A.
The purpose of this article is to provide standards and procedures
for uses authorized only by conditional use within this chapter. In
reviewing conditional uses, Borough Council may attach reasonable
conditions and safeguards, in addition to those expressed in the article,
as it may deem necessary to implement the purposes of this chapter
and those of the MPC, Act 247, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
The reason for a use to be made conditional is the unusual and substantial
impact it would exert upon the area and upon the public health, safety,
and welfare, coordinated community development, parking and loading,
traffic congestion, police and fire protection, emergency preparedness,
sewer facilities, schools, recreational facilities, and public grounds.
In any instance where Borough Council is required to consider
a request for a conditional use permit, all notices, hearings, decision
and orders concerning such request shall be made in conformity with
the provisions of the State Planning Code (MPC), Act 247, 1968 as
amended,[1] as well as the following provisions of this article.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
A.
Application and fees. An application for a conditional use permit
shall be made to the Zoning Officer, who after review shall forward
such application to the Planning Commission and Borough Council. Such
application shall be accompanied by a plan of the property showing
the details of the proposed use, along with such other written and
graphic material as may be required by the most recently adopted Delaware
County Subdivision and Land Development Ordinance and other applicable
provisions of this chapter. The application shall be accompanied by
such fees as established by the Council for the administrative filing
and reviews of conditional use permit applications.
B.
Planning Commission review and counsel. The Planning Commission shall
perform a review and provide counsel to the Borough Council concerning
the granting of approval or disapproval of the proposed conditional
use. A written report may be submitted to Council before final action
is taken on the proposal.
C.
Borough Council public hearing.
(1)
Within 60 days after the applicant files an application for
a conditional use, the Borough Council shall hold a public hearing
pursuant to public notice. Notice of the public hearing shall be given
to those persons and agencies who would be entitled to notice if the
same premises were subject to an application to the Zoning Hearing
Board of Darby Borough as a special exception and to all others who
have registered their names with the Darby Borough Zoning Officer.
(2)
After a full review of the application, the Council shall render
a written decision, or when no decision is called for, make written
findings on the application. When the application is contested or
denied, the decision or written finding shall be accompanied by findings
of fact or conclusions based thereon, together with any reasons therefore.
The decision or written finding shall be made no later than 45 days
after the last hearing.
(3)
The Borough Council shall approve or disapprove the application
by resolution and shall send a written notification to the applicant
within 10 days of a decision.
D.
Method of determination.
(1)
The Borough Council shall, within 45 days of the date of the
last hearing, render a final decision and shall by official communication
to the applicant either:
(2)
Failure to act within said period shall be deemed to be a grant
of approval of the application.
(3)
If the application includes a land development plan then, after
the Council has acted upon the application for conditional use, a
detailed site plan review shall be required by the Borough. Such review
shall be in accordance with the procedures outlined in the most recently
adopted County Subdivision and Land Development Ordinance. If the
applicant wishes to provide the necessary documentation, the Borough
Council may consider the concurrent review of the conditional use
requested and the detailed plans for the development. Time limits
for review of the detailed plans, if necessary, will be governed by
the most recently adopted County Subdivision and Land Development
Ordinance.
E.
General requirements for review of conditional uses. In any instance where the Borough Council is required to consider a request for a conditional use, the Council shall consider the following factors, where appropriate, in addition to any specific standards listed in § 153-146:
(1)
That the proposed use is appropriate for the site in question
in terms of size, topography, natural features, drainage, sewage disposal,
water supply, accessibility, and availability of public services,
and that adequate provisions be made to protect sensitive environmental
features such as streams, wetlands, slopes, and mature trees.
(2)
That the proposed use is compatible with the character of the
surrounding neighborhood and will not interfere with or detract from
legitimate uses and adjacent properties and that adequate measures
will be provided through building design, site layout, landscaping,
planting, and operational controls to minimize any impacts caused
by noise, light, glare, odors, smoke, fumes, traffic, parking, loading,
and signage.
(3)
That the proposed conditional use will serve the best interest
of the Borough, convenience of the community, and the public health,
safety, and welfare.
(4)
That the proposed use is consistent with the community development
objectives of Darby Borough that were adopted as part of this chapter.
(5)
That the proposed use promotes orderly development, proper population
density, and the provision of adequate community facilities and services,
including police and fire protection.
(6)
That the proposed use is suitable in terms of its effect on
highway safety and traffic circulation, and that access, on-site circulation,
and parking are adequate in view of anticipated traffic.
