A.
The word "Board" when used in this article shall mean
the Zoning Hearing Board.
B.
The membership of the Board shall, upon the determination
of the governing body, consist of either three or five residents of
the municipality appointed by resolution of the governing body. The
terms of office of a three-member board shall be three years and shall
be so fixed that the term of office of one member shall expire each
year. If a three-member board is changed to a five-member board, the
members of the three-member board shall continue in office until their
term of office would expire under prior law. The terms of office of
a five-member board shall be so fixed that the term of office of one
member of the five-member board shall expire each year. The governing
body shall appoint two additional members to the Board with terms
scheduled to expire in accordance with the provisions of this section.
The Board shall promptly notify the governing body of any vacancies
that occur. Appointments to fill such vacancies shall be only for
the unexpired portion of the term. Members of the Board shall hold
no other public office.
[Amended 12-7-2000 by Ord. No. 451]
C.
Any board member may be removed for malfeasance, misfeasance
or nonfeasance in office or for other just cause by a majority vote
of the governing body which appointed the member, taken after the
member has received 15 days' advanced 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 Township Board of Supervisors may appoint
by resolution no more than three residents of the Township to serve
as alternate members of the Board. The term of office of an alternate
shall be three years.
A.
If, by reason of absence or disqualification of a
member, a quorum is not reached, the Chairman of the Board shall designate
as many alternate members of the Board to sit on the Board as may
be needed to provide a quorum. An alternate so designated shall be
entitled to participate in all proceedings and discussions of the
Board to the same and full extent as provided by law for Board members,
including specifically the right to cast a vote as a voting member
during the proceedings, and shall have all the powers and duties set
forth in this article and as otherwise provided by law.
B.
Any alternate member of the Board shall continue to
serve on the Board in all proceedings involving the matter or case
for which the alternate was initially appointed until the Board has
made a final determination of the matter or case.
C.
Alternate members may hold no other office in the
Township.
A.
The Board shall annually elect officers from its membership.
B.
For the conduct of any hearing and the taking of any
action, a quorum shall be no less than two voting members, but the
Board may appoint from its own membership a hearing officer to conduct
any hearing on its behalf, and the parties may waive further action
by the Board.
C.
The Board may make, alter and rescind rules and forms
for its procedure, consistent with ordinances of the Township and
the laws of the commonwealth.
D.
The Board shall keep public records of its business,
which records shall be the property of the Township, and shall submit
reports of its activities to the Township as requested by the Township
Board of Supervisors.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in accordance with the requirements of Article IX of the Municipalities Planning Code, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
Challenges and appeals may be filed with the
Board, in writing, by the landowner affected, any officer or agency
of the Township or any person aggrieved. Requests for a variance or
special exception may be filed by any landowner or any tenant with
permission of the landowner. An appeal or application regarding a
matter within the jurisdiction of the Zoning Hearing Board may be
filed with the Zoning Officer on forms provided by the Zoning Hearing
Board and shall state:
A.
The name and address of the applicant and of the applicant's
representative(s) or agent(s) where applicable.
B.
The name and address of the record owner of the property
that is the subject of the application or appeal. Where the applicant
is not the record owner of the subject property, a signed and notarized
statement from the record owner, authorizing the applicant to pursue
the specific appeal or application.
C.
A copy of the deed to the subject property.
D.
A brief description and location of the subject property,
along with a survey and/or sketch of the property boundaries.
E.
A statement of the present zoning classification of
the subject property with the improvements thereon and the present
use thereof.
F.
A statement of the section of this chapter under which
consideration by the Board is requested, along with a summary of reasons
or arguments in support of request.
G.
A reasonably accurate description of the improvements
or changes intended to be made under the application. In addition
there shall be attached a plot plan of the property to be affected,
indicating the location and size of the lot, and the size and location
of the existing and proposed improvements or changes.
H.
A list of all landowners within 500 feet of the applicant's
land, to be supplied by the applicant, who shall obtain the list at
his or her own cost and expense from the Montgomery County Board of
Assessment Appeals or from Lower Providence Township and other municipalities
when the adjacent land is outside the Township.
