Township of West Manheim, PA Zoning Hearing Board

Editor's Note: See 53 P.S. § 10901 et seq.

Members of the Zoning Hearing Board shall hold no other office (including appointed or elected) in the Township, including membership on the Planning Commission and Zoning Officer.

Terms of office.

The terms of office shall be three years and shall be so fixed that the term of office of no more than one member shall expire each year.

The members of the existing Board shall continue in office until their term of office would expire under the prior Zoning Ordinance.

Vacancies. The Zoning Hearing Board shall promptly notify the Township Supervisors of any vacancies that occur. Appointments to fill vacancies shall be only for the unexpired portion of the term.

Alternate members. The Board of Supervisors may appoint by resolution at least one but no more than three residents of the Township to serve as alternate members of the Zoning Hearing Board. The term of office of an alternate member shall be three years. When seated in accordance with § 270-227 of this chapter, 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 Zoning Hearing 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 otherwise provided by law. Alternates shall hold no other office in the Township, including membership on the Planning Commission and Zoning Officer. 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 § 270-228, unless designated as a voting alternate member pursuant to § 270-227 of this chapter.

Removal of members. Any member of the Zoning Hearing Board may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Township Supervisors 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.

§ 270-227 Organization.

The Zoning Hearing Board shall elect from its own membership its officers, who shall serve annual terms and as such may succeed themselves. For the conduct of any hearing and the taking of any action, a quorum shall not be less than a majority of all the members of the Board, but 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 of the Board as provided in § 270-229 of this chapter.

If, by reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Zoning Hearing Board shall designate as many alternate members of the Board to sit on the Zoning Hearing Board as may be needed to provide a quorum. Any alternate member of the Zoning Hearing Board shall continue to serve on the Zoning Hearing 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.

The Zoning Hearing Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of West Manheim Township and laws of the Commonwealth of Pennsylvania. The Zoning Hearing Board shall keep full public records of its business, which records shall be the property of the Township, and shall submit a report of its activities to the Township Supervisors as requested by the Board of Supervisors.

§ 270-228 Expenditures of services.

Within the limits of funds appropriated by the Board of Supervisors, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. Members of the Zoning Hearing Board may receive compensation for the performance of their duties, as may be fixed by the Board of Supervisors, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors. Alternate members of the Board may receive compensation, as may be fixed by the Board of Supervisors, for the performance of their duties when designated as alternate members pursuant to § 270-227 of this chapter, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors.

§ 270-229 Public hearings.

The Zoning Hearing Board shall conduct hearings and make decisions in accordance with the following requirements:

Public and written notices. Public notice shall be given and written notice shall be given to the applicant, the Township Zoning Officer, such other persons as the Board of Supervisors shall designate by ordinance and to any person who has made timely request for same. Written notices shall be given at such time and in such manner as shall be prescribed by rules of the Zoning Hearing Board. 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.

Fees. The Board of Supervisors may prescribe reasonable fees with respect to hearings before the Zoning Hearing Board. Fees for said hearings may include compensation for the secretary and members of the Zoning Hearing Board, notice and advertising costs and necessary administrative overhead connected with the hearing. 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.

Conduct of hearing. The hearings shall be conducted by the Zoning Hearing 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 Zoning Hearing Board; however, the appellant or the applicant, as the case may be, in addition to the Township, may, prior to the decision of the hearing, waive decision or findings by the Zoning Hearing Board and accept the decision or findings of the hearing officer as final.

Parties. The parties to the hearing shall be West Manheim Township, any person affected by the application who has made timely appearance of record before the Zoning Hearing Board, and any other person including civic or community organizations permitted to appear before the Board. The Zoning Hearing Board shall have the power to require that all persons who wish to be considered parties enter appearances in writing on forms provided by the Board for that purpose.

Powers. The Chairman or Acting Chairman of the Zoning Hearing 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.

Parties' right of representation. 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.

Rules. Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.

Record. The Zoning Hearing Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings. The appearance fee for a stenographer 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 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 thereof.

Communication. The Zoning Hearing Board or 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 a communication, reports, staff memoranda, or other materials, except advice from their solicitor, unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surroundings after the commencement of hearings with any party or his representative unless all parties are given an opportunity to be present.

