[Ord. 6-2001, 10/10/2001; as amended through 12/2005]
The Borough Council shall appoint a Zoning Hearing Board consisting
of five members. The Borough Council shall designate two such members
to serve until the first day of January following the original effective
date of this Chapter, two until the first day of the second January
thereafter, and one until the first day of the third January thereafter,
shall reappoint or appoint five successors on the expiration of their
respective terms to serve three years, and shall fill any vacancy
for the unexpired term of any member whose term becomes vacant.
[Ord. 6-2001, 10/10/2001; as amended through 12/2005]
The Borough Council may appoint by resolution no more than three
residents of the Borough to serve as alternate members of the Board.
The term of office of an alternate shall be three years.
A.
If, by reason of absence or disqualification of a 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. An alternate so designated 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 Part and as otherwise provided by law.
B.
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.
C.
Alternate members may hold no other office in the Borough.
[Ord. 6-2001, 10/10/2001; as amended through 12/2005]
1.
The Board shall annually elect officers from its membership.
2.
For the conduct of any hearing and the taking of any action, a quorum
shall be no less than two voting members, but the Board may appoint
from its own membership a hearing officer to conduct any hearing on
its behalf and the parties may waive further action by the Board.
3.
The Board may make, alter and rescind rules and forms for its procedure,
consistent with ordinances of the Borough and the laws of the Commonwealth.
4.
The Board shall keep public records of its business, which records
shall be the property of the Borough, and shall submit reports of
its activities to the Borough as requested by the Borough Council.
[Ord. 6-2001, 10/10/2001; as amended through 12/2005]
The Zoning Hearing Board shall have exclusive jurisdiction to
hear and render final adjudication in accord with the requirements
of Section 909.1 of the Municipalities Planning Code, as amended.
[Ord. 6-2001, 10/10/2001; as amended through 12/2005]
Challenges and appeals may be filed with the Board in writing
by the landowner affected, any officer or agency of the municipality,
or any person aggrieved. Requests for variance or special exception
may be filed by any landowner or any tenant with permission of the
landowner. An appeal or application regarding a matter within the
jurisdiction of the Zoning Hearing Board may be filed with the Zoning
Officer on forms provided by the Zoning Hearing Board, and shall state:
A.
The name and address of the applicant, and of the applicant's representative(s)
or agent(s) where applicable.
B.
The name and address of the record owner of the property that is
the subject of the application or appeal. Where the applicant is not
the record owner of the subject property, a signed and notarized statement
from the record owner, authorizing the applicant to pursue the specific
appeal or application.
C.
A copy of the deed to the subject property.
D.
A brief description and location of the subject property, along with
a survey and/or sketch of the property boundaries.
E.
A statement of the present zoning classification of the subject property
with the improvements thereon, and the present use thereof.
F.
A statement of the section of this Chapter under which consideration
by the Board is requested, along with a summary of reasons or arguments
in support of request.
G.
A reasonably accurate description of the improvements or changes
intended to be made under the application. In addition there shall
be attached a plot plan of the property to be affected, indicating
the location and size of the lot, and the size and location of the
existing and proposed improvements or changes.[1]
[1]
Editor's Note: Former Subsection H, regarding a list of all
landowners within 500 feet of the applicant's land, which immediately
followed this subsection, was repealed by Ord. No. 09-2022, 4/20/2022. This ordinance also redesignated former Subsection I as Subsection
H.
H.
A payment to the Borough in accordance with a fee schedule adopted
and amended from time to time by the Borough Council, in accordance
with the requirements of Section 908(1.1) of the Municipalities Planning
Code, as amended.
[Ord. 6-2001, 10/10/2001; as amended through 12/2005]
1.
Immediately upon receipt of an application, the Zoning Officer shall
promptly forward the application to the Zoning Hearing Board Solicitor.
2.
The Zoning Hearing Board Solicitor, in consultation with the chairman,
shall fix a reasonable time and place for a public hearing on the
application. Said hearing shall occur no more than 60 days after the
application is made to the Borough, unless the applicant has agreed
in writing to an extension of time.
3.
A true and correct copy of the application and all related information
shall be forwarded to each member of the Zoning Hearing Board, and
to the chairman of the Planning Commission and the Borough Council
member for the district in which the property is located, the Borough
Manager and Borough Solicitor.
4.
Upon receipt of a Zoning Hearing Board application, the Planning
Commission at its next regularly scheduled meeting may consider the
application and may, at its sole discretion, resolve to comment thereon.
[Ord. 6-2001, 10/10/2001; as amended through 12/2005]
The Board shall schedule a public hearing and shall give public
notice, as well as written notice as follows:
A.
