[1]
Editor's Note: This article (originally Part 21 of Ch. 27 of the 1995 Code) was renumbered 12-3-2007 by Ord. No. 276 as Part 30.
[Amended 10-5-1992 by Ord. No. 127-R]
A. 
The Board of Commissioners shall appoint a Zoning Hearing Board consisting of three members who are residents of Lower Pottsgrove Township. The Board of Commissioners shall designate one such member to serve until the first day of January following the effective date of this chapter, one to serve until the first day of the second January thereafter, and one to serve until the first day of the third January thereafter; shall appoint three successors on the expiration of their respective terms to serve three years; and shall fill any vacancy for the unexpired term of any member whose term becomes vacant. A member shall hold no other elected or appointed office in the Township nor be an employee of the Township. The members of the Zoning Hearing Board shall be removable for cause by the Board of Commissioners upon written charges and after a hearing, if such hearing is requested in writing by the member subject to removal.
[Amended 12-3-2007 by Ord. No. 276]
B. 
Alternate members.
(1) 
The Board of Commissioners may appoint, by resolution, at least one, but no more than three, residents of the Township to serve as alternate members of the Board. The term of office of an alternate member shall be three years. 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. Alternates shall hold no other office in the Township including membership on the Planning Commission and Zoning Officer. Any 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.
(2) 
If by reason of absence or disqualification of a member a quorum is not reached, the Chairman of the Board shall designate as many alternate members of the Board to sit on the Board as may be needed to provide a quorum. Any alternate member of the Board shall continue to serve on the Board in all proceedings involving the matter or case for which the alternate was initially appointed until the Board has made a final determination of the matter or the case. Designation of an alternate shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.
[Amended 10-5-1992 by Ord. No. 127-R]
The Board shall have the following powers:
A. 
To hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by an administrative official in the enforcement of the Municipalities Planning Code, 53 P.S. § 10101 et seq., or this chapter adopted pursuant thereto.
B. 
To hear and decide special exceptions to the terms of this chapter in such cases as are herein expressly provided for, in harmony with the general purposes and intent of this chapter, with power to impose appropriate conditions and safeguards. In granting special exceptions as authorized in this chapter, the Zoning Hearing Board shall consider, inter alia:
(1) 
The suitability of the property for the use desired.
(2) 
The effect of the proposed use upon the safety and health of the immediate neighborhood and the general public therein.
(3) 
The effect of the proposed use upon the character of the immediate neighborhood so as to conserve the value of existing buildings and encourage the most appropriate use of the land.
C. 
To authorize upon appeal, in special cases, such variance from the terms of this chapter that the Board shall feel will not be contrary to the public interest; where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship; and so that the spirit of this chapter shall be observed and justice done.
D. 
To hear and decide substantive challenges to the validity of any land use ordinance except those brought before the Board of Commissioners as landowner curatives.
E. 
To hear and decide 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 Township ordinance appealed from is the initial Zoning Ordinance of the Township and a Zoning Hearing Board has not been previously established, the appeal raising procedural questions shall be taken directly to court.
In exercising the above-mentioned powers, the Board may reverse or affirm, wholly or in part; may modify the order, requirement, decision or determination appealed from; and may make such order, requirement, decision or determination as ought to be made; and to that end shall have all the powers of the officer from whom the appeal is taken. Notice of the Board's decision shall forthwith be mailed to the applicant, the property owner and other interested parties.
The Board shall adopt rules of procedure in accordance with the several provisions of this chapter and the requirements of Article IX of the Municipalities Planning Code as to the manner of filing appeals, applications for special exceptions or for variances from the terms of this chapter, and as to the conduct of the business of the Board.
Meetings of the Board shall be held at the call of the Chairman and at such times as the Board may determine. The Chairman or, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact; keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record.
[Amended 10-5-1992 by Ord. No. 127-R]
Upon the filing with the Board of an application for a special exception or for variance from the terms of this chapter, the Board shall fix a reasonable time and place for a public hearing thereon and shall give 10 days' notice as follows:
A. 
By publishing a notice thereof once in a newspaper of general circulation published or circulated in the Township.
B. 
By mailing or serving due notice thereof to the parties in interest and to conspicuously post the affected tract of land at least one week prior to the hearing.
C. 
By mailing or serving due notice thereof to the Township.
D. 
When the Board shall so order, by mailing or serving notice thereof to the owner or owners, if their residence is known, or to the occupier or occupiers of every lot on the same street within 500 feet of the lot or building in question and of every lot not on the same street within 150 feet of the said lot or building, provided that failure to give notice required by this section shall not invalidate any action taken by the Board.
E. 
The notices herein required shall state the location of the building or lot and the general nature of the question involved.
