[Amended 3-23-2017 by Ord. No. 213]
The Zoning Hearing Board shall be organized pursuant to the
provisions of the MPC, as amended from time to time.
A.
Creation of Board. The Township Board of Supervisors hereby
creates a Zoning Hearing Board consisting of five members, appointed
by the Board of Supervisors pursuant to the MPC, as amended from time
to time, who shall perform all the duties and have all the powers
prescribed by state statutes and as herein provided.
B.
Membership of Board. The Zoning Hearing Board shall consist
of five residents of the Township appointed by the Board of Supervisors.
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 Township, either elected or appointed.
C.
Alternate members. The Board of Supervisors may, by resolution,
appoint at least one, but not more than three, residents of the Township
of Middle Smithfield to serve as alternate members of the Zoning Hearing
Board. The term of office of alternate members shall be three years.
Alternates shall hold no other elected or appointed office in the
Township of Middle Smithfield, including service as a member of the
Planning Commission or as a Zoning Officer, nor shall any alternate
be an employee of the Township of Middle Smithfield.
D.
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 governing body which appointed the member,
taken after the member has received 15 days' advance notice of the
intent to take such a vote. A hearing shall be held in connection
with the vote if the member shall request it, in writing, within 10
days after receipt of the notice of intent to take a vote.
E.
Vacancies. Appointments to fill vacancies shall be only for
the unexpired portion of a term and shall be made by the Board of
Supervisors.
F.
Additional qualifications. Each Zoning Hearing Board member
must:
(1)
Demonstrate a working knowledge of zoning prior to appointment.
(2)
Become familiar with the Pennsylvania Municipalities Planning
Code.
(3)
Within one year of the member's appointment to the Zoning Hearing
Board (or the amendment of § 083-010 providing for this
requirement), attend Pennsylvania Municipal Planning Education Institute's
("PMPEI's") core course on zoning; and within two years of the member's
appointment to the Zoning Hearing Board (or the amendment of § 083-010
providing for this requirement), attend PMPEI's core course on zoning
administration. The Township shall pay the member a stipend of $30
per hour for course time to meet these requirements, plus:
(4)
After a member's second year of appointment to the Zoning Hearing
Board, the member shall attend, annually, three hours of continuing
education pertaining to municipal planning and/or zoning, through
one or more seminars, trainings and/or workshops (collectively, "seminar").
The Township shall pay the member's seminar costs and related expenses,
but no stipend. The seminar shall be sponsored by a Township-approved
provider, which shall include, without limitation, the Penn State
Extension, Pennsylvania Municipal Planning Education Institute, Pennsylvania
State Association of Boroughs, Pennsylvania State Association of Township
Supervisors, or similar nationally or state-recognized planning organization
or municipal association, or the Monroe County Planning Commission.
A.
The Zoning Hearing 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 of the members of
the Board, but the Board may appoint a hearing officer from its own
membership to conduct a hearing on its behalf, and the parties may
waive further action by the Board as provided herein.
B.
If, by reason of absence or disqualification of a member, a
quorum is not reached, the chairperson of the Zoning Hearing 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 Zoning Hearing Board may make, alter and rescind rules and
forms for its procedure, consistent with ordinances of the municipality
and laws of the commonwealth.
Meetings of the Zoning Hearing Board shall be held at the call
of the Chairperson and at such other times as the Zoning Hearing Board
may determine. The Chairperson, or, in his/her absence, the Acting
Chairperson, may administer oaths and compel the attendance of witnesses.
All meetings of the Zoning Hearing Board shall be open to the public.
The Zoning Hearing Board shall keep full public records of its
proceedings showing the vote of each member upon each question or,
if absent or failing to vote, indicating such fact. The Zoning Hearing
Board shall also keep full public records of its business and other
official action, which records shall be the property of the municipality.
The Zoning Hearing Board shall submit a report of its activities to
the Supervisors as requested by the Supervisors.
Pursuant to the MPC, as amended from time to time, the Zoning
Hearing Board shall have exclusive jurisdiction to hear and render
a decision in the following matters:
A.
Substantive challenges to the validity of any land use ordinance,
except those brought before the governing body pursuant to the MPC
for curative amendments and validity challenges.
B.
Appeals from the determination of the Zoning Officer, including,
but not limited to, the granting or denial of any permit or failure
to act on the application therefor, the issuance of any cease-and-desist
order or the registration or refusal to register any nonconforming
use, structure or lot.
C.
Appeals from the determination of the municipal engineer or
Zoning Officer with reference to the administration of a floodplain
or flood hazard ordinance or such provisions within a land use ordinance.