J.
A properly completed Lower Providence Township Zoning Hearing Board
application form that is signed and notarized by the applicant and
the property owner.
[Added 10-20-2011 by Ord. No. 602]
A.
Immediately upon receipt of an application, the Zoning
Officer shall promptly forward the application to the Zoning Hearing
Board Solicitor.
B.
The Zoning Hearing Board Solicitor, in consultation
with the Chairperson, shall fix a reasonable time and place for a
public hearing on the application. Said hearing shall occur no more
than 60 days after the application is made to the Township, unless
the applicant has agreed, in writing, to an extension of time.
C.
A true and correct copy of the application and all
related information shall be forwarded to each member of the Zoning
Hearing Board and to the Chairperson of the Township Board of Supervisors,
the Township Manager and the Township Solicitor.
The Board shall schedule a public hearing and
shall give public notice, as well as written notice as follows:
A.
Zoning Hearing Board hearings shall be held at the
call of the Chairman and at such times as the Board may determine.
B.
Hearings may be conducted by the Board, which may
appoint any member as a hearing officer. The decision or findings
shall be made by the Board; however, the applicant may, prior to a
decision, waive a decision or findings by the Board and accept the
decision or findings of the hearing officer as final.
C.
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 the power to require that all persons who wish to be considered
parties enter appearances, in writing, on forms provided for that
purpose.
D.
The Chairperson or acting Chairperson or hearing officer
may administer oaths and issue subpoenas to compel the attendance
of witnesses and production of relevant documents and papers, including
witnesses and documents requested by the parties.
E.
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.
F.
Formal rules of evidence shall not apply, but irrelevant,
immaterial or unduly repetitious evidence may be excluded.
G.
The Board or the hearing officer shall keep a record
of the proceedings. 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.
H.
The Board or hearing officer shall not, except upon
notice and opportunity for all parties to be present, participate
and inspect and contest materials, engage in the any of the following
activities:
(1)
Communicate, directly or indirectly, with any party
or his or her representative in connection with any issue involved.
(2)
Take notice of any communication, reports, staff memoranda
or other materials, except advice from the Solicitor.
(3)
Inspect the subject site or its surroundings after
commencement of hearings with any party or his or her representative.
A.
The Zoning Hearing Board or hearing officer shall
render a written decision or, when no decision is called for, make
written findings on the application within 45 days of the last hearing.
When the application is contested or denied, the decision shall be
accompanied by findings of fact and conclusions based upon findings.
Conclusions based on any provision of a Township ordinance shall contain
a reference to the provision.
B.
If the hearing is conducted by a hearing officer,
and there has been no stipulation that his or her decision or findings
are final, the Board shall make his or her report and recommendations
available to the parties within 45 days and the parties shall be entitled
to make written representations to the Board prior to final decision
or entry of findings. The Board's decision shall be entered no later
than 30 days after the report of the hearing officer.
C.
Where the Board fails to render the decision within
the required period, or fails to hold the required hearing within
60 days of application, 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.
D.
When a decision has been deemed to have been rendered
in favor of the applicant because of the failure of the Board to hold
a hearing or render a decision as provided, the Board shall give public
notice of said deemed decision within 10 days from the last day it
could have met to render a decision. 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.
E.
A copy of the final decision or findings shall be
delivered to the applicant personally or mailed to him or her not
later than the day following its date. To all other persons who have
filed their names and addresses with the Board not later than the
last day of the hearing, the Board shall provide, by mail or otherwise,
brief notice of the decision or findings and a statement of the place
at which the full decision or findings may be examined.
In the consideration of an application, the
Board shall:
A.
Consider the suitability of the property for the use
desired and assure itself that the proposed change is consistent with
the spirit, purpose and intent of the Zoning Ordinance and Comprehensive
Plan.
B.
Determine that the proposed change will not substantially
injure or detract from the use of neighboring property or from the
character of the neighborhood and that the use of the adjacent property
is adequately safeguarded.
