A.
Appointment and powers of the Zoning Officer.
(1)
For the administration of this chapter, a Zoning Officer, who shall
not hold an elective office in the Township of Straban, shall be appointed.
(2)
The Zoning Officer shall meet the qualifications established by the
Township and shall be able to demonstrate to the satisfaction of the
Township a working knowledge of municipal zoning.
(3)
The Zoning Officer shall administer this chapter in accordance with
its literal terms and shall not have the power to permit any construction
or any change of use which does not conform to this chapter.
(4)
The Zoning Officer is hereby authorized to institute civil enforcement
proceedings as a means of enforcement when acting within the scope
of employment.
B.
Duties of the Zoning Officer. It shall be the duty of the Zoning
Officer to enforce the provisions of this chapter, and such power
and authority as is necessary for enforcement is hereby conferred
upon the Zoning Officer. The Zoning Officer shall examine all applications
for permits, issue permits for construction and uses which are in
accordance with the requirements of this chapter, record and file
all applications for permits with accompanying plans and documents,
and make such reports as the governing body may require. Permits for
construction and uses which are a special exception or a variance
to requirements of this chapter shall be issued only upon written
order of the Zoning Hearing Board. Permits for construction and uses
which are a conditional use shall be issued only upon written order
of the Board of Supervisors.
C.
Land use permits.
(1)
A building permit shall be required by the Pennsylvania Unified Construction
Code Act, as it is found in 35 P.S. § 7210.101 et seq.,
as amended, and in accordance with the rules and regulations of Straban
Township.
(2)
In the case of the erection or alteration of uses granted special
exception use, conditional use or variance, a land use permit shall
be obtained within 12 months following the date of the decision or
18 months if the activities require approval of a subdivision or land
development plan.
(3)
A land use permit shall be a statement issued by the Zoning Officer
setting forth either that a building, structure, parcel or use of
land complies with the provisions of this chapter.
(4)
No vacant land shall be used and no structure or part of a structure
hereafter erected, substantially altered or changed in use shall be
used until a land use permit shall have been issued by the Zoning
Officer.
(5)
A land use permit for the use or occupancy of vacant land or for
a change in the use of land, or for a change in the use of an existing
building, either for a whole or part of a new building or for the
alteration of an existing building, shall be applied for coincident
with the application for a zoning permit, and shall be issued or denied
within 15 days after a final inspection by the Zoning Officer.
(6)
A land use permit for changing or extending a nonconforming use existing
at the effective date of this chapter or of an amendment thereto shall
be applied for and issued before any such nonconforming use shall
be changed or extended. Such permit shall be issued within 15 days
after final inspection and approval by the Zoning Officer.
(7)
A record of all land use permits shall be kept on file in the office
of the Zoning Officer, and a copy shall be furnished on request to
any person having proprietary or tenancy interest in the building
or land affected.
D.
Fees.
(1)
The governing body shall establish by resolution, from time to time,
a schedule of fees, charges and expenses, as well as a collection
procedure, for permits, certificates of occupancy, appeals, variances,
special exceptions, amendments, bonds and other matters pertaining
to this chapter. The schedule of fees shall be posted in the office
of the Zoning Officer.
(2)
Such fees shall be payable to the Township, and until all applicable
fees, charges and expenses have been paid in full, the applications
shall be considered incomplete and no action shall be taken on any
application or appeal.
E.
Record.
(1)
It shall be the duty of the Zoning Officer to keep a record of all
applications for permits, a record of all permits issued and a record
of all certificates of occupancy which he/she countersigns, together
with a notation of all special conditions involved. The Zoning Officer
shall file and safely keep copies of all plans submitted, and the
same shall be available for the use of the Board of Supervisors.
(2)
The Zoning Officer shall prepare a monthly report for the Township
Supervisors summarizing, for the period since his/her last previous
report, all zoning permits issued, certificates countersigned, and
all complaints of violations and the action taken by the Zoning Officer.
A copy of each such report shall be filed with the office of the Chief
Assessor of Adams County at the same time it is filed with the Board
of Supervisors.
F.
