B.
There shall be a Zoning Hearing Board which shall
consist of three members who shall be appointed by resolution of the
Board of Supervisors and who shall be residents of the municipality.
The Board of Supervisors shall designate one such member to serve
until the first day of January following the effective date of this
chapter, one until the first day of the second January thereafter,
and one until the first day of the third January thereafter; shall
appoint their 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. Any Board member may
be removed for malfeasance, misfeasance or nonfeasance in office or
for other just cause by majority vote of the governing body which
appointed the member, taken after the member has received 15 days'
advance notice of the intent to take such a vote. A hearing will be
held in connection with the vote if the member shall request it in
writing.
C.
When used hereafter in this article, the word "Board"
shall mean the Zoning Hearing Board.
[Amended 1-17-2006 by Ord. No. 06-01]
The Board shall elect, from its members, 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 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 by the Board as provided in § 200-125B. The Board may make, alter and rescind rules and forms for its procedure consistent with the provisions of this chapter and the laws of the commonwealth. The Board shall keep full public record of its business, which records shall be the property of the Township, and shall submit a report of its activities to the Board of Supervisors as requested.
A.
Applications for hearings before the Board shall be
filed with the Board together with the proper fee.
B.
An application for a special exception or variance
from the terms of this chapter shall state:
(1)
The name and address of the applicant.
(2)
The name and address of the owner of the real estate
to be affected by the proposed exception or variance.
(3)
A brief description and location of the real estate
to be affected by such proposed change.
(4)
A statement of the present zoning classification of
the real estate in question, the improvements thereon, and the present
use thereof.
(5)
A statement of the section of this chapter under or
from which the exception or variance requested may be authorized,
and reasons why it should be granted.
(6)
A reasonably accurate description of the present improvements
and the additions intended to be made under the application or appeal,
if any, indicating the size of such proposed improvements, material,
and general construction thereof. In addition, there shall be attached
a plot plan to scale of the real estate to be affected, indicating
the location and size of the lot and size of improvements now erected
and proposed to be erected thereon.
C.
Applications for other than special exception or variance
from terms of this chapter shall contain sufficient written information
to fully describe the intended use. Where, in the sole discretion
of-the Zoning Officer, it is appropriate for the applicant to furnish
plans and/or specifications or any other relevant information incident
to intended use, such information shall be required to be submitted
with the application.
D.
In the event that any required information is not
furnished, the application shall be refused and the fee returned to
the applicant.
E.
The first hearing before the Zoning Hearing Board
shall be commenced within 60 days from the date of receipt of the
applicant's application, unless the applicant has agreed in writing
to an extension of time. Each subsequent hearing before the Zoning
Hearing Board shall be held within 45 days of the prior hearing, unless
otherwise agreed to by the applicant in writing or on the record.
An applicant shall complete the presentation of his case-in-chief
within 100 days of the first hearing. Upon the request of the applicant,
the Zoning Hearing Board shall assure that the applicant receives
at least seven hours of hearings within the 100 days, including the
first hearing. Persons opposed to the application shall complete the
presentation of their opposition to the application within 100 days
of the first hearing held after the completion of the applicant's
case-in-chief. An applicant may, upon request, be granted additional
hearings to complete his case-in-chief provided the persons opposed
to the application are granted an equal number of additional hearings.
Persons opposed to the application may, upon the written consent or
consent on the record by the applicant and municipality, be granted
additional hearings to complete their opposition to the application
provided the applicant is granted an equal number of additional hearings
for rebuttal.
[Amended 1-17-2006 by Ord. No. 06-01]
The Board shall give notice as follows:
A.
By publishing a notice thereof in a newspaper of general
circulation within the Township once a week for two successive weeks
prior to the date fixed for the hearing.
B.
By mailing notice thereof to the applicant and to
any person who has made timely request for same. In addition, notice
of said hearing shall be conspicuously posted on the affected tract
of land.
C.
By mailing notice thereof to the Township Zoning Officer,
to the Chairman of the Township Board of Supervisors and to the Chairman
of the Township Planning Commission.
D.
The Board may mail notice thereof to the owner of
every lot on the same street within 500 feet of the lot or building
in question on every lot not on the same street within 200 feet of
said lot or building. But failure to give notice, either in part or
in full, as stated by this paragraph shall not invalidate any action
taken by the Board.