(7)
That existing public roads shall be adequate to serve additional
traffic reasonably likely to be generated by the proposed use.
(8)
Financial hardship shall not be construed as a basis for granting
conditional uses.
(9)
In granting any request for a conditional use, the Borough Council
may attach reasonable conditions and safeguards in addition to those
expressed in this article, as it may deem necessary to implement the
purposes of the Pennsylvania Municipalities Planning Code[1] and this chapter. These conditions and safeguards may relate to, but may not be limited to, screening, lighting, parking, signage, noise, safety, aesthetics, and the minimization of noxious, offensive, or hazardous elements. Such conditional use shall be clearly authorized by a provision in this chapter and shall, where applicable, comply with the more specific standards relating to such use contained below in § 153-146 of this article and other relevant sections of this Zoning Ordinance.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
F.
Requirements for review where standards are not provided. In cases
where this article or Zoning Ordinance does not provide specific standards
for conditional uses, the dimensional requirements below shall be
applied by the Borough Council:
(1)
In residential districts, the area, bulk, and any other applicable
requirements shall be no less stringent than those for single-family
dwellings in the district where the use is proposed.
(2)
In nonresidential districts, the area, bulk, and any other applicable
requirements shall be no less stringent than those for the use that
requires the greatest dimensions in the applicable nonresidential
district.
(3)
The Borough Council may require reasonable requirements in addition to those in Subsection F(1) or (2) above, provided that the Council makes one or more of the following determinations:
(a)
[1]
Insufficient to accommodate the proposed building, facility,
or use.
[2]
Insufficient to provide adequate area for parking and loading, as required by Article XIV, Parking Regulations.
[3]
Insufficient to provide for lot areas and dimensions necessary
to protect the adjacent area from the potential adverse impacts of
the proposed use, such as noise, vibration, air pollution, and similar
impacts.
G.
Standards of proof.
(1)
An applicant for a conditional use permit shall have the burden
of establishing both:
H.
Impact on the public interest. In determining whether the allowance
of a conditional use permit is contrary to the public interest, the
Borough Council shall consider whether the application, if granted,
will:
(1)
Adversely affect the public health, safety, and welfare due
to changes in traffic conditions, drainage, air quality, noise levels,
neighborhood property values, natural features, and neighborhood aesthetic
characteristics.
(2)
Be in accordance with the community development objectives of
Darby Borough that are part of this chapter.
(4)
Adversely affect the logical, efficient, and economical extension
or provision of public services and facilities such as public water,
sewers, refuse collection, police, fire protection, and public schools.
(5)
Otherwise adversely affect the public health, safety, or welfare.
I.
Expiration of conditional use permits. Unless otherwise specified
by the Borough Council, a conditional use permit shall expire if the
applicant fails to obtain a building permit within six months from
the date of authorization thereof, unless the applicant can show that
there were permitting delays beyond his control.
The following conditional uses shall be reviewed in accordance with the specific provisions and standards listed below, as well as the procedural and more general standards for conditional uses in § 153-145 above.
A.
Wireless communication facilities.
(1)
Wireless communications antennas located on existing structures
shall be allowed by conditional use in the HC Highway Commercial District,
the INS Institutional District, the BI Business Institutional District
and the IND Industrial District. They shall be allowed by right on
federal, state, county, municipal and school district-owned sites
for the following purposes: internal communication needs, emergency
uses, and for use by wireless personal and commercial service providers
and customers.
(2)
New wireless communications antenna support structures, as defined in Article II, shall be allowed by conditional use in the IND Industrial District and the INS Institutional District.
(3)
The following standards shall apply to the construction, erection,
relocation or alteration of a cellular communications facility:
(a)
Location.
[1]
The applicant shall demonstrate, using accepted technological
and documentary evidence, that the antenna and/or antenna support
structure must be located where proposed in order to satisfy its function
within the applicant's regional plan or grid system. An accurate description
of each relevant "area of service" shall be included in such evidence.
[2]
An applicant for a new antenna support structure shall demonstrate
that it has contacted the owners of suitable structures within a one-half-mile
radius of the location of the proposed antenna support structure for
permission to install the antenna(s) on those structures and that
such permission has been denied by all such owners due to structural,
engineering or operational issues or financial considerations. The
Borough Council may deny an application to construct a new antenna
support structure if the applicant has not made a good-faith effort
to mount the antenna(s) on an existing structure.
(b)
Height.
[1]
The maximum height of an antenna on an existing structure or
antenna support structure shall be 100 feet.
