[Ord. No. 762, 5/7/2020]
1.
There is hereby created for the Township a Zoning Hearing Board in
accordance with the provisions of Article IX of the Pennsylvania Municipalities
Planning Code, 53 P.S. § 10901 et seq.
2.
The membership of the Board shall consist of five residents of the
Township, appointed by resolution by the Board of Supervisors. The
terms of office shall be for five years and shall be so fixed that
the term of office of one member shall expire each year. The Board
shall promptly notify the Board of Supervisors of any vacancies which
occur. Appointments to fill vacancies shall be only for the unexpired
portion of the term. Members of the Board shall hold no other office
in the Township.
3.
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 which appointed the member, taken after the member
has received 15 days' advance notice of the intent to take such
a vote. A hearing shall be held in connection with the vote if the
member shall request it in writing.
4.
The Board shall elect from its own membership its officers, who shall
serve annual terms as such and may succeed themselves. For the conduct
of any hearing and the taking of any action, a quorum shall be not
less than a majority of all the members of the Board, but the Board
may appoint a hearing officer from its own membership to conduct any
hearing on its behalf, and the parties may waive further action by
the Board as provided in this chapter.
5.
The Board may make, alter and rescind rules and forms for its procedure,
consistent with ordinances of the Township and laws of the commonwealth.
The Board shall keep full public records of its business, which records
shall be the property of the Township, and shall submit a report of
its activities to the Board of Supervisors as requested by the Board
of Supervisors.
6.
Within the limits of funds appropriated by the Board of Supervisors,
the Board may employ or contract for secretaries, clerks, legal counsel,
consultants and other technical and clerical services. Members of
the Board may receive compensation for the performance of their duties,
as may be fixed by the Board of Supervisors, but in no case shall
it exceed the rate of compensation authorized to be paid to the members
of the Board of Supervisors.
[Ord. No. 762, 5/7/2020]
1.
The Zoning Hearing Board shall conduct hearings and make decisions
in accordance with the following requirements:
A.
Public notice shall be given and written notice shall be given to
the applicant, the Zoning Officer 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 the rules of the Board.
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 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.
C.
The hearings shall be conducted by the Board, or the Board may appoint
any member as a hearing officer. The decision, or, where no decision
is called for, the findings, shall be made by the Board; however,
the appellant or the applicant, as the case may be, in addition to
the Township, may, prior to the decision of the hearing, waive decisions
or findings by the Board and accept the decision or findings of the
hearing officer as final.
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 that purpose.
E.
The Chairman or Acting Chairman of the Board or the hearing officer
presiding shall have power to administer oaths and issue subpoenas
to compel the attendance of witnesses and the production of relevant
documents and papers, including witnesses and documents requested
by the parties.
F.
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.
G.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
H.
The Board or the hearing officer, as the case may be, shall keep
a stenographic record of the proceedings. The appearance fee for a
stenographer shall be shared equally by the applicant and the Board.
The cost of the original transcript shall be paid by the Board if
the transcript is ordered by the Board or hearing officer or shall
be paid by the person appealing from the decision of the Board if
such appeal is made, and, in either event, the cost of additional
copies shall be paid by the person requesting such copy or copies.
In other cases, the party requesting the original transcript shall
bear the cost thereof.
I.
The Board or the hearing officer shall not communicate, directly
or indirectly, with any party or his representatives in connection
with any issue involved, except upon notice and opportunity for all
parties to participate; shall not take notice of any communication,
reports, staff memoranda, or other materials, except advice from their
Solicitor, unless the parties are afforded an opportunity to contest
the material so noticed; and shall not inspect the lot or its surroundings
after the commencement of hearings with any party or his representative
unless all parties are given an opportunity to be present.
J.
The Board or the hearing officer, as the case may be, shall render
a written decision or, when no decision is called for, make written
findings on the application within 45 days after the last hearing
before the Board or hearing officer. Where the application is contested
or denied, each decision shall be accompanied by findings of fact
and conclusions based thereon, together with the reasons therefor.
