[Ord. 736, 9/8/2008]
This Chapter shall apply throughout the Borough of Fountain
Hill. Any activity regulated by this Chapter shall only occur in such
a way that conforms with the regulations of this Chapter. See § 103A.
[Ord. 736, 9/8/2008]
This Chapter is hereby adopted in accordance with the following
purposes, which shall serve as community development objectives, in
addition to the purposes provided for each district in § 301:
B.
The goals and objectives of the Fountain Hill Comprehensive Plan.
C.
The following additional objectives:
(1)
Support the goals established in the Comprehensive Plan for
the Lehigh Valley.
(2)
Promote innovative residential design that encourages the creation
of a sense of community for undeveloped parcels.
(3)
Provide diverse housing opportunities.
(4)
Encourage adaptive reuse and infill development.
(5)
Protect sensitive and important natural features from indiscriminate
development.
(6)
Stimulate economic development and revitalization by attracting
commercial uses (such as retail, service and specialty stores) to
appropriate areas.
(7)
Provide opportunities for home occupations of limited intensity.
(8)
Promote the preservation of historic resources.
(9)
Coordinate future land and roadway functions to maximize safe
and efficient use of major roads.
(10)
Coordinate road improvements with planned roadway functions,
design standards and planned land uses.
(11)
Assure that future development provides for access designs and
planned locations that minimize traffic congestion and safety problems;
encourage needed improvements to be completed by developers.
(12)
Promote alternative means of transportation, such as pedestrian
movement, bicycles, public transit and carpooling.
(13)
Seek to minimize the need for zoning variances for routine improvements.
[Ord. 736, 9/8/2008]
A.
Applicability.
(1)
Any of the following activities, or any other activity regulated
by this Chapter, shall only be carried out in conformity with this
Chapter:
(a)
Erection, construction, movement, alteration, razing, demolition,
removal, placement or extension of a structure, building or sign;
(b)
Change of the type of use or expansion of the use of a structure
or area of land;
(c)
Creation of a lot or alteration of lot lines; and/or
(d)
Creation of a new use.
(2)
Zoning Permit. A zoning permit indicates that a zoning application
complies with this Chapter to the best knowledge of the Zoning Officer.
(a)
A zoning permit is required to be issued prior to the start
of any of the following activities:
[1]
Erection, construction, movement, placement, razing, demolition,
removal, alteration or expansion of a structure, building or sign;
[2]
Change of the type of use or expansion of the use of a structure
or area of land;
[3]
Creation of a new use;
[4]
Demolition of a building; and/or
[5]
Other activity that is required to have a permit under § 308
of this Chapter.
(b)
The Borough may, at its option, issue combined or separate building
permits and zoning permits and/or may utilize a single application
or separate applications for the permits.
(c)
The only determination by the Zoning Officer that shall be official
shall be a written determination after the Zoning Officer receives
a duly submitted written official application.
(3)
Certificate of Use and Occupancy.
(a)
It shall be unlawful to use and/or occupy any structure, sign,
land area or portion thereof for which a zoning permit is required
until a certificate of use and occupancy for such activity has been
issued by the Zoning Officer.
(b)
The Zoning Officer may permit the zoning permit application
to serve as the application for the certificate of use and occupancy.
(c)
The certificate of use and occupancy shall only be issued by
the Zoning Officer if the Zoning Officer determines that the activity
complies with this Chapter, to the best knowledge of the Zoning Officer.
The Borough may also withhold issuance of the certificate until there
is compliance with other Borough ordinances.
(d)
The applicant shall keep a copy of the certificate of use and
occupancy available for inspection.
(e)
Upon the request of an applicant, the Zoning Officer may issue
a temporary certificate of use and occupancy. Such temporary certificate
may permit an activity to occur in all or part of a structure before
the entire work covered by the permit has been completed.
[1]
However, such temporary certificate shall only be issued if
the applicant proves to the Zoning Officer that the activity or occupancy
can occur safely without endangering public health or safety.
