Township of Upper Hanover, PA
Montgomery County
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Table of Contents
Table of Contents
The Zoning Hearing Board consists of three members appointed in compliance with the Pennsylvania Municipalities Planning Code or prior enabling laws. The Board of Supervisors shall reappoint or appoint three successors on the expiration of their respective terms to serve three years and shall fill any vacancy for the unexpired term of any member whose term becomes vacant.
A. 
The members of the Zoning Hearing Board shall be removable for cause by the Board of Supervisors upon written charges and after a public hearing.
B. 
Zoning Hearing Board members shall be residents of the Township and may hold no other office in the Township.
C. 
The word "Board" when used in this article shall mean the Zoning Hearing Board.
The 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 Chairperson or, in his absence, the Vice Chairperson 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. 
Designation of an alternate shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.
D. 
Alternate members may hold no other office in the Township.
E. 
Any alternate may participate in any proceeding or discussion of the Board but may not vote as a member nor be compensated unless designated as a voting alternate as provided above. An alternate member may not discus the matter before the Zoning Hearing Board with any party or other person.
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.
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 Board of Supervisors.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
A. 
Substantive challenges to the validity of any land use ordinance under Section 916.1, Validity of Ordinance; Substantive Questions, of the Pennsylvania Municipalities Planning Code, except those brought before the Board of Supervisors as curative amendments.
B. 
Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption, which challenges shall be raised by an appeal filed within 30 days after the effective date of said ordinance.
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 enforcement notice, 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.
F. 
Applications for special exceptions under this chapter.
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 determination of the Zoning Officer or Township Engineer in the administration of ordinance provisions for sedimentation and erosion control and stormwater management insofar as the determination does not involve an application pursuant to Chapter 425, Subdivision and Land Development.
I. 
Interpretation of the words, terms, rules, regulations, provisions and restrictions of this chapter where there is doubt as to the meaning thereof, including determination in specific instances whether questionable uses are permitted by virtue of being "similar to" or "customarily incidental to" permitted uses as provided by this chapter.
When the order, requirement, decision or determination of a Township officer is appealed to the Board, the Board shall have the power to reverse or affirm, in whole or in part, and the decision of the Board shall be enforced as though it were the decision of the officer appealed from.
Challenges and appeals may be filed with the Board in writing by the landowner affected, any officer or agency of the municipality, or any person aggrieved. Requests for 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 Board may be filed with the Township Secretary on forms provided by the Zoning Hearing Board. The applicant shall provide two copies of the application and accompanying materials, which shall include:
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 brief description and location of the subject property, along with a survey and/or sketch of the property boundaries.
D. 
A copy of the deed to the property in question.
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 the 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. 
Any and all additional information that may be required by the Zoning Hearing Board.
I. 
Envelopes addressed to all landowners within 500 feet of the applicant's land in Upper Hanover Township and adjacent municipalities, where appropriate, with sufficient prestamped postage for certified mail, return receipt requested, with certified mailing slips completed. The applicant is responsible for obtaining the names of all owners within 500 feet of the applicant's land and is advised to seek assistance from the Tax Collector for Upper Hanover Township and/or the Secretary of Upper Hanover Township for so doing.
J. 
Payment to the Township in accordance with a fee schedule recommended by the Board and adopted by the Township Board of Supervisors, as amended.
(1) 
Such fees may include compensation for the Township Secretary, members of the Board, notice and advertising costs, stenographic costs in accordance with § 500-608F herein, and necessary administrative overhead connected with the hearing.
(2) 
The fees may not include compensation for the legal expenses of the Board or expenses for engineering, architectural or other technical consultant or expert witness fees.
(3) 
All permissible costs shall be borne by the applicant, based on an itemized list of expenses.
A. 
Immediately upon receipt of an application, the Township Secretary shall promptly forward the application to the Zoning Hearing Board Solicitor along with all of the above information.
B. 
The Township Secretary, in consultation with the Zoning Hearing Board Solicitor, 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 Secretary, 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 Planning Commission, each Township Supervisor, each Zoning Hearing Board member, the Zoning Hearing Board Solicitor, and the Township Solicitor.
D. 