Conclusions based on any provisions of this chapter or of any law,
ordinance, rule or regulation shall contain a reference to the provision
relied on and the reasons why the conclusion is deemed appropriate
in the light of the facts found. If the hearing is conducted by a
hearing officer, and there has been no stipulation that his decision
or findings are final, the Board shall make his report and recommendations
available to the parties within 45 days, and the parties shall be
entitled to make written representations thereon to the Board prior
to final decision or entry of findings, and the Board's decision
shall be entered no later than 30 days after the report of the hearing
officer. Where the Board fails to render the decision within the period
required by this subsection, or fails to hold the required hearing
within 60 days from the date of the applicant's request for a
hearing, the decision shall be deemed to have been rendered in favor
of the applicant, unless the applicant has agreed, in writing or on
the record, to an extension of time. When a decision has been rendered
in favor of the applicant because of the failure of the Board to meet
or render a decision as hereinabove provided, the Board shall give
public notice of the said decision within 10 days from the last day
it could have met to render a decision in the same manner as provided
in Subsection 1A of this section. If the Board shall fail to provide
such notice, the applicant may do so. Nothing in this subsection shall
prejudice the right of any party opposing the application to appeal
the decision to a court of competent jurisdiction.
K.
A copy of the final decision or, where no decision is called for,
of the findings shall be delivered to the applicant personally or
mailed to him not later than the day following its date. To all other
persons who have filed their name and address with the Board not later
than the last day of the hearing, the Board shall provide, by mail
or otherwise, brief notice of the decision or findings and a statement
of the place at which the full decision or findings may be examined.
L.
The Board of Supervisors shall establish, by resolution, fees with
respect to hearings before the Zoning Hearing Board.
[Ord. No. 762, 5/7/2020]
1.
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,
except those brought before the Board of Supervisors pursuant to Sections
609.1 and 916.1(a)(2) of the Pennsylvania Municipalities Planning
Code (hereinafter "MPC"), 53 P.S. §§ 10609.1 and 10916.1.
B.
(Reserved)
C.
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.
D.
Appeals from a determination by 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.
Applications for variances from the terms of this chapter and a flood
hazard ordinance, or such provisions within a land use ordinance,
pursuant to Section 910.2 of the MPC, 53 P.S. § 10910.2.
F.
Applications for special exceptions under this chapter or a floodplain
or flood hazard ordinance, or such provisions within a land use ordinance,
pursuant to Section 912.1 of the MPC, 53 P.S. § 10912.1.
G.
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.
H.
Appeals from the Zoning Officer's determination under Section
916.2 of the MPC, 53 P.S. § 10916.2.
I.
Appeals from the determination of the Zoning Officer or Township
Engineer in the administration of any land use ordinance or provision
thereof with reference to sedimentation and erosion control and stormwater
management insofar as the same relate to development not involving
applications under Article V or VII of the MPC, 53 P.S. §§ 10501
et seq., and 10701 et seq.
2.
The Board of Supervisors shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
A.
All applications for approvals of planned residential developments
under Article VII of the MPC, pursuant to the provisions of Section
702 of the MPC, 53 P.S. § 10702.
B.
All applications pursuant to Section 508 of the MPC, 53 P.S. § 10508,
for approval of subdivisions or land developments under Article V
of the MPC, 53 P.S. § 10501 et seq.
C.
Applications for conditional uses under the express provisions of
this chapter.
D.
Applications for curative amendments to this chapter or pursuant
to Sections 609.1 and 916.1(a) of the MPC, 53 P.S. §§ 10609.1
and 10916.1(a).
E.
All petitions for amendments to land use ordinances, pursuant to
the procedures set forth in Section 609 of the MPC, 53 P.S. § 10609.
F.
Appeals from the determination of the Zoning Officer or the Township
Engineer in the administration of any land use ordinance or provisions
thereof with reference to sedimentation and erosion control and stormwater
management insofar as the same relate to applications for land development
under Articles V and VII of the MPC, 53 P.S. § 10501 et
seq., and 53 P.S. § 10701 et seq. Where such determination
relates only to development not involving an Article V or VII application,
the appeal from such determination of the Zoning Officer or the Township
Engineer shall be to the Zoning Hearing Board pursuant to this section.
Where the applicable land use ordinance vests jurisdiction for final
administration of subdivision and land development applications in
the Planning Commission, all appeals from determinations under this
subsection shall be to the Planning Commission, and all appeals from
the decision of the Planning Commission shall be to the court.
[Ord. No. 762, 5/7/2020]
1.