[2]
The temporary certificate shall establish in writing a maximum
time period under which it is valid. A six-month maximum time period
shall apply if not otherwise specified.
[3]
Failure to receive a permanent certificate of use and occupancy
within such time period shall be a violation of this Chapter.
[4]
The temporary certificate may be conditioned upon compliance
with certain specific requirements within certain time periods.
[5]
See also § 103F.
B.
Types of Uses.
(1)
Permitted-By-Right Uses. The Zoning Officer shall issue a permit
under this Chapter in response to an application for a use that is
permitted by right if it meets all of the requirements of this Chapter.
(2)
Special Exception Use or Application Requiring a Variance. A
permit under this Chapter for a use requiring a special exception
or variance shall be issued by the Zoning Officer only in response
to a written approval by the Zoning Hearing Board following a hearing.
C.
Applications.
(1)
Submittal. All applications for a zoning permit or a decision
by the Zoning Hearing Board shall be made in writing on a form provided
by the Borough. Such completed application, with required fees, shall
be submitted to the Zoning Officer.
(2)
Site Plan. The applicant shall submit the minimum number of
copies of a site plan, as required by the Zoning Officer, with the
application if the application involves a new principal building,
expansion of a principal building or addition of three or more parking
spaces. The site plan shall be drawn to scale and show the following:
(a)
Locations, dimensions and uses of existing and proposed structures,
parking and loading areas, and locations of existing and proposed
uses of areas of land, with existing features clearly distinguished
from proposed features.
(b)
Notes showing the dimensions of all buildings from lot lines
and street rights-of-way.
(c)
Locations of any watercourses and any one-hundred-year floodplain.
(d)
Proposed lot areas, lot widths and other applicable dimensional
requirements.
(e)
Locations and widths of existing and proposed sidewalks.
(3)
Additional Information. Any application under this Chapter shall
include the following information, unless the Zoning Officer determines
such information is unnecessary to determine compliance with this
Chapter:
(a)
The address of the lot;
(b)
The name and address of the applicant, and of the owner of the
property if different from the applicant;
(c)
A description of the proposed use of the property;
(d)
All other applicable information listed on the official Borough
application form; and
(e)
Such additional information that the Zoning Officer may determine
is reasonably necessary to determine compliance with this Chapter.
(4)
Submittals to the Board. In addition to the information listed
in § 103C(3) above, an application requiring a site plan
and action by the Zoning Hearing Board shall also include the following
information, unless the Zoning Officer determines that such information
is unnecessary to determine compliance with this Chapter:
(a)
The present zoning district and major applicable lot requirements;
(b)
For a nonresidential use:
[1]
A description of the proposed nonresidential operations and
storage in sufficient detail to indicate potential nuisances and hazards
regarding noise, large truck traffic, glare, odors, dust, fire or
toxic or explosive hazards or other significant public health and
safety hazards; and
[2]
A list of the maximum hours of operation;
(c)
The existing directions of stormwater flow (and any proposed
revisions) and any proposed methods of stormwater management;
(d)
A listing of any sections of this Chapter being appealed, with
the reasons for any appeal;
(e)
Approximate locations of principal buildings and locations of
streets and alleys and zoning district boundaries within 100 feet
of the boundaries of the tract and a description of uses of adjoining
properties (such as "drugstore" or "single-family detached dwelling");
(f)
Heights, locations, methods of illumination and intensity of
exterior lighting and sign lighting;
(g)
Name and address of the person who prepared the site plan;
(h)
Signed acknowledgment of the site plan by the applicant; and
(i)
Such additional information required under applicable sections
of this Chapter.
(5)
Ownership. No person other than a landowner or his or her specifically
authorized agent or a tenant or lessee with written permission of
the landowner shall submit a zoning application (see definition of
"landowner" in Part 2).
D.
Issuance of Permits.
(1)
At least one copy of each permit application and any other zoning
approval shall be retained in Borough files.
(2)
PennDOT Permit. Where necessary for access onto a state road,
a Borough zoning or building permit shall be automatically conditioned
upon issuance of a PennDOT highway occupancy permit.
