This chapter shall apply throughout the Borough. Any activity
regulated by this chapter shall only occur in such a way that conforms
with the regulations of this chapter.
A.
The provisions of this chapter shall be enforced by an agent, to
be appointed by the Middletown Borough Council who shall be known
as the "Zoning Officer." The Zoning Officer may have designated an
employee of the Borough as his assistant, who shall exercise all the
powers of the Zoning Officer during the temporary absence or disability
of the Zoning Officer.
B.
The duties of the Zoning Officer shall be:
(1)
Administer this chapter in accordance with its literal terms.
(2)
To receive, examine and process all applications and permits
as provided by the terms of this chapter. The Zoning Officer shall
also issue zoning permits for special exception and conditional uses,
or for variances after the same have been approved by the Zoning Hearing
Board or Borough Council.
(3)
To record and file all applications for zoning permits or certificates
of occupancy, and accompanying plans and documents, and keep them
for public record.
(4)
To inspect properties to determine compliance with all provisions
of this chapter as well as conditions attached to the approval of
variances, special exceptions, conditional uses and curative amendments.
(5)
Determine the date before which steps for compliance must be
commenced and the date before which the steps must be completed. The
Zoning Officer shall determine an appropriate duration of time for
compliance of the specified activity, not to exceed 30 days. Extensions
up to a total of 90 days from the date of receipt of the enforcement
notice may be granted at the discretion of the Zoning Officer, if
applied for in writing.
(6)
Upon the request of the Borough Council, the Borough Manager,
the Planning Committee or the Zoning Hearing Board, present to such
bodies facts, records, and any similar information on specific requests,
to assist such bodies in reaching their decisions.
(7)
To be responsible for keeping this chapter and the Official
Zoning Map up to date, including any amendments thereto. The Zoning
Officer shall maintain a map or maps showing the current zoning district
and overlay areas for all the land within the Borough. Upon request,
the Zoning Officer shall make determination of any Zoning Map district
boundary question.
(8)
To revoke a permit or approval issued under the provisions of
this chapter in case of any false statement or misrepresentation of
fact in the application or on the plans on which the permit or approval
was based or for any other cause set forth in this chapter, or otherwise
permitted by law.
(9)
To receive and review all applications for proposed subdivisions,
land developments, building permits or zoning permits for compliance
with this chapter.
A zoning permit indicates that a zoning application complies
with this chapter to the best knowledge of the Zoning Officer or his/her
designee. No zoning permit or certificate of use and occupancy shall
be granted by him/her for any purpose except in compliance with the
literal provisions of this chapter and with all the provisions of
the Borough's Building Codes. The Zoning Officer may be authorized
to institute civil enforcement proceedings as a means of enforcement
when acting within his/her scope of employment.
A.
A zoning permit is required to be issued prior to the start of any
of the following activities:
(1)
Erection, construction, movement, placement, razing, demolition,
removal, alteration or expansion (vertical or horizontal) of a structure,
building or sign;
(2)
Of the type of use or expansion of the use of a structure or
area of land;
(3)
Creation of a new use;
(4)
Demolition of a building;
(5)
Other activities required to have a permit by this chapter;
(6)
The alteration or development of any improvement or unimproved
real estate, including, but not limited to, mining, dredging, filling,
grading, paving, excavation or drilling operations for underground
utilities provided the final grade is not altered;
(8)
The construction or installation of animal waste impoundments,
lakes, ponds, dams, or other water retention basins;
(9)
No zoning permit shall be required for repairs or maintenance
of any structure or land, provided such repairs do not change the
use or the exterior dimensions of the structure, or otherwise violate
the provisions of this chapter.
B.
The Borough may, at its option, issue combined or separate building
permits and zoning permits and/or may utilize a single or separate
application for the permits.
C.
The only determination by the Zoning Officer that shall be official
shall be a written determination after the Zoning Officer receives
a duly submitted written official application.
D.
Such zoning permits shall be granted or refused within 90 days from
date of application.
F.
In all instances in which the Zoning Officer expresses a reasonable
doubt as to the ability of a proposed use to meet all of the above-described
requirements, it will be incumbent upon the applicant to furnish adequate
evidence in support of his application. If such evidence is not presented,
the zoning permit will be denied.
G.
Application for a zoning permit shall be made by the owner or lessee
of any building or structure, or the agent of either; provided, however,
that if the application is made by a person other than the owner or
lessee, it shall be accompanied by a written authorization of the
owner or the qualified person making the application, that the proposed
work is authorized by this owner. The full names and addresses of
the owner, lessee, applicant, and of the responsible officers, if
the owner or lessee is a corporate body, shall be stated in the application.
H.
The Zoning Officer may call upon other Borough staff and/or municipal
appointed consultants in the review of submitted materials for applications.
I.
The Zoning Officer may revoke a permit or approval issued under the
provisions of this chapter in case of any false statement or misrepresentation
of fact in the application or on the plans which the permit or approval
was based or for any other cause set forth in this chapter.
J.
Where a zoning permit is required by this chapter, but the work is
commenced or changed prior to obtaining such permit and after notice
by the Borough, the fees set by ordinance or resolution of the Borough
Council for such permit shall be doubled. The doubling of the permit
fee shall be required to reflect the additional expense incurred by
the Borough resulting from the need to inspect the property, respond
to any complaints, and issue any enforcement notices and/or process
the application as soon as it is received. The payment of such increased
permit fee shall not relieve any person from complying with all requirements
of this chapter or any other applicable Borough ordinances or from
any penalties or enforcement actions authorized by this chapter.
K.
Issuance of permits. Upon receiving the application, the Zoning Officer
shall examine the same within a reasonable time after filing. If the
application or plans do not conform to the provisions of all pertinent
local laws, he shall reject such application, in writing, stating
the reasons therefor. He shall inform the applicant of his right to
appeal to the Zoning Hearing Board in the event such application is
rejected. If satisfied that the proposed work and/or use conforms
to the provisions of this chapter and all laws and ordinances applicable
thereto, and that the certificate of use and occupancy as required
herein has been applied for, he shall issue a permit therefor as soon
as practical but not later than 90 days from receipt of the application.
L.
Reconsideration of application. An applicant whose request for a
permit has been denied by the Zoning Officer may make a later application
for a permit provided all deficiencies which were the basis for the
prior denial of the permit have been eliminated. Additional fees may
apply as set by the Borough Council.
M.
Expiration of zoning permit. The permit shall expire after one year
from the date of issuance; provided, however, that the same may be
extended one time for one additional year, upon written request by
the applicant on a form provided by the Borough.
N.
Compliance with ordinance. The permit shall be a license to proceed
with the work and should not be construed as authority to violate,
cancel, or set aside any of the provisions of this chapter, except
as stipulated by the Zoning Hearing Board.
O.
Compliance with permit and plot plan. All work or uses shall conform
to the approved application and plans for which the permit has been
issued as well as the approved plot plan.
P.
Display of zoning permit. All approved zoning permits shall be prominently
displayed on the subject property during construction, renovation,
reconstruction, repair, remodeling or the conduct of other site improvements.
Such permit displays shall occur within five days of permit issuance,
or prior to the commencement of actual work on the site, whichever
occurs first. Such permit display shall be continuous until the site
receives its certificate of occupancy.
Q.
Inspections. Inspections of the property in question by the Zoning
Officer or other duly appointed official may be required at various
intervals during the construction process. By submitting an application
for a zoning permit, the landowner authorizes the Borough to perform
such inspections as required.
