[Added 4-14-1994 by Ord. No. 585]
A.
Chapter 300, Zoning, of the Code of the Township of Nether Providence contains provisions for conditional uses, as permitted under Article VI, Section 603, second paragraph, item (2), of the Pennsylvania Municipalities Planning Code (Act 247).[1] The provisions consist of:
(1)
The standards and criteria to be applied to
the various conditional uses in the review process.
(2)
The procedure to be followed for review of the
application.
[1]
Editor's Note: See 53 P.S. § 10603(b)(2).
B.
The reason for a use being made conditional is the
unusual impact it may exert upon one or more of the following: the
public health, safety, morals, general welfare, coordinated and practical
community development, proper density of population, civil defense,
airports and national defense facilities, the provision of light and
air, police protection, vehicle parking and loading space, transportation,
water, sewerage, schools, public grounds and other public requirements.
In addition, the purpose of the use being made conditional is to prevent
one or more of the following: overcrowding of land, blight, danger
and congestion in travel and transportation, loss of life, health
or property from fire, flood, panic or other dangers.
A.
Application for approval of a conditional use shall
be in such form and with such supporting data as the Board of Commissioners
or the Planning Commission may prescribe. The appropriate application
fee, prescribed by resolution of the Board of Commissioners from time
to time, shall be paid in advance.
B.
Upon receipt of an application for conditional use,
the Planning Commission shall schedule it for preliminary consideration
and discussion at a regular or special meeting within a reasonable
time, not to exceed 45 days from original receipt date.
C.
The Planning Commission shall be authorized to require
of the applicant such further engineering data, test reports, maps,
surveys, plot plans, landscape plans, technical information, offers
of dedication, bonds and other undertakings as may be necessary to
determine and ensure compliance with the standards and criteria hereinbefore
and hereinafter set forth.
D.
If the application involves a complex development, a detailed plan review may be required by the Township after the application of the use has been acted upon by the Planning Commission and the Board of Commissioners. This review shall be in accordance with procedures outlined in the Subdivision and Land Development Chapter of the Code, being Chapter 289. If the applicant wishes to provide the necessary documentation, the Township will consider the concurrent review of the conditional use requested and the detailed plans for the development of the use. Time limits for review of the detailed plans, if necessary, will be governed by Chapter 289 of the Code.
E.
No conditional use shall be recommended by the Planning
Commission or approved by the Board of Commissioners unless, or except
to the extent that, the general and specific standards and criteria
are met and appropriate conditions and restrictions are attached to
the approval to ensure continuing compliance therewith. The general
standards and criteria are set forth below.
(1)
Taking into consideration the character and
type of development in the area surrounding the proposed conditional
use, such use, as permitted, shall constitute an appropriate use in
the area which will not substantially injure or detract from the use
of surrounding property or from the character of the neighborhood.
(2)
Existing public roads shall be adequate to serve
additional traffic reasonably likely to be generated by the proposed
use.
(3)
Development of the property for the proposed
use shall promote or be consistent with the coordinated and practical
community development, the provision of adequate public and community
services, the public health, safety, morals and general welfare.
(4)
If the proposed site would be created by subdivision
of a larger tract or parcel, the balance of such tract or parcel remaining
shall be adequate and appropriate for its existing and continuing
use in accordance with the foregoing standards.
(5)
Development of the property for the proposed use shall, if approved, be subject to and governed by the provisions of Chapter 289 of the Code, as amended, except as modified by this Article, and by the requirements of the Commonwealth of Pennsylvania, Department of Environmental Resources.
(6)
Development of the site for the proposed use
shall be susceptible of regulation by appropriate conditions and restrictions
to:
(a)
Ensure compatibility of any building to be erected
or altered with the surrounding area in terms of size, shape, materials
and placement of structures; and preservation and restoration of any
historic buildings.
(b)
Control traffic, noise, signs, lights, parking
and other anticipated activity upon the premises to avoid or minimize
any adverse effect upon the peace, quiet, privacy and the character
of the surrounding area.
(c)
Require such additional landscaping pursuant
to an approved landscape plan, as may be appropriate for protective
buffering of and the promotion of harmony with adjoining residential
or other permitted uses.
(d)
Require, where appropriate, that the applicant
enter into agreements to impose upon the property such deed restrictions
as are, in the opinion of the Board of Commissioners and Township
Planning Commission, necessary and reasonable to assure the continuation
of conditions imposed upon approval of the development or use.
(e)
Require that the applicant make provision for
the safe flow of anticipated normal daily traffic in the immediate
vicinity of the development and, where appropriate, provide more than
one means of ingress and egress and adequate deceleration lanes.
(f)
Permit, where appropriate, staged development
and to set deadlines for such staging and conditions for the proper
maintenance of that portion of the property not being developed.