D.
Applications for variances from the terms of this chapter and
any flood hazard ordinance or such provisions within a land use ordinance,
pursuant to the MPC, as amended from time to time.
E.
Applications for special exceptions under this chapter or floodplain
or flood hazard ordinance or such provisions within a land use ordinance,
pursuant to the MPC, as amended from time to time.
F.
Appeals from the determination of any officer or agency charged
with the administration of any transfer of development rights or performance
density provisions of this chapter.
G.
Appeals from the Zoning Officer's determination under the MPC,
as amended from time to time.
H.
Appeals from the determination of the Zoning Officer or municipal 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 Article V or VII applications of the MPC.
A.
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(s).
The Zoning Hearing Board may grant a variance, provided that all of
the following findings are made, where relevant, in a given case:
(1)
That there are unique physical circumstances or conditions,
including irregularity, narrowness or shallowness of lot size or shape,
or exceptional topographical or other physical conditions peculiar
to the particular property and that the unnecessary hardship is due
to such conditions and not the circumstances or condition generally
created by the provisions of this chapter in the neighborhood or district
in which the property is located;
(2)
That because of such physical circumstances or conditions, there
is no possibility that the property can be developed in strict conformity
with the provisions of this chapter and that the authorization of
a variance is therefore necessary to enable the reasonable use of
the property;
(3)
That such unnecessary hardship has not been created by the appellant;
(4)
That the variance, if authorized, will not alter the essential
character of the neighborhood or district in which the property is
located, not substantially or permanently impair the appropriate use
or development of adjacent property, nor be detrimental to the public
welfare; and
(5)
That the variance, if authorized, will represent the minimum
variance that will afford relief and will represent the least modification
possible of the regulation in issue.
B.
In granting any variance, the Zoning Hearing Board may attach
such reasonable conditions and safeguards as it may deem necessary
to implement the purposes of the MPC and this chapter.
C.
A variance, whether labeled dimensional or use, is appropriate
only where the property, not the person, is subject to hardship. Types
of variances are as follows:
(1)
Dimensional variance. A dimensional variance is the most common
type of variance and is appropriate only where the property, not the
person, is subject to hardship. An applicant is not entitled to a
dimensional variance where the application merely seeks to maximize
the economic value of the property or enterprise.
(2)
Use variance. A use variance provides relief from the restrictions
as to the use of the property. The Zoning Hearing Board may grant
a use variance in lieu of rezoning, a curative amendment or validity
challenge. A use variance is appropriate only where the property,
not the person, is subject to hardship. The applicant must demonstrate
and prove to the Zoning Hearing Board that:
(3)
Validity variance. A validity variance is intended to prevent
the operation of municipal regulation on a parcel of property, such
that the property is in effect confiscated, and to permit the proposed
use of land where such use is reasonable.
(a)
The applicant must also establish, to the Zoning
Hearing Board's satisfaction, that:
(b)
The Zoning Hearing Board may also grant a validity
variance when a property owner shows that the land has no value or
only distressed value as a result of the regulation. This includes
the applicant providing proof that either:
(4)
De minimus variance. A de minimus variance grants a minimal
reduction of a dimensional zoning requirement. Because such a variance
does not affect the public interest, it may be granted by the Zoning
Hearing Board even though the traditional statutory grounds for a
variance as set forth herein have not been established.
(5)
Variance by estoppel. A variance by estoppel is a claim in equity
that arises when a property owner establishes that municipal inaction
has amounted to active acquiescence in an illegal use. [Note: This
claim in equity is distinct from a claim to a vested right (affirmative
action by the municipality, e.g., issued permit).] The Zoning Hearing
Board may grant a variance by estoppel if the property owner establishes
all of the following:
(a)
A long period of municipal failure to enforce the
law, when the municipality knew or should have known of the violation,
in conjunction with some form of active acquiescence in the illegal
use;
(b)
The landowner acted in good faith and relied innocently
upon the validity of the use throughout the proceeding;
(c)
The landowner made substantial expenditures in
reliance upon his belief that his use was permitted; and
(d)
The denial of the variance would impose an unnecessary
hardship on the applicant.
D.
A property owner shall have 12 months from the date of issuance
and approval of a variance to secure applicable zoning and building
permits. If a property owner fails to secure applicable zoning and
building permits within 12 months from the date of the variance approval,
the variance shall expire. The Zoning Officer may conclusively presume
that the applicant/property owner has waived, withdrawn or abandoned
approvals and permits and may consider all such approvals and permits
to have become null and void.
E.