Appeals and applications. An appeal or application for an amendment,
variance, special exception or conditional use from the terms of this
chapter shall be filed with the Zoning Officer and shall contain the
following information:
(1)
The name and address of the applicant.
(2)
The name and address of the owner of the real estate to be affected
by such proposal.
(3)
A brief description and location of the real estate to be affected
by such proposal.
(4)
A statement of the present zoning classification of the real estate
in question, the improvements thereon and the present use.
(5)
A statement of the section of this chapter under which the appeal
or application is filed and reasons why it should be granted or a
statement of the section of this chapter governing the situation in
which the alleged erroneous ruling is being appealed and reasons for
the appeal.
(6)
An accurate description of the present improvements and the additions
intended to be made under this application, indicating the size and
use of such proposed improvements and general construction thereof.
In addition, there shall be attached a plot plan of the real estate
to be affected, as required to accompany applications for permits,
indicating the location and size of the lot and locations of improvements
now erected and proposed to be erected thereon. If the subject of
such conditional use, special exception, variance or application is
part of a larger phased development, all phases (showing all proposed
improvements) of the development shall be shown on the plan, even
if the other phases do not require a special exception, conditional
use or variance.
In their interpretation and application, the provisions of this
chapter shall be held to be minimum requirements, adopted for the
promotion of the public health, safety, morals or general welfare.
Whenever the requirements of this chapter are at variance with the
requirements of any other lawfully adopted rules, regulations or ordinances,
or whenever the requirements of this chapter are internally at variance,
the most restrictive or that imposing the higher standard shall govern.
A.
There is hereby created for the Township a Zoning Hearing Board, in accordance with the provisions of Article IX of the Pennsylvania Municipalities Planning Code, Act of 1968, P.L. 805, No. 247, as reenacted and amended.[1]
(1)
The membership of the Board shall consist of three residents of the
Township appointed by resolution by the Board of Supervisors. The
terms of office shall be for three years and shall be so fixed that
the term of office of one member shall expire each year. The Board
shall promptly notify the Board of Supervisors of any vacancies which
occur. Appointments to fill vacancies shall be only for the unexpired
portion of the term. Members of the Board shall hold no other office
in the Township, nor shall any member be an employee of the Township.
(2)
The Board of Supervisors may appoint, by resolution, at least one,
but no more than three, residents of the municipality to serve as
alternate members of the Board. The term of office of the alternate
shall be three years. If by reason of absence or disqualification
of a member a quorum is not reached, the Chairman of the Board shall
designate the alternate of the Board to sit on the Board to provide
the quorum. The alternate 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. When seated pursuant to these provisions, an
alternate 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 herein and otherwise provided by law.
Alternates shall hold no other office in the municipality, including
membership on the Planning Commission or as Zoning Officer. The alternate
may participate in any proceeding or discussion of the Board but shall
not be entitled to vote as a member of the Board nor be compensated
unless designated as a voting alternate member as described herein.
(3)
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 which appointed the member, taken after the member
has received 15 days' advance 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.
(4)
The Board shall elect from its own 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
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 this chapter.
(5)
The Board may make, alter and rescind rules and forms for its procedure
consistent with ordinances of the Township and 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.
(6)
Within limits of funds appropriated by the Board of Supervisors,
the Board may employ or contract for secretaries, clerks, legal counsel,
consultants and other technical and clerical services. Members of
the Board may receive compensation for the performance of their duties
as may be fixed by the Board of Supervisors, but in no case shall
it exceed the rate of compensation authorized to be paid to the members
of the Board of Supervisors.
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
B.
Hearings. The Board shall conduct hearings and make decisions in
accordance with the following requirements:
(1)
Public notice shall be given and written notice shall be given to
the applicant, the Zoning Officer and to any person who has made timely
request for the same. Written notices shall be given at such time
and in such manner as shall be prescribed by rules of the Board. In
addition to the written notice provided herein, written notice of
said hearings shall be conspicuously posted on the affected site at
least one week prior to the hearings.
