Pursuant to Article IX of the Pennsylvania Municipalities Planning Code, as amended,[1] the East Manchester Township Board of Supervisors do hereby create a Zoning Hearing Board consisting of either three or five members as shall be established by resolution of the Supervisors from time to time, pursuant to Article IX of the Municipalities Planning Code (MPC), who shall be residents of the Township. Members of the Zoning Hearing Board shall hold no other office in the Township.
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
A.
Terms of office. The terms of office shall be established
by Section 930 of the MPC[1] and shall be so fixed that the term of office of one member
shall expire each year. The Zoning Hearing Board shall promptly notify
the Township Supervisors of any vacancies which occur. Appointments
to fill vacancies shall be only for the unexpired portion of the term.
[1]
Editor's Note: See 53 P.S. § 10903,
B.
Alternate members. The Board of Supervisors 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. When seated as provided
herein, an alternate shall be entitled to participate in all proceedings
and discussions of the Zoning Hearing Board to the same and full extent
as provided by law for Zoning Hearing 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 in the MPC, as
amended, and as otherwise provided by law. Alternates shall hold no
other office in the Township. Any 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 nor be
compensated unless designated as a voting alternate member.
C.
Removal of members. 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 Township
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.
D.
Organization of the Zoning Hearing Board.
(1)
The Zoning Hearing Board shall elect from its own membership its officers, who shall serve annual terms and as such 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 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 of the Board as provided in § 255-85B of this chapter.
(2)
If, by reason of absence or disqualification of a
member, a quorum is not reached, the Chairman of the Zoning Hearing
Board shall designate as many alternate members of the Zoning Hearing
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 case. Designation of an alternate pursuant to this
section shall be made on a case-by-case basis in rotation according
to declining seniority among all alternates.
(3)
The Zoning Hearing Board may make, alter and rescind
rules and forms for its procedure, consistent with ordinances of East
Manchester Township and laws of the Commonwealth of Pennsylvania.
The Zoning Hearing Board shall keep full public records of its business
and shall submit a report of its activities to the Township Board
of Supervisors once a year.
Within the limits of funds appropriated by the Township Supervisors, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. Members of the Zoning Hearing Board and alternates seated pursuant to § 255-83D(2). herein may receive compensation for the performance of their duties, as may be fixed by the Township Supervisors, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Township Supervisors.
The Zoning Hearing Board shall conduct hearings
and make decisions in accordance with the following requirements:
A.
Notice. Public notice shall be given and written notice
shall be given to the applicant, the Township Zoning Officer, all
landowners of property adjoining the subject property (including properties
which would adjoin but for an intervening street or road), and to
any person who has made a timely request for such notice. Written
notices shall be in the form of a letter setting forth the time and
date of the hearing, identifying the property which is the subject
of the application and the nature of the relief sought, and advising
the recipients of the notice of their right to appear at the hearing
and present testimony or witnesses. Such notices shall be mailed at
least 10 days prior to the scheduled date of the hearing by first-class
mail, postage prepaid. The Township Supervisors may establish reasonable
fees, based on cost, to be paid by the applicant and by persons requesting
a notice not required by this chapter. In addition to the notice provided
herein, notice of said hearings shall be conspicuously posted on the
affected tract of land, at least seven days prior to the date of the
hearing.
B.
Conduct of hearing.
(1)
The hearing shall be held within 60 days from the
date of the applicant's request, unless the applicant has agreed in
writing to an extension of time.
(2)
The hearings shall be conducted by the Zoning Hearing
Board or the Zoning Hearing 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 Zoning Hearing Board; but the parties may waive
decision or findings by the Zoning Hearing Board and accept the decision
or findings of the hearing officer as final.
(a)
The parties to the hearing shall be the applicant,
East Manchester Township, any person affected by the application who
has made timely appearance of record before the Zoning Hearing Board,
and any other person, including civic or community organizations permitted
to appear before the Board. The Zoning Hearing Board shall have the
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.
(b)
The Chairman or Acting Chairman of the Zoning
Hearing 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.
(c)
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.
(d)
Formal rules of evidence shall not apply, but
irrelevant, immaterial, or unduly repetitious evidence may be excluded.