Decisions. The Zoning Hearing 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 Zoning Hearing Board or hearing officer. Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with reasons therefor. Conclusions based on any provisions of this chapter or the MPC shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light 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 Zoning Hearing Board shall make his report and recommendations available to the parties within 45 days, and the parties shall be entitled to make written representations thereon to the Zoning Hearing Board prior to final decision or entry of findings, and the Board's decision shall be entered no later than 30 days after the report of the hearing officer. Where the Zoning Hearing Board fails to render the decision within the period required by this subsection, or fails to hold the required hearing within 60 days from the date of 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 or on the record to an extension of time. When a decision has been rendered in favor of the applicant because of failure of the Zoning Hearing Board to meet or render a decision as hereinabove provided, the Zoning Hearing Board shall give public notice of said decision within 10 days from the last day it could have met to render a decision in the same manner as provided in Subsection A of this section. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this section shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.

Notification of decision. 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. To all other persons who have filed their name and address with the Zoning Hearing Board no 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.

§ 270-230 Jurisdiction and functions.

The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:

Substantive validity challenge. Substantive challenges to the validity of this chapter, except those brought before the Board of Supervisors pursuant to § 270-241A, Procedure for landowner curative amendments, and § 270-231A(2).[1]

Editor's Note: Original Subsection B, Procedural challenge, which immediately followed this subsection, was repealed at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

Appeals from the determination of the Zoning Officer. 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, the issuance of any cease and desist order or the registration or refusal to register any nonconforming use, structure or lot.

Appeals from the determination of flood hazard or floodplain provisions. Appeals from a determination by the Township Engineer or the Zoning Officer with reference to the administration of any floodplain or flood hazard provisions within this chapter.

Variances. Applications for variances from the terms of this chapter and the flood hazard provisions within this chapter, herein Part 6, Article XI, Floodplain Protection Overlay District.

Special exceptions. Applications for special exceptions under this chapter or floodplain or flood hazard provisions within this chapter, herein Part 6, Article X, Natural Features Overlay District.

Appeals from the preliminary opinion of the Zoning Officer. Appeals from the Zoning Officer's determination of preliminary opinion pursuant to Section 916.2 (and any subsequent amendments) of the MPC.[2]

[2]

Editor's Note: See 53 P.S. § 10916.2.

Appeals from the determination of erosion and sedimentation and stormwater management. Appeals from the determination of the Zoning Officer or Township Engineer in the administration of any provision of this chapter with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development not involving Chapter 235, Subdivision and Land Development, or planned residential development applications.

Article XXIX Functions

§ 270-231 Substantive validity challenges.

A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge either:

To the Zoning Hearing Board under § 270-230 and this section.

To the Board of Supervisors together with a request for a curative amendment under § 270-241A.

Persons aggrieved by a use or development permitted on the land of another by an ordinance or map, or any provision thereof, who desire to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a decision thereon under § 270-230A.

The submissions referred to in Subsection A(1) shall be governed by the following:

In the challenges before the Zoning Hearing Board, the challenging party shall make a written request to the Board that it hold a hearing on its challenge. The request shall contain the reasons for the challenge.

Based on the testimony presented at the hearing or hearings, the Zoning Hearing Board shall determine whether the challenged ordinance or map is defective, as alleged by the landowner. If a challenge heard by the Zoning Hearing Board is found to have merit, the decision of the Zoning Hearing Board shall include recommended amendments to the challenged ordinance that will cure the defects found. In reaching its decision, the Zoning Hearing Board shall consider the amendments, plans and explanatory material submitted by the landowner and shall also consider:

The impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities;

If the proposal is for a 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 the ordinance or map;

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;

The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, natural resources and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to the development and any adverse environmental impacts; and

The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.

The Zoning Hearing Board shall render its decision within 45 days after the conclusion of the last hearing.

If the Zoning Hearing Board fails to act on the landowner's request within the time limits referred to in this section, a denial of the request is deemed to have occurred on the 46th day after the close of the last hearing.

The Zoning Hearing Board shall commence its hearings within 60 days after the request is filed unless the landowner requests or consents to an extension of time.

Public notice of the hearing shall include notice that the validity of the ordinance or map is in question and shall give the place where and the times when a copy of the request, including any plans, explanatory material or proposed amendments may be examined by the public.

Where a validity challenge is sustained by the Zoning Hearing Board pursuant to § 270-230 of this chapter or the court acts finally on a validity challenge, and the proposal or challenge so approved requires a further application for subdivision or land development, the developer shall have two years from the date of such approval to file an application for preliminary approval pursuant to the requirements for Chapter 235, Subdivision and Land Development. Within the two-year period, no subsequent change or amendment in this chapter, Chapter 235, Subdivision and Land Development, or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the sustained validity challenge.