(2)
The governing body may prescribe reasonable fees with respect to
hearings before the Zoning Hearing Board. Fees for said hearings may
include compensation for the Secretary and members of the Zoning Hearing
Board, notice and advertising costs and necessary administrative overhead
connected with the hearing. The costs, however, shall not include
legal expenses of the Zoning Hearing Board, expenses for engineering,
architectural or other technical consultants or expert witness.
(3)
The first hearing before the Board or hearing officer shall commence
within 60 days from the date of receipt of the applicant's administratively
complete application, unless the applicant has agreed to an extension
of time. Each subsequent hearing before the Board or hearing officer
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 Board
or hearing officer 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 on the record by
the applicant and municipality, be granted additional hearings to
complete their opposition to the application, provided the applicant
is grant an equal number of additional hearings for rebuttal.
[Amended 12-3-2018 by Ord. No. 2018-01]
(4)
The hearings shall be conducted by the Board, or the Board may appoint
any member as a hearing officer. The decision or, where no decision
is called for, the findings shall be made by the Board; however, the
appellant or the applicant, as the case may be, in addition to the
Township, may, prior to the decision of the hearing, waive decision
or findings by the Board and accept the decision or findings of the
hearing officer as final.
(5)
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 power to require
that all persons who wish to be considered parties enter appearances
in writing on forms provided by the Board for that purpose.
(6)
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.
(7)
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.
(8)
Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
(9)
The Board or the hearing officer, as the case may be, shall keep
a stenographic record of the proceedings. The appearance fee for a
stenographer shall be shared equally by the applicant and the Board.
The cost of the original transcript shall be paid by the Board, if
the transcript is ordered by the Board or hearing officer, 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 thereof.
(10)
Neither the Board nor the hearing officer shall communicate,
directly or indirectly, with any party or his representatives in connection
with any issue involved, except upon notice and opportunity for all
parties to participate; shall take notice of any communication, reports,
staff memoranda or other material, except advice from their solicitor,
unless the parties are afforded an opportunity to contest the material
so noticed; nor shall inspect the site or its surroundings after the
commencement of hearings with any party or his representative unless
all parties are given an opportunity to be present.
(11)
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 Board or hearing officer. Where 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 this chapter or any law, ordinance,
rule or regulation shall contain a reference to the provisions relied
on and the reasons why the conclusion is deemed appropriate in the
light of the facts found. If the hearing is conducted by a hearing
officer, and there has been no stipulation that the hearing officer's
decision or findings are final, the Board shall make the hearing officer's
report and recommendations available to the parties within 45 days,
and the parties shall be entitled to make written representations
thereon to the Board prior to final decision or entry of findings,
and the Board's decision shall be entered no later than 30 days after
the report of the hearing officer. Except for challenges filed under
§ 916.1 of the Pennsylvania Municipalities Planning Code,
as reenacted and amended,[2] where the Board fails to commence, conduct or complete the required hearing within 60 days from the date of the applicant's request for a hearing, 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. When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a decision as hereinabove provided, the Board shall give public notice of the decision within 10 days from the last day it could have met to render a decision in the same manner as provided in Subsection B(1) of this section. 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.
[2]
Editor's Note: See 53 P.S. § 10916.1.
(12)
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 a brief notice of the decision or findings and
a statement of the place at which the full decision or findings may
be examined.
(13)
The Board of Supervisors shall establish, by resolution, fees
with respect to hearings before the Zoning Hearing Board.
(14)
The decision to grant a special exception or variance by the
Zoning Hearing Board shall expire five years after the date of the
Zoning Hearing Board's decision, unless:
(15)
The decision by the Zoning Hearing Board to grant a special exception
or a variance shall not in any way be deemed to affect the applicability
of any provision of the Subdivision and Land Development Ordinance[3] or any other nonnzoning land use ordinance applicable
to the applicant's plan or project. If the application of provisions
of any other land use ordinance significantly changes the plan or
application submitted to the Zoning Hearing Board and upon which the
special exception and/or variance was granted, the variance and/or
special exception shall be deemed inoperative and must be reviewed
again by the Zoning Hearing Board to determine if the special exception
and/or variance is justified. The term "significantly changes" means
such a change in the plan or application (including but not limited
to new lot lines; different access points; number of lots; location
of structures; availability of water, sewer, or utilities; a change
in proposed use) as is determined by the Zoning Officer to require
a new presentation to the Zoning Hearing Board.