E.
Revocation of Permits; Appeal of Permit or Approval.
(1)
Revocation. The Zoning Officer shall revoke, withhold or suspend
a permit or approval issued under the provisions of this Chapter in
case of one or more of the following:
(a)
Any false statement or misrepresentation of fact in the application
or on the plans on which the permit or approval was based (NOTE: The
Pennsylvania Criminal Code provides for penalties for providing false
information to a municipal employee in the carrying out of his/her
duties);
(b)
Upon violation of any condition lawfully imposed by the Zoning
Hearing Board upon a special exception use or variance;
(c)
Any work being accomplished or use of land or structures in
such a way that does not comply with this Chapter or an approved site
plan or approved permit application; and/or
(d)
For any other just cause set forth in this Chapter.
(2)
Appeals. A party with legitimate standing, or as otherwise provided
by state law, may appeal decisions under this Chapter within the provisions
of the Pennsylvania Municipalities Planning Code. Any such appeal
shall occur within the time period established in the Pennsylvania
Municipalities Planning Code. (As of the adoption date of this Chapter,
such provisions were in Sections 914.1 and 1002.A.)
F.
Zoning Permit for Temporary Uses and Structures.
(1)
A zoning permit for a temporary use or structure may be issued
by the Zoning Officer for any of the following:
(a)
Customary, routine and accessory short-term special events,
provided that only a well-established nonprofit organization or a
permitted place of worship proposing a temporary use to clearly primarily
serve a charitable, public service or religious purpose shall be eligible
to receive approval for commercial-type activities in a district where
a commercial use would not otherwise be permitted.
(b)
Temporary storage and office trailers that are necessary to
serve on-site construction, while such construction is actively underway.
(c)
Such other activities that the applicant proves are routine,
customary and temporary.
(2)
Time Period. The Zoning Officer shall state a reasonable maximum
time period on the temporary permit. If no time limit is stated, then
a six-month maximum period shall apply. A temporary permit may be
renewed for just cause.
(3)
Portable Storage Containers.
(a)
This Section shall apply to a portable storage container that
is kept outside of a building and which has a length greater than
10 feet and which is not currently attached to a motor vehicle or
railroad.
(b)
The following regulations shall apply on a principally residential
lot:
[1]
A portable storage container shall not be kept on a principally
residential lot for a total of more than 30 days per calendar year.
A temporary zoning permit shall be required if the portable storage
container is kept on the lot for more than 14 days.
[2]
A maximum of one portable storage container shall be allowed
per lot.
(c)
The following regulations shall apply on a lot that is not a
principally residential lot:
[1]
Any portable storage container that is kept on a lot for more
than 30 days shall meet the setbacks that apply to a principal building,
unless it is necessary to temporarily hold materials for on-site construction.
(d)
The following shall apply to any portable storage container:
[1]
The portable storage container shall not obstruct safe sight
distances at intersections.
[2]
The portable storage container shall not obstruct travel lanes
of a street or a public sidewalk.
[3]
A portable storage container shall only be allowed to be placed
within a street right-of-way if an encroachment permit is issued by
the Borough. Such permit shall specify a maximum number of days during
which the container may be placed within the right-of-way.
[4]
A portable storage container shall only be used for temporary
storage of household materials or materials necessary to conduct an
on-site business. A portable storage container shall not be used to
store explosive or toxic substances.
[5]
A facility that stores portable storage containers that have
been leased by others or are available for lease shall be considered
a warehouse.
G.
Compliance with Borough Subdivision and Land Development Ordinance.[1] If an application under this Chapter would also be regulated
by the Borough Subdivision and Land Development Ordinance ("SALDO"),
then any permit or approval under this Chapter shall automatically
be conditioned upon compliance with the SALDO. See the definitions
of "land development" and "subdivision" in the SALDO.
(1)
For example, if an applicant applies for a single-family detached
dwelling on a proposed new lot, the construction permit for such dwelling
shall not be valid until after the lot is granted final subdivision
approval and the lot is officially recorded by the County Recorder
of Deeds.