A.
It shall be unlawful to use and/or occupy any structure, sign, land
area or portion thereof for which a zoning permit is required until
a certificate of use and occupancy for such activity has been issued
by the Zoning Officer.
B.
The Borough staff may permit the zoning permit application to serve
as the application for the certificate of use and occupancy.
C.
The certificate of use and occupancy shall only be issued by the
Zoning Officer if the Zoning Officer determines that the activity
complies with this chapter, to the best knowledge of the Zoning Officer.
D.
The applicant shall keep a copy of the certificate of use and occupancy
available for inspection.
E.
Upon request of the applicant, the Zoning Officer may issue a temporary
certificate of use and occupancy. Such temporary certificate may permit
as activity to occur in all or part of a structure before the entire
work covered by the zoning permit has been completed.
(1)
However, such temporary certificate shall only be issued if
the applicant proves to the Zoning Officer that the activity or occupancy
can occur safely without endangering public health or safety.
(2)
The temporary certificate shall establish in writing a maximum
time period under which it is valid. A six-month maximum time period
shall apply if not otherwise specified.
(3)
Failure to receive a permanent certificate of use and occupancy
within such time period shall be a violation of this chapter.
(4)
The temporary certificate may be conditioned upon compliance
with certain specific requirements within certain time periods.
F.
The Zoning Officer shall inspect any structure, building, or sign
within 10 days upon notification that the proposed work that was listed
under a zoning permit has been completed and if satisfied that the
work is in conformity and compliance with the work listed in the issued
permit and all other pertinent laws, he shall issue a certificate
of use and occupancy for the intended use listed in the original application.
Where a building permit is required under the Uniform Construction
Code, a certificate of use shall not be issued until a final inspection
by the Building Code Official is complete and found to be satisfactory.
A.
A zoning permit for a temporary use or structure may be issued by
the Zoning Officer for any of the following:
(1)
Customary, routine and accessory short-term special events,
provided that only a well-established nonprofit organization or a
permitted place of worship proposing a temporary use demonstrates
clearly that the proposed use will primarily serve a charitable, public
service or religious purpose in order to be eligible to receive approval
for commercial-type activities in a district where a commercial use
would not otherwise be permitted;
(2)
Temporary storage and office trailers that are necessary to
serve on-site construction, while such construction is actively underway;
(3)
Such other activities that the applicant proves are routine,
customary and temporary.
B.
Time period. The Zoning Officer shall state a reasonable maximum
time period on the temporary permit. If no time limit is stated, then
a six-month maximum period shall apply. A temporary permit may be
renewed for just cause.
A.
Permitted by right uses. The Zoning Officer shall issue a zoning
permit under this chapter in response to an application for a use
that is permitted by right if it meets all of the requirements of
this chapter.
B.
Special exception use. A zoning permit under this chapter for a use
requiring a special exception permit shall be issued by the Zoning
Officer only in response to a written approval by the Zoning Hearing
Board following a hearing, and compliance with any conditions by the
Zoning Hearing Board and any conditions required by this chapter.
C.
Conditional use. A zoning permit under this chapter for a use requiring
a conditional use permit shall be issued by the Zoning Officer only
in response to a written approval by the Borough Council following
a hearing, and compliance with any conditions by the Borough Council
and any conditions required by this chapter.
D.
Application requiring a variance. A permit under this chapter for
a use requiring a variance shall be issued by the Zoning Officer only
in response to a written approval by the Zoning Hearing Board, following
a hearing, and compliance with any conditions by the Zoning Hearing
Board.
A.
Submittal. All applications for a zoning permit shall be made in
writing on a form provided by the Borough. Such completed application,
with required fees, shall be submitted to a designated Borough employee.
B.
Site plan. The applicant shall submit a minimum of two copies of
a site plan with the application if the application involves a new
principal building, expansion of a principal building or addition
of three or more parking spaces. The site plan shall be drawn to scale
and show the following:
(1)
Locations, dimensions and uses of existing and proposed structures,
parking and loading areas, and location of existing and proposed uses
of areas of land, with existing features clearly distinguished from
proposed features.
(2)
Notes showing the dimensions of all buildings from lot lines
and street rights-of-way.
(3)
Location of any watercourses and any one-hundred-year floodplain.
(4)
Proposed lot areas, lot widths and other applicable dimensional
requirements.
(5)
Locations and widths of existing and proposed sidewalks.
C.
Additional information. Any application under this chapter shall
include the following information, unless the Zoning Officer determines
such information is unnecessary to determine compliance with this
chapter:
(1)
Address of the lot.
(2)
Name and address of the applicant, and of the owner of the property
if different from the applicant.
(3)
Description of the proposed use of the property.
(4)
All other applicable information listed on the official Borough
application form.
(5)
Such additional information that the Zoning Officer may determine
is reasonably necessary to determine compliance with this chapter.
D.
Application for zoning permits for uses in all commercial and industrial
zones (excluding demolition permits) shall include the following:
(1)
A location plan showing the tract to be developed, zone boundaries,
adjoining tracts, significant natural features, and streets for a
distance of 200 feet from all tract boundaries;
(2)
A plot plan certified by a professional surveyor or engineer
of the lot showing the location of all existing and proposed buildings,
driveways, parking lots showing access drives, circulation patterns,
curb cut accesses, parking stalls, access from streets, screening
fences and walls, waste disposal fields or other methods of sewage
disposal, other construction features on the lot, and the location
of all topographical features;
(3)
A description of the operations proposed in sufficient detail
to indicate the effects of those operations in producing traffic congestion,
noise, glare, air pollution, water pollution, vibration, fire hazards,
safety hazards, or the emission of any potentially harmful or obnoxious
matter or radiation;
(4)
Evidence that the disposal of materials and wastes will be accomplished
in a manner that complies with state and federal regulations. Such
evidence shall, at a minimum, include copies of contracts with waste
haulers licensed to operate within Dauphin County which have been
contracted to dispose of the materials used and wastes generated on
site. The zoning permit shall remain valid only so long as such contracts
remain in effect and all materials and wastes are properly disposed
of on a regular basis. Should the nature of the use change in the
future such that the materials used or wastes generated change significantly,
either in type or amount, the owner shall so inform the Zoning Officer,
and shall provide additional evidence demonstrating continued compliance
with the requirements of this section;
(5)
Engineering plans for the handling of traffic, noise, glare,
air pollution, water pollution, vibration, fire hazards, or safety
hazards, smoke, or emission of any potentially harmful or obnoxious
matter or radiation;
(6)
Designation of the manner by which sanitary sewage and stormwater
shall be disposed and water supply obtained;
(7)
The proposed number of shifts to be worked and the maximum number
of employees on each shift;
(8)
Where use by more than one firm is anticipated, a list of firms
which are likely to be located in the center, their floor area, and
estimated number of employees; and
(9)
Submission, approval and recordation of a subdivision or land
development plan, as required.
E.
Areas subject to flooding. If the proposed development, excavation
or construction is located within an area subject to regulation by
the Borough Floodplain Ordinance,[1] the following information is specifically required to
accompany all applications, as prepared by a licensed professional:
(1)
The accurate location and elevation of the floodplain and floodway;
(2)
The elevation, in relation to the National Geodetic Vertical
Datum of 1929 (NGVD), of the lowest floor, including basements;
(3)
The elevation, in relation to the NGVD, to which all structures
and utilities will be floodproofed or elevated; and
(4)
Where floodproofing is proposed to be utilized for a particular
structure, the zoning permit application shall be accompanied by a
document certified by a licensed professional engineer registered
by the Commonwealth of Pennsylvania, or a licensed professional architect
registered by the Commonwealth of Pennsylvania certifying that the
floodproofing methods used meet all applicable codes and ordinances.