[Added 8-2-2010 by Ord. No. 2010-02]
C.
Jurisdiction.
(1)
The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudication 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
§§ 609.1 and 916.1(a)(2) of the Pennsylvania Municipalities
Planning Code (hereinafter MPC), Act of 1968, P.L. 805, No. 247, as
reenacted and amended.[4]
[4]
Editor's Note: See 53 P.S. §§ 10906.1 and 10916.1,
respectively.
(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 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 the administration of any floodplain
or flood hazard ordinance or such provisions within a land use ordinance.
(e)
Applications for variances from the terms of this chapter and
flood hazard ordinance or such provisions within a land use ordinance,
pursuant to § 912 of the Pennsylvania MPC, Act of 1968,
P.L. 805, No. 247, as reenacted and amended.[5]
[5]
Editor's Note: Former 53 P.S. § 10912, which related
to the functions of the Zoning Hearing Board in regard to requests
for variances, was repealed in 1988 by P.L. 1329, No. 170, § 90.
See now 53 P.S. § 10910.2.
(f)
Appeals from the determination of any officer or agency charged
with the administration of any performance density provisions of this
chapter.
(h)
Appeals from the determination of the Zoning Officer or Township Engineer in the administration of any land use ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development not involving applications under Article V or VII of the Pennsylvania MPC, Act of 1968, P.L. 805, No. 247, as reenacted and amended.[7]
[7]
Editor's Note: See 53 P.S. § 10501 et seq., Subdivision
and Land Development, and 53 P.S. § 10701 et seq., Planned
Residential Development, respectively.
(2)
The Board of Supervisors shall have exclusive jurisdiction to hear
and render final adjudication in the following matters:
(a)
(b)
Applications for conditional use under the express provisions
of this chapter.
(d)
All petitions for amendments to land use ordinances, pursuant
to the procedures set forth in § 609 of the Pennsylvania
MPC, Act of 1968, P.L. 805, No. 247, as reenacted and amended.[11] Any action on such petitions shall be deemed legislative
acts, provided that nothing contained in this subsection shall be
deemed to enlarge or diminish existing law with reference to appeals
to court.
[11]
Editor's Note: See 53 P.S. § 10609.
(e)
Appeals from the determination of the Zoning Officer or the Township Engineer in the administration of any land use ordinance or provisions thereof with reference to sedimentation and erosion control and stormwater management, insofar as the same relate to application for land development under Articles V and VII of the Pennsylvania MPC, Act of 1968, P.L. 805, No. 247, as reenacted and amended. Where such determination relates only to development not involving an Article V or VII application, the appeal from such determination of the Zoning Officer or the Township Engineer shall be to the Zoning Hearing Board pursuant to this section.
D.
Variances.
(1)
The Zoning Hearing 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 by rule prescribe the form
of application and 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 area 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.
(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 and the Pennsylvania MPC, Act of 1968, P.L. 805, No.
247, as reenacted and amended.
E.
Special exceptions. Where the Board of Supervisors in this chapter
has stated special exceptions to be granted or denied by the Zoning
Hearing Board pursuant to express standards and criteria, the Zoning
Hearing Board shall hear and decide requests for such special exceptions
in accordance with such standards and criteria below:
(1)
The proposed use is consistent with the purpose of the article whereby it is permitted, and the overall purpose of the Zoning Code, as contained in Article I.
(3)
The proposed use and its location are consistent with the Comprehensive
Plan, in particular the plans for land use, circulation, community
facilities, and utilities.
(4)
The proposed use complies with the lot requirements and the building
height of the district where it is proposed.
(5)
The proposed use will not adversely effect the health, safety, morals
and general welfare of the Township.
(6)
The proposed use will not substantially injure or detract from the
use of neighboring property or from the character of the neighborhood,
and that the use of the adjacent property is adequately safeguarded.