Written notice shall be given to:
(1)
The record owner, applicant, and applicant's representative.
(2)
Adjacent landowners, subject to the following procedure:
[Amended by Ord. No. 09-2022, 4/20/2022]
(a)
Borough staff shall prepare a list of all property owners within
250 feet of the applicant's land. The list shall be obtained
from the Montgomery County Board of Assessment Appeals, or from the
Tax Collector for the Borough of Conshohocken (or other applicable
municipality when the adjacent land is outside of the Borough). Notices
shall be sent to the current owner(s) of record.
(b)
Borough staff shall mail the notices identified in Subsection
A(2)(a).
(c)
Costs associated with preparing the list of property owners
and mailing notices as set forth in Subsection A(2)(a) and (b) shall
be paid by the applicant.
(3)
The Borough Council, Planning Commission, and Zoning Officer.
(4)
All parties in interest who have entered their appearance, and
any other person registered for that purpose.
B.
Written notice shall be conspicuously posted on the affected tract
of land at least one week prior to the hearing.
[Ord. 6-2001, 10/10/2001; as amended through 12/2005]
1.
Zoning Hearing Board hearings shall be held at the call of the chairman
and at such times as the Board may determine.
2.
Hearings may be conducted by the Board, which may appoint any member
as a hearing officer. The decision or findings shall be made by the
Board; however the applicant may, prior to a decision, waive a decision
or findings by the Board and accept the decision or findings of the
hearing officer as final.
3.
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 the power to
require that all persons who wish to be considered parties enter appearances
in writing on forms provided for that purpose.
4.
The chairman or acting chairman or hearing officer may administer
oaths and issue subpoenas to compel the attendance of witnesses and
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 the 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 shall keep a stenographic record
of the proceedings. The appearance fee for a stenographer shall be
paid by the applicant. 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.
8.
The Board or hearing officer shall not, except upon notice and opportunity
for all parties to be present, participate, and inspect and contest
materials:
A.
Communicate, directly or indirectly, with any party or their representative
in connection with any issue involved.
B.
Take notice of any communication, reports, staff memoranda, or other
materials, except advice from their solicitor.
C.
Or inspect the subject site or its surroundings after commencement
of hearings with any party or their representative.
9.
Parties to zoning proceedings may elect the mediation option as described
in Section 908.1 in the Municipalities Planning Code.
[Ord. 6-2001, 10/10/2001; as amended through 12/2005]
1.
The Zoning Hearing Board or hearing officer shall render a written
decision or, when no decision is called for, make written findings
on the application within 45 days of the last hearing. When the application
is contested or denied, the decision shall be accompanied by findings
of fact and conclusions based upon findings. Conclusions based on
any provision of a Borough ordinance shall contain a reference to
the provision.
2.
If the hearing is conducted by a hearing officer, and there has been
no stipulation that their decision or findings are final, the Board
shall make their report and recommendations available to the parties
within 45 days and the parties shall be entitled to make written representations
to the Board prior to final decision or entry of findings. The Board's
decision shall be entered no later than 30 days after the report of
the hearing officer.
3.
The Zoning Hearing Board shall not render a decision on any request
for a special exception or on a variance that is required for a subdivision
or land development plan until they have received a written recommendation
from the Borough Planning Commission. However, if the recommendation
is not received within two weeks after the first Planning Commission
meeting after the Borough has received the request, the Board shall
be permitted to make a decision.
4.
Where the Board fails to render the decision within the required
period, or fails to hold the required hearing within 60 days of application,
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.
5.
When a decision has been deemed to have been rendered in favor of
the applicant because of the failure of the Board to hold a hearing
or render a decision as provided, the Board shall give public notice
of said deemed decision within 10 days from the last day it could
have met to render a decision. 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.
6.
A copy of the final decision or findings shall be delivered to the
applicant personally or mailed to them 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.
[Ord. 6-2001, 10/10/2001; as amended through 12/2005]
In the consideration of an application for variance or special
exception, the Board shall:
A.
Consider the suitability of the property for the use desired. Assure
that the proposed change is consistent with the spirit, purpose, and
intent of this Chapter.
B.
Determine that the proposed change will not substantially injure
or detract from the use of neighboring property or from the character
of the neighborhood and that the use of the adjacent property is adequately
safeguarded.
C.
Determine that the proposed change will serve the best interests
of the Borough, the convenience of the community (where applicable),
and the public welfare.
D.
Consider the effect of the proposed change upon the logical, efficient,
and economical extension of public services and facilities such as
public water, sewers, police and fire protection, and public schools.
E.