F.
Uniform construction code. Where the proposed use is regulated under
the Uniform Construction Code, the applicant shall submit an application
of building permit concurrently with the zoning permit. A zoning permit
will not be issued until satisfactorily meeting the requirements of
the Uniform Construction Code.
G.
Submittals for special exception or conditional uses. In addition
to the information listed above, an application for a special exception
or conditional use requiring a site plan and action by the Zoning
Hearing Board or Borough Council shall also include the following
information, unless the Zoning Officer determines that such information
is not necessary to determine compliance with this chapter:
(1)
Present zoning district and major applicable lot requirements.
(2)
For nonresidential use:
(a)
Description of the proposed nonresidential operations and storage
in sufficient detail to indicate potential nuisances and hazards regarding
noise, large truck traffic, glare, odors, dust, fire or toxic or explosive
hazards or other significant public health and safety hazards.
(b)
Maximum hours of operation.
(3)
Existing directions of stormwater flow (and any proposed revisions)
and any proposed methods of stormwater management.
(4)
Listing of any sections of this chapter from which a variance
is being requested.
(5)
Approximate locations of principal buildings and locations of
streets and alleys and zoning district boundaries within 100 feet
of the boundaries of the tract, and description of uses of adjoining
properties (such as drugstore or single-family detached dwelling).
(6)
Heights, locations, methods of illumination and intensity of
exterior lighting and sign lighting.
(7)
Name and address of person who prepared the site plan.
(8)
Signed acknowledgement of the site plan by the applicant.
(9)
Such additional information required under applicable sections
of this chapter.
A.
At least one copy of each zoning permit application and any other
zoning approvals shall be retained in the Borough files.
B.
PennDOT permit. Where necessary for access onto a state road, a Borough
zoning or building permit shall be conditioned upon issuance of a
PennDOT highway occupancy permit.
A.
Revocation. The Zoning Officer shall revoke, withhold or suspend
a permit or approval issued under the provisions of this chapter in
the case of one or more of the following:
(1)
Any false statement or misrepresentation of fact in the application
or on the plans on which the permit or approval was based. (NOTE:
The Pennsylvania Crimes Code[1] provides for penalties for providing false information
to a municipal employee in the carrying out of his/her duties.)
[1]
Editor's Note: See 18 Pa.C.S.A. § 101 et seq.
(2)
Upon violation of any condition lawfully imposed by the Zoning
Hearing Board for a special exception use or a variance.
(3)
Upon violation of any condition lawfully imposed by the Borough
Council for a conditional use.
(4)
Any work being accomplished or use of land or structures in
such a way that does not comply with this chapter or an approved site
plan or approved permit application.
(5)
Any other just cause set forth in this chapter.
B.
Appeals. A party with legitimate standing, or as otherwise provided
by state law, may appeal decisions made under this chapter within
the provisions of the MPC. Such appeal shall occur within the time
period established by the MPC.
If an application under this chapter would also be regulated
by the Borough of Middletown Subdivision and Land Development Ordinance
("SALDO"),[1] then any permit or approval under this chapter shall automatically
be conditioned upon compliance with the SALDO.
A.
For example, if an applicant applies for a permit for a single-family
detached dwelling on a proposed new lot, the construction permit for
such dwelling shall not be valid until after the lot is granted final
subdivision and land development approval and the lot is officially
recorded by the County Recorder of Deeds.
A.
After receiving a proper application, the Zoning Officer shall either
issue the applicable permit(s) or deny the application(s) as submitted,
indicating one or more reasons in writing to the applicant.
B.
After the permit under this chapter has been issued, the applicant
may undertake the action specified in the permit, in compliance with
other Borough ordinances. However, it is recommended that applicants
wait 30 days to begin construction if there is a possibility of an
appeal by another party to have the permit revoked. Any commencement
of construction or a use within this thirty-day appeal period shall
be at the risk of the applicant.
A.
Minimum requirements. Where more than one provision of this chapter
controls a particular matter, the provision that is more restrictive
upon uses and structures shall apply. The provisions of this chapter
are in addition to any other applicable Borough ordinance.
B.
Uses not specifically regulated. If a use clearly is not permitted
by right, conditional use or as a special exception use by this chapter
within any Zoning District, the use is prohibited, except that the
Zoning Hearing Board may permit such use as a special exception use
if the applicant specifically proves to the clear satisfaction of
the Zoning Hearing Board that all of the following conditions would
be met:
(1)
Proposed use would be less intensive in external impacts and
nuisances than uses that are permitted in the Zoning District.
(2)
Proposed use would be closely similar in impacts and character
to uses permitted in that zoning district.
(3)
Use would meet the standards that would apply under § 260-233(E)(3)(b)
for a special exception use.
(4)
Use is not specifically prohibited in that Zoning District.
C.
Interpretation of ordinance text and boundaries.
(1)
The Zoning Officer shall literally apply the wording of this
chapter and the location of all Zoning District boundaries to applications.
In any case, the Zoning Officer may also request an advisory opinion
from the Borough Solicitor to aid in the Zoning Officer's determination.
(2)
If an applicant disagrees with the Zoning Officer's determination
and believes that this chapter should be interpreted in the applicant's
favor, the applicant may appeal to the Zoning Hearing Board.
The following rules shall apply where uncertainty exists as
to boundaries of any district as shown on the Zoning Map:
A.
District boundary lines are intended to follow or be parallel to
the center line of street rights-of-way, creeks, railroads and lot
lines (according to official county records) as they existed at the
time of the adoption of this chapter, unless such district boundary
lines are fixed by dimensions as shown on the Official Zoning Map.
B.
Where a district boundary is not fixed by dimensions and where it
approximately follows lot lines, such boundary shall be construed
to follow such lot lines unless specifically shown otherwise.
C.
The location of a district boundary that divides a lot shall be determined
by the use of the scale appearing on the Zoning Map unless indicated
otherwise by dimensions.
D.
Where a municipal boundary divides a lot, the minimum lot area shall
be regulated by the municipality in which the principal use(s) are
located, unless otherwise provided by applicable case law. The land
area within each municipality shall be regulated by the use regulations
and other applicable regulations of each municipality.
All of the enforcement, violations and penalty provisions of
the Pennsylvania Municipalities Planning Code,[1] as amended, are hereby incorporated into this chapter
by reference.
A.
Violations. Any person who shall commit or who shall permit any of
the following actions violates this chapter:
(1)
Failure to secure a zoning permit prior to a change in use of
land or structure, or the erection, construction or alteration of
any structure or portion thereof, or the excavation of land to prepare
for the erection, construction or alteration of any structure or portion
thereof.
(2)
Placement of false statements on or omitting relevant information
from an application for a zoning permit.
(3)
Undertaking any action in a manner which does not comply with
an approved zoning permit.
(4)
Violation of any conditions imposed by a decision of the Zoning
Hearing Board in granting a variance, special exception or other approval.
(5)
Violation of any condition imposed by a decision of the Borough
Council in granting a conditional use.
B.
Causes of action; enforcement; remedies.