(7)
The proposed use is consistent with the logical extension of public
services and utilities, such as public water and public sewer, and
will not negatively impact the public services and utilities of the
surrounding properties.
(8)
The proposed use reflects an environmental approach to land planning
and design based on thorough site analysis and evaluation related
to topography, soils, vegetation, hydrology, visual quality and related
site conditions and characteristics.
(9)
The proposed use will provide safe and adequate access to streets
and public services (existing or proposed) and will make any improvements
needed to guarantee compatibility with adjacent streets and public
services.
(10)
The proposed use will provide for pedestrian access to the site.
(11)
(12)
The proposed use, as depicted in plans for subdivision and/or
land development, includes proposals for landscaping, in addition
to that required as stated above, in areas such as the entrance, along
property boundaries, in areas which are highly visible, such as along
streets or sidewalks, and in other places where the use of trees,
shrubs, and ground covers would be functional and appropriate.
(15)
The proposed use, having all of the characteristics as proposed, at the subject site, and considering the present characteristics of neighboring lands, will not cause negative impacts to the resources and conditions listed in Subsection E(1) through (14) above, over and above those typically associated with such uses.
A.
The Chair of the Zoning Hearing Board, in the case of special exceptions
and variances, and the Board of Supervisors, in the case of conditional
uses, may refer applications to the Planning Commission, the Township
Engineer, or any other committee, commission or advisor for their
advice, but is not required to do so.
B.
Within 30 days of receiving an application for a special exception
or conditional use or an application for a variance from the decision-making
body, the referral body or advisor shall give a written report on
it to the decision-making body.
Appeals raising the substantive validity of any land use ordinance,
except those to be brought before the Board of Supervisors pursuant
to the Pennsylvania MPC, Act of 1968, P.L. 805, No. 247, as reenacted
and amended; procedural questions or alleged defects in the process
of enactment or adoption of a land use ordinance; or 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; from
a determination by the Township Engineer or the Zoning Officer with
reference to the administration of any floodplain or flood hazard
ordinance or such provisions within a land use ordinance; 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; from the determination of the Zoning Officer or Township
Engineer in the administration of any land use ordinance or provision
thereof with reference to sedimentation and erosion control and stormwater
management insofar as the same relate to development not involving
subdivision and land development or planned residential development,
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 a variance and for special exception may be filed with the Board
by any landowner or any tenant with the permission of such landowner.
A.
No person shall be allowed to file any proceeding with the Board
later than 30 days after an application for development, preliminary
or final, has been approved by the Township, if such proceeding is
designed to secure reversal or limit the approval in any manner, unless
such person alleges and proves that he had no notice, knowledge or
reason to believe that such approval had been given. If such person
has succeeded to their interest after such approval, they shall be
bound by the knowledge of their predecessor in interest. The failure
of anyone other than the landowner to appeal from an adverse decision
on a plan or from an adverse decision by the Zoning Officer on a challenge
to the validity of this chapter or an amendment hereto or map or an
amendment thereto shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the approved plan.
B.
All appeals from determination adverse to the landowner shall be
filed by the landowner within 30 days after notice of the determination
is issued.
A.
Upon filing of any appeal proceeding before the Zoning Hearing Board
and during its pendency before the 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 which 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.
B.
After the petition is presented, the court shall hold a hearing to
determine if the filing of the appeal is frivolous. At the hearing,
evidence may be presented on the merits of the case. After consideration
of all evidence presented, if the court determines that the appeal
is frivolous, it shall grant the petition for a bond. The right to
petition the court to order the appellants to post bond may be waived
by the appellee, but such waiver may be revoked by him if an appeal
is taken from a final decision of the court.
C.
The question of whether or not such a petition should be granted
and the amount of the bond shall be within the sound discretion of
the court. An order denying a petition for bond shall be interlocutory.
An order directing the responding party to post a bond shall be interlocutory.
D.
If an appeal is taken by a respondent to the petition for a bond
from an order of the court dismissing a zoning appeal for refusal
to post a bond and the appellate court sustains the order of the court
below to post a bond, the respondent to the petition for a bond, upon
motion of the petitioner and after a hearing in the court having jurisdiction
of zoning appeals, shall be liable for all reasonable costs, expenses
and attorney fees incurred by the petitioner.