[2]
The applicant shall demonstrate that the antenna(s) and/or the
antenna support structure must be at the height proposed in order
to satisfy its function in the applicant's regional plan or grid system.
The applicant shall also demonstrate that the support structure and
antenna height requested is not in excess of the minimum required
to function satisfactorily.
[3]
An antenna that is attached to an existing support structure
such as a telephone, electric or utility pole, existing wireless communications
support structure smoke stack, water tower or other similar tall structure,
or occupied building, shall not exceed the height of the existing
structure by more than 15 feet.
(c)
Setbacks. The minimum distance between the base of any antenna
support structure, including any guy-wire anchors, and other associated
facilities and any property line or right-of-way line, shall be at
least the minimum setback requirements for the district in which the
support structure and associated facilities are located or 100% of
the tower height, whichever is greater.
(d)
Antenna support structure safety.
[1]
The applicant shall provide to the Borough a report from a structural
engineer registered in Pennsylvania attesting that the proposed antenna
support structure meets the standards of either the Electronics Industries
Association (EIA) or the Telecommunications Industry Association (TIA).
When a wireless communications facility to be mounted on a building
or other structure, a report from a structural engineer registered
in Pennsylvania attesting that the proposed installation will not
exceed the structural capacity of the building or other structure,
considering wind and other loads associated with the structure.
[2]
A soil report complying with the standards of the Geotechnical
Investigations ANSI/EIA-222-E, as amended, shall be submitted to the
Borough Engineer to document and verify that the design specifications
of the foundation for the antenna support structure, and anchors for
guy wires, if used, are in conformance with applicable standards.
[3]
The applicant shall demonstrate that the proposed wireless communications
facility is designed in such a manner that no part of the facility
shall attract or deflect light onto adjacent properties.
(e)
Licensing and applicable regulations. An applicant for a wireless
communications facility must demonstrate that it is licensed by the
Federal Communication Commission (FCC) and provide the Borough Manager
with a copy of such license. The application shall also provide a
certificate of insurance evidencing general liability coverage in
the minimum of $1,000,000 per occurrence and property damage coverage
in the minimum amount of $1,000,000 per occurrence covering the communications
tower and communications antennas.
(f)
Building and zoning permits. The applicant shall obtain building
and zoning permits as required by applicable Borough ordinances for
antenna support structures and any other associated telecommunications
equipment or facilities meeting the definition of a "structure" in
this Zoning Ordinance and shall comply with all applicable requirements
for inspections and certifications.
(g)
Site plan. The applicant shall provide a full site plan, showing
all existing and proposed structures and improvements, including,
but not limited to, the antenna(s), antenna support structure, building,
fencing, landscaping and means of ingress and egress. The plan shall
comply will applicable requirements of a site plan as stated in the
most recently adopted version of the County Subdivision and Land Development
Ordinance.
(h)
Fencing. A security fence shall be required around an antenna
support structure and associated facility equipment. The security
fence shall be a maximum of eight feet in height and maintained in
proper condition. No barbed-wire or razor-wire fencing shall be permitted.
(i)
Signs. No sign or other structure shall be mounted on the wireless
communications facility, except as may be required by the FCC, Federal
Aviation Administration (FAA) or other governmental agency.
(j)
Lighting. Antenna support structures shall meet all FAA regulations
regarding lighting. No antenna support structure may be artificially
lighted except when required by the FAA or other governmental authority.
When lighting is required by the FAA or other governmental authority,
it shall be oriented inward so as not to project onto surrounding
properties. The applicant shall promptly report any outage or malfunction
of FAA-mandated lighting to the appropriate governmental authorities.
(k)
Landscaping. The antenna support structure shall be landscaped
to screen as much of it as possible. Borough Council, at its discretion,
may permit or require a combination of topography, walls, decorative
fences, or other features instead of landscaping if, in the opinion
of the Council, such alternative features achieve the same or greater
degree of screening as the required landscaping as defined below:
[1]
An evergreen screen shall be required on the outside of any
security fence, surrounding the antenna support structure and totally
screening it base and the fence. The evergreen screen shall be a minimum
of six feet in height at planting high and grow to a minimum of 15
feet in height at maturity.
[2]
Existing vegetation on and around the land site shall be preserved
to the greatest possible extent.
(l)
Annual inspection and report.