(1)
Enforcement. If it appears to the Borough that a violation of
this chapter has occurred, the Borough shall initiate enforcement
proceedings by sending an enforcement notice, as provided in this
section. Prior to sending an official enforcement notice, the Zoning
Officer may at his/her option informally request compliance.
(2)
Enforcement notice. The enforcement notice shall be sent to
the owner of record of the parcel on which the violation has occurred,
to any person who has filed a written request to receive enforcement
notices regarding that parcel, and to any other person requested,
in writing, by the owner of record. An enforcement notice shall state
the following, at minimum:
(a)
The name of the owner of record and any other person against
whom the Borough of Middletown 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 15 days, in accordance with procedures
set forth in this chapter.
(f)
That failure to comply with the notice within the time specified,
unless extended by appeal to the Zoning Hearing Board, constitutes
a violation, with possible sanctions clearly described.
(3)
Evidence and fees. In any appeal of an enforcement notice to
the Zoning Hearing Board, the Borough shall have the responsibility
of presenting its evidence first. Any filing fees paid by a party
to an appeal to an enforcement notice to the Zoning Hearing Board
shall be returned to the appealing party by the Borough if the Zoning
Hearing Board, or any court in a subsequent appeal, rules in the appealing
party's favor.
(4)
Cause of action. If the enforcement notice is not complied with
within the specified time period, the Zoning Officer shall notify
the Borough Council. With the consent of the Borough Council, the
Borough Solicitor or other officer of the Borough may institute any
appropriate action or proceeding to prevent, restrain, correct or
abate such building, structure, landscaping or land, or to prevent
in or about such premises, any act, conduct, business or use constituting
a violation.
(5)
Violations and penalties. Any person, partnership or corporation
who or which has violated or permitted the violation of the provisions
of this chapter shall, upon being found liable therefor in a civil
enforcement proceeding commenced by the Borough, pay a judgment of
not more than $500 plus all court costs, including the reasonable
attorney's fees incurred by the Borough as a result thereof. No judgment
shall commence or be imposed, levied or be payable until the date
of the determination of a violation by the District Justice. If the
defendant neither pays nor timely appeals the judgment, the Borough
may enforce the judgment pursuant to the applicable rules of civil
procedure. Each day that a violation continues shall constitute a
separate violation, unless 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 this chapter
to have believed that there was no such violation, in which event
there shall be deemed to have been only one such violation until the
fifth day following the date of the determination by the District
Justice, and thereafter each day that a violation continues shall
constitute a separate violation. All judgments, costs and reasonable
attorney's fees collected for the violation of this chapter shall
be paid over to the Borough. Imprisonment shall not be authorized
by this chapter.
(6)
The Court of Common Pleas, upon petition, may grant any order
of stay, upon cause shown, tolling the per diem fine pending a final
adjudication of the violation and judgment.
(7)
Nothing in this section shall be construed or interpreted to
grant to any person or entity, other than the Borough, the right to
commence any action for enforcement pursuant to this section.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
Determination. The Borough Council may, by resolution, establish
fees for the administration of this chapter. All fees shall be determined
by a schedule that is made available to the general public. The Borough
Council may reevaluate the fees schedule and make necessary alterations
to it. Such alterations shall not be considered an amendment to this
chapter and may be adopted at any public meeting of the Borough Council.
A.
Power of amendment. The Borough Council may, from time to time, by
the affirmative vote of a majority of the members amend, supplement,
change or repeal this chapter, including the Official Zoning Map.
Any amendment, supplement, change or repeal may be initiated by the
Borough Planning Committee, the Borough Council or by a petition to
the Borough Council by an interested party, by proceeding in the following
manner:
B.
Hearing and enactment procedures for zoning amendments:
(1)
Public hearing. Before hearing and enacting chapter and/or Zoning
Map amendments, the Borough Council shall conduct a public hearing
to inform the general public of the nature of the amendment, and to
obtain public comment. Such public hearing shall be conducted after
public notice (as defined herein and listed below) has been given.
(2)
Public notice. Before conducting a public hearing, the Borough
shall provide public notice as follows:
(a)
This notice must appear in a newspaper of general circulation
in the Borough of Middletown at least 14 days in advance but not more
than 30 days in advance of the public hearing. It must also be advertised
twice; however, not twice within the same week. Such notice shall
state the time and place of the hearing and the particular nature
of the matter to be considered at the hearing. Publication of the
proposed amendment shall include either the full text thereof or the
title and brief summary, prepared by the Municipal Solicitor and setting
forth all the provisions in reasonable detail;
(b)
For Zoning Map amendments, public notice shall also include
the posting of a sign at conspicuous locations along the perimeter
of the subject property; these sign(s) shall be posted at least one
week prior to the hearing and will exhibit the nature, date, time,
Borough of Middletown, location of the hearing;
(c)
In addition to the requirement that notice be posted on the
subject property, where the proposed amendment involves a Zoning Map
change, notice of the public hearing shall be mailed by the Borough
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 within the area being rezoned, as evidenced by tax
records within the possession of the Borough. The notice shall include
the location, date and time of the public hearing. The provisions
of this section shall not apply when the rezoning constitutes a comprehensive
rezoning;
(d)
For curative amendments, public notice shall also indicate that
the validity of this chapter and/or map is in question, and shall
give the place where and the times when a copy of the request, including
any plans, explanatory material or proposed amendments may be examined
by the public; and
(e)
If, after any public hearing held upon an amendment, the proposed
amendment is changed substantially, or is revised to include land
previously not affected by it, the Borough Council shall hold another
public hearing, pursuant to public notice, before proceeding to vote
on the amendment.
(3)
Enactment notice. In addition to the public notice requirements
defined herein, the Borough Council must publish a reference to the
time and place of the meeting at which passage of this chapter or
amendment will be considered, and a reference to a place within the
Borough where copies of the proposed ordinance or amendment may be
examined without charge, or obtained for a charge not greater than
the cost thereof. Enactment notice shall be published at least once
in one newspaper of general circulation in Middletown Borough not
more than 60 days nor less than seven days prior to passage. The published
content of the enactment notice shall be the same as that required
for public notice described in the preceding subsection.
(4)
Borough Planning Committee referrals. For amendments proposed
by parties other than the Borough Planning Committee, the Borough
Council shall submit each amendment at least 30 days prior to public
hearing to the Borough Planning Committee for review and comment.
The Borough Planning Committee shall submit a report of its review,
together with any recommendations, to the Borough Council within 45
days from the date of said referral. The recommendation of the Borough
Planning Committee may include a specific statement as to whether
or not the proposed amendment is in accordance with the intent of
this chapter and any officially adopted Comprehensive Plan of the
Borough of Middletown. The Borough Council cannot act upon the amendment
until it has received a recommendation from the Borough Planning Committee;
however, should the Borough Planning Committee fail to submit its
recommendation within 45 days, the Borough Council may proceed without
its recommendation.
(5)
County planning committee referrals. All proposed amendments
shall be submitted to the County Planning Committee at least 30 days
prior to public hearing on such amendments. The County Planning Committee
may submit recommendations to the Borough Council within 45 days of
such referral. The Borough Council cannot act upon the amendment until
it has received a recommendation from the County Planning Committee;
however, should the County Planning Committee fail to submit its recommendation
within 45 days, the Borough Council may proceed without its recommendation.
(6)
Adjournment of public hearing. If during the public hearing
process, the Borough Council needs additional time to understand the
proposal, inform the public, receive public comment, and/or render
a decision, it may adjourn the public hearing to a specific time and
place.