A.
The Board of Supervisors may from time to time amend, supplement
or repeal any of the regulations and provisions of this chapter. The
procedures for the preparation of a proposed zoning ordinance as set
forth in § 607 of the Pennsylvania MPC, Act of 1968, P.L.
805, No. 247 as reenacted and amended,[1] are hereby declared optional.
[1]
Editor's Note: See 53 P.S. § 10607.
B.
Before voting on the enactment of an amendment, the Board of Supervisors
shall hold a public hearing thereon, pursuant to public notice. In
addition, if the proposed amendment involves a Zoning Map change,
notice of said public hearing shall be conspicuously posted by the
Township at points deemed sufficient by the Township along the site
to notify potentially interested citizens. The affected site shall
be posted at least one week prior to the date of the hearing. In addition
to the requirement that notice be posted, where proposed amendment
involves a Zoning Map change, notice of the public hearing shall be
mailed by the municipality at least 30 days prior to the date of the
hearing, by first class mail, to the addresses to which real estate
tax bills are sent for all real property located within the area being
rezoned, as evidenced by the tax records within the possession of
the municipality. The notice shall include the location, date and
time for the public hearing. A good-faith effort and substantial compliance
shall satisfy the requirements of this subsection. This clause shall
not apply when the rezoning constitutes a comprehensive rezoning.
C.
In the case of an amendment other than that prepared by the Planning
Commission, the Board of Supervisors shall submit each such amendment
to the Planning Commission at least 30 days prior to the hearing on
such proposed amendment to provide the Planning Commission an opportunity
to submit recommendations.
D.
If after any public hearing held upon an amendment the proposed amendment
is changed substantially or is revised to include land previously
not affected by it, the Board of Supervisors shall hold another public
hearing, pursuant to public notice, before proceeding to vote on the
amendment.
E.
At least 45 days prior to the public hearing on the amendment by
the Board of Supervisors, the Township shall submit the proposed amendment
to the County Planning Agency for recommendations.
F.
Within 30 days after enactment, a copy of the amendment to this chapter
shall be forwarded to the County Planning Agency.
A.
A landowner who desires to challenge on substantive grounds the validity
of this chapter or the Zoning Map or any provisions thereof which
prohibit or restrict the use or development of land in which he has
an interest may submit a curative amendment to the Board of Supervisors
with a written request that his challenge and proposed amendment be
heard and decided as provided in § 916.1 of the Pennsylvania
MPC, Act of 1968, P.L. 805, No. 247 as reenacted and amended.[1] The curative amendment and challenge shall be referred
to the Planning Commission and the County Planning Agency as provided
herein, and notice of the hearing thereon shall be given as provided
herein and § 916.1 of the Pennsylvania MPC, Act of 1968,
P.L. 805, No. 247, as reenacted and amended.
[1]
Editor's Note: See 53 P.S. § 10916.1.
B.
The hearing shall be conducted in accordance with § 908
of the Pennsylvania MPC, Act of 1968, P.L. 805, No. 247, as reenacted
and amended,[2] and all references therein to the Zoning Hearing Board
shall, for purposes of this section, be references to the Board of
Supervisors; provided, however, that the deemed approval provision
of § 908(1.2) and (9) of the Pennsylvania MPC (Act of 1968,
P.L. 805, No. 247, as reenacted and amended) shall not apply and the
provision of § 916.1 of the Pennsylvania MPC shall control.
If the Township does not accept a landowner's curative amendment brought
in accordance with this subsection and a court subsequently rules
that the challenge has merit, the court's decision shall not result
in a declaration of invalidity for this entire chapter and Zoning
Map, but only for those provisions which specifically relate to the
landowner's curative amendment and challenge.
[2]
Editor's Note: See 53 P.S. § 10908.
C.
