In case any building, structure, landscaping or land is or is
proposed to be erected, constructed, reconstructed, altered, converted,
maintained or used in violation of any ordinance enacted under this
act or prior enabling laws, the governing body or, with the approval
of the governing body, an officer of the municipality, or any aggrieved
owner or tenant of real property who shows that his property or person
will be substantially affected by the alleged violation, in addition
to other remedies, may institute any appropriate action or proceeding
to prevent, restrain, correct or abate such building, structure, landscaping
or land, or to prevent, in or about such premises, any act, conduct,
business or use constituting a violation. When any such action is
instituted by a landowner or tenant, notice of that action shall be
served upon the municipality at least 30 days prior to the time the
action is begun by serving a copy of the complaint on the governing
body of the municipality. No such action may be maintained until such
notice has been given.
Magisterial District Judges shall have initial jurisdiction
over proceedings brought under this article.
[Added 7-18-2013 by Ord. No. 2013-4]
A. The Towanda Borough Council shall require a conditional use application
for the conditional uses set forth in the body of this chapter and
may grant conditional use approval for the same.
B. Uses not provided for.
(1)
Whenever, under this chapter, a use is neither specifically
permitted nor denied, and an application is made by an applicant to
the Zoning Officer for such a use, the Zoning Officer shall refer
the application to the Borough Council to hear and decide such request
as a conditional use. The Borough Council shall have the authority
to permit the use or deny the use in accordance with the standards
of governing conditional use applications set forth in the Zoning
Ordinance. In addition, the use may only be permitted if:
(a)
It is similar to and compatible with the other uses permitted
in the zone where the subject property is located;
(b)
It is not permitted in any other zone under the terms of this
chapter; and
(c)
It in no way is in conflict with the general purposes of this
chapter.
(2)
The burden of proof shall be upon the applicant to demonstrate
that the proposed use meets the foregoing criteria and would not be
detrimental to the public health, safety and welfare of the neighborhood
where it is to be located.
C. Application procedure. Applications for any conditional use permitted
by this chapter shall be made to the Zoning Officer, who shall refer
such applications to the Borough Secretary or their designee. Upon
receipt of a conditional use application, the Secretary of the Borough
Council shall forward a copy of the application to the Towanda Borough
Planning Commission for their review and recommendation. The Planning
Commission shall conduct its review and make its recommendations within
30 days of receipt of such request.
D. Written statement. All applications for conditional uses shall include
a written statement describing the tract of land and its intended
use. Such statement shall include the following information:
(1)
The location of the tract of land;
(2)
The present use of the tract for which the conditional use is
requested;
(3)
The present use of adjoining tracts;
(4)
The type of conditional use for which the application is made;
(5)
A brief description of the type and extent of the proposed activities;
(6)
An estimate of the total development cost of the conditional
use; and
(7)
The names of the applicant, the owner of the tract, the developer
of the conditional use and the person or organization who will operate
the conditional use.
E. Site plan. All applications for conditional uses shall include at
least six copies of a site plan of the proposed development as set
forth below:
(1)
The site plan shall be drawn to a scale not more than 50 feet
to the inch and shall be on a sheet no smaller than 18 inches by 24
inches and no larger than 24 inches by 36 inches. If the site plan
is drawn in two or more sections, a key map showing the locations
of the sections shall be placed on each sheet. The site plan shall
include:
(a)
Title block containing the name of the developer or landowner,
date, scale, north arrow and the name and profession of the preparer
of the plan;
(b)
Tract boundaries showing bearings and distances;
(c)
Existing significant natural or man-made features of the site;
(d)
Existing and proposed streets, rights-of-way, easements, means
of access and setback lines;
(e)
Existing buildings, sewers, water mains, culverts, transmission
lines, and fire hydrants on or adjacent to the site;
(f)
Existing contours at vertical intervals of five feet or less
and the datum to which the elevations refer;
(g)
Proposed grading and drainage plan;
(h)
Proposed plan of any landscaping of the tract showing all paved
and planted areas, screens or fences and erosion-control measures;
(i)
Plans of any proposed sanitary sewer or storm-sewer systems
and water supply systems; and
(j)
Location, size and floor plan of all proposed buildings or structures
and proposed use of all buildings or structures and open or unenclosed
areas of the tract.
(2)
In cases where minimal site improvement or development is required
or proposed for a conditional use, the Borough Council may waive the
requirement for submittal of certain information that they deem unnecessary
for their review of the application. In all cases however, the information
submitted shall be adequate for review of the conditional use request.
F. Hearing requirements.
(1)
Before voting on the approval of a conditional use, the Borough
Council shall hold a public hearing thereon, pursuant to public notice.
