Township of Mount Joy, PA Article XXVIII Zoning Hearing Board

§ 135-381 Creation; membership; alternate members.

A. There is hereby created a Zoning Hearing Board which shall consist of three residents of the Township who shall be appointed by resolution of the Board of Supervisors. Zoning Hearing Board members shall serve for three-year terms which shall be so fixed that the term of office of no more than one member shall expire each year. The Zoning Hearing Board shall promptly notify the Board of Supervisors of any vacancies which shall occur, and appointments to fill such vacancies shall be only for the unexpired portion of the term. Members of the Zoning Hearing Board shall hold no other office in the Township. 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 Board of Supervisors taken after the member has received 15 days' advance notice of the intent of the Board of Supervisors to take such a vote. A hearing shall be held in connection with the vote if the member shall request such hearing in writing.

B. The Board of Supervisors may, in its discretion, appoint by resolution between one and three alternate members to the Zoning Hearing Board. Such alternate members shall have the right to participate in all hearings of the Zoning Hearing Board but shall be entitled to vote only as provided in Article IX of the Municipalities Planning Code. Whenever the term "Board" is used in this article, it shall mean the Zoning Hearing Board.

§ 135-382 Organization.

The Board shall elect from its membership 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 be not fewer than two members. If the Board of Supervisors has appointed alternate members to the Zoning Hearing Board, the Chairman of the Board may designate alternate members to participate and vote upon designated applications in accordance with the regulations contained in Article IX of the Municipalities Planning Code.[1] The Board may also 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 the Municipalities Planning Code. The Board may make, alter and rescind rules and forms for its procedure, consistent with the ordinances of the Township and the laws of the commonwealth. The 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 Board of Supervisors as requested by the Board of Supervisors.

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

§ 135-383 Zoning Hearing Board functions.

A. The Zoning Hearing Board shall hear and render final adjudications in any matter for which the Board shall have been granted jurisdiction by Article IX of the Municipalities Planning Code.

B. Special exceptions. When special exceptions are provided for in this chapter, the Board shall hear and decide requests for such special exceptions in accordance with stated standards and criteria. In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of the Municipalities Planning Code and this chapter. The Board may grant approval of a special exception, provided that the applicant complies with the following standards for special exceptions and that the proposed special exception shall not be detrimental to the health, safety or welfare of the neighborhood. The burden of proof shall rest with the applicant.

(1) Compliance with this chapter. The applicant shall establish by credible evidence compliance with all conditions on the special exception enumerated in the section which gives the applicant the right to seek the special exception. The applicant shall provide the Board with sufficient plans, studies or other data to demonstrate compliance with all applicable regulations.

(2) Traffic and public services. The applicant shall establish by credible evidence that the proposed special exception shall be properly serviced by all existing public service systems. The peak traffic generated by the subject of the application shall be accommodated in a safe and efficient manner or improvements made in order to effect the same. Similar responsibilities shall be assumed with respect to other public service systems, including but not limited to police protection, fire protection, utilities, parks and recreation.

(3) Site planning. The applicant shall establish by credible evidence that the proposed special exception shall be in and of itself properly designed with regard to internal circulation, parking, buffering and all other elements of proper design as specified in this chapter and any other governing law or regulation.

(4) Neighborhood. The proposed special exception shall not substantially injure or detract from the use of neighboring property or from the character of the neighborhood, and the use of property adjacent to the area included in the special exception application shall be adequately safeguarded.

(5) Safety. The applicant shall establish by credible evidence that the proposed use will not create a significant hazard to the public health and safety, such as fire, toxic or explosive hazards.

(6) The Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of and ensure compliance with the Municipalities Planning Code and this chapter, which conditions may include plantings and buffers, harmonious designs of buildings and the elimination of noxious, offensive or hazardous elements.

(7) Unless otherwise specified by the Board or by law, a special exception shall expire if the applicant fails to obtain a zoning permit within one year from the date of authorization thereof by the Board or by the court if such special exception has been granted after an appeal or fails to complete any erection, construction, reconstruction, alteration or change in use authorized by the special exception approval within two years from the date of authorization thereof by the Board or by the court if such special exception has been granted after an appeal. The Board, upon written application and for reasonable cause shown, may extend the approval for an additional period of up to two years.

C. Variances.

(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 grant a variance, provided that the following findings are made where relevant in a given case. The burden of proof shall rest with the applicant.

(a) That there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of a 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 generally created by the provisions of this chapter in the neighborhood of 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 such unnecessary hardship has not been created by the applicant.

(d) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located nor substantially or permanently impair the appropriate use or development of adjacent property nor be detrimental to the public welfare.

(e) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

(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. The Board shall require that adequate on or off-site water and sewage disposal facilities are available for the use intended.

(3) Unless otherwise specified by the Board or by law, a variance shall expire if the applicant fails to obtain a zoning permit within one year from the date of authorization thereof by the Board or by the court if such variance has been granted after an appeal or fails to complete any erection, construction, reconstruction, alteration or change in use authorized by the variance approval within two years from the date of authorization thereof by the Board or by the court, if such variance has been granted after an appeal. The Board, upon written application and for reasonable cause shown, may extend the approval for an additional period of up to two years.

