This chapter shall be administered and enforced by an agent
to be appointed by the Board of Township Commissioners, who shall
be known as the Zoning Officer. The Zoning Officer shall meet qualifications
established by the Township and shall be able to demonstrate to the
satisfaction of the Township a working knowledge of municipal zoning.
It shall be the duty of the Zoning Officer to receive and maintain
a record of all applications for permits and a record of all permits
issued, with notation of all special conditions involved. He shall
file copies of all plans submitted and the same shall form a part
of the records of his office and shall be available for the use of
the Zoning Hearing Board, the Board of Commissioners, other Township
officials and staff, and Township residents. Such records are and
shall remain the property of the Township.
The boundaries of the districts enumerated by § 350-21 are hereby established on the Zoning Map of South Whitehall Township. Such map accompanies and is hereby declared to be a part of this chapter. Where uncertainty exists as to the precise location of the boundaries shown on said Zoning Map, the following rules shall apply:
(a)
District boundary lines.
(1)
District boundary lines generally follow the centerline of streets
and streams, and lot lines as they exist on plans of record at the
time of the adoption of this chapter. Where a district boundary divides
a lot, the location of said boundary, unless the same is indicated
by dimensions, shall be determined by the use of the scale appearing
on the Map.
(2)
Where a district boundary is not fixed by dimensions and where
it approximately follows a lot line, and where it does not scale more
than 20 feet therefrom, such lot lines shall be construed to be such
boundaries.
(3)
In case any further uncertainty exists, the Zoning Officer shall
interpret the intent of the map as to location of district boundaries
within the Township.
(a)
Zoning permits. Zoning permits shall be secured from the Zoning Officer
as follows:
(1)
A zoning permit shall be secured prior to the creation of or
change to any use of a structure, building or of land. A permit shall
be denied if the information submitted is incomplete, erroneous or
otherwise unsatisfactory.
(2)
A zoning permit shall be secured for each nonconforming use
and each nonconforming structure including expansion of or change
of use or addition to a structure or change of use of the land. In
the event that such permit has not been applied for and the Zoning
Officer becomes aware of the nonconforming condition, the Zoning Officer
shall notify the owner of record of the provisions of this section
in writing. Said owner shall have 30 days in which to apply for the
proper permit.
(3)
A zoning permit shall be secured prior to any alteration of
any building or structure or part of a building or structure.
(4)
A zoning permit shall be secured for impervious surface and signs, regardless of cost, or district in which located, in accordance with §§ 350-48(o)(2) and 350-48(s)(10).
(b)
Conditions for issuance of zoning permits. The Zoning Officer shall
not issue a permit for the use of any building or land unless all
of the following conditions have been satisfied:
(1)
All requests for permits shall be made in writing by the legal
or equitable owner or his authorized agent, optionee, or an individual
or entity with demonstrable authority to do the work proposed on a
form to be supplied by the Zoning Officer. Requests for zoning permits
shall be accompanied by a plan prepared in accordance with the standards
established by the Township. Copies of these standards are available
at the Township Municipal Building.
(2)
All fees for permits as established by the Board of Commissioners
shall have been paid to the Township.
(3)
Approval, where required, of the Zoning Hearing Board has been
obtained in writing and all conditions of said approval have been
or will be complied with. All applications and/or supportive documents
shall be revised in accordance with the conditions of said approval.
(4)
The building and/or use conforms to the provisions of this chapter,
except for:
(5)
In the event that construction or use is commenced prior to
the issuance of any required permit, upon discovery of such construction
or use, all work shall be halted and a complete and thorough inspection
of unpermitted construction and use shall be conducted by the Zoning
Officer and appropriate Code Enforcement Officers before any permit
is issued.
(c)
Issuance or denial of zoning permits. Zoning permits shall be issued
or denied by the Zoning Officer within 30 days of application. All
permits are subject to compliance with all other applicable ordinances,
rules, and regulations of the Township.
(d)
Life of a zoning permit.
(1)
Except where the duration of the use or building is limited
by action of the Zoning Hearing Board or provisions of this chapter
or any amendment, zoning permits shall be valid until such time as
there is a change in use or condition for which the permit was originally
issued.
(2)
Where the duration of the use or building has been limited by
action of the Zoning Hearing Board or provisions of this chapter or
any amendment, the life of the zoning permit shall be equally limited.