(2)
The SALDO requires Borough Planning Commission review and approval.
[Ord. 736, 9/8/2008]
B.
After the permit under this Chapter has been issued, the applicant
may undertake the action specified by the permit, in compliance with
other Borough ordinances. However, it is recommended that applicants
wait 30 days to begin construction if there is a possibility of an
appeal by another party to have the permit revoked. Any commencement
of construction or a use within this thirty-day appeal period shall
be at the risk of the applicant.
[Ord. 736, 9/8/2008]
A.
Minimum Requirements. Where more than one provision of this Chapter
controls a particular matter, the provision that is more restrictive
upon uses and structures shall apply. The provisions of this Chapter
are in addition to any other applicable Borough ordinance.
B.
Uses Not Specifically Regulated. If a use clearly is not permitted
by right or as a special exception use by this Chapter within any
zoning district, the use is prohibited; except that the Zoning Hearing
Board may permit such use as a special exception use if the applicant
specifically proves to the clear satisfaction of the Zoning Hearing
Board that all of the following conditions would be met:
(1)
The proposed use would be less intensive in external impacts
and nuisances than uses that are permitted in the district;
(2)
The proposed use would be closely similar in impacts and character
to uses permitted in that district, considering the standards in § 805F;
(3)
The use would meet the standards that would apply under § 116C
to a special exception use; and
(4)
The use is not specifically prohibited in that district.
C.
Interpretation of Chapter Text and Boundaries.
(1)
The Zoning Officer shall literally apply the wording of this
Chapter and the location of all district boundaries to particular
applications. In any case, the Zoning Officer may also request an
advisory opinion from the Borough Solicitor or the Zoning Hearing
Board Solicitor to aid in the Zoning Officer's determination.
(2)
If an applicant disagrees with the Zoning Officer's determination
and believes that this Chapter should be interpreted in the applicant's
favor, the applicant may appeal to the Zoning Hearing Board. See § 111.
E.
Interpretation of Zoning Boundaries. See § 304.
[Ord. 736, 9/8/2008]
All of the enforcement, violations and penalty provisions of
the Pennsylvania Municipalities Planning Code, as amended, are hereby
incorporated into this Chapter by reference. (NOTE: As of the adoption
date of this Chapter, these provisions were primarily in Sections
616.1, 617 and 617.2 of such act.)
A.
Violations. Any person who shall commit or who shall permit any of
the following actions violates this Chapter:
(1)
Failure to secure a zoning permit prior to a change in use of
land or structure, or the erection, construction or alteration of
any structure or portion thereof, or the excavation of land to prepare
for the erection, construction or alteration of any structure or portion
thereof.
(2)
Placement of false statements on or omitting relevant information
from an application for a zoning permit.
(3)
Undertaking any action in a manner which does not comply with
a zoning permit.
(4)
Violation of any condition imposed by a decision of the Zoning
Hearing Board in granting a variance or special exception or other
approval.
(5)
Violation of any condition imposed by a decision of the Borough
Council in granting a conditional use.
B.
Causes of Action; Enforcement; Remedies.
(1)
Enforcement. If it appears to the Borough that a violation of
this Chapter has occurred, the Borough shall initiate enforcement
proceedings by sending an enforcement notice. Prior to sending an
official enforcement notice, the Zoning Officer may, at his/her option,
informally request compliance.
(2)
Enforcement Notice. 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. An enforcement notice shall state
the following, at a minimum:
(a)
The name of the owner of record and any other person against
whom the municipality intends to take action.
(b)
The location of the property in violation.
(c)
The specific violation, with a description of the requirements
which have not been met, citing in each instance the applicable provisions
of this Chapter.
(d)
The date before which the steps for compliance must be commenced
and the date before which the steps must be completed.
(e)
That the recipient of the notice has the right to appeal to
the Zoning Hearing Board within a prescribed period of time in accordance
with procedures set forth in this Chapter.
(f)
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.