(7)
Within 30 days after enactment, a copy of the amendment to this
chapter shall be forwarded to the County Planning Committee.
C.
Amendment initiated by the Borough Planning Committee. When an amendment,
supplement, change or repeal is initiated by the Borough Planning
Committee, the proposal shall be presented to the Borough Council
which shall then proceed in the same manner as with a petition to
the Borough Council which has already been reviewed by the Borough
Planning Committee.
D.
Amendment initiated by the Borough Council. When an amendment, supplement, change or repeal is initiated by the Borough Council, such amendment, supplement, change or repeal shall follow the procedure prescribed for a petition under § 260-232 above.
E.
Amendment initiated by a petition from an interested party. A petition
for amendment, supplement, change or repeal for a portion of this
chapter shall include an accurate legal description and surveyed plan
of any land to be rezoned, and all of the reasons supporting the petition
to be considered. The petition shall also be signed by at least one
record owner of the property in question whose signature shall be
notarized attesting the truth and correctness of all the facts and
information presented in the petition. A fee to be established by
Borough Council shall be paid upon the filing of such petition for
change and for the purpose of defraying the costs of the proceedings
prescribed herein. The Borough Council may require duplicate sets
of petition materials.
F.
Curative amendment by a landowner. A landowner who desires to challenge
on substantive grounds the validity of this chapter or the Official
Zoning Map or any provision thereof which prohibits or restricts the
use or development of land in which he has an interest, may submit
a curative amendment to the Borough Council, including all of the
reasons supporting the request to be considered, with a written request
that his challenge and proposed amendment be heard and decided as
provided in the Pennsylvania Municipalities Planning Code,[1] as amended. The Borough Council shall commence a hearing thereon within 60 days of the request. The curative amendment shall be referred to the County Planning Commission as provided for in § 260-232 and public notice of the hearing shall be provided as defined herein.
(1)
In reviewing the curative amendment, the Borough Council may
deny the request, accept the request as submitted, or may adopt an
alternative amendment which will cure the challenged defects. The
Borough Council shall consider the curative 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 this chapter or map;
(c)
The suitability of the site for the intensity of use proposed
by the site's soils, slopes, woodland, wetlands, floodplains, aquifers,
natural resources and other natural features;
(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;
and
(e)
The impact of the proposal on the preservation of agriculture
and other land uses which are essential to public health and welfare.
(2)
The Borough Council shall render its decision within 45 days
after the conclusion of the last hearing.
(3)
If the Borough Council fails to act on the landowner's request
within the time limits referred to above, a denial of the request
is deemed to have occurred on the 46th day after the close of the
last hearing.
(4)
Public notice of the hearing shall include notice that the validity
of this chapter or Zoning Map is in question and shall give the place
where and the times when a copy of the request, including any plans,
explanatory material or proposed amendments may be examined by the
public.
(5)
The challenge shall be deemed denied when:
(a)
The Borough Council fails to commence the hearing within 60
days;
(b)
The Borough Council notified the landowner that it will not
adopt the curative amendment;
(c)
The Borough Council adopts another curative amendment which
is unacceptable to the landowner; or
(d)
The Borough Council fails to act on the request 45 days after
the close of the last hearing on the request, unless the time is extended
by mutual consent by the landowner and Borough of Middletown.
(6)
Where a curative amendment proposal is approved by the grant
of a curative amendment application by the Borough Council pursuant
to this section or a validity challenge is sustained by the Zoning
Hearing Board or the court acts finally on appeal from denial of a
curative amendment proposal or 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 for a subdivision, land development or planned residential
development. Within the two-year period, no subsequent change or amendment
in the zoning, subdivision or other governing ordinance or plan shall
be applied in any manner which adversely affects the rights of the
applicant as granted in the curative amendment or the sustained validity
challenge. Upon the filing of the preliminary or tentative plan, the
provisions of the Pennsylvania Municipalities Planning Code[2] shall apply.
[2]
Editor's Note: See 53 P.S. § 10101 et seq.
(7)
Where the proposal appended to the curative amendment application
or the validity challenge is approved but does not require further
application under any subdivision or land development ordinance, the
developer shall have one year within which to file for a zoning permit.
Within the one-year period, no subsequent change or amendment in the
zoning, subdivision or other governing ordinance or plan shall be
applied in any manner which adversely affects the rights of applicant
as granted in the curative amendment or the sustained validity challenge.
During these protected periods, the court shall retain or assume jurisdiction
for the purposes of awarding such supplemental relief as may be necessary.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
G.
Curative amendment by the Borough Council.
(1)
The Borough Council, by formal action, may declare this chapter
or portions thereof substantively invalid and propose to prepare a
curative amendment to overcome such invalidity. Within 30 days following
such declaration proposal, the Borough Council shall:
(2)
Within 180 days from the date of the declaration and proposal,
the Borough Council shall enact a curative amendment to validate or
reaffirm the validity of this chapter pursuant to the provisions required
by the Pennsylvania Municipalities Planning Code[3] in order to cure the declared invalidity of this chapter;
[3]
Editor's Note: See 53 P.S. § 10101 et seq.
(3)
Upon the date of the declaration and proposal, the Borough Council
shall not be required to entertain or consider any curative amendment
filed by a landowner. Nor shall the Zoning Hearing Board be required
to give a report, upon request, for a challenge to the validity of
this chapter subsequent to the declaration and proposal, based upon
the grounds identical to or substantially similar to those specified
in the resolution required by this section. Upon the enactment of
a curative amendment to, or the reaffirmation of the validity of this
chapter, no rights to a cure by amendment or challenge shall, from
the date of the declaration and proposal, accrue to any landowner
on the basis of the substantive invalidity of the unamended chapter
for which the Borough Council proposes to prepare a curative amendment;
and
(4)
The Borough Council, having utilized the procedures as set forth
in this section, may not again utilize said procedures for a thirty-six-month
period following the date of the enactment of a curative amendment,
or reaffirmation of the validity of this chapter; provided, however,
that if after the date of declaration and proposal, there is a substantially
new duty or obligation imposed upon the Borough by virtue of a decision
by any court of competent jurisdiction, the Borough Council may utilize
the provisions of this section to prepare a curative amendment to
this chapter to fulfill this duty or obligation.
H.
Authentication of Official Zoning Map. Whenever there has been a
change in the boundary of a zone or a reclassification of the zone
adopted in accordance with the above, the change on the Official Zoning
Map shall be made, and shall be duly certified by the Borough Secretary
and shall thereafter be refiled as part of the permanent records of
Borough.
A.
Establishment and membership. There shall be a Zoning Hearing Board
which shall consist of three members who shall be appointed by resolution
by the Borough Council. The membership of the Zoning Hearing Board
shall consist of residents of the Borough. Their terms of office shall
be three years and shall be so fixed that the term of office of one
member shall expire each year. The Zoning Hearing Board shall promptly
notify the Borough Council of any vacancies which occur. Appointments
to fill vacancies shall hold no other office in the Borough. Any member
of the Zoning Hearing Board may be removed for malfeasance, misfeasance,
or nonfeasance in office or for other just cause by a majority vote
of the Borough Council 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. The Borough Council may appoint by resolution at least
one but no more than three residents of the Borough of Middletown
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 this section, 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 Zoning Hearing 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 chapter and as otherwise
provided by law. Alternates shall hold no other office in the Borough,
including membership on the Planning Committee and Zoning Officer.