The Board of Supervisors, if it determines that a validity challenge
has merit, may accept a landowner's curative amendment, with or without
revision, or may adopt an alternative amendment which will cure the
challenged defects. The Board of Supervisors shall consider the curative
amendments, plans and explanatory material submitted by the landowner
and shall also consider:
(1)
The impact of the proposal upon roads, sewer facilities, water supplies,
schools and other public service facilities.
(2)
If the proposal is for a 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 this chapter or the Zoning Map.
(3)
The suitability of the site for the intensity of use proposed by
the site's soils, slopes, woodland, wetlands, floodplains, aquifers,
natural resources and other natural features.
(4)
The impact of the proposed use on the site's soils, slopes, woodlands,
floodplains, natural resources and natural features; the degree to
which these are protected or destroyed; the tolerance of the resources
to development and any adverse environmental impacts.
(5)
The impact of the proposal on the preservation of agricultural and
other land uses which are essential to public health and welfare.
If the Township determines that this chapter or any portion
hereof is substantially invalid, it shall take the following actions:
A.
The Township shall declare by formal action this chapter, or portions
hereof, substantially invalid and propose to prepare a curative amendment
to overcome such invalidity. Within 30 days following such declaration
and proposal, the Board of Supervisors shall:
B.
Within 180 days from the date of the declaration and proposal, the
Township shall enact a curative amendment to validate or reaffirm
the validity of this chapter pursuant to the provisions of § 609
of the Pennsylvania MPC, Act of 1968, P.L. 805, No. 247, as reenacted
and amended,[1] in order to cure the declared invalidity of this chapter.
[1]
Editor's Note: See 53 P.S. § 10609.
C.
Upon the initiation of the procedures as set forth in Subsection A, the Board of Supervisors shall not be required to entertain or consider any landowner's curative amendment filed under § 609.1 of the Pennsylvania MPC, Act of 1968, P.L. 805, No. 247, as reenacted and amended,[2] nor shall the Zoning Hearing Board be required to give
a report requested under § 909.1 or 916.1 of the Pennsylvania
MPC, Act of 1968, P.L. 805, No. 247, as reenacted and amended,[3] subsequent to the declaration and proposal based upon the grounds identical or substantially similar to those specified by the resolution required by Subsection A(1). Upon completion of the procedures set forth in Subsection A, no rights to a cure pursuant to the provisions of §§ 609.1 and 916.1 of the Pennsylvania MPC, Act of 1968, P.L. 805, No. 247, as reenacted and amended, shall from the date of the declaration and proposal accrue to any landowner on the basis of the substantive invalidity of this chapter for which there has been a curative amendment pursuant to this section.
D.
The Township, having utilized the procedures set forth in this section,
may not again utilize said procedure for a period of 36 months following
the date of enactment of a curative amendment or reaffirmation of
the validity of this chapter; provided, however, if after the date
of declaration and proposal there is a substantially new duty imposed
upon the Township by virtue of a change in statute or by virtue of
a Pennsylvania Appellate Court decision, the Township may utilize
the provisions of this section to propose a curative amendment to
this chapter to fulfill said duty or obligation.
In case any building, structure, landscaping or land is or is
proposed to be erected, constructed, reconstructed, altered, converted,
maintained or used in violation of this chapter, the Board of Supervisors
or, with the approval of the Board of Supervisors, an officer of the
Township, or any aggrieved owner or tenant of real property who shows
that his property or person will be substantially affected by the
alleged violation, in addition to other remedies, may institute any
appropriate action or proceeding to prevent, restrain, correct or
abate such building, structure, landscaping or land or to prevent,
in or about such premises, any act, conduct, business or use constituting
a violation. When any such action is instituted by a landowner or
tenant, notice of that action shall be served upon the Township at
least 30 days prior to the time the action is begun by serving a copy
of the complaint on the Board of Supervisors. No such action may be
maintained until such notice has been given.
A.
If it appears to the Township that violation of this chapter has
occurred, the Township shall initiate enforcement proceedings by sending
an enforcement notice as provided in this section.
B.
The enforcement notice shall be sent to the owner of record of the
parcel on which the violation has occurred, to any person who has
filed a written request to receive enforcement notices regarding that
parcel, and to any other person requested in writing by the owner
of record.
