[Amended 10-27-1992 by Ord. No. 1-1992]
A.
There shall be a Zoning Hearing Board which shall
consist of three members, who shall be appointed by resolution of
the Board of Supervisors. The membership of the Zoning Hearing Board
shall consist of residents of the Township. Their terms of office
shall be three years and shall be so fixed that the terms of office
of one member shall expire each year. The Zoning Hearing Board shall
promptly notify the Board of Supervisors of any vacancy which occurs.
Appointments to fill 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.
B.
The Board of Supervisors may, by resolution, appoint a resident of the Township to serve as an alternate member of the Zoning Hearing Board. The term of the alternate member shall be three years. The alternate member shall hold no other office in the Township. An alternate may participate in any proceeding or discussion of the Zoning Hearing Board, but shall not be entitled to vote as a member of the Zoning Hearing Board or be compensated as a member as provided in § 139-121, unless seated as a member in accordance with the provisions of § 139-120.
C.
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 to take
such a vote. A hearing shall be held in connection with the vote if
the member shall request it in writing. When used hereafter in this
article, the term "Board" shall mean the Zoning Hearing Board.
A.
The Board shall elect from its own membership its officers, who shall serve annual terms of such and may succeed themselves. For the conduct of any hearing and the taking of any action, a quorum shall not be less than a majority of all the members of the Board, but the Board may appoint a hearing officer from its own membership to conduct any hearing on its behalf, and the parties may waive further action by the Board, as provided in § 139-122.
B.
If, by reason of absence or disqualification of a
member, a quorum is not reached, the Chairman of the Board shall designate
the alternate member to sit on the Board. The alternate member 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.
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 and shall submit a report of its activities to the
Board of Supervisors once a year.
A.
Within the 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, including the alternate member when designated in accordance with § 139-120B of this article, may receive compensation for the performance of their duties, as may be fixed by the Board of Supervisors. In no case, however, shall the amount of compensation exceed the rate authorized to be paid to the members of the Board of Supervisors.
B.
Any applicant before the Board shall deposit with the Treasurer of the Township the appropriate filing fee, as established by resolution of the Board of Supervisors and in accordance with the terms of § 139-117. Fees shall be for purposes as prescribed in Section 908(1.1) of the Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10908(1.1).
The Board shall conduct hearings and make decisions
in accordance with the following requirements.
A.
Time and place.
(1)
The Board shall fix a reasonable time and place
for public hearings and shall give notice thereof as follows:
(a)
By giving public notice thereof, as defined
by this chapter.
(b)
By providing, by mail, a written notice thereof
to the applicant at least seven days before the date fixed for the
hearing.
[Amended 3-14-2016 by Ord. No. 5-2016]
(c)
By mailing written notice thereof to the Zoning
Officer, the Township Secretary, each member of the Board of Supervisors,
each member of the Planning Commission, the Secretary of the Chester
County Planning Commission and to all persons or organizations who
shall have registered their names and addresses for this purpose with
the Board and paid the appropriate mailing fee, if any. The Board
of Supervisors may fix an annual fee for provision of notices to such
registered persons or organizations.
(d)
By posting the written notice of said hearing
in the conspicuous location on the affected tract of land, at least
one week prior to the hearing.
(e)
When the Board shall so order, by mailing a
notice thereof to the owner, if his residence is known, or to the
occupier of every lot on the same street or road within 500 feet of
the lot or building in question, or every lot not on the same street
or road but within 150 feet of the lot or building in question, provided
that failure to give the notice required by this subsection shall
not invalidate any action taken by the Board.
(2)
The notice herein required shall state the location
of the lot or building in question and the general nature of the question
involved, as well as the date, time and place of the hearing.
B.
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, but the parties may waive the decision or findings by the Board
and accept the decision or findings of the hearing officer as final.
C.
The parties to the hearing shall be the appellant
or applicant, 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, which the
Board permits to appear as a party. 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.
D.
The Chairman or Acting Chairman of the Board, or the
hearing officer presiding, shall have power to administer oaths and
issue subpoenas to compel the attendance of witnesses and documents
requested by the parties.
E.
The parties shall have the right to be represented
by counsel and shall be afforded the opportunity to respond and present
evidence and argument and cross-examine adverse witnesses on all relevant
issues.
F.
Formal rules of evidence shall not apply, but irrelevant,
immaterial or unduly repetitious evidence may be excluded.
G.
A stenographic record of the proceedings shall be
made by a court reporter. The appearance fee for the court reporter
shall be shared equally by the applicant and the Board. Any party
requesting the original transcript or a copy of the transcript shall
bear the cost of the same. Graphic or written material received in
evidence shall be available for public inspection and copying.