The Borough Council shall submit each such application to the Towanda
Borough Planning Commission at least 30 days prior to the hearing
held upon an application to provide the Towanda Borough Planning Commission
an opportunity to submit recommendations. If, after any public hearing
held upon an application, the proposed application is revised, the
Borough Council shall hold another public hearing, pursuant to public
notice, before proceeding to vote on the application;
(2)
Public notice, as defined herein, and written notice shall be
given to the applicant, the Zoning Officer, such other persons as
the Towanda Borough Council shall designate by ordinance, and to any
person who has made timely requests for the same. Written notices
shall be given at such time and in such manner as shall be prescribed
by ordinance or, in the absence of ordinance provisions, by rules
of the Towanda Borough Council. 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; the (governing body) may prescribe reasonable fees with respect
to hearings.
(3)
Fees for said hearings may include compensation for the secretary,
notice and advertising costs, and necessary administrative overhead
connected with the hearing. The costs, however, shall not include
legal expenses, expenses for engineering, architectural, or other
technical consultants, or expert witness costs.
(4)
The parties to the hearing shall be Towanda Borough Council,
any person affected by the application who has made timely appearance
of record before the Towanda Borough Council, and any other person,
including civic or community organizations permitted to appear by
the Towanda Borough Council. The Towanda Borough Council shall have
the power to require that all persons who wish to be considered parties
enter appearance in writing on forms provided by the Towanda Borough
Council for that purpose.
(5)
The President and/or Vice President of the Towanda Borough Council
shall have power to administer oaths and issue subpoenas to compel
the attendance of witnesses and the production of relevant documents
and paper, including witnesses and documents requested by the parties.
(6)
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;
(7)
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded;
(8)
The Towanda Borough Council may keep a stenographic record of
the proceedings, the applicant and the Towanda Borough Council shall
share the appearance fee for a stenographer equally. The cost of the
original transcript shall be paid by the Towanda Borough Council;
or shall be paid by the person appealing the decision of the Towanda
Borough Council 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.
(9)
The Towanda Borough Council shall not communicate, directly
or indirectly, with any party or his representatives in connection
with any issue involved except upon notice an 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 parties are afforded an opportunity to contest the
material so noticed and shall not inspect the site or its surrounds
after the commencement of hearings with any party or his representative
unless all parties are given an opportunity to be present.
(10)
The Towanda Borough Council shall conduct the hearing or the
Towanda Borough Council may appoint any member or an independent attorney
as a hearing officer. The decision, or where there is no decisions,
the findings shall be made by the Towanda Borough Council. However,
the appellant or the applicant, as the case may be, in addition to
the Towanda Borough Council may prior to the decision of the hearing,
waive decision or findings by the Towanda Borough Council and accept
the decision or findings of the hearing officer as final.
G. Criteria for conditional uses. The Council shall, in making decisions
on each application for a conditional use, consider the following
general criteria, in addition to the special criteria established
elsewhere in this chapter:
(1)
The purpose of the zone in which the requested conditional use
is to be located and the compatibility of the requested conditional
use with existing and potential land uses on adjacent tracts of ground;
(2)
Whether the specific site is an appropriate location for the
use, structure or condition;
(3)
Whether the use developed will adversely affect the neighborhood;
(4)
Whether the use will create undue nuisance or serious hazard
to vehicles or pedestrians;
(5)
Whether adequate and appropriate facilities and services will
be provided to ensure the proper operations of the proposed use;
(6)
The economic, noise, glare or odor effects of the conditional
use on adjoining properties and properties generally in the district;
and
(7)
Whether satisfactory provision and arrangement has been made
concerning the following:
(a)
Ingress and egress to the property and structure thereon with
particular reference to automotive and pedestrian safety and convenience,
traffic flow, control and access in case of fire or other emergency;
(b)
Off-street parking and loading areas;
(c)
Waste collection, storage and disposal;
(d)
Utilities, with reference to location, availability and compatibility;
(e)
Screening and buffering with reference to type and erosion control
measures;
(f)
Signs, if any, and proposed exterior lighting with reference
to glare, traffic safety, economic effect and compatibility and harmony
with properties in the district; and
(g)
Required yards and open spaces.
H. Decisions.
(1)
The Council shall render a decision or, when no decision is
called for; make written findings on the conditional use application
within 45 days after their last hearing on the proposal. Where the
application is contested or denied, each decision shall be accompanied
by findings of facts or conclusions based thereon, together with any
reasons therefore. Conclusions based on any provisions of the Pennsylvania
Municipalities Planning Code, this chapter, or other ordinance, rule
or regulation shall contain a reference to the provision relied upon
and the reasons why the conclusion is deemed appropriate in light
of the facts found. A copy of the final decision or, where no decision
is called for, the findings shall be delivered to the applicant personally
or mailed to him no later than the day following its date.
I. Appeals. Nothing in this section shall prejudice the right of any
party opposing the application to appeal the decision to a court of
competent jurisdiction.