(3)
Evidence; Fees. In any appeal of an enforcement notice to the
Zoning Hearing Board, the Borough shall have the responsibility of
presenting its evidence first. 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 Borough if the Zoning Hearing
Board, or any court in a subsequent appeal, rules in the appealing
party's favor.
(4)
Causes of Action. If the enforcement notice is not complied
with within the specified time period, the Zoning Officer shall notify
Borough Council. With the consent of Borough Council, the Zoning Officer,
Borough Solicitor or other officers of the Borough 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. (NOTE: Section 617 of the Pennsylvania Municipalities
Planning Code also addresses actions by other parties.)
(5)
Violations and Penalties. 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 Borough, pay a judgment of
not more than $500 plus all court costs, including the reasonable
attorney's fees incurred by the Borough as a result thereof. No judgment
shall commence or be imposed, levied or be payable until the date
of the determination of a violation by the District Justice. If the
defendant neither pays nor timely appeals the judgment, the Borough
may enforce the judgment pursuant to the applicable rules of civil
procedure. Each day that a violation continues shall constitute a
separate violation, unless a District Justice, 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. All judgments, costs and reasonable
attorney's fees collected for the violation of this Chapter shall
be paid over to the Borough. Imprisonment shall not be authorized
by this Chapter.
[Ord. 736, 9/8/2008]
A Borough fee schedule for permits and applications may be established
and amended by written resolution of the Borough Council. No application
or appeal shall be considered filed until all fees are paid.
[Ord. 736, 9/8/2008]
Within the requirements of the Pennsylvania Municipalities Planning
Code, the Borough Council may amend or repeal any or all portions
of this Chapter on its own motion or after agreeing to hear a written
request of any person, entity, landowner or the Planning Commission.
[Ord. 736, 9/8/2008]
A landowner or the Borough Council may utilize the curative
amendment provisions of the Pennsylvania Municipalities Planning Code.
(NOTE: As of the adoption date of this Chapter, these provisions were
in Sections 609.1, 609.2 and 916.1 of such act.)
[Ord. 736, 9/8/2008]
A.
Appointment. The Zoning Officer shall be appointed by the Borough
Council. The Borough Council may designate other persons to serve
as Assistant Zoning Officer(s). Assistant Zoning Officers may serve
with the same authority and duties as the Zoning Officer. The Zoning
Officer shall not hold any elective office within the Borough but
may hold other appointed offices.
B.
Duties and Powers. The Zoning Officer's duties and powers shall include
the following:
(1)
Administer this Chapter in accordance with its literal terms,
including receiving and examining all applications required under
the terms of this Chapter, and issue or refuse permits within the
provisions of this Chapter;
(2)
Conduct inspections to determine compliance and receive complaints
of violation of this Chapter;
(3)
Keep records of applications, permits, certificates, written
decisions, and variances granted by the Board and of enforcement orders,
with all such records being the property of the Borough and being
available for public inspection;
(4)
Review proposed subdivisions and land developments for compliance
with this Chapter; and
(5)
Take enforcement actions as provided by the Pennsylvania Municipalities
Planning Code, as amended.
[Ord. 736, 9/8/2008]
A.
Membership of Board. The Zoning Hearing Board shall consist of three
residents of the Borough appointed by the Borough Council. The existing
terms of office shall continue, with terms of office being five years,
and with the terms being so fixed that the term of office of one member
shall expire each year. Members of the Board shall hold no other office
in the Borough.
[Amended by Ord. No. 868, 5/2/2022]
(1)
Alternate Members. The Borough Council shall appoint at minimum
one alternate members of the Zoning Hearing Board consistent with
the applicable provisions of the Pennsylvania Municipalities Planning
Code.[1] [NOTE: As of the adoption date of this chapter, such provisions
were in Section 903(b) of such Act.][2]
B.
Vacancies. Appointments to fill vacancies shall be only for the unexpired
portion of a term.
C.
Organization. The applicable provisions of the Pennsylvania Municipalities
Planning Code, as amended, shall apply. [NOTE: As of the adoption
date of this Chapter, these provisions were in Sections 906(a), (b)
and (c) of such act.]