(3)
In the event that a variance has been granted or other action
has been authorized by the Zoning Hearing Board, the applicant shall
secure the necessary permits and commence the authorized action, construction
or alteration within one year of the final action by the Zoning Hearing
Board. In the event construction has not commenced within the one-year
period, the variances, authorizations and permits granted by the Zoning
Hearing Board are automatically revoked. The applicant may request
in writing extensions of the one-year period stating the reasons for
delay. The Zoning Hearing Board may grant extensions of the one-year
period if it finds that the reasons for such delay in construction
are justifiable and reasonable. When it is expected that the construction
or development authorized will commence in phases over an extended
period of time, the Zoning Hearing Board may establish a schedule
for the procurement of permits in lieu of the one-year period specified
above.
(e)
Continuance of existing zoning permits. Nothing herein contained
shall require any change in plans, construction or designated use
of a building for which a zoning permit has been issued prior to advertisement
of the enactment of this chapter and construction of which shall have
been commenced within 30 days after advertisement of this chapter
and shall have been diligently prosecuted and the entire building
shall be completed within the life of zoning permit(s) or authorized
renewals of said zoning permit(s).
(f)
Zoning certificate of use. The purpose of a zoning certificate of
use ("certificate of use" or "CU") is to certify that the premises
comply with all other applicable ordinances, rules, and regulations
of the Township and may be used for the purpose set forth in the certificate
of use. A certificate of use shall be secured from the Zoning Officer
prior to the use or occupancy of any land, structure, or building
for which a zoning permit is required. A zoning certificate of use
shall be issued once the applicant demonstrates to the satisfaction
of the Zoning Officer that the subject property is compliant with
the Zoning Ordinance and all other applicable ordinances, rules, and
regulations of the Township. A copy of the certificate of use shall
be kept upon the premises and shall be displayed upon request made
by any officer or employee or agent of South Whitehall Township. Issuance
of a certificate of use is not, nor shall it be deemed to be, a warranty
or guaranty by the Township that the lot is fit for the particular
use set forth in the permit and the Township shall not be liable in
any way to the owner or occupant for the issuance of the certificate
of use.
[Added 9-6-2023 by Ord. No. 1078]
(1)
A zoning certificate of use shall be issued by the Zoning Officer
after each of the following circumstances apply, unless otherwise
permitted by this Chapter. In the event that multiple conditions below
apply, the zoning certificate of use shall be issued after all of
the applicable conditions have been satisfied.
(A)
After the Zoning Officer has determined that all conditions of approval
of the associated zoning permit (if any) have been satisfied.
(B)
After the Zoning Officer has determined that all conditions
of approval of any applicable zoning appeal or similar application
have been satisfied.
(C)
After the Zoning Officer has determined that all applicable
conditions of approval of any applicable land development or similar
application have been satisfied.
(D)
After the Zoning Officer has determined that a certificate of
occupancy with no conditions has been issued or all conditions of
a conditional certificate of occupancy have been satisfied.
(2)
The Zoning Officer may attach any conditions as appropriate
to the zoning certificate of use. Each condition shall include a specified
timeframe within which the condition is to be addressed.
(3)
A zoning certificate of use may be issued prior to any or all
of the conditions enumerated in Subsection (f)(1)(A) through (D) above
if the applicable condition is made a condition of approval of the
zoning certificate by the Zoning Officer.
(4)
Should a zoning certificate of use required by this section
not be issued prior to the expiration of the underlying zoning permit,
said property is considered to be in violation of the Zoning Ordinance
and subject to all applicable enforcement actions.
(a)
Procedure to obtain preliminary opinion. In order not to unreasonably
delay the time when a landowner may secure assurance that the ordinance
or map under which he proposed to build is free from challenge, and
recognizing that the procedure for preliminary approval of the development
may be too cumbersome or may be unavailable, the landowner may advance
the date from which time for any challenge to the ordinance or map
will run under Section 914.1 of the Municipalities Planning Code by
the following procedure:
(1)
The landowner may submit plans and other materials describing
the proposed use or development to the Zoning Officer for a preliminary
opinion as to its compliance with the applicable ordinances and maps.
Such plans and other materials shall not be required to meet the standards
prescribed for preliminary, tentative, or final approval or for the
issuance of a building permit so long as they provide reasonable notice
of the proposed use or development and a sufficient basis for a preliminary
opinion as to its compliance.
(2)
If the Zoning Officer's preliminary opinion is that the use
or development complies with the ordinance or map, notice thereof
shall be published once each week for two consecutive weeks in a newspaper
of general circulation in the Township. Such notice shall include
a general description of the proposed use or development and its location,
by some readily identifiable directive, and the place and times where
the plans and other materials may be examined by the public. The favorable
preliminary approval under Section 914.1 and the time therein specified
for commencing a proceeding with the Board shall run from the time
when the second notice thereof had been published.