Consider the suitability of the proposed location of use with respect
to probable effects upon highway traffic, and assure adequate access
arrangements in order to protect major roads from undue congestion
and hazard.
F.
Consider the recommendations of the Borough Planning Commission when
making a decision regarding a subdivision or land development plan.
G.
Be guided in its study, review, and recommendation by sound standards
of subdivision practice where applicable.
H.
The Zoning Hearing Board shall be limited to consideration of applications
as they relate to ordinance provisions in effect at the time of the
application. The Borough Council shall retain the exclusive right
to enact and amend ordinances.
[Ord. 6-2001, 10/10/2001; as amended through 12/2005]
1.
Variance. The 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 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 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 the 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.
F.
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.
G.
Where additional requirements may govern the granting of a variance,
such as in Part 17, Floodplain Conservation District, these requirements
must be satisfied before the Board will render a decision.
2.
Special Exception. The Zoning Hearing Board shall hear and decide
requests for special exceptions in accordance with the standards and
criteria found in the particular section of this Chapter that permits
application for said special exception. In granting any special exception,
the Board may attach such reasonable conditions and safeguards, as
it may deem necessary to implement the purposes of this Chapter.
[Ord. 6-2001, 10/10/2001; as amended through 12/2005]
1.
Time Limitations on Appeals.
A.
All appeals from determinations adverse to the landowners shall be
filed by the landowner within 30 days after notice of the determination
is issued.
B.
Appeals designed to secure reversal or limit the approval of any
application for development, preliminary or final, shall be filed
with the Board no later than 30 days after the application is approved
by an appropriate municipal officer or agency, unless the person filing
alleges and proves that they had not notice, knowledge, or reason
to believe that such approval had been given. If such person succeeded
to their interest after such approval, they shall be bound by the
knowledge of their predecessor in interest.
2.
Effect of Filing. When an appeal is filed, further development or
official action pursuant to the appealed determination or approval
shall be stayed until issuance of a final decision or findings by
the Board. If the Zoning Officer or other municipal agency presents
facts to the Board indicating that such a stay would cause imminent
peril to life or property, development or official; action can only
be stayed by restraining order granted by the Board or by a court
of competent jurisdiction.
3.
Substantive Validity Challenge. A landowner who desires to challenge,
on substantive grounds, the validity of a map or ordinance provision
which prohibits or restricts the use or development of land in which
he has an interest, may submit the challenge either to the Zoning
Hearing Board or, with a request for curative amendment, to the Borough
Council.
A.
The written application to the Zoning Hearing Board shall contain
the reasons for the challenge.
B.
Public notice of the hearing shall include notice that the validity
of this Chapter or map is in question, and shall specify the place
and time where a copy of the request and its accompanying materials
may be examined by the public.
C.
Based upon the testimony at the hearing(s), the Board shall determine
whether the challenged ordinance or map is defective, as alleged.
If the challenge is found to have merit, the decision of the Board
shall include recommended amendments to the challenged ordinance,
which will cure the defects found.
D.
In reaching its decision, the Board shall consider the plans and
explanatory material submitted by the landowner, and shall also consider:
(1)
The impact of the proposal upon roads, sewer facilities, water
supplies, schools and other public service facilities;
(2)
If the proposal is for residential use, the impact of the proposal
upon regional housing needs and the effectiveness of the proposal
in providing housing units of a type actually available to and affordable
by classes of persons otherwise unlawfully excluded by the challenged
provisions of this Chapter or map;
(3)
The suitability of the site for the intensity of use proposed
by the site's soils, slopes, woodland, wetlands, floodplains, aquifers,
natural resources and other natural features;
(4)
The impact of the proposed use on the site's soils, slopes,
woodland, wetlands, floodplains, aquifers, natural resources and other
natural features, including the degree to which these are protected
or destroyed, the tolerance of the resources to development, and any
adverse environmental impacts; and
(5)
The impact of the proposal on the preservation of agriculture
and other land uses which are essential to public health and welfare.
E.
If the Board fails to act on the request within 45 days of the last
hearing, a denial of the request is deemed to have occurred.
[Ord. 6-2001, 10/10/2001; as amended through 12/2005; and
by Ord. No. 09-2022, 4/20/2022]
Unless otherwise specified by the Board, a special exception
or variance shall expire if the applicant fails to obtain any and
all permits within one year of the date of approval.
[Ord. 6-2001, 10/10/2001; as amended through 12/2005]
Any persons aggrieved by the decision of the Board may within
30 days thereafter appeal to the Court of Common Pleas of Montgomery
County in accordance with the provisions of Section 1002(A) of the
Municipalities Planning Code, as amended.