D.
Zoning Hearing Board Jurisdiction and Functions. The Zoning Hearing
Board shall be responsible for the following:
(1)
Appeal of a Decision by the Zoning Officer.
(2)
Challenge to the Validity of the Ordinance or Map. The applicable
provisions of the Pennsylvania Municipalities Planning Code, as amended,
shall apply. (NOTE: As of the adoption date of this Chapter, these
provisions were primarily in Sections 909.1 and 916 of such act.)
(3)
Variances.
(a)
The Board shall hear requests for variances filed with the Zoning
Officer in writing.
(b)
Standards. The Board may grant a variance only within the limitations
of state law.
|
NOTE: As of the adoption date of this Chapter,
the Pennsylvania Municipalities Planning Code provided that all of
the following findings must be made, where relevant:
|
i)
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;
ii)
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 a variance is therefore
necessary to enable the reasonable use of the property;
iii)
Such unnecessary hardship has not been created
by the appellant;
iv)
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; and
v)
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.)
(c)
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.
(4)
Special Exceptions.
(a)
The Board shall hear and decide requests for all special exceptions
filed with the Zoning Officer in writing. The Board shall only permit
a special exception that is authorized by this Chapter. See § 116.
(b)
Conditions. In granting a special exception, the Zoning Hearing
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 and intent of this Chapter.
(5)
Persons With Disabilities. After the Zoning Officer receives
a complete written application, the Zoning Hearing Board shall grant
a special exception allowing modifications to specific requirements
of this Chapter if the applicant proves to the satisfaction of the
Zoning Hearing Board that such modifications are necessary to provide
a "reasonable accommodation" under applicable federal law to serve
persons who the applicant proves have disabilities as defined in and
protected by such laws.
(a)
Such reasonable accommodations shall be requested in accordance
with the United States Fair Housing Amendments Act of 1988, 42 U.S.C.
§ 3601 et seq., or the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq., and the federal regulations adopted
pursuant to such statutes, as amended, and/or the accompanying regulations
of the Pennsylvania Human Relations Commission.
(b)
If the applicant is requesting a reasonable accommodation under
such laws and regulations for persons with disabilities, the applicant
shall identify the disability which is protected by such statutes,
the extent of the modification of the provisions of this Chapter necessary
for a reasonable accommodation, and the manner by which the reasonable
accommodation requested may be removed when such person with a protected
disability no longer will be present on the property.
(6)
The Zoning Hearing Board shall also hear any other matters as
set forth in the Pennsylvania Municipalities Planning Code, as amended.
(NOTE: As of the adoption date of this Chapter, such provisions were
primarily within Section 909.1 of such law.)
E.
Time Limits for Appeals. The applicable provisions of the Pennsylvania
Municipalities Planning Code, as amended, shall apply. (NOTE: As of
the adoption date of this Chapter, these provisions were in Section
914.1 of such act.)
(1)
No person shall be allowed to file any proceedings with the
Board later than 30 days after any application for development, preliminary
or final, has been approved by an appropriate Borough officer, agency
or body if such proceeding is designed to secure reversal or to limit
the approval in any manner, unless such person alleges and proves
that he had no notice, knowledge or reason to believe 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.
F.
Stay of Proceedings. The stay-of-proceedings provisions of the Pennsylvania
Municipalities Planning Code, as amended, shall apply. (NOTE: As of
the adoption date of this Chapter, such provisions were in Section
915.1 of such act.)
(1)
Upon filing of any proceeding referred to in § 111E
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 indicates that a 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.
G.
Time Limits on Permits and Approvals.
(1)
Unless otherwise provided by the Zoning Hearing Board or Borough
Council in a decision granting approval, after a variance is approved
or other zoning approval is officially authorized, then any applicable
zoning and building permits shall be secured by the applicant within
12 months after the date of such approval or authorization. The work
authorized by such permits shall then be completed within 12 months
after the issuance of the permits.