Upon the filing of the preliminary plan, the provisions of Section 508(4) of the MPC (and any subsequent amendments)[1] shall apply.

Editor's Note: See 53 P.S. § 10508(4).

Where the proposal appended to the validity challenge is approved but does not require further application under any subdivision or land development ordinance, the developer shall have one year within which to file for a building permit. Within the one-year period, no subsequent change or amendment in this chapter, Chapter 235, Subdivision and Land Development, or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge.

During these protected periods, the court shall retain or assume jurisdiction for the purpose of awarding such supplemental relief as may be deemed necessary.

Nothing in this section shall be interpreted to preclude a landowner from first seeking a final plan approval prior to submission of a challenge.

§ 270-232 Variances.

General. The Zoning Hearing 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, by rule, prescribe the form of application.

Standards for variance. The Zoning Hearing Board may grant a variance, provided that all of the following findings are made where relevant in a given case:

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.

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.

That such unnecessary hardship has not been created by the appellant.

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.

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.

Filing requirements. All applications for variances shall be submitted to the Zoning Officer. All applications shall be made on a form supplied by the Township and shall contain all information requested on such form. All applications shall also contain the following information:

Name and address of the applicant, and, if different, the name and address of the landowner. If the applicant is not the landowner of record, information demonstrating that the applicant has the legal right to make the application shall accompany the application.

Dimensions and shape of the lot to be developed, and the exact location and dimensions of any structure existing or to be erected.

The height of any proposed buildings or structures.

Existing and proposed uses of all existing and proposed structures and land uses.

Existing and proposed off-street parking and loading facilities.

(6)

A site plan with sufficient detail and accuracy to demonstrate compliance with all applicable provisions of this chapter.

(7)

A written description of the proposed use in sufficient detail to demonstrate compliance with all applicable provisions of this chapter, including citations to sections of this chapter under which the application is filed.

(8)

A listing of all special exception uses and/or variances that the applicant is requesting in connection with the proposed use.

Conditions. The Zoning Hearing Board, in approving variance applications, may attach conditions considered necessary to protect the public welfare and the purposes listed above, including conditions which are more restrictive than those established for other uses in the same zone. These conditions shall be enforceable by the Zoning Officer, and failure to comply with such conditions shall constitute a violation of this chapter and be subject to the penalties described in Part 11.

Site plan approval. Any site plan presented in support of the variance shall become an official part of the record for said variance. Approval of any variance will also bind the use in accordance with the submitted site plan; therefore, should a change in the site plan be required as part of the approval of the variance, the applicant shall revise the site plan prior to the issuance of a zoning permit. Any subsequent change to the use on the subject property not reflected on the originally approved site plan shall require the granting of another variance.

Expiration of variance. Unless otherwise specified by the Zoning Hearing Board, a variance which has been authorized by the Zoning Hearing Board shall expire if the applicant fails to obtain a zoning permit within 12 months from the date of authorization thereof or fails to commence a substantial amount of work within 12 months from the date of issuance of the permit for such work.

§ 270-233 Special exceptions.

General. The Zoning Hearing Board shall hear and decide requests for special exceptions in accordance with the standards and criteria set forth in this chapter.

Filing requirements. All applications for special exceptions shall be submitted to the Zoning Officer. All applications made on the form supplied by the Township shall contain all information requested on such form. All applications shall also contain the following information:

Dimensions and shape of the lot to be developed, and the exact location and dimensions of any structure existing or to be erected.

The height of any proposed buildings or structures.

Existing and proposed uses of all existing and proposed structures and land uses.

Existing and proposed off-street parking and loading facilities.

(6)

A site plan with sufficient detail and accuracy to demonstrate compliance with all applicable provisions of this chapter.

(7)

(8)

A listing of all special exception uses and/or variances that the applicant is requesting in connection with the proposed use.

Referral to Township Planning Commission. All applications for a special exception shall be referred to the West Manheim Township Planning Commission for review and comment. However, the Zoning Hearing Board shall meet the time limits for a decision provided in this article, regardless of whether the Township Planning Commission has provided comments.

General criteria. Each applicant must demonstrate compliance with the following:

The proposed use shall be consistent with the purpose of the zoning district and intent of this chapter.

The proposed use shall not detract from the use and enjoyment of abutting and adjacent or nearby properties.

The proposed use will not substantially change the character of the subject property's neighborhood.