E.
The notice herein required shall state the name of
the applicant, the location of the lot or building and the general
nature of the question involved, and the date, time and location of
the hearing. In addition thereto, the notice shall state that the
validity of the landowners request, including plans and proposed amendments,
may be examined by the public at the Township Building during regular
business hours.
[Amended 1-17-2006 by Ord. No. 06-01]
A.
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.
B.
The applicant before the Board shall deposit with
the Treasurer of the Township, such a sum of money as set forth in
the fee schedule adopted by the Board of Supervisors to pay the cost
of the hearing.
C.
The following administrative costs incurred by the
Township relative to hearing before the Board shall be paid from the
application filing fee:
(1)
Cost of preparation of required notices.
(2)
Cost of mailing notices, including postage.
(3)
Cost of advertising.
(4)
Cost of posting notice or verification.
(5)
Duplication or copying costs.
(6)
An equal share of the Court Reporter's attendance
fee.
(7)
Cost of stenographic record, if such record is requested
by the Board or the applicant.
(8)
Other costs related to the application.
D.
Continued hearings and collection of fees.
(1)
In the event more than one hearing is necessary on
any application, as promptly as may be possible following the initial
hearing, the Board Secretary shall determine the total amount of all
taxable costs incurred, and shall deduct same from the application
fee. In the event the application fee is, at any time, insufficient
to cover the costs incurred or reasonably anticipated to be incurred,
the Board Secretary shall notify the applicant, provide the applicant
with a written copy of each item of taxable cost, and shall require
the applicant to pay, within 10 days of such notification, any balance
then due together with a further minimum deposit of 1/2 of the initial
filing fee. In the event of multiple hearings, all taxable costs shall
be reported and collected in accordance with this procedure.
(2)
The failure of the Board Secretary to demand additional
deposits from time to time shall not relieve the applicant of liability
for costs, charges, expenses and fees in excess of deposit; and in
the event of default, such shall be recovered by such action as is
by law provided.
(3)
All funds deposited by the applicant in excess of
the actual cost of the hearing or hearings shall be returned to the
applicant upon completion of the proceeding.
The Board shall conduct hearings and make decisions
in accordance with the following requirements:
A.
Hearings of the Board shall be held at the call of the Chairman and at a reasonable time and place for public hearings and notification of said hearing shall be as provided by § 200-123.
B.
The hearings shall be conducted by the Board or the
Board may appoint any member or an independent attorney as the hearing
officer. The decision or, where no decision is called for, the findings,
shall be made by the Board, however, the applicant or appellant, as
the case may be, in addition to the Township, may, prior to the decisions
of the hearing, waive decision or findings by the Board and accept
the decision or findings of the hearing officer as final.
[Amended 1-17-2006 by Ord. No. 06-01]
C.
The parties to the hearing shall be any person who is entitled to notice under § 200-123, above, without special request therefor, who has made timely appearance of record before the Board and any other person permitted to appear by the Board.
D.
The Chairman or 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.
E.
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.
F.
Formal rules of evidence shall not apply, but irrelevant,
immaterial, unduly repetitious and hearsay evidence shall be excluded
and other inadmissible evidence may be excluded at the discretion
of the Board.
G.
The Board or 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 to any party at cost.
H.
The Board or the hearing officer shall not communicate,
directly or indirectly, with any party or his representatives in connection
with any issue involved except upon notice of any communication, reports,
staff memoranda, or other materials unless the parties are afforded
an opportunity to contest the material so noticed and shall not inspect
the site or its surroundings with any party or his representative
after the commencement of the hearing unless all parties are given
an opportunity to be present.
I.
At any time prior to rendering its written decision,
the Board may consult with the Planning Commission, Township Engineer,
or any other body for the purpose of resolving technical consideration
relative to an application before it, and may at its discretion include
the recommendation of said consultants in its final decision.
J.
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 Hearing Board or hearing officer. Each
decision shall be accompanied by findings and conclusions based thereon,
together with the reasons therefor. Conclusions based on any provisions
of this chapter or of any act, rule or regulation 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 the hearing officer and there has been no stipulation
that this decision or findings are final, the Board shall make its
report and recommendation available to the parties, and the parties
shall be entitled to make written representations thereon to the Board
prior to final decision or entry of findings. 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 forty-five-day
period required by this clause, and unless the applicant has agreed
or shall agree in writing to an extension of time, the decision shall
be deemed to have been rendered in favor of the applicant.