[1]
The owner of an antenna support structure shall submit to the
Borough Engineer proof of the annual inspection of the antenna support
structure and antenna(s) by an independent professional engineer as
required by the EIA/TIA/ANSI codes. Based upon the results of such
inspection, the Borough may require the removal or repair of such
facility. In the event the annual inspection is not performed in a
timely manner, the owner shall be subject to civil enforcement proceedings
in accordance with Section 617.2 of the Pennsylvania Municipalities
Planning Code (MPC)[1] and applicable Borough ordinances.
[1]
Editor's Note: See 53 P.S. § 10617.2.
[2]
Along with the proof of inspection, the owner shall submit an
annual report to the Borough containing ownership information and
the name, address and emergency contact information for the operator
of such facility, as well as any technical and engineering specifications
of the facility and its associated network as the Borough Manager
deem necessary.
(m)
Interference. In the event the wireless communications facility
causes interference with the radio or television reception of any
Borough resident for a period of three continuous days, the resident
shall notify the owner or the Borough Manager of such interference
and the owner, at the owners sole expense, shall thereafter ensure
that any interference problems shall be corrected promptly.
(n)
Abandonment. If the use the wireless communications facility
is abandoned, or not in use for a period of six months or longer,
the owner shall remove the facility from the site within six months
of such abandonment or discontinuance of use. All costs of removal
shall be borne by the owner. In the event the removal is not performed
in a timely manner, the owner shall be subject to civil enforcement
proceedings in accordance with Section 617.2 of the Pennsylvania Municipalities
Planning Code (MPC)[2] and applicable Borough ordinances.
[2]
Editor's Note: See 53 P.S. § 10617.2.
B.
Day-care centers and group day-care homes. Day-care centers and group day-care homes shall be permitted by right in the INS Institutional District and the TOD Transit-Oriented Development District and as conditional uses in the HC Highway Commercial, BI Business Institutional Districts. Day-care centers shall be permitted as part of a church, school or other similar institution or as a standalone independent use. Group day-care homes shall comply with all the provisions for a day-care center, except for Subsection B(1), (2), and (3) below.
(1)
The minimum lot size for day-care centers shall be 750 square
feet per child and shall not be less than the minimum required for
the district in which it is located.
(2)
Not less than 40 square feet of indoor play area per child shall
be provided for day-care centers, excluding bathrooms, hallways, and
other areas not suited for play.
(3)
Not less than 75 square feet of outdoor play area per child
shall be provided for day-care centers, excluding parking areas, garage
areas, and other areas not suited for play.
(4)
Outdoor play activities shall be limited to the hours between
8:00 a.m. and sunset as defined by the National Weather Service.
(5)
A fence at least four feet high shall be placed around all outdoor
play areas. Such fence must reach the ground to prevent children from
crawling underneath. No outdoor play equipment shall be located closer
than 10 feet to an abutting property line.
(6)
Each facility shall be fully protected by smoke detectors, sprinklers
and fire extinguishers as specified by all relevant state building
and firesafety codes and Borough ordinances.
(7)
Each facility shall provide for the discharge and pickup of
children on a driveway, approved parking area, or directly in front
of the facility. The area selected for discharge and pickup must be
free from traffic hazards to children.
(8)
All pedestrian pathways to and from a day-care center or group
day-care home shall be to meet the State Department of Public Welfare
standards for safety and security if utilized during non-daylight
hours. Specific areas for lighting are entranceways, pedestrian access
to the outdoor play areas, sidewalks used in non-daylight hours, dropoff
areas, supply delivery areas and all parking lots.
(9)
When a center is adjacent to streets of different classifications,
ingress and egress to the center shall be from the street of lowest
classification, if possible.
(10)
When a day-care center is located in a multiuse building, the
entrances and exits shall provide direct access to the day-care center
so that walking through other significant portions of the building
is avoided.
(11)
Day-care centers shall not be placed closer than 500 feet from
another day-care facility.
(12)
No part of a facility may be located within 300 feet of gasoline
pumps or underground gasoline storage tanks or any other storage area
for explosive materials.
(13)
The Borough Council may require planting and screening consistent
with the character of uses adjacent to the facility.
(14)
Each facility must hold an approved Pennsylvania Department
of Public Welfare (DPW) registration, certificate, or license, as
appropriate, and meet all current DPW regulations and any applicable
state or local building codes or firesafety codes. Where the above
regulations differ from those of the Pennsylvania DPW, the more stringent
regulation shall apply.
(15)
The operator of a day-care center will allow the Zoning Officer
to enter the property at reasonable times to inspect for compliance
with the requirements of this section and all other applicable municipal
and state ordinances or regulations.