Adequate public facilities are available to serve the proposed use (e.g., schools, fire, police and ambulance protection, sewer, water and other utilities, vehicular access, etc.).

For development within the Floodplain Protection Overlay Zone, that the application complies with those requirements listed in Part 6, Article XI, Floodplain Protection Overlay District, of this chapter.

(6)

The proposed use shall comply with those criteria and performance standards applicable to uses permitted in the Zoning District and those specifically listed in Part 7 of this chapter. In addition, the proposed use must comply with all other applicable regulations contained in this chapter.

(7)

The proposed use will not substantially impair the integrity of the Township's Comprehensive Plan.

Conditions. The Zoning Hearing Board, in approving special exception applications, may attach conditions considered necessary to protect the public welfare and the purposes listed above, including conditions which are more restrictive than those established for other uses in the same zone. These conditions shall be enforceable by the Zoning Officer and failure to comply with such conditions shall constitute a violation of this chapter and be subject to the penalties described in Part 11.

Site plan approval. Any site plan presented in support of the special exception shall become an official part of the record for said special exception. Approval of any special exception will also bind the use in accordance with the submitted site plan; therefore, should a change in the site plan be required as part of the approval of the use, the applicant shall revise the site plan prior to the issuance of a zoning permit. Any subsequent change to the use on the subject property not reflected on the originally approved site plan shall require the obtainment of another special exception approval.

Expiration of special exception. Unless otherwise specified by the Zoning Hearing Board, a special exception which has been authorized by the Zoning Hearing Board shall expire if the applicant fails to obtain a zoning permit within 12 months from the date of authorization thereof or fails to commence a substantial amount of work within 12 months from the date of issuance of the permit for such work.

§ 270-234 Appeals of determination of Zoning Officer and Township Engineer.

The Zoning Hearing Board shall hear and decide requests for appeals of the Zoning Officer and/or the Township Engineer pursuant to § 270-230B, C, F and G of this chapter.

§ 270-235 Parties appellant before Zoning Hearing Board.

Parties appellant before the Zoning Hearing Board may be anyone as identified in Section 913.3 of the MPC, as amended.[1] Parties to the hearing shall be the municipality and those persons identified in Section 908(3) of the MPC, as amended.[2]

Editor's Note: See 53 P.S. § 10913.3.

[2]

Editor's Note: See 53 P.S. § 10908(3).

§ 270-236 Time limitations.

No person shall be allowed to file any proceeding with the Zoning Hearing Board later than 30 days after any application for development, preliminary or final, has been approved by an 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. The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan, or from an adverse decision by the Zoning Officer on a challenge to the validity of this chapter or the Official Zoning Map pursuant to § 270-240 shall preclude an appeal from the final approval, except in the case where the final submission substantially deviates from the approved tentative approval.

All appeals from determinations adverse to the landowners shall be filed by the landowner within 30 days after notice of the determination is issued.

§ 270-237 Stay of proceedings.

Upon filing of any proceeding referred to in § 270-235 and during its pendency before the Zoning Hearing Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer, or of any agency or body, and all official action thereunder shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies to the Zoning Hearing Board facts indicating that such stay would cause imminent peril to life or property. In this case, the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the Zoning Hearing Board or by the court having jurisdiction of zoning appeals, on petition, after notice to the Zoning Officer or other appropriate agency or body.

When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the Zoning Hearing Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Zoning Hearing Board.

After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the applicant for a bond to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for a bond. The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him if an appeal is taken from a final decision of the court.

The question whether or not such petition should be granted and the amount of bond shall be within the sound discretion of the court. An order denying a petition for bond shall be interlocutory. An order directing the responding party to post a bond shall be interlocutory.

If an appeal is taken by the respondent to the petition for a bond from an order of the court dismissing a zoning appeal for refusal to post a bond, the respondent to the petition for a bond, upon motion of the petitioner and after hearing in the court having jurisdiction over zoning appeals, shall be liable for all reasonable costs, expenses, and attorney fees incurred by the petitioner.

§ 270-238 Appeal of Zoning Hearing Board decision.

Any person, taxpayer, or the Township aggrieved by any decision of the Zoning Hearing Board may within 30 days after such decision of the Zoning Hearing Board, seek review by the Court of Common Pleas of such decision in the manner described in § 270-242 of this chapter, by the laws of the Commonwealth of Pennsylvania and Article X-a (and any subsequent amendments) of the MPC.[1]