(a)
Enforcement notice.
(1)
If it appears to the Township that a violation of the South
Whitehall Township Ordinance has occurred, the Township shall initiate
enforcement proceedings by sending an enforcement notice as provided
in this Subsection (a).
(2)
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
the parcel, and to any other person requested in writing by the owner
of record.
(3)
An enforcement notice shall state at least the following:
(A)
The name of the owner of record and any other person against
whom the Township 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.
(b)
Civil enforcement proceeding; penalties.
(1)
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 Township, before a district justice, pay a judgment
of not more than $500 per day plus all court costs, including reasonable
attorney fees incurred by the Township as a result thereof. No judgment
shall commence or be imposed, levied or 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 Township may enforce
the judgment pursuant to the applicable rules of civil procedure.
Each day that a violation continues shall constitute a separate violation,
unless the 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 the ordinance 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
fees collected for the violation of zoning ordinances shall be paid
over to the Township.
(2)
Nothing contained in this section shall be construed or interpreted
to grant to any person or entity other than the Township the right
to commence any action for enforcement pursuant to this Subsection
(b).
(c)
Equitable remedies. In case any building, structure, landscaping,
or land is, or is proposed to be, erected, constructed, reconstructed,
altered, converted, maintained or used in violation of this chapter
or any amendments, the Township Manager, his designee, or any Code
Enforcement Officer, or any aggrieved owner or tenant of real property
who shows that his property or person will be substantially affected
by the alleged violation, in addition to other remedies, 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. When any such action is instituted by a landowner or
tenant, notice of that action shall be served upon the Township at
least 30 days prior to the time the action is begun by serving a copy
of the complaint on the Board of Commissioners of the Township. No
such action may be maintained until such notice has been given.
(a)
Composition and organization.
(1)
Present Zoning Hearing Board to continue. The Zoning Hearing
Board created and existing under the "South Whitehall Township Zoning
Ordinance" of 1961, as amended, shall continue under and in accordance
with the provisions of this article. Matters pending before the Zoning
Hearing Board at the time this chapter becomes effective shall continue
and be completed under the Zoning Ordinance in effect at the time
the Zoning Hearing Board took jurisdiction of said matters.
(2)
Membership. The membership of the Zoning Hearing Board shall
consist of five members who are residents of the Township, appointed
by resolution of the Board of Commissioners. Their terms of office
shall be five years in duration, staggered so that no two members
of the Zoning Hearing Board are eligible for reappointment in any
given year. The terms of office for members of the Zoning Hearing
Board hereafter appointed shall commence on the first day of March,
and conclude on the last day of February, or until their successors
are elected and qualified. The Zoning Hearing Board shall promptly
notify the Board of Commissioners of any vacancies which occur. Appointments
to fill vacancies shall be only for the unexpired portion of the term.
Members of the Zoning Hearing Board shall hold no other office in
the Township.
(3)
Alternate members. The Board of Commissioners may appoint by resolution at least one but no more than three residents of the Township to serve as alternate members of the Zoning Hearing Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of § 350-16(a)(5), 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 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. Alternates shall hold no other office in the Township including membership on the Planning Commission and Zoning Officer. Any alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote as a member of the Board unless designated as a voting alternate member pursuant to § 350-16(a)(5).
(4)
Removal of members. Any member may be removed for malfeasance,
misfeasance or nonfeasance in office or for other just cause by a
majority vote of the Board of Commissioners 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 make a request in writing.
(5)
Organization.
(A)
The Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves. 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 and the parties may waive further action by the Board as provided in § 350-16(e)(1).
(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 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.
(C)
The Board may make, alter and rescind rules and forms for its
procedure, consistent with ordinances of the Township and laws of
the commonwealth. The Board shall keep full public records of its
business, which records shall be the property of the Township, and
shall submit a report of its activities to the Board of Commissioners
as requested by the Board of Commissioners.
(6)
Expenditures for service. Within the limits of funds appropriated by the Board of Commissioners, the Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. Members of the Board may receive compensation for the performance of their duties, as may be fixed by the Board of Commissioners, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Board of Commissioners. Alternate members of the Board may receive compensation, as may be fixed by the Board of Commissioners, for the performance of their duties when designated as alternate members pursuant to § 350-16(a)(5), but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of the Board of Commissioners.
(b)
Jurisdiction.
(1)
Zoning Hearing Board jurisdiction and functions.
(A)
Jurisdiction. The Zoning Hearing Board shall have exclusive
jurisdiction to hear and render final adjudications in the following
matters:
(i)
Substantive challenges to the validity of any land
Use ordinance, except those brought before the Board of Commissioners
pursuant to Section 609.1 and 916.1(a)(2) of the Pennsylvania Municipalities
Planning Code.