(e)
The Zoning Hearing 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 Zoning Hearing Board. The cost of the original transcript
shall be paid by the Zoning Hearing Board if the transcript is ordered
by the Zoning Hearing Board or hearing officer or shall be paid by
the person appealing from the decision of the Zoning Hearing 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.
(f)
The Zoning Hearing Board or 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 their solicitor, unless the parties are afforded
an opportunity to contest the material so noticed and shall not inspect
the site or its surroundings after the commencement of hearings with
any party of his representative unless all parties are given an opportunity
to be present.
C.
Decision.
(1)
The Zoning Hearing 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 Zoning Hearing 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 reasons therefor. Conclusions based on any provisions of this chapter or any Township ordinance, rule or regulation, or the MPC, shall contain a reference to the provision 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 Zoning Hearing Board shall make his report and recommendations available to the parties and the parties shall be entitled to make written representations thereon to the Zoning Hearing 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 Zoning Hearing Board fails to render the decision within the period required by this subsection, or fails to hold 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 failure of the Zoning Hearing Board to meet or render a decision as hereinabove provided, the Zoning Hearing Board shall give public notice of said decision within 10 days from the last day it could have met to render a decision in the same manner as provided in § 255-86C(1) of this chapter. If the Zoning Hearing 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)
A
copy of the final decision or, where no decision is called for, of
the finding shall be delivered to the applicant personally or mailed
to him/her not later than the day following its date. To all other
persons who have filed their name and address with the Zoning Hearing
Board not later than the last day of the hearing, the Zoning Hearing
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.
B.
The Zoning Hearing Board shall have exclusive jurisdiction
to hear and render final adjudications in the following matters:
(1)
(2)
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.
(3)
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.
(4)
Appeals from a determination by a Township Engineer
or the Zoning Officer with reference to the administration of floodplain
or flood hazard provisions within this chapter.
(5)
Applications for variances from the terms of this chapter or Chapter 108, Floodplain Management, or such provisions of this chapter.
(7)
To hear and decide challenges to the validity of any
land use ordinance, including challenges raising questions of defective
enactment.
(9)
Appeals from the determination of the Zoning Officer or Township Engineer in the administration of this chapter or provisions herein with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development not involving Article V (Subdivision and Land Development) or Article VII (Planned Residential Development) applications.[5]
[5]
Editor's Note: See 53 P.S. § 10501 et seq. and 53
P.S. § 10701 et seq., respectively.
(10)
Variances. 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.
(a)
The Zoning Hearing Board may grant a variance,
provided 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, the property
cannot be reasonably 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 appellant;
[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 of development
of adjacent property, nor 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.
(b)
In granting any variance, the Zoning Hearing
Board may attach such reasonable conditions and safeguards as it may
deem necessary to implement the purposes of this act and this chapter.
(c)
The following provisions shall also apply for
any variance granted for any proposed development located entirely
or partially within any floodplain area:
(d)
A complete record of all variance requests and related actions shall
be maintained by the Township. In addition, a report of all variances
granted during the year shall be included in the annual report to
the Federal Insurance Administration.
C.
Special exceptions. It is the intent of this article
to provide special controls and regulations for particular uses which
may, under certain conditions, be conducted within the various zoning
districts established in this chapter.
(1)
The Zoning Hearing Board shall hear and decide requests for special exceptions in accordance with the standards and criteria set forth in § 255-86D of this chapter. In granting a special exception, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purpose of this chapter.
(2)
Nothing in this article shall relieve the owner or his agent, the developer, or the applicant for a special exception use permit from receiving a subdivision and land development plan approval in accordance with Chapter 208, Subdivision and Land Development. When an application for a special exception has been filed with the Zoning Hearing Board and the subject matter of such application would ultimately constitute either a land development or a subdivision, no change or amendment of the zoning, subdivision or other governing ordinance or plans shall affect the decision on such application adversely to the applicant, and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed. Provided, further, should such an application be approved by the Zoning Hearing Board, the applicant shall be entitled to proceed with the submission of either land development or subdivision plans within a period of six months, or longer as may be approved by the Zoning Hearing Board, following the date of such approval in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed before the Zoning Hearing Board. If either a land development or subdivision plan is so filed within said period, such plan shall be subject to the relevant provisions of Sections 508(1) through 508(4) of the Municipalities Planning Code, as amended.[6]
[6]
Editor's Note: See 53 P.S. §§ 10508(1) through
10508(4).
