A Zoning Hearing Board is herein established in order that the objectives of this chapter may be more fully and equitably achieved and a means for appeals from the administrative determinations of the Township Zoning Officer or Township Engineer as the case may be shall be decided in accordance with this chapter and Article IX of the Municipalities Planning Code.[1] Any rights, duties or obligations of the Board not specified
within this chapter shall be governed by the Pennsylvania Municipalities
Planning Code, as amended.
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
The Board of Supervisors of Towamencin Township shall appoint,
by resolution, a Zoning Hearing Board consisting of three members.
The Board of Supervisors shall designate one such member to serve
until the first day of January following the effective date of this
chapter, one until the first day of the second January thereafter,
and one until the first day of the third January thereafter. The Board
of Supervisors shall thereinafter appoint three successors on the
expiration of the respective terms of the original members to serve
individual three-year terms, and shall fill any vacancy for the unexpired
term of any member whose term becomes vacant. The word "Board" when
used in this article shall mean the Zoning Hearing Board.
Members of the Board shall be residents of the Township and
shall hold no other governmental office in the Township. 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 previous member's term.
A quorum shall be necessary for the conduct of any hearing and
the taking of any action by the Board. A quorum shall be not less
than two voting members of the Board. In the event that a quorum cannot
be achieved, or in other instances when deemed appropriate by the
Board, the Board may appoint a Hearing Officer from its own membership
to conduct any hearing on its behalf, and the parties thereto may
waive further action by the Board as provided by Section 908 of the
Pennsylvania Municipalities Planning Code,[1] as amended.
[1]
Editor's Note: See 53 P.S. § 10908.
A.
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. An alternate shall, when seated on the Board
as provided herein to complete the quorum, 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 in this act and as otherwise provided
by law and this chapter. At any time, an 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 seated
as an alternate member needed to complete the quorum. Alternates shall
hold no other office in the Township. The term of office of an alternate
member shall be three years.
B.
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 decision 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.
Any Board member may be removed for malfeasance, misfeasance,
or nonfeasance in the office or for other just cause by a majority
vote of the Board of Supervisors. Action of the Board of Supervisors
shall only be taken after the member has received a 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 such a hearing
in writing to the Board of Supervisors.
A.
The Board shall elect from its own membership its officers, to include
a Chairman and Vice Chairman, who shall serve annual terms as such
and may succeed themselves.
B.
The Board may make, alter and rescind rules and forms for its procedure,
consistent with ordinances of the Township and laws of the commonwealth.
C.
Within the limits of funds provided by the Township Supervisors,
the Board may employ or contract for secretaries, clerks, legal counsel,
consultants, and other technical and clerical services.
D.
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 Township Board of Supervisors as requested by
the Board of Supervisors. All action taken by the Board shall be fully
set forth in the minutes of the Board which shall indicate the vote
of each member of each question before same.
E.
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. Alternate members
of the Board may receive compensation, as may be fixed by the Board
of Supervisors, for the performance of their duties when designated
as alternate members, but in no case shall such compensation exceed
the rate of compensation authorized to be paid to members of the Board.
The Zoning Hearing Board shall have exclusive jurisdiction to
hear and render final adjudication in the following land use matters:
A.
Appeals where it is alleged there is an error in any order, requirement,
or determination made by an administrative official responsible for,
and in the enforcement of, this chapter, to include but not be limited
to the determination of the Zoning Officer regarding the applicability
of the words, terms, rules, regulations, provisions and restrictions
of this chapter including determinations in specific instances to
whether questionable uses are permitted by virtue of being "similar
to" or "customarily incidental to" permitted uses as provided by this
chapter.
B.
Substantive challenges to the validity of any land use ordinance,
except those brought before the Board of Supervisors pursuant to the
landowner curative amendment sections, Sections 609.1 and 916.1(a)(2),
of the Municipalities Planning Code,[1] as amended.
[1]
Editor's Note: See 53 P.S. §§ 10609.1 and 10916.1.
C.
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.
D.
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 enforcement
order or the registration or refusal to register any nonconforming
use, structure or lot.
E.
Appeals from a determination by a municipal 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.
F.
Applications for variances from the terms of this chapter.
G.
Applications for special exceptions under this chapter.
I.
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 related to developments not involving
applications for subdivisions or land developments, as defined by
the Pennsylvania Municipalities Planning Code, as amended.
Appeals under this section 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 a special
exception may be filed with the Board by any landowner or his duly
authorized agent.
All action before the Board shall be initiated by a written
application for hearing which shall be filed with the Zoning Officer.
All applications shall be made on forms specified by the Board, and
no applications shall be accepted unless the same shall be fully and
legibly completed and unless all exhibits, fees, and supplemental
material required by the application shall be attached. Final administrative
action by way of a zoning determination shall be rendered by the Zoning
Officer as a prerequisite for appeal to the Zoning Hearing Board as
provided herein and by the Municipalities Planning Code, as amended.