F.
The Planning Commission shall conduct a full review
of the application and shall hold at least one public hearing thereon
not later than 60 days after the receipt of such application. The
cost of such public hearing or hearings, limited to the cost of giving
notice and the taking and transcription of a stenographic record,
shall be home by the applicant. Notice of the public hearing, shall
be given to those persons and agencies who would be entitled to notice
if the same premises were the subject of an application to the Zoning
Hearing Board for special exception and to all others who have registered
their names with the Zoning Officer for that purpose.
G.
After a full review of the application, the Planning
Commission shall transmit the application to the Board of Commissioners
accompanied by a written report of its findings and recommendations,
including all recommended conditions, a copy of which report shall
be furnished the applicant. Such report shall be made by the Planning
Commission no later than 45 days after the close of the record.
H.
The Board of Commissioners shall consider and discuss
the application and the report of the Planning Commission at its next
regular meeting. Upon request, the applicant and others affected by
the application shall be afforded reasonable opportunity to be heard.
I.
The Board of Commissioners shall approve or disapprove
the application by resolution and will send a written notification
to the applicant within 10 days of the decision. Failure of the Board
to act within a reasonable time shall constitute refusal of the application.
J.
In case of approval it shall affirm, modify and/or
supplement the conditions and requirements recommended by the Commission,
as the Board may find proper, pursuant to the standards and criteria
set forth above. Unless otherwise provided in the resolution of approval,
any subsequent extension of the approved conditional use shall require
a reapplication. The Board, as a condition of approval, may require
the execution of a developer's agreement, containing the conditions
and requirements of the development.
A.
The Township shall approve any conditional use proposed if it finds that the use meets all the applicable objectives and requirements indicated below, complies with all the site plan review criteria set forth in Chapter 289 of the Code and complies with other applicable provisions of this article. For certain conditional uses, the criteria governing them appear in this Article below instead of in the article in which the use appears and/or additional criteria appearing herein below.
(1)
Group child day-care home.[1]
(b)
The single-family detached dwelling shall be
located on a lot which has its own exclusive accessway to a street,
public or private (no property with a common driveway may be used
as a group child day-care home).
(d)
There shall be no structural change to the exterior
of the single-family detached dwelling to accommodate the group child
day-care home.
(e)
No directional, identifying or other type sign
for the group child day-care home shall be permitted.
(f)
The hours of operation of the group child day-care
home shall be limited to the hours of 7:00 a.m. to 7:00 p.m. prevailing
time.
(g)
The group child day-care home shall be operated
by a permanent resident of the single-family detached dwelling.
(h)
No group child day-care home shall be located
closer than 1,000 feet from any other group child day-care home. The
1,000-foot distance shall be measured by drawing a circle with a one-thousand-foot
radius around the proposed facility at the center.
(i)
No smoking shall be permitted in the single-family
detached dwelling during the hours of operation of the group child
day-care facility.
(j)
The premises used for any group child day-care
home shall be subject to inspection during normal business hours by
Township officials and agents, including the Health Officer and Fire
Marshal, to determine compliance with all applicable Township ordinances
and codes.
(k)
The premises used for any group child day-care
home shall contain a play area of a minimum of 1,000 square feet,
located in the rear yard of the single-family dwelling, enclosed by
a fence with a minimum height of four feet, substantially constructed
and maintained in a safe and first-class condition. All outdoor play
equipment shall be used and kept within the fenced-in play area. Children,
when outdoors of the group child day-care home, shall not be allowed
to play outside the fenced area.
(l)
The premises used for any group child day-care
home shall contain an automatic fire alarm system which will detect
a fire and activate an on-site alarm and notify an emergency call
monitoring station.
(m)
The premises used for any group child day-care
home shall contain portable fire extinguisher equipment in accordance
with the provisions of the National Fire Protection Association, 10
Standard, 1978 Edition, which equipment shall be inspected and maintained
in accordance with said standard. The caregiver shall be trained in
the emergency use of such portable fire extinguisher equipment.
(n)
The caregiver shall document and install an
emergency evacuation plan which shall be kept on the premises used
for any group child day-care home and shall monthly conduct an evacuation
drill pursuant to the evacuation plan and keep on the premises a record
of the date, time and result of all such evacuation drills. All caregiver
assistants shall be thoroughly instructed on the details of this plan.
Each child (except infants) shall also be so instructed.
(o)
At least one caregiver shall be present at all
times who has been trained in and is currently certified under the
auspices of the American Red Cross in adult and infant cardiopulmonary
resuscitation (CPR).