Any alternate may participate in any proceeding or discussion of the
Zoning Hearing Board but shall not be entitled to vote as a member
of the Zoning Hearing Board nor be compensated, unless designated
as a voting alternate member pursuant to this article.
B.
Organization of Zoning Hearing Board. 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 members of the Zoning Hearing Board, but the Zoning Hearing 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 Zoning Hearing Board as provided in § 260-233D(2). If, by reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Zoning Hearing Board shall designate as many alternate members of the Zoning Hearing Board to sit on the Zoning Hearing Board as may be needed to provide a quorum. Any alternate member of the Zoning Hearing Board shall continue to serve on the Zoning Hearing Board in all proceedings involving the matter or case for which the alternate was initially appointed until the Zoning Hearing 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. The Zoning Hearing Board may make, alter, and rescind rules and forms for its procedure, consistent with ordinances of the Borough and laws of the commonwealth. The Zoning Hearing Board shall keep full public records of its business, which records shall be the property of the Borough, and shall submit a report of its activities to the Borough Council upon request.
C.
Expenditures for services. Within the limits of funds appropriated by the Borough Council, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. Members of the Zoning Hearing Board may receive compensation for the performance of their duties, as may be fixed by the Borough Council. Alternate members of the Zoning Hearing Board may receive compensation, as may be fixed by the Borough Council, for the performance of their duties when designated as alternate members pursuant to § 260-233A, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members by the Borough Council.
D.
Hearings.
(1)
The Zoning Hearing Board shall conduct hearings and make decisions
in accordance with the following requirements:
(a)
Public notice, as defined herein, shall be provided. In addition,
the Zoning Hearing Board shall notify by mail the Zoning Officer,
Borough Secretary, each member of the Borough Council, Secretary of
the Planning Committee, and every other person or organization who
shall have registered with the Zoning Hearing Board for the purposes
of receiving such notices. Such mailed notices shall state the location
of the site and the nature of the request. It shall also state the
time, date, and location of the proposed hearing. 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 Borough Council may prescribe reasonable fees with respect
to hearing 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 Zoning Hearing 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
Zoning Hearing 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 its case-in-chief within 100 days of the first hearing. Upon the
request of the applicant, the Zoning Hearing 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 its case-in-chief,
provided the persons opposed to the application are granted an equal
number of additional hearings to complete their opposition to the
application, provided the applicant is granted an equal number of
additional hearings for rebuttal.
(2)
The hearings shall be conducted by the Zoning Hearing Board
or the Zoning Hearing 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 Zoning Hearing Board;
however, the appellant or the applicant, as the case may be, in addition
to the Borough may, prior to the decision of the hearing, waive decisions
or findings by the Zoning Hearing Board and accept the decision or
findings of the hearing officer as final.
(3)
The parties to the hearing shall be the Borough, any person
affected by the application who has made timely appearance of record
before the Zoning Hearing Board, and any other person, including civic
or community organizations permitted to appear by the Zoning Hearing
Board. The Zoning Hearing Board shall have power to require that all
persons who wish to be considered parties enter appearances, in writing,
on forms provided by the Zoning Hearing Board for that purpose.
(4)
The Chairman or Acting Chairman of the Zoning Hearing 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.
(5)
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.
(6)
Formal rules of evidence shall not apply, but irrelevant, immaterial,
and unduly repetitious evidence may be excluded.
(7)
The Zoning Hearing 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 Zoning Hearing Board. The cost of the original transcript shall
be paid by the Zoning Hearing Board if the transcript is ordered by
the Zoning Hearing Board or hearing officer, or shall be paid by the
person appealing the decision of the Zoning Hearing Board if such
appeal is made, and in either event, the cost of additional copies
shall be paid by the person requesting such copy or copies. In other
cases, the party requesting the original transcript shall bear the
cost thereof.
(8)
The Zoning Hearing Board or the hearing officer shall not communicate,
directly or indirectly, with any party or his representatives in connection
with any issue involved except upon notice and opportunity for all
parties to participate, 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 materials 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.
(9)
The Zoning Hearing Board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within 45 days after the last hearing before the Zoning Hearing Board or hearing officer. Where the application is contested or denied, each decision shall be accompanied by the findings of fact and conclusions based thereon together with the reasons therefor. Conclusions based on any provisions of this 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 Zoning Hearing Board shall make his report and recommendations available to the parties within 45 days and the parties shall be entitled to make written representations thereon to the Zoning Hearing Board prior to final decision or entry of findings, and the Zoning Hearing Board's decision shall be entered no later than 30 days after the report of the hearing officer. Except for challenges filed under Article IX of the MPC,[1] where the Zoning Hearing 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 § 260-233D of this chapter, 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 Zoning Hearing Board to meet or render a decision as hereinabove provided, the Zoning Hearing Board shall give public notice of said decision with 10 days from the last day it could have met to render a decision in the same manner as provided in § 260-233D of this chapter. If the Zoning Hearing Board shall fail to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal.
[1]
Editor's Note: See 53 P.S. §§ 10901 through
10918.
(10)
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 next business day following its
date. To all other persons who have filed their name and address with
the Zoning Hearing Board not later than the last day of the hearing,
the Zoning Hearing Board shall provide by mail or otherwise, brief
notice of the decision or findings and a statement of the place at
which the full decision or findings may be examined.
(11)
Effect of Zoning Hearing Board's decision.
(a)
If the variance or special exception is granted or the issuance
of a permit is approved, or other action by the appellant is authorized,
the necessary permit shall be secured and the authorized action begun
within two years after the date when the variance or special exception
is finally granted, or the issuance of a permit is finally approved,
or the other action by the appellant is authorized, and the building
or alteration, as the case may be, shall be completed within three
years of said date. For good cause, the Zoning Hearing Board may at
any time, upon application in writing, extend either of these deadlines;
(b)
Should the appellant or applicant fail to obtain the necessary
permits within said two-year period, or having obtained the permit,
should he fail to commence work thereunder within such two-year period,
it shall be conclusively presumed that the appellant or applicant
has waived, withdrawn, or abandoned his appeal or his application,
and all provisions, variances and permits granted to him shall be
deemed automatically rescinded by the Zoning Hearing Board;
(c)
Should the appellant or applicant commence construction or alteration
within said two-year period, but should he fail to complete such construction
or alteration within said three-year period, the Zoning Hearing Board
may, upon 10 days' notice, in writing, rescind or revoke the granted
variance or special exception, or the issuance of the permit, or permits,
or the other action authorized to the appellant or applicant, if the
Zoning Hearing Board finds that no good cause appears for the failure
to complete within such three-year period, and if the Zoning Hearing
Board further finds that conditions have so altered or changed in
the interval since the granting of the variance, permit or action,
that revocation or rescission of the action is justified; and
(d)
As an alternative to the preceding, an applicant can request,
as part of the original application before the Zoning Hearing Board,
the granting of a timetable associated with the request which would
supersede the deadlines imposed. In so doing, the applicant must demonstrate
that the times requested are logically related to normal and expected
progress of the project. In approving a timetable under this section,
the Zoning Hearing Board must establish and bind a definite time frame
for issuance of a zoning permit, and completion of construction of
the project.
E.