Every appeal or application shall refer to the specific provision
of the chapter involved, and shall exactly set forth the position
claimed and/or sought, the use for which the special exception is
sought, the details of the variance that is applied for, and the grounds
on which it is claimed that a variance should be granted, as the case
may be.
A.
Variances. The Board shall hear requests for variances where it is
alleged that the provisions of the Zoning Ordinance inflict unnecessary
hardship on the applicant. The Board may by rule prescribe the form
of application and may require preliminary application to the Zoning
Officer. In granting any variance, the Board may attach such reasonable
conditions and safeguards as it may deem necessary to implement the
purpose of this chapter. The Board may grant a variance provided that
all of 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 to the circumstances or conditions generally
created by the provisions of the Zoning Ordinance 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 the Zoning Ordinance 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
or development of adjacent property, nor be detrimental to the public
welfare.
(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 at issue.
B.
Special exceptions. Where this chapter has provided for 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 Board shall conduct open public hearings and make Zoning
Ordinance decisions in accordance with the following requirements:
A.
Public notice. Public notice as a prerequisite to the holding of
a hearing by the Board shall be made in accordance with the provisions
of the Pennsylvania Municipalities Planning Code, as amended.
[Amended 12-17-2003 by Ord. No. 03-09]
B.
Fees. The Board of Supervisors may prescribe reasonable fees with
respect to hearings before the Zoning Hearing Board. Fees for said
hearings may include compensation for the members of the Zoning Hearing
Board, notice and advertising costs and necessary administrative overhead
connected with the hearing.
C.
Timing. 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. The Board shall render a written decision
or written findings on the application within 45 days after the last
hearing or, if such hearing is continued, within 45 days after said
continued hearing. If the Board does not make a decision within 45
days after the hearing or continued hearing, it shall be deemed that
such Board has decided in favor of the applicant affected who is seeking
relief, unless the applicant has agreed in writing to an extension
of time.
D.
Conduct of hearing. All hearings 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 or, as necessary, a Hearing
Officer selected from the Board's membership, may administer oaths
and compel the attendance of witnesses. All hearings of the Board
shall be open to the public. The Board shall keep a stenographic record
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.
E.
Standing. 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
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.
F.
Oaths and subpoenas. The Chairman or Acting Chairman shall have the
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 with standing
before the Board.
G.
Representation. All parties with standing before the Board 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.
H.
Evidence. Formal rules of evidence shall not apply, but irrelevant,
immaterial, or unduly repetitious evidence may be excluded at the
discretion of the Board upon advice from the Board's solicitor.
I.
Conduct. 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 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 or his representative
unless all parties are given an opportunity to be present.
J.
Orders. In exercising their statutory powers, the Board may reverse
or affirm, wholly or in part, or may modify the order and/or requirement
from the administrative determination appealed from and, in so doing,
may make such additional order and/or requirement as part of the Boards'
decision as may be pertinent or germane.
K.
Decisions.
(1)
The Board or 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 the Pennsylvania Municipalities
Planning Code, this chapter, or other rule or regulation shall contain
a reference to the provisions relied on and the reasons why the conclusions
are deemed appropriate in the light of the facts found. Where the
Board fails to render the decisions within the period required 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
the failure of the Board to meet or render a decision as hereinafter
provided, the 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 herein. If the Board shall fail to provide
such notice, the appellant may do so. Nothing in this section 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 decisions, or where no decision is called
for, the findings shall be delivered to the applicant personally or
mailed to him not later than five days following the date of the decision.
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 decisions or findings
and a statement of the place at which the full decisions or findings
may be examined.
L.
Appeals. Any person aggrieved by any decision of the Board may, within
30 days after such decision of the Board, file an appeal to the Court
of Common Pleas of Montgomery County. Such appeal shall be made in
accordance with the Pennsylvania Municipalities Planning Code, as
amended, and in such form as may be prescribed or otherwise authorized
by law.
In passing upon applications for special exceptions and variances
the Board shall consider the following factors as well as all relevant
factors and procedures specified in this chapter:
A.
Technical assistance. The Zoning Hearing Board in considering any
matter within its jurisdiction may consult with the Towamencin Planning
Commission, the Montgomery County Planning Commission, or any other
specialist or groups of specialists having expert knowledge of the
matter under consideration, but need not be bound thereby.
B.
Burden of proof. The applicant for a special exception or variance
shall have the burden of proving that his application falls within
the provision of the chapter and shall have the further burden of
proving:
(1)
That the special exception or variance, if authorized, will
not alter the essential character of the neighborhood or district
in which the property is located.
(2)
That the variance or special exception, if authorized, will
not substantially or permanently impair the appropriate use or development
of adjacent property.
(3)
That the special exception or variance, if authorized, will
not be detrimental to the health, safety, morals, or the general welfare
of the Township or the community.
