construct, plant and maintain
appropriate walls, shrubbery, plantings or other landscaping necessary
to provide reasonable, adequate screening along such portions of said
premises as are adjacent to residential areas.
E.
Golf courses. Where the applicant seeks the operation of a golf course as a special exception, such use may be permitted on a tract of land which complies with the minimum area and other requirements for such uses in OR Outdoor Recreation Districts, in Articles XVI and XVII, provided that all of said land is devoted and committed exclusively for golf purposes, and the Zoning Hearing Board shall determine whether or not appropriate arrangements are made with respect to:
(1)
Location of golf course on tract as well as
location of clubhouse and parking facilities;
(2)
Hours of operation;
(3)
Off-street parking facilities;
(4)
Outside lighting;
(5)
Outside amplification system;
(6)
Allied activities;
(7)
Number of members;
(8)
Drainage regulations; and
(9)
Such other regulations as may be determined
by the Zoning Hearing Board.
[Amended 1-8-1990 by Ord. No. 461]
A.
When any person, firm or corporation shall appeal
to the Zoning Hearing Board or shall apply to the Zoning Board for
a variance and/or special exception, each such application and/or
appeal, as the case may be, shall be accompanied by the payment of
an application fee, which shall be payable to the Township of Middletown.
Said fee shall be in accordance with the Township fee schedule and
be used by the Township of Middletown to defray the costs for each
hearing held in connection with the application and/or appeal. The
fee for all other applications to the Zoning Hearing Board relating
to zoning, including challenges to the Zoning Ordinance or Map, shall
be governed by the Township fee schedule.
B.
Fees are to be used to defray costs such as:
(1)
The appearance fee for a stenographer, which
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 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.
(2)
Advertising required by law for hearing or hearings.
(3)
Postage and photocopy costs incurred by the
Township of Middletown.
(4)
Salaries of Township Council or Zoning Hearing
Board members in attendance at hearing or hearings, as the case may
be.
(5)
Such other reasonable and necessary costs incurred
by the Township Council or Zoning Hearing Board, as the case may be,
in connection with the application or appeal. The costs, however,
shall not include legal expenses of the Zoning Hearing Board, expenses
for engineering, architectural or other technical consultants or expert
witness costs.
C.
In the event that a hearing on an application or appeal
is conducted by the Township Council or the Zoning Hearing Board on
the same date as another hearing or hearings which are subject to
the provisions of this section and there are costs incurred by the
Township which are not assignable to one particular application or
appeal, said common costs shall be prorated by the Township among
the various applicants in accordance with the Municipalities Planning
Code and other applicable law.
D.
In the event that the costs set forth above exceed
the payment made to the Township as required by this section, said
applicant shall, upon demand by the Township, make payment to the
Township of such additional costs as have been or will be incurred
by the Township in connection with the application or appeal.
E.
In the event that the total costs payable to the Township
authorized therein do not exceed payment or payments made by an applicant
to the Township, the balance shall be returned to the applicant at
the conclusion of the application or appeal.