Upon appeal from a decision by the Zoning Officer, the Zoning Hearing
Board shall decide any questions:
A.
Involving the interpretation of any provisions of this chapter, including
determination of the exact location of any district boundary if there
is uncertainty with respect thereto.
B.
Where it is alleged there is error in any order, requirements, decision
or determination, including any order requiring an alleged violation
to stop, cease and desist, made by the Zoning Officer in the enforcement
of this chapter.
[Ord. No. 762, 5/7/2020]
The Board shall hear and decide 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. These
appeals must be filed within 30 days of the date the decision is rendered
by the Zoning Officer, and all appeals shall be on forms prescribed
by the Zoning Hearing Board, accompanied by the requisite fees. All
appeals shall refer to the specific provisions of this chapter involved.
[Ord. No. 762, 5/7/2020]
1.
The Board shall hear requests for variances where it is alleged that
the provisions of the Zoning Ordinance inflict unnecessary hardship
upon the appellant. The Board may grant a variance, provided that
the following findings are made where relevant in a given case.
A.
That there are unique physical circumstances or conditions, including
irregularity, narrowness or shallowness of lot size or shape, or exceptional
topographical or other physical conditions peculiar to the particular
property, and that the unnecessary hardship is due to such conditions
and not the circumstances or conditions generally created by the provisions
of this Zoning Ordinance in the neighborhood or district in which
the property is located.
B.
That because of such physical circumstances or conditions, there
is no possibility that the property can be developed in strict conformity
with the provisions of this Zoning Ordinance and that the authorization
of a variance is therefore necessary to enable the reasonable use
of the property.
C.
That such unnecessary hardship has not been created by the appellant.
D.
That the variance, if authorized, will not alter the essential character
of the neighborhood or district in which the property is located nor
substantially or permanently impair the appropriate use or development
of adjacent property nor be detrimental to the public welfare.
E.
That the variance, if authorized, will represent the minimum variance
that will afford relief and will represent the least modification
possible of the regulation in issue.
2.
In granting any variance, the Board may attach such reasonable conditions
and safeguards as it may deem necessary to implement the purpose of
this chapter.
[Ord. No. 762, 5/7/2020]
1.
The Board shall hear and decide requests for special exceptions to
the terms of this chapter in such cases as are expressly provided
for in this chapter. 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
purpose of this section and this Zoning Ordinance. Where, in this
chapter, additional standards are set forth for a particular use that
may be requested for a special exception, then the Board shall consider
whether the request meets those specific standards in addition to
the general standards set forth in this section. In deciding all applications
for special exceptions, the Board shall be guided by the following
criteria and standards:
A.
The proposed use is one permitted by special exception.
B.
The proposed use is permitted, and it will conform to the applicable
regulations of the district in which it is located or any district
regulations which may relate to or apply to the use, including but
not limited to setbacks, building coverage, open space and buffering.
C.
The proposed use will conform to the regulations applicable according
to use and/or district, including but not limited to regulations contained
in Part 22, Off-Street Parking and Loading, Part 23, Signs, and Part
24, Nonconformities.
D.
Points of vehicular access to the lot are provided at a distance
from the intersections and other points of access and in number sufficient
to prevent undue traffic hazards and obstruction to the movement of
traffic.
E.
The location of the site with respect to the existing public roads
giving access to it is such that the safe capacity of the public roads
is not exceeded by the estimated traffic attracted or generated by
the proposed use, and the traffic generated or attracted is not out
of character with the normal traffic using said public roads.
F.
A determination that the proposed use will not have an unwarranted
impact on traffic in the area, either creating significant additional
congestion in an area of existing congestion or posing a threat of
significant additional congestion where there is a high probability
of future congestion. In addition, the Board shall consider whether
the proposed use will create any traffic hazard dangerous to the public
safety.
G.
Screening of the proposed use from adjacent uses is sufficient to
prevent the deleterious impact of the uses upon each other, considering
the type, dimension and character of the screening.
H.
The suitability of the property for the proposed use.
I.
The proposed use not adversely affect or contradict Warminster Township's
Comprehensive Plan.
K.
The Board will be guided by sound subdivision practice, sound land
use planning and the preservation and conservation of natural resources.
L.
The suitability of the proposed use to the character of the neighborhood
and the uses of the surrounding properties.
M.