[1]
Editor's Note: Section 2 of Ord. No. 585,
provided as follows:
"Any group child day home located in any residence
district on the effective date of this ordinance and being lawfully
operated pursuant to a certificate of compliance issued by the Department
may continue in operation pursuant to continued compliance with said
certificate of compliance and upon securing from the Board of commissioners
a conditional use within six months from the date of this ordinance
and upon the following conditions to be imposed by the Board of Commissioners
and agreed to in writing by the operator:
"The group child day-care home use shall be
a conditional use personal to the owner of and permanent resident
living in the promises and holding a valid certificate of compliance
issued by the Department, which use shall not be transferable and
shall cease to operate and be considered as abandoned at any time
upon expiration or nonrenewal or revocation of the certificate of
compliance by the Department or upon determination by the Department
that the group child day-care home is being operated in violation
of any of the rules and regulations of the Department."
(2)
Adult entertainment uses.
[Added 1-16-1997 by Ord. No. 605]
(a)
Objectives. Because adult entertainment uses
tend to bring with them secondary concerns that impact on the health,
safety and general welfare concerns of Nether Providence Township,
the Township desires to restrict or limit the location where such
uses can locate.
[1]
The Township does not intend to effect or suppress
any activities protected by the First Amendment of the United States
Constitution, but instead address these secondary effects. Neither
is it the intent nor effect of these ordinance provisions to condone
or legitimize the distribution of obscene material.
[2]
Based on evidence concerning the adverse secondary
effects of adult uses on the community presented in hearings and in
reports made available to the Board of Commissioners and on findings
incorporated in the cases of City of Renton v. Playtime Theaters Inc.,
475 U.S. 41 (1986), Young v. American Afini Theaters, 426 U.S. 50
(1976), and Northend Cinema, Inc. v. Seattle, 585 P. 2d 1153 (Washington
1978), and on studies in other communities including, but not limited
to Phoenix, Arizona; Minneapolis, Minnesota; Saint Paul, Minnesota;
Manatee County, Florida; Houston, Texas; Indianapolis, Indiana; Amarillo,
Texas; Los Angeles, California; Austin, Texas; Seattle, Washington;
Oklahoma City, Oklahoma; and Beaumont, Texas; and also on findings
found in the Report of Attorney General's Working Group on the Regulation
of Sexually Oriented Businesses (June 6, 1989, State of Minnesota),
the Board of Commissioners finds:
[a]
Sexually oriented businesses lend
themselves to ancillary, unlawful and unhealthy activities that may
go uncontrolled by the operators of the establishments. Further, there
is presently no mechanism to make the owners of these establishments
responsible for the activities that occur on their premises.
[b]
Certain employees of sexually oriented businesses defined in this Subsection A(2) as adult theaters and cabarets engage in higher incident of certain types of sexually oriented behavior at these businesses than employees of other establishments.
[c]
Sexual acts, including masturbation, oral and anal sex, occur at sexually oriented businesses, especially those which provide private or semiprivate booths or cubicles for viewing films, videos or live sex shows, as defined under this Subsection A(2) as adult bookstores, adult novelty shops, adult video stores, adult motion-picture theaters or adult arcades.
[d]
Offering and providing such space
encourages such activities which create unhealthy conditions.
[e]
Persons frequent certain adult
theaters, adult arcades and other sexually oriented businesses for
the purpose of engaging in sex within the premises of such sexually
oriented businesses.
[f]
At least 50 communicable diseases
may be spread by activities occurring in sexually oriented businesses
including, but not limited to, syphilis, gonorrhea, human immunodeficiency
virus infection (AIDS), genital herpes, hepatitis B, Non-B amebiasis,
salmonella infections and shigella infections.
[g]
Since 1981 and to the present,
there has been an increasing cumulative number of reported cases of
AIDS caused by the human immunodeficiency virus (HIV) in the United
States: 600 in 1982; 2,200 in 1983; 4,600 in 1984; 8,555 in 1985;
and 253,448 through December 31, 1992.
[h]
As of May 1, 1995, there have been
13,559 reported cases of AIDS in the State of Pennsylvania.
[i]
Since 1981 and to the present,
there has been an increasing cumulative number of persons testing
positive for the HIV antibody test in Delaware County, Pennsylvania.
[j]
The number of cases of early (less
than one year) syphilis in the United States reported annually has
risen, with 33,613 cases reported in 1982 and 45,200 through November
of 1990.
[k]
The number of cases of gonorrhea
in the United States reported annually remains at a high level, with
over 500,000 cases being reported in 1990.
[l]
The Surgeon General of the United
States, in his report of October 22, 1986, has advised the American
public that AIDS and HIV infection may be transmitted through sexual
contact, intravenous drug abuse, exposure to infected blood and blood
components and from an infected mother to her newborn.
[m]
According to the best scientific
evidence, AIDS and HIV infection, as well as syphilis and gonorrhea,
are principally transmitted by sexual acts.