(3)
Application. Each application for a special exception
use shall be accompanied by a proposed plan showing the size and location
of the lot, the location of all buildings and proposed facilities,
including access drives, parking areas, and all streets within 200
feet of the lot. The plan shall indicate the use of each building
located within 200 feet of the lot.
D.
Standards for special exceptions.
(1)
The Zoning Hearing Board shall take into consideration
the public health, safety, and welfare, the comfort and convenience
of the public in general and of the residents of the immediate neighborhood
in particular, and may recommend appropriate conditions and safeguards
as may be required in order that the result of its action may, to
the maximum extent possible, further the expressed intent of this
chapter and the accomplishment of the following objectives in particular.
(2)
The applicant for a special exception shall demonstrate
the following:
(a)
That all proposed structures, equipment, or
material shall be readily accessible for fire and police protection.
(b)
That the proposed use shall be of such location,
size and character that, in general, it will be in harmony with the
appropriate and orderly development of the district in which it is
proposed to be situated and will not be detrimental to the value or
orderly development of adjacent properties in accordance with the
zoning classification of such properties.
(c)
That the grant of the special exception shall
not materially increase traffic congestion in the roads and highways,
nor cause nor encourage commercial or industrial traffic to use residential
streets, nor be incompatible with the existing traffic conditions
and adjacent uses.
(d)
The location and height of buildings, the location,
nature and height of walls and fences, and the nature and extent of
landscaping on the site shall be such that the use will not hinder
or discourage the appropriate development and use of adjacent land
and buildings.
(e)
That the proposed use conforms to any and all specific requirements for that use set forth in Article IV of this chapter.
(f)
Adequate public facilities are available and
existing to serve the proposed use (e.g., schools, fire, police and
ambulance protection, sewer, water, and other utilities, parks, vehicular
access, recreation, etc.).
(g)
The proposed use will not impair the integrity
of the Township's Comprehensive Plan.
(h)
The use of the site complies with the requirements
of any other public agency having jurisdiction over the proposed use.
(i)
Operations in connection with a use shall not
be more objectionable to nearby properties by reason of noise, odor,
fumes, vibration, glare, smoke or other potential nuisance or safety
hazard than would be the operations of the permitted use.
(3)
For development permitted by special exception in
floodplain areas, the Zoning Hearing Board shall take the following
factors into consideration:
(a)
No special exception shall be approved for any
construction, development, use, or activity within any floodway area
that would cause any increase in the one-hundred-year flood elevation.
(b)
The danger to life and property due to increased
flood heights or velocities caused by encroachments.
(c)
The proposed water supply and sanitation systems
and the ability of these systems to prevent the disease, contamination,
and unsanitary conditions.
(d)
The danger that materials may be swept on to
other lands or downstream to the injury of others.
(e)
The susceptibility of the proposed facility
and its contents to flood damage and the effect of such damage on
the individual owners.
(f)
The importance of the services provided by the
proposed facility to the community.
(g)
The requirements of the facility for a waterfront
location.
(h)
The availability of alternative locations not
subject to flooding for the proposed use.
(i)
The compatibility of the proposed use with existing
development and development anticipated in the foreseeable future.
(j)
The relationship of the proposed use to the
comprehensive plan and floodplain management program for the area.
(k)
The safety of access of ordinary and emergency
vehicles to the property in times of flood.
(l)
The expected heights, velocity, duration, rate
of rise, and sediment transport of the floodwaters expected at the
site.
(m)
Such other factors which are relevant to the
purposes of this chapter.
[Amended 12-9-2014 by Ord. No. 2014-6]
If, within six months after approval of an application by the Board under this article, the applicant fails to either apply for the necessary permits from the Township, or, if required by this chapter or Chapter 208, Subdivision and Land Development, fails to file a subdivision and/or land development plan for the tract pursuant to the decision of the Board, then the action of the Board granting the request of the applicant shall be and become null and void. The Zoning Officer may extend the aforementioned deadline by one six-month extension upon request by the applicant.