The proposed use will not impair an adequate supply of light and
air to adjacent property.
N.
The proposed use will not adversely affect the public health, safety
or general welfare.
O.
The proposed use will not adversely affect transportation or unduly
burden water, sewer, school, park or other public facilities.
P.
The presence or absence of protestants against the proposed use shall
not be dispositive, but the Board may weigh such presence or absence
of protestants as evidence of the effect that the proposed use may
be deemed to have.
Q.
The proposed use shall not overcrowd land or create undue concentration
of population or undue intensity of use.
[Ord. No. 762, 5/7/2020]
The Board shall hear challenges to the validity of this chapter
or map, except as indicated in the Pennsylvania Municipalities Planning
Code, Act 247, Sections 1003 and 1004(1)(b).[1] In all such challenges, the Board shall take evidence and make a record thereon as provided in § 27-2601. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact which shall become part of the record to the court.
[1]
Editor's Note: See now 53 P.S. §§ 11002.1-A
and 53 P.S. § 10916.1, respectively.
[Ord. No. 762, 5/7/2020]
Appeals raising the substantive validity of any land use ordinance
(except those to be brought before the Board of Supervisors pursuant
to the Pennsylvania Municipalities Code) or procedural questions or
alleged defects in the process of enactment or adoption of a land
use ordinance; or 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; or from a determination by 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; or 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; or from the determination
of the Zoning Officer or Township Engineer in the administration of
any land use ordinance or provision thereof with reference to sedimentation
and erosion control and stormwater management insofar as the same
relate to development not involving subdivision and land development
or planned residential development may be filed with the Zoning Hearing
Board, in writing, by the landowner affected, any officer or agency
of the Township, or any person aggrieved. Requests for a variance
and for a special exception may be filed with the Board by any landowner
or any tenant with the permission of such landowner.
[Ord. No. 762, 5/7/2020]
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 Township 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. The failure of anyone
other than the landowner to appeal from an adverse decision on a tentative
plan or from an adverse decision by the Zoning Officer on a challenge
to the validity of this chapter or an amendment hereto or map or an
amendment thereto shall preclude an appeal from a final approval,
except in the case where the final submission substantially deviates
from the approved tentative approval.
2.
All appeals from determinations adverse to the landowner shall be
filed by the landowner within 30 days after notice of the determination
is issued.
[Ord. No. 762, 5/7/2020]
1.
Upon the filing of any appeal proceeding before the Zoning Hearing
Board and during its pendency before the Board, all land development
pursuant to any challenged ordinance, order or approval of the Zoning
Officer or of any agency or body, and all official action thereunder,
shall be stayed unless the Zoning Officer or any other appropriate
agency or body certifies to the Board facts indicating that such stay
would cause imminent peril to life or property, in which case the
development or official action shall not be stayed otherwise than
by a restraining order, which may be granted by the Board or by the
court having jurisdiction of zoning appeals, on petition, after notice
to the Zoning Officer or other appropriate agency or body. When an
application for development, preliminary or final, has been duly approved
and proceedings designed to reverse or limit the approval are filed
with the Board by persons other than the applicant, the applicant
may petition the court having jurisdiction of zoning appeals to order
such persons to post bond as a condition to continuing the proceedings
before the Board.
2.
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.
3.
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.
4.
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.
[Ord. No. 762, 5/7/2020]
The applicant for any hearing before the Zoning Hearing Board
shall, at the time of making application, pay to the Zoning Officer,
for the use of the Township, a fee in accordance with a fee schedule
adopted by resolution of the Township Supervisors upon enactment of
this chapter or as such schedule may be amended from time to time.
[Ord. No. 762, 5/7/2020]
Unless otherwise specified by the Board, a permit, special exception
or variance shall expire if the applicant fails to obtain a building
permit or a use and occupancy permit, as the case may be, within 18
months from the date of granting thereof. Further, within 18 months
from the date of issuance of a building permit or a use and occupancy
permit by the Zoning Officer or the granting of a permit, special
exception or variance by the Board, substantial construction of the
proposed building, addition or alteration or such other activity as
was contemplated or appropriate under the permit or order of the Board
must be completed or taken; otherwise, said permit, special exception
or variance shall expire and the land or building which was the subject
of the permit issued by the Zoning Officer by the order of the Board
shall revert to its former status.