(ii)
Appeals from the determination of the Zoning Officer,
including, but not limited to, the granting or denial of any zoning
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.
(iii)
Appeals from a determination by a Township 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.
(iv)
Application for variances from the terms of the
zoning ordinance and flood hazard ordinance or provisions within the
ordinances.
(v)
Applications for special exceptions under the zoning
ordinance or floodplain or flood hazard ordinance or provisions within
the ordinances.
(vi)
Appeals from the Zoning Officer's determination
under Section 916.2 of the Pennsylvania Municipalities Planning Code.
(vii)
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 relate
to development not involving planned residential development or subdivision
and land development applications.
(c)
Variances.
(1)
Variances. The Board shall hear requests for variances where
it is alleged that the provisions of this chapter inflict unnecessary
hardship upon the applicant. The Board may, by rule, prescribe the
form of application 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 purposes of this chapter and the laws of the commonwealth. The
Board may grant a variance provided the following findings are made
where relevant in a given case:
(A)
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 the Zoning Ordinance in the neighborhood
or district in which the property is located;
(B)
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;
(C)
That such unnecessary hardship has not been created by the appellant;
(D)
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;
(E)
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;
(F)
The variance shall not authorize a use that is not permitted
in the Zoning Ordinance and which could more properly be considered
a rezoning to be heard by the South Whitehall Township Board of Commissioners.
(d)
Special exceptions.
(1)
Special exceptions. It is hereby recognized that certain uses
may be necessary to serve the needs and convenience of the Township,
but which uses may be adverse to the public health, safety and general
welfare by reason of their inherent nature and/or operation and therefore
require special and proper consideration of existing and probable
future conditions and characteristics of the surrounding area. Such
uses are hereby declared to be "special exception uses" and may be
permitted upon application to and approval by the Zoning Hearing Board
provided said use is shown as a special exception use in the Zoning
District Schedule for the district in which the use is located. Where
this chapter has stated special exceptions to be granted or denied
by the Zoning Hearing Board, the Board shall hear and decide requests
for such special exceptions in accordance with applicable standards
and criteria contained herein. In granting a special exception, the
Board may attach such reasonable conditions and safeguards in addition
to those expressed by this Ordinance, as it may deem necessary to
implement the purposes of this Zoning chapter and the laws of the
commonwealth. Standards and criteria for special exception uses are
as follows. Such use shall be:
[Amended 3-20-2019 by Ord. No. 1044]
(A)
Consistent with the community development objectives articulated
in the Zoning Ordinance (pursuant to Section 606 of the Municipalities
Planning Code);
(B)
Consistent with the statement of purpose articulated for the
district in which the use is proposed and promote the harmonious and
orderly development of such zoning district;
(C)
Consistent with the South Whitehall Township Comprehensive Plan;
(E)
The design, characteristics and operation of the use is such
that the public health, safety and general welfare will be protected
and reasonable consideration is given to, but not limited to, the
character of the neighborhood and zoning district, conservation of
property values, and traffic safety and road capacities;
(F)
Compatible with the character and type of development existing
in the area that surrounds the site and permitted in the underlying
zoning district, in terms of the size, scale, height and bulk of the
proposed uses and the size, shape and placement of buildings and other
structures;
(G)
Compatible with the uses permitted in the surrounding area and
permitted in the underlying zoning district, in terms of the density
and/or intensity of land use;
(H)
Reflective of sound engineering and land development design
and construction principles, practices and techniques;
(I)
Provide safe and efficient access to roads and will not create
traffic congestion, hazardous traffic conditions or excessive traffic
volumes;
(J)
Provide continuity of existing circulation systems, including
roads, sidewalks, and trails;
(K)
Provide for adequate environmental controls and performance
standards to minimize noise, vibration, glare, heat, odor, smoke,
dust, fumes, vapors, gases, air emissions, water emissions and outdoor
storage;
(L)
Each special exception use shall adhere to the minimum standards
specified for the particular use by the applicable regulations of
this chapter.
(e)
Hearings and decisions.
(1)
Hearings and decisions. The Board shall conduct hearings and
make decisions in accordance with the following requirements:
(A)
Public notification.
(i)
Public notice of the hearing, pursuant to the Municipalities
Planning Code, shall be given. A written copy of this notice shall
be provided to the applicant, the owner of record, the Zoning Officer
and any other person making timely request for same, by first class
mail addressed to the last known address of the said parties not less
than 10 calendar days prior to the hearing. For purposes of this section,
said request shall be received no sooner than 90 days prior to the
date of the hearing for which notice is requested.