The Zoning Officer shall issue written notification to the property
owner that the variance has expired and is null and void and that
no future zoning or building permits shall be issued without the property
owner securing a new variance.
F.
A property owner shall commence construction within 12 months
of the issuance of the first zoning and/or building permit, as it
pertains to the issuance of a variance. If a property owner has timely
secured his/her zoning and building permits, but does not, however,
commence construction on said permits within 12 months from the first
date of issuance, then the variance and accompanying zoning and building
permits shall expire. The Zoning Officer may conclusively presume
that the applicant/property owner has waived, withdrawn or abandoned
approvals and permits and may consider all such approvals and permits
to have become null and void, at which point the Zoning Officer shall
issue written notification to the property owner that the variance
has expired and is null and void and that no future zoning or building
permits shall be issued without the property owner securing a new
variance.
G.
In response to a property owner stating good cause, in writing,
the Zoning Officer may extend, in writing, the time limit for completion
of work to a maximum of 36 months from the date the first zoning or
building permit was issued after the issuance of the variance.
A.
The Zoning Hearing Board shall act in strict accordance with
the procedure specified by law and by this ordinance. All appeals
and applications made to the Zoning Hearing Board shall be in writing,
on forms prescribed by the Board. Every appeal or application shall
refer to the specific provision of this ordinance involved and shall
set forth the interpretation that is claimed, the use for which a
specified permit is sought or the details of the variance that is
applied for and the grounds on which it claims that the variance should
be granted, as the case may be.
B.
In the event the procedures set forth in this ordinance shall
be in conflict with or contrary to the procedures set forth in the
MPC, as amended from time to time, then and in such event the procedures
set forth in the MPC shall prevail.
C.
Applications and appeals to the Zoning Hearing Board, together
with the required filing fee, as established by the governing body
from time to time by resolution, shall be submitted to the Zoning
Officer.
(1)
Time limitations. No person shall be allowed to file any proceeding
with the Zoning Hearing 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.
(2)
The failure of anyone other than the landowner to appeal from
an adverse decision on a preliminary approval or from an adverse decision
by a Zoning Officer on a challenge to the validity of an ordinance
or map pursuant to the MPC, as amended from time to time, shall preclude
an appeal from a final approval except in the case where the final
submission substantially deviates from the approved plan as noted
in this subsection.
Upon filing of any application and/or appeal to the Zoning Hearing
Board, and during the 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 reverse 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 of whether or not such petition should
be granted and the amount of the bond shall be within the sound discretion
of the court and shall proceed in accordance with the requirements
set forth in the MPC, as amended.
The Board shall conduct hearings and make decisions in accordance
with the following requirements:
A.
Public notice shall be given, and written notice shall be given
to the applicant, the Zoning Officer, the Board of Supervisors and
the last known principal owner of record of each property that is
immediately adjacent to or immediately across the street from the
subject property, and to any person who has made timely request for
the same; however, failure to provide such notice shall not be grounds
for an appeal. In addition to the written notice provided herein,
written notice of said hearing shall be conspicuously posted on the
affected tract of land at least one week prior to the hearing.
B.
The governing body 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.
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 ensure that the applicant receives at least
seven hours of hearings 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.
D.
The hearings shall be conducted by the Board, or the Board 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; however, the appellant or the applicant, as
the case may be, in addition to the municipality, may, prior to the
decision of the hearing, waive the decision or findings by the Board
and accept the decision of findings of the hearing officer as final.
E.
The parties to the hearing shall be the municipality, 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.
F.
The Chairman or Acting Chairman of the Board or the hearing
officer presiding shall have the power to administer oaths and issue
subpoenas to compel the attendance of witnesses and the production
of relevant documents and papers, including witnesses and documents
requested by the parties.
G.
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.
H.
Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
I.
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.
J.
The Board or the hearing officer shall not communicate, directly
or indirectly, with any party or his representatives in connection
with any issue involved except upon notice and opportunity for all
parties to participate, shall not take notice of any communication,
reports, staff memoranda or other materials, except advice from their
solicitor, unless the parties are afforded an opportunity to contest
the material so noticed and shall not inspect the site or its surroundings
after the commencement of hearings with any party or his representative
unless all parties are given an opportunity to be present.
K.
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 this chapter 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 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,[1] where the Board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided in Subsection C, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed, in writing, or on the record to an extension of time. When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a decision as hereinabove 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 A of this section. If the 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.
[1]
Editor's Note: See 53 P.S. § 10916.1.
L.
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 names and addresses 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 or purchased under the terms of the Freedom of Information
Act,[2] as amended.
[2]
Editor's Note: See 5 U.S.C. § 552 et seq.