(2)
Extension. Unless otherwise provided by the Zoning Hearing Board
or Borough Council in a decision granting approval, in response to
an applicant stating good cause in writing, the Zoning Officer may
extend in writing the time limit for completion of work to a maximum
total of 36 months after permits are issued.
(3)
If an applicant fails to obtain the necessary permits or begin
construction within the above time periods, or allows interruptions
in substantial construction of longer than 12 months, the Zoning Officer
may conclusively presume that the applicant has waived, withdrawn
or abandoned approvals and permits under this Chapter and may consider
all such approvals and permits to have become null and void.
[Ord. 736, 9/8/2008]
The following requirements shall apply to procedures, hearings
and decisions of the Zoning Hearing Board.
A.
Upon receiving an application for a special exception, variance,
appeal from alleged error of the Zoning Officer, challenge to the
validity of this Chapter or other appeal, the Board shall conduct
a public hearing thereon within 60 days of the applicant's request,
unless the applicant has agreed, in writing or on the record, to an
extension of time. Hearings shall be held pursuant to public notice
and further notice as follows:
(1)
The Board shall publish a public notice in a newspaper of general
circulation in the Borough for two successive weeks. The publications,
the first of which shall be not more than 30 days nor less than seven
days from the date of the hearing, shall state the time and place
of the hearing and the particular nature of the matter to be considered.
Notice of the hearing shall also be conspicuously posted on the affected
tract of land at least one week prior to the hearing.
(2)
The Board shall give notice, in writing, to the applicant, the
Zoning Officer and property owners within 150 feet of the subject
premises at least one week prior to the hearing. The applicant shall
submit a list of property owners within the designated 150 feet. The
Board shall have the power to require that all of the above persons
or groups enter appearances in writing.
(3)
In any matter which relates to a property which lies within
100 feet of the boundary of another incorporated political subdivision,
the Borough Secretary shall forward a copy of the official notice
of the public hearing on such matters to the other incorporated political
subdivision not later than one week prior to the hearing. The other
incorporated political subdivision shall have the right to appear
and to be heard at the public hearing.
B.
The hearings shall be held at the call of the Chairman and at such
other times as the Board shall specify in its rules of procedure.
The Chairman, or in his absence the Acting Chairman, or the hearing
officer presiding, shall have power to administer oaths and to issue
subpoenas to compel the attendance of witnesses and the production
of relevant documents and papers, including witnesses and documents
requested by the parties. 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. 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 Borough, 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.
C.
The parties to the hearing shall be the Borough, 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 by the Zoning Hearing
Board. The Zoning Hearing Board shall have power to require that all
persons who wish to be considered parties enter their appearances
in writing on forms provided by the Zoning Hearing Board for that
purpose.
D.
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.
E.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
F.
The Zoning Hearing Board or the hearing officer, as the case may
be shall keep a stenographic record of the proceedings. The cost of
the stenographic appearance fee shall be shared equally by the applicant
and the Zoning Hearing Board. The cost of the original transcript
shall be paid by the Board if ordered by the Board or the 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.
G.
The Zoning Hearing 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, and shall not take notice of any communications,
reports, staff memoranda or other materials, except advice from its/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.
H.
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 the reasons therefor. Conclusions based on any provisions
of the Pennsylvania Municipalities Planning Code, this Chapter, or
of any other ordinance, rule or regulation 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 within 45 days, 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 Zoning Hearing Board's decision shall be entered no later
than 30 days after the report of the hearing officer. Where the 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 a failure of the 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 § 112A.
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.
I.
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 date 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, a brief notice of the decision
or findings and a statement of the place at which the full decision
or findings may be examined.
[Ord. 736, 9/8/2008]
The provisions for appeals to court that are stated in the Pennsylvania
Municipalities Planning Code, as amended, shall apply. (NOTE: As of
the adoption date of this Chapter, these provisions were in Sections
1001-A, 1002-A, 1003-A, 1004-A, 1005-A and 1006-A of such act.)
A.
