A.
The Zoning Hearing Board, referred to as the "Board" within this article, shall consist of three residents of Maidencreek Township appointed by the Board of Supervisors pursuant to Article IX of the Pennsylvania Municipalities Planning Code, as amended. The Board shall perform all the duties and have all the powers prescribed by said code and as herein provided. The Board of Supervisors shall make provision in its budget for appropriate funds for the operation of the Board.
B.
The term of office of each Board member shall be three years, and
shall be fixed so that the term of office of one member shall expire
each year. Members of the Board shall hold no other office in the
Township, whether elected or appointed.
C.
Any Board member may be removed for malfeasance, misfeasance, or
nonfeasance in office or for other just cause by a majority vote of
the Board of Supervisors taken after the Board member has received
15 days' advance notice of the intent to take such a vote. A
hearing shall be held pursuant to such removal if the Board member
being voted upon requests such in writing.
D.
Vacancies within the Board shall be filled by appointment by the
Board of Supervisors for the unexpired portion of the vacated term.
E.
Alternate members.
(1)
The Board of Supervisors may appoint by resolution at least
one but no more than three residents of Maidencreek Township to serve
as alternate members of the Board.
(2)
The term of office of an alternate member shall be three years.
(3)
When seated pursuant to the provisions of Subsection G(3) of this section, an alternate shall be entitled to participate in all proceedings and discussions of the Board to the same and full extent as provided by law for Board members, including specifically the right to cast a vote as a voting member during the proceedings, and shall have all the powers and duties set forth by the Pennsylvania Municipalities Planning Code, as amended, and as may otherwise be provided for by law.
(4)
Alternate members shall hold no other office in the Township.
F.
Compensation and expenditures for services.
(1)
The members of the Board shall receive such compensation as
shall be fixed by resolution of the Board of Supervisors, but in no
case shall such rate exceed the rate of compensation authorized paid
to Supervisors.
(2)
Within the limits set by the Board of Supervisors, the Board
may employ or contract for secretaries, clerks, legal counsel, consultants,
and other technical and clerical services. The Township Solicitor
shall not serve as Solicitor for the Board.
G.
Organization.
(1)
The Board may make, alter, and rescind rules and forms for its
procedure including, but not limited to, the manner of filing appeals
and applications for special exceptions and variances.
(2)
The Board shall elect from its own membership a Chairman and
any other officers it may deem necessary. Officers shall serve annual
terms and may succeed themselves.
(3)
For the conduct of any hearing and the taking of any action,
a quorum shall be not less two. If, by reason of absence or disqualification
of a member, a quorum is not attained, the Chairman of the Board shall
designate as many duly appointed 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.
(4)
The Board may appoint a Hearing Officer from its own membership
to conduct any hearing on its behalf.
(5)
Meetings and hearings of the Board shall be held at the call
of the Chairman and at such other times as the Board, by majority
vote, may determine. All meetings of the Board shall be open to the
public.
H.
The 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 Board shall keep records of its
examinations and other official actions, all of which shall be immediately
filed with the Secretary of the Board of Supervisors, and shall be
a public record. The Board shall submit an annual report each year
to the Board of Supervisors.
The Zoning Hearing Board shall have exclusive jurisdiction to
hear and render final adjudications in the following matters:
A.
Substantive challenges to the validity of any land use ordinance (including this chapter and the Zoning Map) or Official Map in effect in Maidencreek Township, except for landowner curative amendments, which are the jurisdiction of the Board of Supervisors. Substantive challenges shall be administered in accordance with §§ 220-119 and 220-120 of this chapter.
B.
Challenges to the validity of any land use ordinance in effect in
Maidencreek Township where such challenge involves procedural questions
or alleged defects in the process of enactment or adoption. Such challenges
must be raised by an appeal within 30 days of the effective date of
said ordinance.
D.
Appeals from the determination of the 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.
E.
Appeals from the determination of the Township Engineer or the Zoning Officer in the administration of any land use ordinance or provision thereof in effect in Maidencreek Township with reference to sedimentation and erosion control and stormwater management, except for applications involving Chapter 190, Subdivision and Land Development.
F.
Applications for a variance from the terms of this chapter.
(1)
The Board shall hear requests for variance where it is alleged
that the provisions of this chapter inflict unnecessary hardship upon
the applicant. No variance shall be granted unless and until the applicant
can demonstrate to the satisfaction of the Board that:
(a)
There are unique physical circumstances or conditions (such
as irregularity, narrowness, or shallowness of lot size or shape)
or exceptional topographical or other physical conditions peculiar
to the particular property. Such hardship shall be due to such physical
conditions and not the circumstances and conditions generally created
by the provisions of this chapter in the district where the property
is located.