(4)
That the special exception or variance, if authorized, will
not result in or aggravate existing, adverse or abnormal patterns
of traffic flow, nor cause an unwarranted impact on traffic at or
near the particular location involved in the application.
C.
Standards for Board actions. In any instance where the Zoning Hearing
Board is required to render a land use decision, the Board shall,
among other things, give consideration to the following:
(1)
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 the Zoning Ordinance.
(2)
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.
(3)
Determine that the proposed change will serve the best interests
of the Township, the convenience of the community (where applicable)
and the public welfare.
(4)
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.
(5)
Consider the suitability of the proposed location of the 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.
(6)
Be guided in its study, review, and recommendation by sound
standards of land development practice where applicable.
(7)
Impose such conditions, in addition to those required, as are
necessary to assure that the intent of the Zoning Ordinance 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 the provision for adequate parking and sanitation.
(8)
Determine whether there are special circumstances or conditions
fully described in the findings applying to the land or buildings
for which the variance is sought, which justify that the application
of the provisions of this chapter would deprive the applicant of the
reasonable use of such land or building.
(9)
Determine whether the unique circumstances for which the variance
is sought were either created by the owner of the property, or were
due to, or the result of, general conditions in the district in which
the property is located.
(10)
Consider the effects of the proposed change with respect to
the most appropriate use of land; conserving the value of land and
buildings; safety from fire, panic and other dangers; the overcrowding
of land; congestion of population; and the adequacy of public and
community services.
(11)
Consider the compatibility of the proposed use with existing
development and development anticipated in the foreseeable future.
(12)
Give full consideration to the size, scope, intent, and character
of the exception requested and assure the compatibility of the proposed
use with the spirit, purpose and intent of the Comprehensive Plan,
the Subdivision and Land Development Ordinance,[1] as last amended and the provisions of this chapter.
(13)
Such other factors as may be relevant to achieving the purpose
of this chapter.
All appeals from administrative determinations adverse to any
landowner or affected party shall be filed by the landowner or affected
party with the Zoning Hearing Board within 30 days after official
notice of the determination has been issued.
A.
Parties to proceedings authorized in this article may utilize mediation
as an aid in completing such proceedings. In proceedings before the
Zoning Hearing Board, in no case shall the Zoning Hearing Board initiate
mediation or participate as a mediating party. Mediation shall supplement,
not replace, those procedures in this article once they have been
formally initiated. Nothing in this section shall be interpreted as
expanding or limiting Township police powers or as modifying any principles
of substantive law. Applications for special exceptions and variances
are not appropriate for the mediation option and, therefore, may not
utilize this section.
B.
Participation in mediation shall be wholly voluntary. The appropriateness
of mediation shall be determined by the particulars of each case,
and the willingness of the parties to negotiate. The terms and conditions
of mediation are hereby set forth as follows:
(1)
The cost of mediation shall be borne by the applicant.
(2)
The parties shall agree on a mediator who shall have a working
knowledge of municipal land use and zoning and land development procedures
and demonstrated skills in mediation.
(3)
Parties to proceedings under this application may select the
mediation option by sending written notice to the Zoning Hearing Board
of their intention to do so. Mediation shall be completed within 90
days of the date of notification to the Board.
(4)
The written notice to the Zoning Hearing Board indicating the
party's intent to mediate shall include a written consent signed by
all parties agreeing to the suspension of time limits otherwise required
by this chapter and the Municipalities Planning Code, as amended,
and by an applicant or Township decision-making body if either is
not a party to the mediation.
(5)
All parties to the proceedings shall be identified in the notice
to the Board and shall be served notice of the party's intent to mediate.
All parties shall be afforded the opportunity to participate in any
mediation proceeding.
(6)
Any mediation to which a Township entity is party shall be open
to the public.
(7)
All mediated solutions must be in writing and signed by the
parties and become subject to review and approval by the appropriate
decision-making body pursuant to the authorized procedures set forth
in this chapter and the Municipalities Planning Code, as amended.
(8)
No offers or statements made in the mediated sessions, excluding
the final written mediated agreement, shall be admissible as evidence
in any subsequent judicial or administrative proceeding.
[Amended 12-19-2001 by Ord. No. 01-10]
Unless otherwise specified by the Zoning Hearing Board, a special
exception or variance, or specified by the Board of Supervisors for
a conditional use, such zoning relief shall expire if the applicant
fails to obtain a building permit in connection therewith within one
year of the date of the order of the Zoning Hearing Board, Board of
Supervisors or court granting such special exception, variance or
conditional use. In those instances where land development/subdivision
approval is a necessary prerequisite prior to obtaining a building
permit, the special exception, variance, or conditional use shall
expire if the applicant fails to make a diligent effort to obtain
such land development/subdivision approval within six months following
the date of zoning approval. Upon receipt of land development approval,
the special exception, variance, or conditional use shall expire if
a building permit is not obtained within six months of the date of
land development approval.