C.
Determine that the proposed change will serve the
best interests of the Township, the convenience of the community (where
applicable) and the public welfare.
D.
Consider the effect of the proposed change upon the
logical, efficient and economical extension of public services and
facilities such as public water, sewers, police and fire protection
and public schools.
E.
Consider the suitability of the proposed location
of use with respect to probable effects upon highway traffic and assure
adequate access arrangements in order to protect major roads from
undue congestion and hazard.
F.
Be guided in its study, review and recommendation
by sound standards of subdivision and land development practice where
applicable.
G.
Impose such conditions and safeguards in addition
to those required as are necessary to assure that the intent of this
chapter and the Comprehensive Plan are complied with, which conditions
may include (but are not limited to) harmonious design of buildings,
planting and its maintenance as a sight or sound screen, the minimizing
of noxious, offensive or hazardous elements, and adequate standards
of parking, loading and sanitation.
H.
The Zoning Hearing Board shall be limited to consideration
of applications as they relate to ordinance provisions in effect at
the time of the application. The Township Board of Supervisors shall
retain the exclusive right to enact and amend ordinances.
A.
Variance. The Board shall hear requests for variances
where it is alleged that the provisions of the Zoning Ordinance inflict
unnecessary hardship upon the applicant. The Board may grant a variance,
provided that all of the following findings are made where relevant
in a given case:
(1)
That there are unique physical circumstances or conditions,
including irregularity, narrowness or shallowness of lot size or shape,
or exceptional topographical or other physical conditions and not
the circumstances or conditions generally created by the provisions
of the Zoning Ordinance in the neighborhood or district in which the
property is located.
(2)
That because of such physical circumstances or conditions,
there is no possibility that the property can be developed in strict
conformity with the provisions of the Zoning Ordinance and that the
authorization of a variance is therefore necessary to enable the reasonable
use of the property.
(3)
That the unnecessary hardship has not been created
by the applicant.
(4)
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.
(5)
That the variance, if authorized, will represent the
minimum variance that will afford relief and will represent the least
modification possible of the regulation at issue.
B.
Special exception. The Zoning Hearing Board shall hear and decide requests for special exceptions in accordance with the standards and criteria found in the particular section of the Zoning Ordinance that permits application for said special exception and with the general standards in § 143-167 of this article.
C.
Burden of proof. For variances, the burden of proof
shall be on the applicant. For special exceptions, the applicant shall
be entitled to the special exception unless others can prove that
it would adversely affect the public health, safety, morals or welfare.
D.
Standards of proof.
[Added 10-21-1999 by Ord. No. 440]
(1)
Special exception case. An applicant for a special
exception shall have the burden of establishing by competent evidence
and testimony both:
(2)
Variance case. An applicant for a variance shall have
the burden of establishing:
(a)
All the requirements of § 910.2 of
the Municipalities Planning Code, Act of July 31, 1968, P.L. 805,
No. 247, as amended, 53 P.S. § 10910.2;
(b)
That literal enforcement of the provisions of
this chapter will result in unnecessary hardship, as the term is defined
by relevant statutory provisions and case law; and
(c)
That the allowance of a variance will not be
contrary to the public interest.
(3)
Zoning Hearing Board considerations. In considering
whether the allowance of a special exception or variance is contrary
to the public interest, the Zoning Hearing Board shall consider whether
the application, if granted, will:
(a)
Substantially increase traffic congestion in
the streets surrounding the subject site;
(b)
Increase the risk of fire or panic or otherwise
endanger the public safety;
(c)
Overcrowd the land or create undue concentration
of population;
(d)
Be suitable for the property in question so
as to be consistent with the spirit and purpose of the provisions
of this chapter;
(e)
Intrude upon the adequacy of natural light and
air to adjoining properties;
(f)
Create extraordinary burdens on public, private
or community water systems or upon groundwaters or wells within the
neighborhood;
(g)
Overburden the public sanitary sewer system
within the Township occasion environmental problems with on-site sanitary
sewer installations;
(h)
Place undue burdens upon the police, fire, ambulance
or other emergency services provided throughout the neighborhood;
(i)
Cause adverse affects to the appropriate use
of adjacent properties in the neighborhood where the property is located;
(j)
Cause risk or danger to the safety of persons
or property by improper location or design of facilities for ingress
and egress to and from the property in question; or
(k)
Otherwise adversely affect the public health,
safety, morals or general public welfare of the community.