[n]
Sanitary conditions in some sexually
oriented businesses are unhealthy, in part, because the activities
conducted there are unhealthy and, in part, because of the unregulated
nature of the activities and the failure of the owners and the operators
of the facilities to self-regulate those activities and maintain those
facilities.
[o]
Numerous studies and reports have
determined that semen is found in the areas of sexually oriented businesses
where persons view adult-oriented films.
[p]
The findings noted in Subsections
A(2)(a)[2][a] through A(2)(a)[2][a][p] raise substantial governmental
concerns.
[3]
The purpose of these conditional use provisions
is to minimize, where conditions permit, the secondary concerns which
include difficulties for law enforcement, municipal maintenance, trash,
deleterious effects on business and residential property values, increased
crime, particularly corruption of the morals of minors and prostitution,
and encourage residents and businesses to move elsewhere.
(b)
Yard and area regulations.
[1]
In addition to the yard and area regulations
applicable to all uses, no adult entertainment use shall be located
within 100 feet of.
[a]
A church, synagogue, mosque, temple
or building which is used primarily for religious worship and related
religious activities.
[b]
A public or private educational
facility including but not limited to child day-care facilities, nursery
schools, preschools, kindergartens, elementary schools, private schools,
intermediate schools, junior high schools, middle schools, high schools,
vocational schools, secondary schools, continuation schools, special
education schools, junior colleges and universities; school includes
the school grounds, but does not include the facilities used primarily
for another purpose and only incidentally as a school.
[c]
A licensed premises, licensed pursuant
to the alcoholic beverage control regulations of the Commonwealth
of Pennsylvania.
[d]
Any other adult entertainment use.
[e]
A boundary of a residential district
as defined in the Nether Providence Township Zoning Code.
[f]
A public park or recreational area
which has been designated for park or recreational activities including
but not limited to a park, playground, nature trails, swimming pool,
reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle
paths, wilderness areas or other similar public land within the Township
which is under the control, operation or management of the Township
park and recreation authorities or other similar land within the Township
which is under the control, operation or management of private parties
and open and available for use by the general public.
[g]
An entertainment business which
is oriented primarily towards children and family entertainment.
[2]
For the purpose of Subsection A(2)(b), Yard and area regulations, of this section, measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the building or structure used as the part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a use listed in Subsection A(2)(b), Yard and area regulations. Presence of a municipal, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this section.
(c)
Screening and buffering. Any lot which is to
be used for any adult entertainment use shall contain screening and
buffering along property lines adjoining other zoning districts in
accordance with the provisions of the Zoning Code of Nether Providence.
(d)
Data. Sufficient additional data shall be submitted
to enable the Planning Commission and the Board of Commissioners to
determine that the requirements of this and other ordinances of the
Township relevant to the proposed use have been fulfilled, and that
the owners and operators of proposed adult entertainment facilities
demonstrate a desire and ability to comply with the ordinances of
the Township and to prevent their establishments from being used for
any illegal activities.
(3)
Increase in building area in C-Commercial District
from 15% to a maximum of 25%. In order to qualify for an increase
in building area conditional use, the lot must comply with the following
conditions and restrictions:
[Added 3-8-2001 by Ord. No. 694]
(b)
Impervious ground cover.
[1]
Previously developed lot. The land development
plan for the lot being the subject of the conditional use must show
a reduction in existing impervious coverage by not less than 5% of
the lot area.
[2]
Undeveloped lots. The impervious coverage of
the Lot being the subject of the conditional use shall be limited
to 80%.
(c)
The conditional use application shall include
a certification of a traffic engineer licensed in the Commonwealth
of Pennsylvania as a Professional Engineer that the proposed building
area will not have an adverse impact on pedestrian or vehicular traffic
on the lot and having ingress and egress to the lot.
(d)
The conditional use application shall include
a land development plan showing sidewalks that conform to Township
ordinances.
(e)
The conditional use application shall include
stormwater calculations prepared by a professional engineer licensed
in the Commonwealth of Pennsylvania. The land development for the
lot shall provide a decrease in the rate of storm water run-off from
the lot of not less than 10%.
(f)
The conditional use application shall include
a landscape plan prepared by a landscape architect licensed in the
Commonwealth of Pennsylvania. The landscape plan shall be submitted
to the Township Planning Commission and Township Shade Tree Commission
for review at least 30 days prior to the conditional use hearing.
The landscape plan must contain sufficient plantings to support a
finding by the Township Commissioners that the increase from 15% to
not more than 25% of building area preserves or improves the visual
impact of the lot from neighboring properties.
(g)
At the conditional use hearing, the applicant shall present sufficient evidence to support a finding by the Commissioners that the performance standards in § 300-91 have been satisfied or and where nonconforming conditions exist, that the nonconforming conditions remain the same or are lessened.