Upon receipt of a Zoning Hearing Board application, the Planning Commission and/or Board of Supervisors, at its next regularly scheduled meeting, may consider the application and may, at its sole discretion, resolve to comment thereon.
The Board shall give public notice and written notice as follows:
A. 
By publishing a notice once a week for two successive weeks in a newspaper of general circulation in the Township. Such notice shall state the time and place of the hearing, the particular nature of the matter to be considered at the hearing and the specific ordinance provisions that permit consideration by the Zoning Hearing Board. The first publication shall not be more than 30 days and the second not less than seven days from the date of the hearing.
B. 
By mailing or serving written notice to the record owner, applicant and applicant's representative.
C. 
By conspicuously posting written notice of hearing on the affected tract of land at least one week prior to the meeting.
D. 
By mailing or serving notice thereof to the Township Supervisors, Planning Commission Chairperson, Zoning Hearing Board members and Zoning Officer.
E. 
By mailing or giving written notice to any and all parties in interest who have made a timely request for the notice.
F. 
By mailing a written notice to any and all parties registered for that purpose.
G. 
By mailing a written notice to all landowners within 500 feet of the applicant's land in Upper Hanover Township and adjacent municipalities, where appropriate, by certified mail with return receipt requested.
A. 
Hearings shall be initially held at the first possible monthly meeting date, established by the Board of Supervisors at its reorganizational meeting, following the receipt of a complete application and sufficient time for public notice. Continuations or postponed meetings shall be held at the call of the Chairperson and at such times as the Board may determine. Hearings shall be conducted by the Zoning Hearing Board.
B. 
The parties to the hearing shall be the municipality, any person affected by the application who has made timely appearance of record before the Board, and any other person including civic or community organizations permitted to appear by the Board. The Board shall have the power to require that all persons who wish to be considered parties enter appearances in writing on forms provided for that purpose.
C. 
The Chairperson or Acting Chairperson 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.
D. 
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.
E. 
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
F. 
The Board shall keep a stenographic record of the proceedings.
(1) 
The appearance fee for a stenographer shall be shared equally by the applicant and the Board.
(2) 
The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board 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.
G. 
Except upon notice and opportunity for all parties to be present, to participate, and to inspect and contest materials, the Board shall not:
(1) 
Communicate, directly or indirectly, with any party or his representative in connection with any issue involved;
(2) 
Take notice of any communication, reports, staff memoranda, or other materials, except advice from its solicitor; or
(3) 
Inspect the subject site or its surroundings after commencement of hearings with any party or his representative.
A. 
The Board shall render a written decision or make written findings on the application within 45 days of the last hearing. Each 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. 
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.
C. 
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. Such notice shall be given in the manner prescribed by § 500-607 herein. 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.
D. 
A copy of the final decision or 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.
In the consideration of an application for variance or special exception, the Board shall:
A. 
Consider the suitability of the property for the use desired. Assure itself that the proposed change is consistent with the spirit, purpose and intent of this chapter.
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 services and facilities such as water, sewers, police and fire protection, and schools.
E. 
Consider the suitability of the proposed location of the use with respect to probable effects upon traffic and assure adequate access arrangements in order to protect roads from undue congestion and hazard.
F. 
Be guided in its study, review and recommendation by sound standards of subdivision practice where applicable.
G. 
The 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 chapter inflict unnecessary hardship upon the applicant. The Board may by rule prescribe the form of application and may require preliminary application to the Zoning Officer. 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 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 chapter in the neighborhood or district in which the property is located.
(2) 
That, because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the chapter 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. Monetary hardship, standing alone, is insufficient to justify consideration by the Board.
(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 in issue.
(6) 
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.
B. 
Special exception. The Board shall hear and decide requests for special exceptions in accordance with the standards and criteria found in the particular section of the chapter that permits application for said special exception and with the general standards in § 500-610. In granting any special exception, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the chapter.
C. 
Burden of proof. For variances, the burden of proof shall be on the applicant. For special exceptions, once the applicant has met the standards of the chapter, 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.
Decisions on appeals and applications to the Board, other than variances and special exceptions, shall be considered in accordance with the following:
A. 
Time limitations on appeals.