Any person aggrieved by any decision of the Zoning Hearing Board
or any taxpayer or the Borough elected officials may, within 30 days
after such decision of the Board, appeal to the Court of Common Pleas
of Lehigh County by petition duly verified, setting forth that such
decision is illegal in whole or in part, and specifying the grounds
of the illegality.
[Ord. 736, 9/8/2008]
See the provisions of the Pennsylvania Municipalities Planning
Code, as amended. (NOTE: As of the adoption date of this Chapter,
such provisions were within Section 619 of such act.)
[Ord. 736, 9/8/2008]
The minimum lot area, minimum lot width and minimum street frontage
requirements of this Chapter shall not apply to uses or structures
owned by Fountain Hill Borough or by a municipal authority created
solely by Fountain Hill Borough for uses and structures that are intended
for a valid public purpose.
[Ord. 736, 9/8/2008]
A.
Purpose. The special exception process is designed to allow careful
review of uses that have some potential of conflicts with adjacent
uses or areas.
B.
Special Exception Procedure.
C.
Consideration of Special Exception Applications. When special exception
uses are provided for in this Chapter, the Zoning Hearing Board shall
hear and decide requests for such uses in accordance with stated standards
and criteria for the use and the following standards. The burden of
proof shall rest with the applicant.
(1)
Compliance with this Chapter. The applicant shall establish,
by credible evidence, compliance with all requirements upon the use
that are established by this Chapter. The applicant shall provide
the Zoning Hearing Board with sufficient plans, studies or other data
to demonstrate compliance with all applicable regulations.
(2)
Compliance with Other Requirements. The application will not
clearly be in conflict with other Borough ordinances or state or federal
laws or regulations known to the Zoning Hearing Board. The Board may
condition zoning approval upon future proof of compliance with another
ordinance, law or regulation.
(3)
Transportation. The traffic generated by the subject of the
application shall be accommodated in a safe and efficient manner,
after considering any improvements that the applicant commits to complete
or fund. The applicant shall show that the use will not result in
or substantially add to a significant traffic hazard, significant
traffic congestion or a significant pedestrian safety hazard.
(4)
Neighborhood. The proposed use shall not significantly negatively
impact upon the desirable character of an adjacent established residential
neighborhood, such as causing substantial amounts of heavy truck traffic
to travel through a residential neighborhood, or a significant odor
or noise nuisance or very late night/early morning hours of operation,
without proper safeguards.
(5)
Site Planning. The applicant shall establish by credible evidence
that the proposed use will be properly designed with regard to internal
circulation, driveway access, site layout, parking layout, buffering,
and all other elements of proper site design.
(6)
Safety. The applicant shall establish by credible evidence that
the proposed use will not create a significant hazard to the public
health and safety, such as fire, toxic or explosive hazards.
(7)
Historic Impact. The application shall not have a negative impact
upon historically significant buildings on the same lot, as viewed
from a street.
D.
Conditions. In granting a special exception, the Board may require
such reasonable conditions and safeguards (in addition to those expressed
in this Chapter) as it determines are necessary to implement the purposes
of this Chapter. Conditions imposed by the Zoning Hearing Board shall
automatically become conditions of the building permit issued pursuant
thereto, and any failure to comply with said conditions shall be a
violation of this Chapter.
[Ord. 736, 9/8/2008]
A.
Any review of activity within the floodplain, site plan review, subdivision
or land development approval, erosion control review, wetland delineation
review, stormwater runoff review, review of activity on steep slopes,
or any other review, approval or permit under this Chapter by an officer,
employee, board, commission, Solicitor, consultant or agency of the
Borough shall not constitute a representation, guaranty or warranty
of any kind by the Borough, or its employees, officials, boards, Solicitor(s),
consultants or agencies of the practicality or safety of any structure,
use or subdivision and shall create no liability upon nor a cause
of action against such entity or person for any damage that may result
pursuant thereto.
B.
If the Zoning Officer mistakenly issues a permit under this Chapter,
the Borough shall not be liable for any later lawful withdrawal of
such permit.
