The Board of Supervisors shall appoint a Zoning
Hearing Board consisting of three members. The Board of Supervisors
shall designate one such member to serve until the first day of January
following the original 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 reappoint or appoint three
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.
A.
Any Board member may be removed for malfeasance, misfeasance,
or nonfeasance in office or for other just cause by a majority vote
of the Board of Supervisors. The member must be given 15 days' written
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.
B.
Zoning Hearing Board members may hold no other office
in the Township.
C.
The word "Board" when used in this article shall mean
the Zoning Hearing Board.
The Township Board of Supervisors may appoint
by resolution no more than three residents of the Township 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 article 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.
Designation of an alternate shall be made on a case-by-case
basis in rotation according to declining seniority among all alternates.
D.
Alternate members may hold no other office in the
Township.
E.
Any alternate may participate in any proceeding or
discussion of the Board but may not vote as a member nor be compensated
unless designated as a voting alternate as provided above.
A.
The Board shall elect from its own membership its
officers, who shall serve annual terms as such and may succeed themselves.
B.
For the conduct of any hearing and the taking of any
action, a quorum shall be no less than two voting members.
C.
The Board may make, alter and rescind rules and forms
for its procedure, consistent with ordinances of the Township and
the laws of the commonwealth.
D.
The Board shall keep full public records of its business,
which records shall be the property of the Township, and shall submit
reports of its activities to the Township as requested by the Board
of Supervisors.
The Zoning Hearing Board shall have exclusive
jurisdiction to hear and render final adjudications in the following
matters:
A.
Substantive challenges to the validity of any land
use ordinance, except those brought before the Board of Supervisors
pursuant to the curative challenge and amendment process.
B.
Challenges to the validity of a land use ordinance
raising procedural questions or alleged defects in the process of
enactment or adoption, which challenges shall be raised by an appeal
filed within 30 days after the effective date of said ordinance.
C.
Appeals from the determination of the Zoning Officer,
including the granting or denial of any permit, or failure to act
on the application therefor, the issuance of any enforcement notice
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 the Floodplain Conservation
District or the Steep Slope Conservation District, or such provisions
within a land use ordinance.
E.
Applications for variances from the terms of this
chapter.
F.
Applications for special exceptions under the terms
of this chapter.
G.
Appeals from the determination of the Zoning Officer or Township Engineer in the administration of ordinance provisions for sedimentation and erosion control and stormwater management insofar as the determination does not involve an application pursuant to Chapter 145, Subdivision and Land Development.
When the order, requirement, decision, or determination
of a Township officer is appealed to the Board, the Board shall have
the power to reverse or affirm in whole or in part, and the decision
of the Board shall be enforced as though it were the decision of the
officer from which the appeal was taken.
[Amended 11-7-2018 by Ord. No. 18-07]
Challenges and appeals may be filed with the Board in writing
by the landowner affected, any officer or agency of the Township,
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 Township
Secretary on forms provided by the Zoning Hearing Board. The applicant
shall provide five printed copies and one electronic copy of the application
and accompanying materials, and shall include:
A.
The name, telephone number, 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 statement
from the record owner authorizing the applicant to pursue the specific
appeal or application shall also be included.
C.
A brief description and location of the subject property,
along with a survey and/or sketch of the property boundaries.
D.
A statement of the present zoning classification of
the subject property with the improvements thereon, and the present
use thereof.
E.
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.
F.
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.
G.
A list of the owners of all land adjacent to the applicant's
land, to be supplied by the applicant, who shall obtain the list at
his or her own cost and expense from the Montgomery County Board of
Assessment Appeals, or from the Township Tax Collector, or from other
municipalities when the adjacent land is outside the Township, along
with:
H.
Any and all additional information that may be required
by the Zoning Hearing Board.
I.
Payment to the Township in accordance with a fee schedule
recommended by the Zoning Hearing Board and adopted by the Township
Board of Supervisors, as amended.
(1)
Fees for hearings may include compensation for
the Secretary and members of the Board, notice and advertising costs,
and necessary administrative overhead connected with the hearing.
(2)
The costs may not include legal expenses of
the Board, expenses for engineering, architectural, or other technical
consultants, or expert witness costs.
Upon receipt of an application, the Zoning Hearing
Board 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 Secretary, unless the
applicant has agreed in writing to an extension of time.
The Board shall schedule a public hearing and
shall give public notice as follows:
A.
By publishing a notice once a week for two successive
weeks in a newspaper of general circulation in the Township. Such
notice shall state the time and place of the hearing, the particular
nature of the matter to be considered at the hearing and the specific
ordinance provisions that permit consideration by the Zoning Hearing
Board. The first publication shall not be more than 30 days and the
second not less than seven days from the date of the hearing.
B.
By mailing or serving written notice to the record
owner, applicant, and applicant's representative.
C.
By conspicuously posting written notice of hearing
on the affected tract of land at least one week prior to the meeting.
D.
By mailing or serving the notice to adjacent land owners by utilization of the envelopes provided by the applicant pursuant to § 170-144G.