(1) 
All appeals from determinations adverse to a landowner 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 proves that he had no notice, knowledge or reason to believe that such approval had been given. If such person succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest.
B. 
Effect of filing.
(1) 
Upon filing of any proceeding before the Board and during its pendency, 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, agency or body certifies to the Board facts indicating imminent peril to life or property, in which case the development or official action shall not be stayed other than by a restraining order 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's fees incurred by the petitioner.
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 has an interest may submit the challenge to the Zoning Hearing Board. Persons aggrieved by a use or development permitted on the land of another by an ordinance or map, or any provision thereof, who desire to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a decision thereon.
(1) 
The challenging party shall make a written request to the Board that it hold a hearing on its challenge. The request shall contain the reasons for the challenge. Nothing herein contained shall preclude the landowner from first seeking a final approval before submitting his 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 presented at the hearing(s), the Zoning Hearing Board shall determine whether the challenged ordinance or map is defective as alleged. If the Zoning Hearing Board finds the challenge 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 Zoning Hearing Board shall consider the amendments, plans and explanatory material submitted by the landowner and shall also consider:
(a) 
The impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities;
(b) 
If the proposal is for 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, woodland, wetlands, floodplains, aquifers, 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, safety, morals and welfare.
(5) 
The Zoning Hearing Board shall render its decision within 45 days after the conclusion of the last hearing. 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 on the 46th day after the close of the last hearing.
(6) 
The Board shall commence its hearing within 60 days after the request is filed unless the landowner requests or consents to an extension of time.
(7) 
The challenge shall be deemed denied when:
(a) 
The Board fails to commence the hearing within the required time limits;
(b) 
The Board 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 of the landowner and the Board.
(8) 
Where 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 further application for subdivision or land development, the developer shall have two years from the date of such approval to file an application for preliminary plan approval under the normal plan approval process. 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 sustained validity challenge.
(9) 
Where the proposal appended to the curative amendment or 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 building 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 the applicant as granted in the curative amendment or the sustained validity challenge.
(10) 
During the one- or two-year protected periods, the court shall retain or assume jurisdiction for the purpose of awarding such supplemental relief as may be necessary.
A. 
Unless otherwise specified by the Zoning Hearing Board, a special exception or variance shall expire if the applicant fails to obtain any and all permits within one year of the date of the decision. The applicant may apply to the Board for postponement of the expiration, providing in writing an explanation of the reasons why permits were not obtained and a request for a postponement to a specific date. All parties who originally received notification of the Board's decision in the matter shall be notified of the postponement of expiration, at the applicant's expense.
[Amended 1-8-2002 by Ord. No. 02-05]
B. 
Where a curative amendment proposal is approved by the Board of Supervisors, 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 to file an application for preliminary or tentative (sketch) approval pursuant to Chapter 425, Subdivision and Land Development.
C. 
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 building 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 the applicant as granted in the curative amendment or challenge.
Any persons aggrieved by the decision of either board may, within 30 days thereafter, appeal to the Court of Common Pleas of Montgomery County by petition duly verified setting forth the grounds upon which said appeal is taken.
In order not to unreasonably delay the time when a landowner may secure assurance that the ordinance or map under which he proposed to build is free from challenge, and recognizing that the procedure for preliminary approval of his development may be too cumbersome or may be unavailable, the landowner may advance the date from which time for any challenge to the ordinance or map will run by the following procedure:
A. 
The landowner may submit plans and other materials describing his proposed use or development to the Zoning Officer for a preliminary opinion as to their compliance with the applicable ordinances and maps. Such plans and other materials shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a building permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis for a preliminary opinion as to its compliance.
B. 
If the Zoning Officer's preliminary opinion is that the use or development complies with the ordinance or map, notice thereof shall be published once each week for two successive weeks in a newspaper of general circulation in the municipality. Such notice shall include a general description of the proposed use or development and its location, by some readily identifiable directive, and the place and times where the plans and other materials may be examined by the public. The favorable preliminary approval under Section 914.1. of the Pennsylvania Municipalities Planning Code, and the time therein specified for commencing a proceeding with either the Board of Supervisors or the Zoning Hearing Board shall run from the time when the second notice thereof has been published.