C.
An enforcement notice shall state at least the following:
(1)
The name of the owner of record and any other person against whom
the Township intends to take action.
(2)
The location of the property in violation.
(3)
The specific violation, with a description of the requirements which
have not been met, citing in each instance the applicable provisions
of this chapter.
(4)
The date before which the steps for compliance shall be commenced
and the date before which the steps shall be completed.
(5)
That the recipient of the notice has the right to appeal to the Zoning
Hearing Board within a prescribed period of days.
(6)
That failure to comply with the notice within the time specified,
unless extended by appeal to the Zoning Hearing Board, constitutes
a violation, with possible sanctions clearly described.
D.
In any appeal of an enforcement notice, the Township Zoning Hearing
Board shall have the responsibility of presenting its evidence first.
E.
Any filing fees paid by a party to appeal an enforcement notice to
the Zoning Hearing Board shall be returned to the appealing party
by the Township if the Zoning Hearing Board, or any court in a subsequent
appeal, rules in the appealing party's favor.
A.
Any person, partnership or corporation who or which has violated
or permitted the violation of the provisions of this chapter shall,
upon being found liable therefor in a civil enforcement proceeding
commenced by the Township, pay a judgment of not more than $500 plus
all court costs, including reasonable attorney fees, incurred by the
Township as a result thereof. No judgment shall commence or be imposed,
levied or payable until the date of the determination of a violation
by the magisterial district judge. If the defendant neither pays nor
timely appeals the judgment, the Township may enforce the judgment
pursuant to the applicable rules of civil procedure. Each day that
a violation continues shall constitute a separate violation, unless
the district justice, in determining that there has been a violation,
further determines that there was a good-faith basis for the person,
partnership or corporation violating this chapter to have believed
that there was no such violation, in which event there shall be deemed
to have been only one such violation until the fifth day following
the date of the determination of a violation by the district justice,
and thereafter each day that a violation continues shall constitute
a separate violation.
B.
The Court of Common Pleas, upon petition, may grant an order of stay,
upon cause shown, tolling the per-diem fine pending a final adjudication
of the violation and judgment.
C.
Nothing contained in this section shall be construed or interpreted
to grant to any person or entity, other than the Township, the right
to commence any action for enforcement pursuant to this section.
A.
Conflict with other laws. The provisions of this chapter shall be
deemed to be minimum requirements to meet the purposes stated herein.
Where the provisions of this chapter impose greater restrictions than
those of any federal or state statute, rule, regulation or other ordinance,
the provisions of this chapter shall prevail. Where the provisions
of any federal or state statute, rule, regulation or other ordinance
impose greater restrictions than those of this chapter, the provisions
of such federal or state statute, rule, regulation or ordinance shall
prevail.
B.
Severability. The provisions of this chapter are hereby declared
to be severable. If any section, subsection, sentence, clause, phrase
or provision hereof is held or judged by any court of competent jurisdiction
to be unconstitutional, illegal or otherwise invalid, any such holding
or judgment shall not be construed as affecting or impairing any other
section, subsection, sentence, clause, phrase or provision of this
chapter, it being the expressed intent of the Board of Supervisors
that this chapter would have been enacted had such unconstitutional,
illegal or otherwise invalid section, subsection, clause, phrase,
or provision not been included.
C.
Saving clause. Nothing in this chapter shall be construed to affect
any suit or proceeding pending in any court, or any rights acquitted,
or liability incurred, or any cause or causes of action acquired or
existing under any act or ordinance hereby repealed, nor shall any
just or legal right or remedy of any character be lost, impaired or
affected by this chapter.
Should any provision, section, subsection, clause or phrase
of this chapter or its application be declared or held for any reason
to be unconstitutional or invalid, such decision shall not affect
the validity of the chapter as a whole or any part thereof other than
the part so declared to be unconstitutional or invalid.
This chapter shall take effect on the fifth day after adoption.
This Ordinance No. 2009-04 is hereby enacted and adopted by
the Board of Supervisors of Straban Township, Adams County, Pennsylvania,
this day of November 2, 2009.