E.
By mailing or serving notice thereof to the Zoning
Hearing Board members, Board of Supervisors, and Planning Commission
Chairman.
F.
By mailing a notice to any and all parties in interest
who have entered their appearance, and to any person registered for
that purpose.
A.
Zoning Hearing Board hearings shall be held at the
call of the Chairman and at such times as the Board may determine.
Hearings shall be conducted by the Zoning Hearing Board.
B.
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 have the power to require that all persons who wish to be considered
parties enter appearances in writing on forms provided for that purpose.
C.
The Chairman or Acting Chairman 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.
D.
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.
E.
Formal rules of evidence shall not apply, but irrelevant,
immaterial, or unduly repetitious evidence may be excluded.
F.
The Board shall keep a stenographic record of the
proceedings.
(1)
The appearance fee for a stenographer shall
be shared equally by the applicant and the Board.
(2)
The cost of the original transcript shall be
paid by the Board if the transcript is ordered by the Board, 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.
G.
Except upon notice and opportunity for all parties
to be present, to participate, and to inspect and contest materials,
the Board shall not:
(1)
Communicate, directly or indirectly, with any
party or his or her representative in connection with any issue involved.
(2)
Take notice of any communication, report, staff
memorandum, or other material, except advice from the solicitor.
(3)
Inspect the subject site or its surroundings
after commencement of hearings with any party or his or her representative.
A.
The Zoning Hearing Board shall render a written decision
or make written findings on the application within 45 days of the
last hearing before the Board. When the application is contested or
denied, each decision shall be accompanied by findings of fact and
conclusions based thereon together with the reasons therefor. Conclusions
based on any provisions of a Township ordinance, rule or regulation
shall contain a reference to the provision relied on and the reasons
why the conclusion is found appropriate in the light of the facts
found.
B.
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.
C.
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. Such notice shall be given in the manner prescribed by § 170-146 herein. 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.
D.
A copy of the final decision or findings shall be
delivered to the applicant personally or mailed to him or her not
later than the day following its date. To all other persons who have
filed their names and addresses with the Board not later than the
last day of the hearing, the Board shall provide by mail or other
wise a brief notice of the decision or findings and a statement of
the place at which the full decision or findings may be examined.
A.
Variance.
(1)
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 require preliminary application
to the Zoning Officer. 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 health, safety or 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.
(2)
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.
B.
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.
Decisions on appeals and applications to the
Board, other than variances and special exceptions, shall be considered
in accordance with the following:
A.
Time limitations on appeals.
(1)
All appeals from determinations adverse to a
landowner shall be filed by the landowner within 30 days after notice
of the determination is issued.
(2)
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 Township officer or agency, unless the
person filing proves that he had no notice, knowledge, or reason to
believe that such approval had been given. If such person succeeded
to his or her interest after such approval, he or she shall be bound
by the knowledge of his or her predecessor in interest.
B.
Effect of filing. Upon filing of any proceeding before
the Board, and during its pendency, 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, agency, or body certifies to
the Board facts indicating imminent peril to life or property, in
which case the development or official action shall not be stayed
other than by a restraining order granted by the Board or by a court
having jurisdiction of zoning appeals.
C.
Substantive validity challenge. A landowner who desires to challenge, on substantive grounds, the validity of a Zoning Map or ordinance provision or any other provision which prohibits or restricts the use or development of land in which he or she has an interest, may submit the challenge either to the Zoning Hearing Board or, with a request for curative amendment, to the Township Board of Supervisors (see § 170-176 of this chapter).
(1)
The written application to the Zoning Hearing
Board shall contain the reasons for the challenge.
(2)
Public notice of the hearing shall include notice
that the validity of the ordinance 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.
(3)
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.
(4)
In reaching its decision, the Board shall consider
the plans and explanatory material submitted by the landowner, and
shall also consider:
(a)
The impact of the proposal upon roads, sewer
facilities, water supplies, schools, emergency services and other
public services and facilities.
(b)
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 the ordinance or map.
(c)
The suitability of the site for the intensity
of use proposed, with respect to the site's soils, slopes, woodland,
wetlands, floodplains, aquifers, natural resources and other natural
features.
(d)
The impact of the proposed use on the site's
soils, slopes, woodland, wetlands, floodplains, aquifers, natural
resources and other natural features; the degree to which these are
protected or destroyed, the tolerance of the resources to development,
and any adverse environmental impacts.
(e)
The impact of the proposal on the preservation
of agriculture and other land uses which are essential to public health
and welfare.
(5)
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.
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 the decision. The
applicant may apply to the Board for postponement of the expiration,
providing in writing an explanation of the reasons why permits were
not obtained and a request for a postponement to a specific date.
All parties who originally received notification of the Board's decision
in the matter shall be notified of the postponement of expiration,
at the applicant's expense.
Any persons aggrieved by the decision of the
Board may within 30 days thereafter appeal to the Court of Common
Pleas of Montgomery County by petition in such form as may be prescribed
or authorized by law.