The Zoning Hearing Board shall render a written decision or, when no decision is called for, make written findings on the application within 45 days. Each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor.
A. 
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.
B. 
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 brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.
[Amended 12-1-1980 by Ord. No. 127-I]
In any instance where the Zoning Hearing Board is required to consider a variance or special exception from this chapter or map in accordance with the provisions of this chapter, the Board shall, among other things:
A. 
Consider the suitability of the property for the use desired. Assure itself that the proposed change is consistent with the spirit, purpose and intent of this chapter.
B. 
Determine that the proposed change 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 property adjacent to the area included in the proposed change or plan is adequately safeguarded.
C. 
Determine that the proposed change will serve the best interests of the Township, the convenience of the community (where applicable) and the public welfare.
D. 
Consider the effect of the proposed change upon the logical, efficient and economical extension of public services and facilities such as public water, sewers, police and fire protection and public schools.
E. 
Consider the suitability of the proposed location of an industrial or commercial use with respect to probable effects upon highway traffic and assure adequate access arrangements in order to protect major streets from undue congestion and hazard.
F. 
Be guided in its study, review and recommendation by sound standards of subdivision practice where applicable.
G. 
Impose such conditions, in addition to those required, as are necessary to assure that the intent of this chapter is complied with, which conditions may include, but are not limited to, harmonious design of buildings; planting and its maintenance as a sight or sound screen; the minimizing of noxious, offensive or hazardous elements; and adequate standards of parking and sanitation.
H. 
With respect to a variance, determine that there are special circumstances or conditions fully described in the findings applying to the land or buildings for which the variance is sought, which circumstances or conditions are such that the application of the provisions of this chapter would deprive the applicant of the reasonable use of such land or buildings.
I. 
Determine that the unique circumstances for which the variance is sought were neither created by the owner of the property nor were due to or the result of general conditions in the district in which the property is located.
J. 
Requests for special exceptions or variances in any Floodplain Conservation District shall be considered by the Zoning Hearing Board in accordance with the following procedures:
(1) 
An affirmative decision shall not be issued by the Zoning Hearing Board within the designated floodway if any increase in the flood levels during the base flood discharge would result.
(2) 
Affirmative decisions shall only be issued by the Zoning Hearing Board upon: a) a showing of good and sufficient cause; b) a determination that failure to grant the appeal would result in exceptional hardship to the applicant; and c) a determination that the granting of an appeal will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud or victimization of the public or conflict with existing local laws or ordinances.
(3) 
Affirmative decisions shall only be issued upon determination that it is the minimum necessary, considering the flood hazard, to afford relief.
(4) 
The Zoning Hearing Board shall notify the applicant in writing over the signature of community officials that the issuance of a decision to allow construction of a structure below the one-hundred-year-flood elevation will result in increased premium rates for flood insurance; such construction below the one-hundred-year-flood elevation increases risks to life and property. Such notification shall be maintained with a record of all decisions as required in Subsection J(5) of this section; and any variance granted to the elevation requirement, any portion of the structure built below 1 1/2 feet above the one-hundred-year flood elevation shall be floodproofed to that level according to the W1-W2 classification in the Flood Proofing Regulations, U.S, Army Corps of Engineers, Pamphlet EP 1165 2 314.
(5) 
The Zoning Hearing Board shall: a) maintain a record of all decisions including justification for their issuance; and b) report such decisions issued in its annual report submitted to the Federal Insurance Administration.
At least 10 days before the date of hearing required by law for an application for special exception or variance before the Zoning Hearing Board, the Secretary of such Board may transmit to the Planning Commission a copy of the notice of hearing and other information as may have been furnished by the applicant or the Zoning Officer. Following the public hearing, the Zoning Hearing Board may transmit to the Planning Commission a transcript of the public hearing and any other briefs presented in evidence. The Board shall not take final action on any special exception or variance until it has received the advisory opinion of the Planning Commission, provided that opinion is received within two weeks after the Zoning Hearing Board transmitted the transcript of record.
The Zoning Hearing Board in considering any matter within its jurisdiction may consult with the Lower Pottsgrove Township Planning Commission, the Montgomery County Planning Commission or any other specialist or groups of specialists having expert knowledge of the matter under consideration.
Unless otherwise specified by the Board, a special exception or variance shall expire if the applicant fails to obtain a building permit within six months of the date of authorization thereof.
Any persons aggrieved by the decision of the Board may within 30 days thereafter appeal to the Court of Common Pleas of Montgomery County by petition duly verified setting forth the grounds upon which said appeal is taken.
[Amended 12-3-2007 by Ord. No. 276]
Application before the Zoning Hearing Board as herein provided shall be accompanied by a payment to the Township in accordance with a fee schedule adopted by resolution of the Board of Commissioners following the enactment of this chapter.