(ii)
In addition to the written notice provided under
Subsection (e)(1), written notice of said hearing shall be conspicuously
posted on the affected lot at least one week prior to the hearing.
(iii)
Not less than 10 days prior to the scheduled
Zoning Hearing Board meeting, the Township shall give notice by first
class mail to all property owners as shown on the most recent tax
records to be holding title to property within 300 feet of any boundary
of the subject property. The notice shall include the information
required by the "Public Notice" section of the Municipalities Planning
Code (Act 247 as amended).
(B)
Fees. The Board of Commissioners may prescribe reasonable fees
with respect to hearings before the Zoning Hearing Board. Fees for
said hearings may include compensation for the secretary and members
of the Zoning Hearing Board, notice and advertising costs and necessary
administrative overhead connected with the hearing. The costs, however,
shall not include legal expenses of the Zoning Hearing Board, expenses
for engineering, architectural or other technical consultants or expert
witness costs.
(C)
Hearings.
(i)
The first hearing before the Board or Hearing Officer
shall be commenced within 60 days from the date of receipt of the
applicant's application, unless the applicant has agreed in writing
to an extension of time. Each subsequent hearing before the Board
or Hearing Officer shall be held within 45 days of the prior hearing,
unless otherwise agreed to by the applicant in writing or on the record.
An applicant shall complete the presentation of his case-in-chief
within 100 days of the first hearing. Upon the request of the applicant,
the Board or Hearing Officer shall assure that the applicant receives
at least seven hours of hearing within the 100 days including the
first hearing. Persons opposed to the application shall complete the
presentation of their opposition to the application within 100 days
of the first hearing held after the completion of the applicant's
case-in-chief. An applicant may, upon request, be granted additional
hearings to complete his case-in-chief provided the persons opposed
to the application are granted an equal number of additional hearings.
Persons opposed to the application may, upon the written consent or
consent on the record by the applicant and municipality, be granted
additional hearings to complete their opposition to the application
provided the applicant is granted an equal number of additional hearings
for rebuttal.
(ii)
The hearings shall be conducted by the Board,
or the Board may appoint any member or an independent attorney as
a Hearing Officer.
(iii)
The parties to the hearing may be the municipality
and 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 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.
(iv)
The Chairman or Acting Chairman of the Board or
the Hearing Officer presiding shall have power to administer oaths
and issue subpoenas to compel the attendance of witnesses and the
production of relevant documents and papers, including witnesses and
documents requested by the parties.
(v)
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.
(vi)
Formal rules of evidence shall not apply, but
irrelevant, immaterial, or unduly repetitious evidence may be excluded.
(vii)
The 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 Board. The cost of the original transcript shall be paid by the
Board if the transcript is ordered by the Board or Hearing Officer
or shall be paid by the person appealing from the decision of the
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.
(D)
The Board or the Hearing Officer shall not communicate directly
or indirectly, with any party or his representative 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 advise from the
Board's solicitor unless the parties are afforded an opportunity to
contest the material so noticed and shall not inspect the site or
its surroundings with any party or his representative unless all parties
are given an opportunity to be present.
(E)
Decisions.
(i)
The Board or the Hearing Officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within 45 days after the last hearing before the Board or Hearing Officer. Where the application is contested or denied, 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 or of any 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 Board shall make his report and recommendations available to the parties within 45 days and the parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings, and the Board's decision shall be entered no later than 30 days after the report of the Hearing Officer. Except for challenges filed under Section 916.1 of the Pennsylvania Municipalities Planning Code where the Board fails to render the decision within the period required by this section or fails to commence, conduct or complete the required hearing, as provided in § 350-16(e)(1), 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 for 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 herein above 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 in Subsection (e)(1)(A) of this subsection. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this paragraph shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
(ii)
A copy of the final decision or, where no decision
is called for, of the findings, shall be delivered to the applicant
personally or mailed to him not later than the day following its date.
To all other persons who have filed their name and address with the
Board not later than the last day of the hearing, the Board shall
provide, by mail or otherwise, brief notice of the decision or findings
and a statement of the place at which the full decision or findings
may be examined.
(F)
Parties Appellant Before the Zoning Hearing Board. Appeals under § 350-16(b)(1) may be filed with the Board in writing by any officer or agency of the Township, or any person aggrieved or his agent. Requests for a variance under § 350-16(c)(1) and for special exception under § 350-16(d) may be filed with the Board by any landowner or any tenant with the permission of such landowner.