Zoning Hearing Board's functions. The Zoning Hearing Board shall
have the exclusive jurisdiction to hear and render decisions in the
following matters:
(1)
Substantive challenges to the validity of this chapter, except
those brought before the Borough Council pursuant to Section 916.1(a)(2)
of the MPC.[2]
(a)
If a challenge heard by a Zoning Hearing Board is found to have
merit, the decision of the Zoning Hearing Board shall include recommended
amendments to the challenged ordinance which will cure the defects
found. In reaching its decision, the Zoning Hearing Board shall consider
the amendments, plans and explanatory material submitted by the landowner
and shall also consider:
[1]
The impact of the proposal upon roads, sewer facilities, water
supplies, schools and other public service facilities;
[2]
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 this chapter or Zoning Map;
[3]
The suitability of the site for the intensity of use proposed
by the site's soils, slopes, woodlands, wetlands, floodplains, aquifers,
natural resources and other natural features;
[4]
The impact of the proposed use on the site's soils, slopes,
woodlands, wetlands, floodplains, natural resources and nature features,
the degree to which these are protected or destroyed, the tolerance
of the resources to development and any adverse environmental impacts;
and
[5]
The impact of the proposal on the preservation of agriculture
and other land uses which are essential to public health and welfare.
(c)
The Zoning Hearing Board shall commence its hearings within
60 days after the request is filed unless the landowner requests or
consents to an extension of time.
(d)
The Zoning Hearing Board shall render its decision with 45 days
after the conclusion of the last hearing. If the Board fails to act
on the landowner's request within this time limit, a denial of the
request is deemed to have occurred on the 46th day after the close
of the last hearing.
[2]
Editor's Note: See 53 P.S. § 10916.1(a)(2).
(2)
Challenges to the validity of this chapter, raising procedural
questions or alleged defects in the process of enactment or adoption
which challenges shall be raised by an appeal taken within 30 days
after the effective date of this chapter.
(3)
Special exceptions as provided for in this chapter and subject
to all applicable requirements, including, but not limited to:
(a)
Filing requirements. In addition to the required zoning permit
information, each special exception application shall include the
following:
[1]
Ground floor plans and elevations for proposed structures;
[2]
Names and addresses of adjoining property owners, including
properties directly across a public right-of-way;
[3]
A scaled drawing (site plan) of the site with sufficient detail
and accuracy to demonstrate compliance with all applicable provisions
of this chapter; and
[4]
A written description of the proposed use in sufficient detail
to demonstrate compliance with all applicable provisions of this chapter.
(b)
General criteria. Each applicant must demonstrate compliance
with the following:
[1]
The proposed use shall be consistent with the purpose and intent
of this chapter;
[2]
The proposed use shall not detract from the use and enjoyment
of adjoining or nearby properties;
[3]
The proposed use will not substantially change the character
of the subject property's neighborhood;
[4]
Adequate public facilities are available to serve the proposed
use (e.g., schools, fire, police and ambulance protection, sewer,
water and other utilities, vehicular access, etc.);
[6]
The proposed use shall comply with those criteria specifically listed in Article XVIII of this chapter. In addition, the proposed use must comply with all other applicable regulations contained in this chapter; and
[7]
The proposed use will not substantially impair the integrity
of the Borough of Middletown Comprehensive Plan.
(c)
Conditions. The Zoning Hearing Board, in approving special exception
applications, may attach conditions considered necessary to protect
the public welfare and the purposes listed above, including conditions
which are more restrictive than those established for other uses in
the same zone. The conditions shall be enforceable by the Zoning Officer
and failure to comply with such conditions shall constitute a violation
of this chapter.
(d)
Site plan approval. Any site plan presented in support of the special exception pursuant to § 260-233E(3) shall become an official part of the record for said special exception. Approval of any special exception will also bind the use in accordance with the submitted site plan; therefore, should a change in the site plan be required as part of the approval of the use, the applicant shall revise the site plan prior to the issuance of a zoning permit. Any subsequent change to the use on the subject property not reflected on the originally approved site plan, shall require the obtainment of another special exception approval.
(4)
Variances. The Zoning Hearing Board shall hear requests for
variances where it is alleged that the provisions of this chapter
inflict unnecessary hardship upon the applicant. The Zoning Hearing
Board may, by rule, prescribe the form of application to the Zoning
Officer. The Zoning Hearing Board may grant a variance, provided that
all of 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 the unnecessary hardship is due to
such conditions, and not the circumstances or conditions generally
created by the provisions of this chapter in the neighborhood or zone
in which the property is located;
(b)
That because of such physical circumstances or conditions, there
is not a 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)
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 zone or neighborhood 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 regulations in issue;
(g)
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 this chapter. These conditions shall
be enforceable by the Zoning Officer and failure to comply with such
conditions shall constitute a violation of this chapter;
(h)
Filing requirements. In addition to the required zoning permit,
each variance application shall include the following:
[1]
Ground floor plans and elevations of existing and/or proposed
structures;
[2]
Names and addresses of adjoining property owners, including
properties directly across a public right-of-way;
[3]
A scaled drawing (site plan) of the site with sufficient detail
and accuracy to demonstrate compliance with all applicable provisions
of this chapter; and
[4]
A written description of the proposed use in sufficient detail
to demonstrate compliance with all applicable provisions of this chapter;
(i)
Conditions. The Zoning Hearing Board, in approving variance
applications, may attach conditions considered necessary to protect
the public welfare and the purposes listed above, including conditions
which are more restrictive than those established for other uses in
the same zone. These conditions shall be enforceable by the Zoning
Officer and failure to comply with such conditions will constitute
a violation of this chapter; and
(j)
Site plan approval. Any site plan presented in support of a
variance shall become an official part of the record for said variance.
Approval of any variance will also bind the use in accordance with
the submitted site plan.
(5)
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.
(6)
Appeals from the determination of any officer or agency charged
with the administration of any transfers of development rights or
performance density provisions of this chapter.
(8)
Appeals from the determination of the Zoning Officer or Municipal Engineer in the administration of any land use ordinance with reference to sedimentation and erosion control, and/or stormwater management for applications not involving a subdivision/land development, nor a planned residential development as regulated in Article V and VII of the Pennsylvania Municipalities Planning Code.[6]
[6]
Editor's Note: See 53 P.S. §§ 10501 through
10516 and 10701 through 10713, respectively.
F.
Parties appellant before the Zoning Hearing Board. Appeals under §§ 260-233E(4)(d), (e), (f), (g) and (h), and proceedings to challenge this chapter under § 260-233E, may be filed with the Zoning Hearing Board, in writing, by the landowner affected, any officer or agency of the Borough of Middletown, or any person aggrieved. Requests for a variance or a special exception may be filed with the Zoning Hearing Board by any landowner or any tenant with the permission of such landowner. Any appeal shall state:
(1)
The name and address of the appellant and applicant;
(2)
The name and address of the landowner of the real estate to
be affected;
(3)
A brief description and location of the real estate to be affected
by such proposed change, together with a plot plan drawn to scale
with sufficient clarity to show the nature and character of the request;
(4)
A statement of the present zoning classification of the real
estate in question, the improvements thereon, and the present use
thereof; and
(5)
A statement of the section of this chapter under which the request
may be allowed, and reasons why it should or should not be granted.
G.
Time limitations.
(1)
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 the Zoning Officer or the
agency responsible for granting such approval 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 or 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 by the Zoning Officer a challenge to the validity
of this chapter or the Official Zoning Map pursuant to Section 916.2
of the Pennsylvania Municipalities Planning Code,[7] as amended, shall preclude an appeal from a final approval
except in the case where the final submission substantially deviates
from the approved tentative preliminary approval.