§ 135-384 Applications.

A. All applications for hearings before the Board shall be made on forms adopted by the Board of Supervisors. No application shall be considered complete until any required fees have been paid. No application shall be complete until a site plan has been submitted. All applications requesting approval to establish or expand a nonresidential use or which concern a residential use containing 10 or more dwelling units shall submit a plan drawn to the standards of a sketch plan under Chapter 119, Subdivision and Land Development. The Zoning Hearing Board may require additional information if it is deemed necessary to demonstrate compliance with the applicable provisions of this chapter, or the Board may allow modification of the plan requirements if compliance can be verified with less detail.

B. Multiple and pending applications.

(1) Legislative intent. The consideration of multiple applications for a single property at the same time creates substantial additional administrative work for the Township staff and the volunteer members of the Zoning Hearing Board. The Township staff must maintain multiple files with differing time limits within which the Zoning Hearing Board is required to schedule hearings and render decisions. The Township staff and the Zoning Hearing Board must also insure that each submission, letter or other documentation is properly included in the record of one or more of the multiple application files, as appropriate. Documents which cannot be easily reproduced, such as plans, or documents which are bulky must be cross-referenced. The Township incurs costs to store plans and other documentation copies in each file and to cross-reference each application. The costs to the Township which arise from multiple applications at one time relating to a single property are greater than the Township's costs to administer single applications for various properties.

(2) Application fee. In recognition of the increased costs to the Township to process multiple applications for a single property, the application fee as established by ordinance or resolution of the Board of Supervisors shall be doubled for any second or subsequent application to the Zoning Hearing Board under the following circumstances:

(a) Where an applicant files an application for a property while an application is pending before the Zoning Hearing Board for the same property; or

(b) Where an applicant files an application for a special exception to the Zoning Hearing Board under the same section of this Zoning Ordinance within one year of the date of a final decision on an application for a special exception under the same section of this Zoning Ordinance for the same property.

(3) Number of applications which may be pending. No more than one application for the same property shall be pending before the Zoning Hearing Board at any time. If an applicant files a second or subsequent application with the Zoning Hearing Board while an application for the same property is pending, the Zoning Hearing Board:

(a) Shall schedule a hearing for the second or subsequent application as required by the Pennsylvania Municipalities Planning Code (MPC);[1] and

[1] Editor's Note: See 53 P.S. § 10101 et seq.

(b) May deny the second or subsequent application for violation of this section unless that applicant has, in writing, withdrawn the application for the property which was pending on the date the second or subsequent application was filed.

(4) Reconsideration.

(a) After the Zoning Hearing Board has rendered a decision, or after a court of competent jurisdiction has rendered a final determination upon an appeal from a decision of the Zoning Hearing Board on an application for a special exception, the applicant, his or her successors and assigns, shall not be permitted to file an application for a special exception under the same section of this chapter for a period of one year from the date of the decision of the Zoning Hearing Board or order of the court, whichever is later.

(b) Any reapplication for a special exception under the same section of this Zoning Ordinance shall be considered a request for a reconsideration of the Zoning Hearing Board's decision. The Zoning Hearing Board does not have jurisdiction to reconsider a decision.

(c) If an applicant files an application for such a reconsideration, whether or not the applicant terms his or her application a request for reconsideration, the Zoning Hearing Board shall schedule a hearing on the application for reconsideration in accordance with the requirements of the MPC and may deny the application for violation of this section and because the Zoning Hearing Board does not have such jurisdiction under Section 909.1(a) of the MPC.

(d) Nothing contained herein shall prevent the Zoning Hearing Board from denying an application for a special exception, application for a variance, challenge to the validity of this Zoning Ordinance, or appeal from a determination of the Zoning Officer based upon res judicata, collateral estoppel or other concepts of issue preclusion.

§ 135-385 Hearings.

The Zoning Hearing Board shall give notice of, conduct hearings and render decisions in accordance with the requirements of the Municipalities Planning Code.

§ 135-386 Time limitations.

A. Appeals from the denial of an application by the Zoning Officer or from the issuance of a notice of violation and/or cease-and-desist order shall be made within 30 days of the denial of said permit or issuance of said notice of violation and/or cease-and-desist order.

B. 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 the Board of Supervisors or later than 30 days after a permit has been issued by the Zoning Officer if such proceeding is designed to secure reversal or limit the approval or the permit in any manner unless such person alleges and proves that he had no notice or knowledge or reason to believe that such approval has 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.

C. No appeal shall be considered filed with the Board unless any applicable filing fee has been paid.

§ 135-387 Appeals.

Any party aggrieved by any decision of the Board may appeal to the Court of Common Pleas of Lancaster County in the manner provided by the laws of the Commonwealth of Pennsylvania and Article X-A of the Municipalities Planning Code.

§ 135-388 through § 135-390. (Reserved)