(G)
Time limitation. No person shall be allowed to file any proceeding
with the Board later than 30 days after an application for development,
preliminary or final, has been approved by an appropriate municipal
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
that such approval had been given. If such person has succeeded to
his interest after such approval, he shall be bound by the knowledge
of his predecessor in interest. All appeals from determinations adverse
to the landowners shall be filed by the landowner within 30 days after
notice of the determination is issued.
(H)
Stay of proceedings. Upon filing of any proceeding referred to in § 350-16(b)(1) 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 certifies to the Board facts indicating that such 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. When an application for development, preliminary or final, has been duly approved and proceedings designed to reserve or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board. The question whether or not such petition shall be granted and the amount of the bond shall be within the sound discretion of the court.
(f)
Optional: mediation.
(1)
Mediation option.
(A)
Parties to proceedings before the Zoning Hearing Board, Board
of Commissioners, or the courts in connection with this chapter 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 chapter and
the Municipalities Planning Code once they have been formally initiated.
Nothing in this section shall be interpreted as expanding or limiting
the Township Police powers or as modifying any principles of substantive
law.
(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 Township shall assure
that, in each case, the mediating parties, assisted by the mediator
as appropriate, develop terms and conditions for:
(i)
Funding mediation.
(ii)
Selecting a mediator who, at a minimum, shall
have a working knowledge of municipal zoning and subdivision procedures
and demonstrated skills in mediation.
(iii)
Completing mediation, including time limits for
such completion.
(iv)
Suspending time limits otherwise authorized in
this chapter and the Municipalities Planning Code, provided there
is written consent by the mediating parties, and by an applicant or
the Board of Commissioners if either is not a party to the mediation.
(v)
Identifying all parties and affording them the
opportunity to participate.
(vi)
Subject to legal restraints, determining whether
some or all of the mediation sessions shall be open or closed to the
public.
(vii)
Assuring that mediated solutions are 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 the other sections of this chapter and in
the Municipalities Planning Code.
(C)
No offers or statements made in the mediation sessions, excluding
the final written mediated agreement, shall be admissible as evidence
in any subsequent judicial or administrative proceedings.
(g)
Appeals to courts.
(1)
Appeals to courts.
(A)
Zoning appeals. Zoning appeals shall include appeals from decisions
of the Zoning Hearing Board and appeals upon reports of the Board
in proceedings to challenge the validity of any ordinance or map.
(B)
Who may appeal. Zoning appeals shall be taken to the Common
Pleas Court of the County of Lehigh, Pennsylvania, by any party before
the Zoning Hearing Board, or any officer or agency of the Township
of South Whitehall, or any other aggrieved party.
(C)
Time limitation. All zoning appeals shall be filed no later
than 30 days after the issuance of notice of the decision or report
of the Zoning Hearing Board.
(D)
Procedures for appeals and challenges. Procedures for appeals
and challenges shall be those prescribed by Article X-A of the Pennsylvania
Municipalities Planning Code.
(a)
Amendments by the Board of Commissioners. The Board of Commissioners
of South Whitehall Township may, from time to time, supplement, change,
modify, or otherwise amend or repeal this chapter, or portions thereof,
including the Zoning Map, in accordance with the following procedures:
(1)
The Board of Commissioners shall fix the time and place of a
public hearing on the proposed amendment pursuant to public notice.
Such notice shall include the full text of the proposed amendment,
or a brief summary setting forth the principal provisions in reasonable
detail, and a reference to a place in the municipality where copies
of the proposed amendment may be examined, in addition to the time
and place of the hearing. Such notice shall be published pursuant
to the requirements of the Pennsylvania Municipalities Planning Code.
(A)
Before voting on the enactment of a proposed amendment, the
Board of Commissioners shall hold a public hearing thereon, pursuant
to public notice. In addition, if the proposed amendment involves
a Zoning Map change, notice of said public hearing shall be conspicuously
posted by the Township at points deemed sufficient by the Township
along the perimeter of the lot(s) to notify potentially interested
citizens. The affected lot(s) shall be posted at least one week prior
to the date of the hearing.
(i)
In addition to the requirement that notice be posted under § 350-17(a)(1)(A), where the proposed amendment involves a Zoning Map change notice of the public hearing shall be mailed by the Township at least 30 days prior to the date of the hearing by first class mail to the addresses to which real estate tax bills are sent for all real property located with the area(s) being rezoned, as evidenced by tax records within the possession of the Township. The notice shall include the location, date and time of the public hearing. A good faith effort and substantial compliance shall satisfy the requirements of this subsection.
(ii)
This clause shall not apply when the rezoning
constitutes a comprehensive rezoning.