(4)
Burden of proof. In all cases, whether special exception, variance, interpretation, appeals from the Building Inspector or any other appeals lawfully brought before the Zoning Hearing Board, the applicant shall have the burden of proof, including the duty of presenting credible, relevant and pertinent evidence and testimony to persuade the Zoning Hearing Board that the applicant has satisfied the criteria set forth in this section. In addition to the foregoing, where an applicant has been specifically requested by the Zoning Hearing Board to provide specific evidence or testimony on any item set forth in Subsection D(3)(a) through (j), supra, or in the event that any party opposing any application shall claim that the proposal before the Zoning Hearing Board will cause any effects upon the matters addressed in Subsection D(3)(a) through (j), supra; then the applicant's burden of proof shall include the obligation of presenting credible, relevant and pertinent evidence on such topics as to persuade the Zoning Hearing Board that the relief requested by the applicant will not be contrary to the public interest with respect to the criteria placed at issue.
A.
Time limitations on appeals.
(1)
All appeals from determinations adverse to the landowners
shall be filed by the landowner within 30 days after notice of the
determination is issued.
(2)
Appeals designed to secure reversal or limit the approval
of any application for development, preliminary or final, shall be
filed with the Board no later than 30 days after the application is
approved by an appropriate Township officer or agency, unless the
person filing alleges and proves that he or she had not notice, knowledge
or reason to believe that such approval had been given. If such person
succeeded to his or her interest after such approval, he or she shall
be bound by the knowledge of his or her predecessor in interest.
B.
Effect of filing. When an appeal is filed, further
development or official action pursuant to the appealed determination
or approval shall be stayed until issuance of a final decision or
findings by the Board. If the Zoning Officer or other Township agency
presents facts to the Board indicating that such a stay would cause
imminent peril to life or property, development or official action
can only be stayed by restraining order granted by the Board or by
a court of competent jurisdiction.
C.
Substantive validity challenge. A landowner who desires
to challenge, on substantive grounds, the validity of a map or ordinance
provision which prohibits or restricts the use or development of land
in which he or she has an interest may submit the challenge either
to the Zoning Hearing Board or, with a request for curative amendment,
to the Township Board of Supervisors.
(1)
The written application to the Zoning Hearing Board
shall contain the reasons for the challenge.
(2)
Public notice of the hearing shall include notice
that the validity of the ordinance or map is in question and shall
specify the place and time where a copy of the request and its accompanying
materials may be examined by the public.
(3)
Based upon the testimony at the hearing(s), the Board
shall determine whether the challenged ordinance or map is defective,
as alleged. If the challenge is found to have merit, the decision
of the Board shall include recommended amendments to the challenged
ordinance which will cure the defects found.
(4)
In reaching its decision, the Board shall consider
the 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 residential use, the
impact of the proposal upon regional housing needs and the effectiveness
of the proposal in providing housing units of a type actually available
to and affordable by classes of persons otherwise unlawfully excluded
by the challenged provisions of the ordinance or map.
(c)
The suitability of the site for the intensity
of use proposed, 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, aquifers, natural
resources and other natural features, the degree to which these are
protected or destroyed, the tolerance of the resources to development
and any adverse environmental impacts.
(e)
The impact of the proposal on the preservation
of agriculture and other land uses which are essential to public health
and welfare.
(5)
If the Board fails to act on the request within 45
days of the last hearing, a denial of the request is deemed to have
occurred.
Unless otherwise specified by the Board, a special
exception or variance shall expire if the applicant fails to obtain
any and all permits within six months of the date of authorization
thereof.