(b)
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 reasonable use of the
property.
(c)
Such hardship shall not have been created by the applicant.
(d)
The variance, if authorized, shall not result in alteration
of 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)
The variance, if authorized, shall represent the minimum variation
from the standards of this chapter which will afford relief and will
represent the least modification possible thereof.
(2)
In granting any variance, the Board may attach such reasonable
conditions and safeguards as it may deem necessary to implement the
stated purposes of this chapter.
(3)
Unless otherwise specified by the Zoning Hearing Board, a variance
which has been authorized by the Zoning Hearing Board shall expire
if the applicant fails to obtain a zoning permit within six months
from the date of authorization thereof or fails to commence a substantial
amount of work within six months from the date of issuance of the
permit for such work.
G.
Applications for uses by special exception as defined in this chapter.
(1)
The Board shall hear and decide upon requests for such uses
by special exception in accordance with such standards and criteria
stipulated by this chapter for the particular use in question. Standards
to be used by the Zoning Hearing Board in deciding on the request
for a special exception shall include:
(a)
Such use shall be one which is specifically authorized as a
special exception use in the zoning district wherein the applicant
seeks a special exception;
(b)
Such special exception shall only be granted subject to any
applicable conditions and safeguards as required by this chapter;
(c)
Such use shall not adversely affect the character of the general
neighborhood or be incompatible with adjacent properties in the general
neighborhood;
(d)
Such use shall not adversely affect the conservation of property
values;
(e)
Such use shall not adversely affect the health and safety of
residents or workers;
(f)
Such use shall not adversely impact the general neighborhood
relative to problems such as air pollution, light pollution, noise,
soil erosion, sedimentation, stormwater and flooding;
(g)
Such use shall be of such size and so located and laid out in
relation to its access streets that vehicular and pedestrian traffic
to and from such use will not create congestion or hazards prejudicial
to the general neighborhood and shall be serviceable by emergency
service providers;
(h)
Such use shall be compatible with the building sizes, heights
and massing of other buildings in the general neighborhood;
(i)
Such use will include proposals for landscaping and buffering
to mitigate any adverse impacts;
(j)
Such use will not result in a greater impact than the impact
that would normally result from other similar uses; and
(k)
Services and utilities (water and sewer) either are or shall
be available to adequately service the proposed use by the applicant,
and the applicant shall provide "will serve" letters for the proposed
public water and sewer systems from the Municipal authority, or suitability
letters from certified professionals for on-site sewer and water suitability.
(2)
In granting a special exception, the Board may attach such reasonable
conditions and safeguards, in addition to those expressed in this
chapter, as it may deem necessary to implement the stated purposes
of this chapter and the district wherein the property in question
is located.
(3)
Unless otherwise specified by the Zoning Hearing Board, a special
exception which has been authorized by the Zoning Hearing Board shall
expire if the applicant fails to obtain a zoning permit within six
months from the date of authorization thereof or fails to commence
a substantial amount of work within six months from the date of issuance
of the permit for such work.
H.
Appeals from the determination of any officer of agency charged with
the administration of any of the performance provisions of this chapter.
I.
Appeals from the determination of the Zoning Officer concerning the
preliminary opinion of whether a proposed building, land development,
or other use of land addressed by this chapter is in compliance with
the terms of said ordinance.
A.
All appeals, challenges, and any other applications for hearing to
the Board shall be in writing on forms prescribed by the Board. Every
such application for hearing shall refer to the specific provision
of this chapter involved and shall exactly set forth the interpretation
that is claimed the grounds for any challenges to the validity of
this chapter, the use for which a special exception is sought, or
the details of the variance that is applied for and the grounds on
which it is claimed that the variance should be granted, as the case
may be.
B.
Time limitations for filing proceedings related to specific subdivision
or land development proposals.
(1)
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 the appropriate Township 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 to appeal from a decision to approve a
tentative plan or preliminary plan shall preclude appeal from final
plan approval except in the case where the final plan substantially
deviates from the approved tentative plan or preliminary plan.
(3)
All appeals from determinations adverse to the landowners shall
be filed by the landowner within 30 days after notice of the determination
is issued.
(4)
In the case of an appeal from a preliminary opinion by the Zoning
Officer, where such appeal is requested by a person other than the
landowner, such appeal must be filed within 30 days of the second
public notice of the preliminary opinion.