H.
Once an application has been duly filed, the Board
or the hearing officer shall not communicate, directly or indirectly,
with any party or his representatives in connection with any issue
involved except upon notice and opportunity for all parties to participate;
shall not take notice of any communication, reports, staff memoranda
or other materials, except advice from its solicitor, unless the parties
are afforded an opportunity to contest the material so noticed; and
shall not inspect the site or its surroundings with any party or his
representative unless all parties are given an opportunity to be present.
I.
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, the 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 of any act,
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 his decision or findings
are final, the Board shall make his 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. Where
the Board, or the hearing officer with power to render a decision,
fails to render a decision within the period required by this subsection,
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.
J.
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 by certified mail not later than the day
following its date. To all other persons who have filed their name
and address with the Board no later than the last day of the hearing,
the Board shall provide, by mail or otherwise, brief notice of the
decision or findings and a statement of the place at which the full
decision or findings may be examined. Copies of the decision or findings
provided the applicant shall also be filed with the Township Secretary,
Planning Commission and Zoning Officer.
The Board shall hear and decide appeals where
it is alleged by the appellant that the Zoning Officer has failed
to follow prescribed procedures or has misinterpreted any provisions
of a valid ordinance or map or any valid rule or regulation governing
the action of the Zoning Officer, as stipulated under the terms of
Section 909.1(a) of the Municipalities Planning Code.[1] In addition, the Board shall hear all other matters authorized
by Section 909.1 of the Municipalities Planning Code.[2]
The Board shall hear any substantive challenge
to the validity of this chapter or the Zoning Map, except a challenge
brought before the Board of Supervisors under the terms of Section
609.1 or Section 916.1(a)(2) of the Municipalities Planning Code.[1] The Board also shall hear any challenge to the validity of this chapter raising procedural questions or alleged defects in the process of enactment or adoption, where such challenge is raised by an appeal taken within 30 days after the effective date of this chapter. In all such challenges, the Board shall take evidence and make a record thereon as provided in § 139-122. At the conclusion of the hearing, the Board shall decide all contested questions of interpretation and shall make findings on all relevant issues of fact, which shall become part of the record on appeal to court.
[1]
Editor's Note: See 53 P.S. §§ 10609.1
and 10916.1(a)(2).
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, by rule, prescribe the
form of application. The procedure shall be as follows:
A.
A preliminary written application shall be filed with
the Zoning Officer, who shall verify that the application is complete
and includes the requisite fee and that it is properly filed for a
variance.
B.
Upon acceptance by the Zoning Officer that the application
is complete, correct and proper, a formal filing for consideration
of the variance request shall be made by the Zoning Officer to the
Zoning Hearing Board, together with the comments and recommendations
of the Zoning Officer. Copies of the filing and comments shall be
submitted to the Township Planning Commission and Board of Supervisors.
C.
A public hearing shall be properly advertised in accordance with the requirements established in § 139-122 of this chapter.
D.
Prior to the public hearing, the Planning Commission
shall submit its written comments and recommendations on the application
to the Zoning Hearing Board, or a written statement that it chooses
to make no comments and recommendations. When the Planning Commission
does submit written comments, a member of the Planning Commission
shall attend the public hearing and be available for cross-examination.
The comments of the Planning Commission shall be made a part of the
hearing record and shall be considered by the Board, but shall not
be binding.
E.
Upon completion of the public hearing, the Board may
grant a variance, provided that the procedures specified above are
met and the following findings are made where relevant in a given
case:
(1)
That there are unique physical circumstances
or conditions, including irregularity, narrowness or shallowness of
lot size or shape, or exceptional topographical or other physical
conditions peculiar to the particular property and that the unnecessary
hardship is due to such conditions and not the circumstances or conditions
generally created by the provisions of this chapter in the neighborhood
or district in which the property is located;
(2)
That because of such physical circumstances
or conditions, there is no possibility that the property can be developed
in strict conformity with the provisions of this chapter, and that
the authorization of a variance is therefore necessary to enable the
reasonable use of the property;
(3)
That such unnecessary hardship has not been
created by the applicant;
(4)
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, and will not be detrimental
to the public welfare; and
(5)
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.
Where this chapter has stated special exceptions to be granted or denied by the Board pursuant to express standards and criteria, the Board shall hear and decide requests for such special exceptions in accordance with such 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 this chapter. The procedures for acting on a special exception request shall be the same as those specified for variances under § 139-125, except that the findings contained in Subsection E(1) through (5) thereof shall not be applicable.
A.
Application shall be made in writing, indicating the
section of this chapter under which a special exception is sought.