K.
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.
The Board shall have the following functions:
B.
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. Where the ordinance
appealed from is the initial zoning ordinance of the municipality
and a Zoning Hearing Board has not been previously established, the
appeal raising procedural questions shall be taken directly to court.
C.
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.
D.
Appeals from a determination by the Township Engineer
or the Zoning Officer with reference to administration of any floodplain
or flood hazard ordinance or such provisions within a land use ordinance.
E.
Appeals from the determination of any officer or agency
charged with the administration of any transfers of development rights
or performance density provisions of this chapter.
G.
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 erosion control and stormwater
management insofar as the same relate to development.
H.
Challenge the validity of this chapter or Zoning Map.
The Zoning Hearing Board shall hear challenges to the validity of
a zoning ordinance or map as follows:
(1)
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 of development of land in which
he has an interest shall submit the challenge to either the Zoning
Hearing Board or the Board of Supervisors.
(2)
Persons aggrieved by a use or development permitted
on the land of another by an ordinance or map or any provision thereof,
who desires to challenge its validity shall submit their challenge
pursuant to Sections 909.1 and 609.1 of Act 247, as amended by Act
170.[3]
[3]
Editor's Note: See 53 P.S. §§ 10909.1 and 10609.1,
respectively.
(3)
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.
I.
Variances. The Board shall hear and decide requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship on the applicant. The Board may by rule prescribe the form of application as provided by § 200-111. The Board may grant a variance provided the following findings are made where relevant in a given case:
(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 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.
(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 property.
(3)
That such unnecessary hardship has not been created
by the applicant.
(4)
That the variance, if authorized, will neither 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.
(5)
That in the case where the property in part or totally
is located within the regulatory floodway the granting of a variance
will not increase the base flood elevation. Where the issuing of a
variance will permit the construction of a structure or portion thereof
below the base flood elevation in the Floodplain District, the applicant
shall be notified in writing over the signature of the Township Zoning
Officer that the construction or location of a structure below the
base flood elevation will increase the risk to life and property and
that flood insurance premium rates for the affected structure will
increase. A record of all variance actions including the reasons and
justification for the issuance of the variance shall be maintained.
(6)
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. In granting any
variance, the Hearing Board may attach such reasonable conditions
and safeguards as it may deem necessary to implement the purposes
of this chapter.
J.
Special exceptions. The Board shall hear and decide
requests for special exceptions where the ordinance has stated special
exceptions are to be granted by the Board pursuant to the following
express standards and criteria, in addition to such other considerations
and determinations as may be required by law and other provisions
of this chapter. The Board shall:
(1)
Give full consideration to the size, scope, extent,
and character of the exception desired and assure itself that such
request is consistent with the plan for future land use in Upper Uwchlan
and with the spirit, purpose and intent of this chapter.
(2)
Take into consideration the character and type of
development in the area surrounding the location for which the request
is made and determine that the proposed change or modification, if
permitted, will constitute an appropriate use in the area and will
not substantially injure or detract from the use of surrounding property
or from the character of the neighborhood.
(3)
Consider the public interest in, or the need for,
the proposed use or change, to determine that the proposal will serve
the best interest of the Township, the convenience of the community
(where applicable) and the public health, safety, morals and general
welfare.
(4)
Make certain that the proposed change is reasonable
in terms of the logical, efficient, and economical extension of public
services and facilities, including, but not limited to, public water,
sewers, police and fire protection, transportation and public schools.
(5)
Be guided in its study, review and recommendations
by sound standards or subdivision practice where applicable.
(6)
Review the recommendations of the Planning Commission
on the proposed development plan, where such plan is required. The
Board shall not be bound by such recommendations nor shall the Board
be bound by the action of the Board of Supervisors in relation to
the development plan.
(7)
Guide the development of highway frontage insofar
as possible to limit the total number of access points, reduce the
need for on-street parking, and encourage the frontage of buildings
on parallel marginal roads or on roads perpendicular to the highway.
(8)
Consider, where pertinent, the effects of the proposal
with respect to congestion on the roads or highways, the most appropriate
use of land, conserving the value of buildings, safety from fire,
panic, and other dangers, adequacy of light and air, the prevention
of overcrowding of land, congestion of population and adequacy of
public and community services and determine that approval of the application
will not have a substantially adverse effect thereon.