C.
Public notice, as defined by this chapter, shall be given for all hearings, and written notice, as defined by Subsection E below, shall be given to the applicant, the Zoning Officer, and by first class mail to the owners of all properties within 1,000 feet of the property which is the subject of the hearing, and to any person who has made timely request for the same.
[Amended 2-8-2018 by Ord.
No. 244]
D.
The parties to the hearing shall be the Township, any person affected
by the application who has made timely appearance of record before
the Board, and any other person including civic or community organizations
permitted to appear by the Board. The Board shall have power to require
that all persons who wish to be considered parties enter appearances
in writing on forms provided by the Board for such purpose.
E.
Written notice as required by Subsection C shall be in the form of a letter delivered by certified mail or by hand by the Zoning Officer or his representative such that the recipient(s) shall be in possession of said letter no less than 10 calendar days prior to the date of the hearing.
F.
Where the hearing affects a particular tract or tracts of land, written
notice of said hearing shall be conspicuously posted on the affected
tract or tracts at least one week prior to the hearing.
G.
The hearing shall be held within 60 days from the date of the applicant's
request, unless the applicant has agreed in writing to an extension
of time.
H.
The hearing shall be conducted by the Board or the Hearing Officer,
as may be appointed by the Board. 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
Township, 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.
I.
The Board of Supervisors may prescribe reasonable fees with respect
to hearings before the Zoning Hearing Board. Fees for said hearings
may include compensation for the secretary and members of the Board,
notice and advertising costs, and necessary administrative overhead
connected with the hearing. Such costs shall not include legal expenses
of the Board; expenses for engineering, architectural, or other technical
consultants; or other expert witness costs.
J.
The Board Chairman, acting Board Chairman, or Hearing Officer shall
preside over the hearing. Such presiding individual 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.
K.
The parties shall have the right to be represented by legal counsel
and shall be afforded the opportunity to respond, to present evidence
and argument, and to cross-examine adverse witnesses on all relevant
issues.
L.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded at the discretion of
the individual presiding over the hearing.
M.
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; where the
hearing is an appeal from a decision of the Board, the cost shall
be paid by the person appealing from such decision. 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.
N.
Neither the Board nor the Hearing Officer shall communicate, directly
or indirectly, with any party or representative thereof in connection
with any issue involved except upon notice to all parties giving such
parties opportunity to participate.
O.
Neither the Board nor the Hearing Officer shall take notice of any
communication, reports, staff memoranda, or other materials (except
advice from their solicitor) unless all parties are afforded an opportunity
to contest the material so noticed.
P.
Neither the Board nor the Hearing Officer shall inspect the site
involved or its surroundings after the commencement of hearings with
any party or representative thereof unless all parties are given an
opportunity to be present.
Q.
Decisions and findings.
(1)
The Board or the Hearing Officer, as the case may be, shall
render a written decision or, when no decision is called for, shall
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.
(2)
Conclusions based upon any provision of the Pennsylvania Municipalities
Planning Code or upon any ordinance, rule, or regulation of the Township
shall contain a reference to the provision relied upon and the reason(s)
why the conclusion is deemed appropriate in the light of the facts
found.
(3)
If the hearing is conducted by the 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. The Board's decision shall be entered no later than
30 days after the report of the Hearing Officer.
(4)
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 working day next following the
date of the decision or findings. 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 where
the full decision or findings may be examined.
(5)
Where the Board fails to render a decision within the period
required by this section or fails to hold the required hearing within
60 days from the date of the applicant's request for a hearing,
then 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.
(6)
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 manner described in Subsection C of this section. If the Board shall fail to provide such notice, the applicant may do so.
R.
Nothing in this section shall prejudice the right of any party opposing
the application to appeal the decision to a court of competent jurisdiction.
A.
A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge either to the Zoning Hearing Board in accordance with the provisions of § 220-120 of this chapter or to the Board of Supervisors along with a request for a curative amendment.
B.
Persons aggrieved by a use or development permitted on the land of
another by an ordinance or map in effect in Maidencreek Township or
by any provision thereof who desire to challenge the validity of such
ordinance or map shall first submit their challenge to the Board for
a hearing thereon.
C.
Such submissions as permitted by this § 220-121, and only such submissions, shall be governed by the following:
(1)
The challenging party shall make a written request to the Board
that it hold a hearing on its challenge. The request shall contain
the reasons for the challenge.