(2)
In the case of an amendment other than that prepared by the
Planning Commission, the Board of Commissioners shall submit each
such amendment to the Planning Commission at least 30 days prior to
the public hearing on the proposed amendment to provide the Planning
Commission an opportunity to submit recommendations.
(3)
The proposed amendment shall also be forwarded to the Lehigh
Valley Planning Commission at least 30 days prior to the public hearing
on the amendment by the Board of Commissioners.
(4)
If, after any public hearing held upon a proposed amendment,
changed substantially, or is revised, to include land not originally
affected by it, the Board of Commissioners shall hold another public
hearing, pursuant to public notice, as set forth above, before proceeding
to vote on the amendment.
(b)
Publication after enactment. After enactment, the advertisement of
a zoning amendment may consist solely of a reference to the place
or places within the municipality where copies of such amendment shall
be obtainable for a charge not greater than the cost thereof and available
for examination without charge.
(c)
Recording. Zoning amendments may be incorporated into official ordinance
books by reference with the same force and effect as if duly recorded
therein.
(d)
Filing with Lehigh Valley Planning Commission. Within 30 days after
enactment, copy of the amendment shall be forwarded to the Lehigh
Valley Planning Commission.
(a)
Purpose. It is hereby recognized that the establishment, maintenance
and operation of certain uses may be necessary to serve the needs
and convenience of the public and the Township, but that such uses
may be adverse to the public health, safety and general welfare by
reason of their inherent nature and/or operation and maintenance and,
therefore, require special and proper consideration of, inter alia,
the proposed use, and characteristics of the surrounding area. Such
uses are hereby declared to be conditional uses and may be permitted
upon application to and approval by the Board of Commissioners provided
said use is shown as a conditional use in the Zoning District Schedule
for the district in which the use is located, in accordance with the
requirements below. Before zoning approval is granted for any use
listed as a conditional use in this chapter, a site plan shall be
reviewed by the Township Planning Commission and approved by the Township
Board of Commissioners.
[Amended 3-20-2019 by Ord. No. 1044]
(b)
Approval of conditional uses.
(1)
The Board of Commissioners shall approve any proposed conditional
use only if they find sufficient evidence that any proposed use will
meet:
[Amended 3-20-2019 by Ord. No. 1044]
(A)
The design, characteristics, maintenance and operation of the
use are such that the public health, safety and general welfare will
be protected and reasonable consideration is given to, among other
things, the character and suitability of the location in question
and the zoning district, traffic safety and road capacities, conservation
of property values, preservation of the nature and quality of the
environment;
(B)
Consistent with the community development objectives articulated
in this chapter (pursuant to Section 606 of the Municipalities Planning
Code);
(C)
Consistent with the statement of purpose articulated for the district
in which the use is proposed and promotes the harmonious and orderly
development of such zoning district;
(D)
Consistent with the South Whitehall Township Comprehensive Plan and
Official Map;
(E)
Compatible with the character and type of development existing in
the area that surrounds the site and permitted in the underlying zoning
district, in terms of the size, scale, height and bulk of the proposed
uses and the size, shape and placement of buildings and other structures;
(F)
Compatible with the uses permitted in the surrounding area and permitted
in the underlying zoning district, in terms of the density and/or
intensity of land use;
(G)
Reflective of sound engineering and land development design and construction
principles, practices and techniques;
(H)
Provide safe and efficient access to roads and will not create traffic
congestion, hazardous traffic conditions or excessive traffic volumes;
(I)
Provide continuity of existing circulation systems, including roads,
sidewalks, and trails;
(J)
Provide for adequate environmental controls and performance standards
to minimize noise, vibration, glare, heat, odor, smoke, dust, fumes,
vapors, gases, air emissions, water emissions and outdoor storage;
(K)
Each conditional use shall adhere to the minimum standards specified
for the particular use by the applicable regulations of this chapter.
(2)
The Board of Commissioners shall hold hearings on and decide requests for such conditional uses in accordance with such general standards and specific standards in § 350-30 herein or in § 350-48, as applicable. The hearing shall be conducted by the Board of Commissioners or the Board of Commissioners may appoint any member or an independent attorney as a Hearing Officer. The decision or, where no decision is called for, the findings shall be made by the Board of Commissioners. However, the appellant or the applicant, as the case may be, in addition to the Township, may, prior to the decision of the hearing, waive decision or findings by the Board of Commissioners and accept the decision or findings of the Hearing Officer as final.
(3)
In granting a conditional use, the Board of Commissioners 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.
(c)
Administration.
(1)
The Zoning Officer shall deny a zoning permit for the proposed
development until written approval of the Township Board of Commissioners
is obtained.