(9)
Be assured that the natural features and processes
characterizing the proposed site and its surroundings shall not suffer
unmitigated degradation, that the management of storm waste, the provision
of water or sewer service, and any other alterations to the site's
predevelopment condition shall be consistent with the Township goals,
practices, and plans in these regards, and that demand for water and
energy by the proposed use shall be minimized to the optimal extent.
(10)
Impose such conditions, in addition to those
required, as are necessary to assure that the intent of this chapter
is complied with, and which are reasonably necessary to safeguard
the health, safety, morals and general welfare of the residents of
the Township at large and the residents and owners of the property
adjacent to the area in which the proposed use is to be conducted.
Conditions may include, but are not limited to, harmonious design
of buildings, aesthetics, hours of operation, lighting, numbers of
persons involved, noise, sanitation, safety, smoke and fume control
and the minimizing of noxious, offensive or hazardous elements.
(11)
Special conditions. In addition to conforming
with the general standards, above, and all other applicable regulations
contained in this chapter, the proposed special exception must conform
with all conditions for that use as follows:
(a)
Require that all commercial or industrial parking,
loading, access or service areas shall be adequately illuminated at
night while in use, and that such lighting, including sign lighting,
shall be arranged so as to protect the highway and neighboring properties
from discomfort or hazardous interference of any kind.
K.
Unified appeals. Where the Board has jurisdiction
over a zoning matter, the Board shall also hear all appeals which
an applicant may elect to bring before it with respect to any municipal
ordinance or requirement pertaining to the same development plan or
development. In any such case, the Board shall have no power to pass
upon the nonzoning issues, but shall take evidence and make a record
thereon. At the conclusion of the hearing, the Board shall make findings
on all relevant issues of fact which shall become part of the record
on appeal to the court.
[Amended 6-18-2018 by Ord. No. 2018-08]
Where a special exception application involves land development
and/or subdivision approval, any special exception approval granted
by the Zoning Hearing Board shall be governed in a manner consistent
with Section 917 of the Municipalities Planning Code, 53 P.S. § 10917,
which provides that the applicant shall be entitled to rely upon the
ordinances in effect at the time of special exception approval if
the applicant submits land development and/or subdivision plans within
a period of six months from the date of such special exception approval.
A special exception approval that does not involve or require development
and/or subdivision approval and variance approval shall expire if
the applicant fails to obtain a building permit or a use and occupancy
permit, as the case may be, within six months from the date of the
Zoning Hearing Board's approval. The Zoning Hearing Board may authorize
an extension of time to obtain such permits, or to submit land development/subdivision
plans, at the time of the hearing, or upon a future written request
by the applicant which may be acted upon by the Zoning Hearing Board
at a subsequent meeting of the Zoning Hearing Board.
An appeal to the Board under § 200-126A and proceedings to challenge an ordinance under § 200-126B may be filed with the Board in writing by the landowner affected, any officer of the Township or any person aggrieved. Requests for a variance under § 200-126I and for a special exception under § 200-126J may be filed with the Board by any landowner or any tenant with the permission of such landowner.
No aggrieved person shall be allowed to file
any proceedings with the Board later than 30 days after (a) any permit
has been issued or refused or any other decision made by the Zoning
Officer, and (b) any application for development, preliminary or final,
has been approved by the Board of Supervisors if such proceeding is
designed to secure reversal or to limit approval in any matter.
The parties to the hearing shall be the Township,
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 enter appearances in writing on forms provided by the
Board for that purpose. The aforementioned 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.
[Amended 1-17-2006 by Ord. No. 06-01]
Upon filing of any proceeding referred to in § 200-125, and during its pendency before the 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 Board facts indicating that such stay would cause imminent peril to life or property. In such case, the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the 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 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 Board. The question whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court.
[Amended 1-17-2006 by Ord. No. 06-01]
The conditions and proceedings set forth in
Article X-A of Act 247, as amended,[1] shall constitute the exclusive mode for securing review
of any ordinance, decision, determination or order of the governing
body, its agencies or officers adopted or issued pursuant to Act 247,
as amended by Act 170 of 1988.
[1]
Editor's Note: See 53 P.S. § 11001-A et seq.