[7]
Editor's Note: See 53 P.S. § 10916.2.
H.
Stay of proceeding.
(1)
Upon filing of any proceeding referred to in Subsection F, above, and during its pendency before the Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing Board by person other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such person to post bond as a condition to continuing the proceedings before the Zoning Hearing Board. 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. 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. The question 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.
(2)
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 appellant 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's fees incurred by the petitioner.
I.
Appeal. Any person, taxpayer, or the Borough aggrieved by any decision
of the Zoning Hearing Board may within 30 days after such decision
of the Zoning Hearing Board, seek review by the Court of Common Pleas
of such decision in the manner provided by the laws of the Commonwealth
of Pennsylvania and the Pennsylvania Municipalities Planning Code,[8] as amended.
[8]
Editor's Note: See 53 P.S. § 10101 et seq.
A.
Filing of conditional use. For any use permitted by conditional use,
a conditional use must be obtained from the Borough Council. In addition
to the information required on the zoning permit application, the
conditional use application must show:
(1)
Ground floor plans and elevations of proposed structures;
(2)
Names and addresses of adjoining property owners, including
properties directly across a public right-of-way;
(3)
A scaled drawing (site plan) of the site with sufficient detail
and accuracy to demonstrate compliance with all applicable provisions
of this chapter.
B.
General criteria. Each applicant must demonstrate compliance with
the following:
(1)
The proposed use shall be consistent with the purpose and intent
of this chapter;
(2)
The proposed use shall not detract from the use and enjoyment
of adjoining or nearby properties;
(3)
The proposed use will not effect a change in the character of
the subject property's neighborhood;
(4)
Adequate public facilities are available to serve the proposed
use (e.g., schools, fire, police and ambulance protection, sewer,
water, and other utilities, vehicular access, etc.);
(6)
The proposed use shall comply with those criteria specifically listed in Article XVIII of this chapter. In addition, the proposed use must comply with all other applicable regulations of this chapter; and
(7)
The proposed use will not substantially impair the integrity
of the Borough of Middletown's Comprehensive Plan;
C.
Conditions. The Borough Council, in approving conditional use applications,
may attach conditions considered necessary to protect the public welfare
and the purposes listed above, including conditions which are more
restrictive than those established for other uses in the same zone.
These conditions shall be enforceable by the Zoning Officer and failure
to comply with such conditions shall constitute a violation of this
chapter.
D.
Site plan approval. Any site plan presented in support of the conditional
use shall become an official part of the record for said conditional
use. Approval of any conditional use will also bind the use in accordance
with the submitted site plan; therefore, should a change in the site
plan be required as part of the approval of the use, the applicant
shall revise the site plan prior to the issuance of a zoning permit.
Any subsequent change to the use on the subject property not reflected
on the originally approved site plan shall require the obtainment
of another conditional use approval.
E.
Hearing procedures.
(1)
Before voting on the approval of a conditional use, the Borough
Council shall hold a public hearing thereon, pursuant to public notice.
The Borough Council shall submit each such application to the Borough
Planning Committee at least 30 days prior to the hearing held upon
an application to provide the Borough Planning Committee an opportunity
to submit recommendations. If, after any public hearing held upon
an application, the proposed application is revised, the Board of
Supervisors shall hold another public hearing, pursuant to public
notice, before proceeding to vote on the application.
(2)
Public notice, as defined herein, and written notice shall be
given to the applicant, the Zoning Officer, such other persons as
the Borough Council shall designate by ordinance, and to any person
who has made timely request for the same. Written notices shall be
given at such time and in such manner as shall be prescribed by ordinance
or, in the absence of ordinance provisions, by rules of the Borough
Council. 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.
(3)
The Borough Council may prescribe reasonable fees with respect
to hearings. Fees for said hearings may include compensation for the
secretary, notice and advertising costs, and necessary administrative
overhead connected with the hearing. The costs, however, shall not
include legal expenses, expenses for engineering, architectural, or
other technical consultants, or expert witness costs.
(4)
The parties to the hearing shall be the Borough, any person
affected by the application who has made timely appearance of record
before the Borough Council, and any other person, including civic
or community organizations permitted to appear by the Borough Council.
The Borough Council shall have power to require that all persons who
wish to be considered parties enter appearance, in writing, on forms
provided by the Borough Council for that purpose.
(5)
The Council President or Acting Council President of the Borough
Council shall have power to administer oaths and issue subpoenas to
compel the attendance of witnesses and the production of relevant
documents and paper, including witnesses and documents requested by
the parties.
(6)
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.
(7)
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
(8)
The Borough Council may keep a stenographic record of the proceedings.
The appearance fee for a stenographer shall be shared equally by the
applicant and the Borough Council. The cost of the original transcript
shall be paid by the Borough Council if the transcript is ordered
by the Borough Council, or shall be paid by the person appealing the
decision of the Borough Council 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.
(9)
The Borough Council 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 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.
(10)
The hearing shall be conducted by the Borough Council or the
Borough Council may appoint any member or an independent attorney
as a hearing officer. The decision, or where there is no decision,
the findings shall be made by the Borough Council. However, the appellant
or the applicant, as the case may be, in addition to the Borough may,
prior to the decision of the hearing, waive decision or findings by
the Borough Council and accept the decision or findings of the hearing
officer as final.
(11)
The Borough Council shall render a written decision or, when
no decision is called for, make written finds on the conditional use
application within 45 days after the last hearing before the Borough
Council. Where the application is contested or denied, each decision
shall be accompanied by findings of fact or conclusions based thereon,
together with any 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 the light of the facts found.
(12)
Where the Borough Council fails to render the decision within
the period required by this article or fails to commence, conduct
or complete the required hearing as provided in this chapter, 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 Borough Council to meet or
render a decision as hereinabove provided, the Borough Council 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 this article. If the Borough
Council shall fail to provide such notice, the applicant may do so.
F.
Time limitation.
(1)
If a conditional use is granted, the necessary permit shall
be secured and the authorized action begun within two years after
the date when the conditional use is finally granted, and the building
or alteration, as the case may be, shall be completed within three
years of said date. For good cause, the Borough Council may at any
time, upon application in writing, extend either of these deadlines;
(2)
Should the appellant or applicant fail to obtain the necessary
permits within said two-year period, or having obtained the permit
should he fail to commence work thereunder within such two-year period,
it shall be conclusively presumed that the appellant or applicant
has waived, withdrawn, or abandoned his application, and all approvals
and permits granted to him shall be deemed automatically rescinded
by the Borough Council;
(3)
Should the appellant commence construction or alteration within
said two-year period, but should he fail to complete such construction
or alteration within said three-year period, the Borough Council may,
upon 10 days' notice, in writing, rescind or revoke the granted conditional
use, if the Borough Council finds that no good cause appears for the
failure to complete within such three-year period, and if the Borough
Council further finds that conditions have altered or changed in the
interval since the granting of the conditional use that revocation
or rescission of the action is justified; and
(4)
As an alternative to the preceding, an applicant can request,
as part of the original application before the Borough Council the
granting of a timetable associated with the request which would supersede
the deadlines imposed in this article. In so doing, the applicant
must demonstrate that the times requested are logically related to
normal and expected progress of the project. In approving a timetable
under this section, the Borough Council must establish and bind a
definite time frame for issuance of a zoning permit, and completion
of construction of the project.