The application shall include a reasonably exact, dimensional sketch
showing the placement and use of the proposed buildings and details
of parking, loading, lighting, utility systems, sidewalks and other
pedestrian areas. A description of the uses proposed shall be included
in sufficient detail that any potentially adverse impacts can be determined.
B.
The Board shall review the application materials and
the hearing testimony to determine whether the proposed special exception
will impose adverse impacts upon the public interest which are greater
than those that might be expected in normal circumstances from such
a use or activity on the site in question.
C.
In presenting an application for special exception,
the applicant shall demonstrate that the proposal, if approved, will
comply with all applicable ordinances and regulations. Where any waiver
from or modification of the terms of such ordinances or regulations
would be necessary, the Board may consider this an indication of the
proposal's greater than normal adverse impact, and may, as it deems
appropriate, either deny the application accordingly or impose conditions
on any grant of approval to address such impacts.
(1)
In authorizing any modifications or waivers
to otherwise applicable requirements through the imposition of reasonable
conditions, the Board shall relate such conditions specifically to
the site in question and to the hearing testimony offered in support
of the modification or waiver.
(2)
Any subsequent request by the applicant for
further modification or waiver not presented in testimony at the public
hearing may be authorized by the Board only through the procedures
of this section for approval of a special exception.
D.
In requesting approval for any special exception,
as identified within this chapter, the applicant shall, in relation
to the following standards and criteria, have the burden of demonstrating
that the proposed special exception will not impose adverse impacts
upon the public interest which are greater than those that might be
expected in normal circumstances from such a use or activity on the
site in question:
(1)
Suitability of the tract. The tract of land
in question must be suitable for the use proposed, in terms of the
following criteria, as applicable:
(2)
Impact on existing neighborhood character. The
proposed special exception:
(a)
Should not alter unduly the character of the
existing neighborhood and adjacent tracts and/or should be susceptible
to proposed or potential mitigation measures.
(b)
Should, in terms of the character and type of
development in the area surrounding the location of the proposed special
exception, constitute an appropriate use in the area.
(3)
Impact on circulation. The proposed special
exception's deleterious impacts on traffic patterns and volumes, access
and parking will be no greater than those normally associated with
such a use or activity on the site in question.
(4)
Economic impact. The character and type of development
that would result from approval of the proposed special exception
should have no greater adverse impacts on the generation of revenue
for the Township and on the imposition of demands on municipal services
than those normally associated with such a use on the site in question.
In addition, the Board shall give general consideration to the size,
scope, extent and character of the proposed special exception and
to its consistency with the purposes and objectives of the Willistown
Township Comprehensive Plan, including protection and promotion of
the public health, safety and welfare.
E.
Extension or change. A use of a building or lot authorized
as a special exception, either by decision of the Zoning Hearing Board
or by the enactment of or amendment to the Zoning Chapter or the Environmental
Protection Chapter,[1] may be extended or changed within the building or upon
the lot only when authorized as a special exception following application
to and approval by the Zoning Hearing Board in accordance with procedures,
standards and criteria set forth in the Zoning Chapter or the Environmental
Protection Chapter.
[Added 6-20-2005 by Ord. No. 1-2005]
Where the Zoning Hearing Board grants approval
of a special exception or variance, it shall provide a memorandum
to the applicant, stipulating the terms and conditions of such approval.
Such memorandum shall contain a metes and bounds description of the
property in question. The applicant shall execute and provide to the
Township a recordable, notarized copy of the memorandum and shall
consent to recording by the Township in the office of the Recorder
of Deeds of Chester County within 30 days following expiration of
the appeal period.
Any approval of a special exception or variance
request shall be deemed null and void 18 months from the date of such
approval if, within that period, no application is made for a building
permit, certificate of occupancy, sedimentation and erosion control
permit, subdivision or land development approval or any other approval
or permit required by the Township to proceed with construction, occupancy
or use pursuant to the special exception or variance, unless, prior
to the expiration of the eighteen-month period, the Board shall grant
an extension.
Appeals and proceedings under §§ 139-123 and 139-124 may be filed with the Board, in writing, by any officer or agency of the Township, or by any person aggrieved. Request for a variance under the terms of § 139-125 or for a special exception under the terms of § 139-126 may be filed by any landowner or any tenant with the permission of such landowner, or by any equitable owner of the subject land in the Township.
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 appropriate Township officer, agency or body, if such proceeding is designed to secure reversal or to limit 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 his interest after such approval, he shall be bound by the knowledge of his predecessor in interest. All appeals from determinations adverse to landowners shall be filed by the landowner within 30 days after receipt of the written decision of the Board rendered under the terms of § 139-122I of this article.