(2)
The Board shall commence its hearing(s) within 60 days after
the request is filed, unless the landowner requests or consents to
an extension of time.
(3)
Public notice of the hearing, as required by § 220-120C and E of this chapter, shall include notice that the validity of the ordinance or map is in question and shall give the place where and the times when a copy of the request may be examined by the public. Such copy of the request shall include any plans, explanatory material, or proposed amendments as provided to the Township by the challenging landowner.
(4)
Based upon the testimony presented at the hearing(s), the Board
shall determine whether the challenged ordinance or map is defective,
as alleged by the landowner.
(5)
If the challenge is found by the Board to have merit, the decision
of the Board shall include recommended amendments to the challenged
ordinance which will cure the defects found. In reaching its decision,
the Board shall consider the amendments, plans, and explanatory material
submitted by the landowner and shall also consider:
(a)
The impact of the proposal upon roads, sewer facilities, water
supplies, schools, and other public service facilities.
(b)
If the proposal is for a residential use, the impact of the
proposal upon regional housing needs and the effectiveness of the
proposal in providing housing units of a type actually available to
and affordable by classes of persons otherwise unlawfully excluded
by the challenged provisions of the ordinance or map.
(c)
The suitability of the site for the intensity of use proposed
in consideration of the soils, slopes, woodlands, wetlands, floodplains,
aquifers, natural resources, and other natural features found on the
site.
(d)
The impact of the proposed use on the site's soils, slopes,
woodlands, wetlands, floodplains, natural resources, and natural features;
the degree to which these are protected or destroyed; the tolerance
of the resources to development; and any adverse environmental impacts.
(6)
The Board shall render its decision within 45 days after the
conclusion of the last hearing.
(7)
If the Board fails to act upon the landowner's request
within 45 days, a denial of the request is deemed to have occurred
on the 46th day after the close of the last hearing.
(8)
If the Board fails to commence the hearing(s) on a request within
60 days after submission, or within such period of extension as agreed
to by both the Township and the landowner, a denial of the request
is deemed to have occurred on the day following the last day of such
period.
D.
Where a validity challenge is sustained by the Board or the court acts finally on appeal from denial of a validity challenge, and the proposal or challenge so approved requires a further application for subdivision or land development, the developer shall have two years from the date of such approval to file an application for preliminary plan approval in accordance with the regulations of Chapter 190, Subdivision and Land Development. Within this two-year period, no subsequent change or amendment in the Zoning, Subdivision and Land Development, or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the sustained validity challenge.
E.
Where a proposal appended to an approved validity challenge does not require further application under Chapter 190, Subdivision and Land Development, the developer shall have one year from the date of such approval within which to file for a building permit. Within this one-year period, no subsequent change or amendment in the Zoning, Subdivision and Land Development, or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the sustained validity challenge.
F.
Nothing in this section shall be interpreted to preclude a landowner
from first seeking a final plan approval prior to submission of a
challenge.
A.
Upon filing of any proceeding described in this article 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
over zoning appeals. Such restraining order shall be granted only
upon petition and after notice of such petition has been given to
the Zoning Officer or other appropriate agency or body.
B.
When preliminary plan approval or final plan approval for a subdivision
or land development has been granted, and proceedings designed to
reverse or limit such 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 of continuing the proceedings before the Board.
C.
After the petition is presented, the court shall hold a hearing to
determine if the filing of the appeal is frivolous. At the hearing,
evidence may be presented on the merits of the case. It shall be the
burden of the applicant for a bond to prove the appeal is frivolous.
After consideration of all evidence presented, if the court determines
that the appeal is frivolous, it shall grant the petition for a bond.
D.
The right to petition the court to order the appellants to post bond
may be waived by the appellee, but such waiver may be revoked by him
if an appeal is taken from a final decision of the court.
E.
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. An order denying a petition for bond shall be interlocutory.
An order directing the responding party to post a bond shall be interlocutory.
F.
If an appeal is taken by a respondent to the petition for a bond
from an order of the court dismissing a zoning appeal for refusal
to post a bond and the appellate court sustains the order of the court
below to post a bond, the respondent to the petition for a bond, upon
motion of the petitioner and after hearing in the court having jurisdiction
of zoning appeals, shall be liable for all reasonable costs, expenses,
and attorney fees incurred by the petitioner.
Appeals from decisions of the Zoning Hearing Board may be made
by any aggrieved party to a court of competent jurisdiction, as provided
for in the Pennsylvania Municipalities Planning Code.