(2)
All applicants for conditional use shall submit 10 sets of site
plans sealed by a Pennsylvania-licensed design professional.
(3)
All site plans shall contain information otherwise required
by the Township Subdivision and Land Development Regulations[1] for a sketch plan. In addition, site plans for incinerators,
sanitary landfills, waste-to-energy facilities, and waste treatment
facilities shall contain the following information as it pertains
to the subject lot(s) (and to the area within one mile if the proposed
facility is a sanitary landfill):
(A)
The location of public and private water lines, supplies, wells,
springs, streams, swamps, rivers and other bodies of water, and public
and private sewer lines and septic systems;
(B)
The location of underground and surface mines showing the extent
of deep mine workings, elevation of the mine pool, and location of
mine pool discharges;
(C)
The location of gas and oil wells;
(D)
The location of high-tension power line rights-of-way;
(E)
The location of pipeline rights-of-way;
(F)
The location of geologic and hydrologic features;
(G)
The floodplain and location of the site or facility within that
floodplain, and stormwater runoffs;
(H)
The location of public and private recreational areas;
(I)
A soils, geologic and groundwater report of the characteristics
of the area where the proposed site or facility will be located;
(J)
The location of significant historical and architectural sites;
and
(4)
The Board of Commissioners, within 10 days of receipt of a completed
submission, shall forward one copy of the site plan to the Zoning
Officer, one copy to the Township Engineer, one copy to the South
Whitehall Township Environmental Advisory Council and one copy to
the Department of Community Development for review by the Township
Planning Commission. Owners of real property situated within 300 feet
of the proposed site or facility shall be sent a notice of the Planning
Commission's review meeting not less than 10 days prior to the date
fixed for review.
(5)
The Zoning Officer shall, within 30 days of receipt of a completed
submission by the Township, review the plan and submission to determine
compliance with this chapter, and submit a written recommendation
to the Board of Commissioners.
(6)
The Planning Commission shall, within 30 days of receipt of
a completed submission by the Township, review the plan and submission
to determine compliance with this chapter, and submit a written recommendation
to the Board of Commissioners.
(7)
Failure of the Zoning Officer or the Planning Commission to
submit a written report in a timely fashion shall not prevent the
Board of Commissioners from hearing and deciding the request.
(8)
Referral to the Planning Commission.
(A)
The Board of Commissioners shall refer to the Township Planning
Commission all applications for conditional uses.
(B)
In its review of the conditional use, the Township Planning
Commission shall determine compliance with the standards and criteria
set forth in this chapter.
(C)
In all cases the Township Planning Commission shall report in
writing its findings and recommendations to the Board of Commissioners
within 30 days of receipt of a completed submission by the Township.
(D)
The Board of Commissioners and Planning Commission shall establish
mutually acceptable procedures to assure that the review is accomplished
in time to permit the Board of Commissioners to make its required
decision.
(E)
Public notification shall be required prior to the hearing before
the Board of Commissioners in accordance with § 350-16(j)(1).
[Added 3-20-2019 by Ord. No. 1044]
(9)
Decision findings.
(A)
The Board of Commissioners shall render a written decision or
make written findings (when no decision is called for) on the application
within 45 days after the last hearing before the Board of Commissioners.
Where the application is contested or denied, the decision shall be
accompanied by findings of fact and conclusions based thereon, together
with the reasons therefor. Any conclusion based on any provision of
Act 170, as amended, or of 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 light
of the facts found.
(B)
Where the Board of Commissioners fails to render the decision
within the period required in Subsection (c)(9)(A) of this section
or fails to commence, conduct, or complete the required hearing as
provided in Section 908(1.2) of the Pennsylvania Municipalities Planning
Code (MPC), 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 governing
body to meet or render a decision as hereinabove provided, the Board
of Commissioners shall give public notice of the decision within 10
days from the last day it could have met to render a decision in the
same manner as required by the public notice requirements of the MPC.
If the Board of Commissioners shall fail to provide such notice, the
applicant may do so.
(C)
A copy of the final decision or a copy of the finding (when
no decision is called for) shall be delivered to the applicant. The
Board of Commissioners shall provide (by mail or otherwise) a brief
notice of the decision or findings and the statement of the place
where the full decision findings may examined to all other persons
who have filed their names and addresses with the Board of Commissioners.
(10)
Appeals. In general, all appeals for securing a review of this
chapter or any decision, determination, order of the Board of Commissioners,
its agencies or officers issued pursuant to this chapter, shall be
in conformance with Article X-A of the Municipalities Planning Code
as amended.
