A.
There is hereby created a Zoning Hearing Board which
shall consist of three residents of the Township who shall be appointed
by resolution of the Board of Supervisors.
B.
Zoning Hearing Board members shall serve for three-year
terms which shall be so fixed that the term of office of no more than
one member shall expire each year.
C.
The Zoning Hearing Board shall promptly notify the
Board of Supervisors of any vacancies which shall occur, and appointments
to fill such vacancies shall be only for the unexpired portion of
the term.
D.
Members of the Zoning Hearing Board shall hold no
other office in the Township.
E.
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 Board of Supervisors taken after
the member has received 15 days' advance notice of the intent of the
Board of Supervisors to take such a vote. A hearing shall be held
in connection with the vote if the member shall request such hearing
in writing.
F.
The Board of Supervisors may, in its discretion, appoint by resolution between one and three alternate members to the Zoning Hearing Board. Such alternate members shall have the right to participate in all hearings of the Zoning Hearing Board but shall be entitled to vote only as provided in Article IX of the Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10901
et seq.
G.
Whenever the term "Board" is used in this Article,
it shall mean the Zoning Hearing Board.
The Board shall elect from its 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 fewer than two members. If the Board of Supervisors has appointed alternate members to the Zoning Hearing Board, the Chairman of the Board may designate alternate members to participate and vote upon designated applications in accordance with the regulations contained in Article IX of the Municipalities Planning Code.[1] The Board may also 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 the Municipalities
Planning Code. The Board may make, alter and rescind rules and forms
for its procedure, consistent with the ordinances of the Township
and the 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.
[1]
Editor's Note: See 53 P.S. § 10901
et seq.
The Zoning Hearing Board shall have the following
functions and duties:
B.
The Board shall hear and render final adjudications
concerning challenges to the validity of a land use ordinance raising
procedural questions or alleged defects in the process of enactment,
which challenges shall be raised by an appeal taken within 30 days
after the effective date of said land use ordinance.
C.
The Board shall hear and render final adjudications
concerning appeals from the determination of the Zoning Officer, including
but not limited to the granting or denial of any permit or the failure
to act on the application therefor, the issuance of any notice of
violation or cease and desist order or the registration or refusal
to register any nonconforming use, structure or lot.
D.
Special exceptions. When special exceptions are provided
for in this chapter, the Board shall hear and decide requests for
such special exceptions in accordance with stated standards and criteria.
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 purposes of the
Municipalities Planning Code and this chapter. The Board may grant
approval of a special exception, provided that the applicant complies
with the following standards for special exceptions and that the proposed
special exception shall not be detrimental to the health, safety or
welfare of the neighborhood. The burden of proof shall rest with the
applicant.
(1)
The applicant shall establish by credible evidence
compliance with all conditions on the special exception enumerated
in the section which gives the applicant the right to seek the special
exception.
(2)
The applicant shall establish by credible evidence
that the proposed special exception shall be properly serviced by
all existing public service systems. The peak traffic generated by
the subject of the application shall be accommodated in a safe and
efficient manner or improvements made in order to effect the same.
Similar responsibilities shall be assumed with respect to other public
service systems, including but not limited to police protection, fire
protection, utilities, parks and recreation.
(3)
The applicant shall establish by credible evidence
that the proposed special exception shall be in and of itself properly
designed with regard to internal circulation, parking, buffering and
all other elements of proper design as specified in this chapter and
any other governing law or regulation.
(4)
The applicant shall provide the Board with sufficient
plans, studies or other data to demonstrate compliance with all applicable
regulations.
(5)
[3]The applicant shall inform the Board whether any structures
on the property are listed upon the National Register of Historic
Places, the Pennsylvania Register of Historic Sites and Landmarks
or any other registry of historic structures.
[3]
Editor’s Note: Former Subsection D(5), regarding development
within the floodway district, was repealed 3-8-2016 by Ord. No. 209-2016.
This ordinance also provided for the redesignation of former Subsection
D(6) through (10) as Subsection D(5) through (9), respectively.
(6)
The proposed special exception shall not substantially
injure or detract from the use of neighboring property or from the
character of the neighborhood and the use of property adjacent to
the area included in the special exception application shall be adequately
safeguarded.
(7)
The Board may attach such reasonable conditions and
safeguards as it may deem necessary to implement the purposes of and
ensure compliance with the Municipalities Planning Code and this chapter,
which conditions may include plantings and buffers, harmonious designs
of buildings and the elimination of noxious, offensive or hazardous
elements.
(8)
Unless otherwise specified by the Board or by law,
a special exception shall expire if the applicant fails to obtain
a zoning permit within three months from the date of authorization
thereof by the Board or by the court if such special exception has
been granted after an appeal or fails to complete any erection, construction,
reconstruction, alteration or change in use authorized by the special
exception approval within one year from the date of authorization
thereof by the Board or by the court if such special exception has
been granted after an appeal. The Board, upon written application
and for reasonable cause shown, may extend the approval for an additional
period of up to one year.
(9)
Any site plan or plot plan presented in support of the special exception pursuant to § 110-102 shall become an official part of the record for said special exception. Approval of any special exception shall also bind the use in accordance with the submitted site plan or plot plan. Should a change in the site plan or plot plan be required as a part of the approval of the use, the applicant shall revise the site plan or plot plan prior to the issuance of a zoning permit and present such revised plan to the Zoning Officer. Any subsequent change to the use on the subject property not reflected on the originally approved site plan or the amended site plan filed with the Zoning Officer prior to the issuance of the zoning permit shall require the grant of another special exception to authorize such change.
E.
Variances. The Board shall hear requests for variances
where it is alleged that the provisions of the ordinance inflict unnecessary
hardship upon the applicant. The Board may grant a variance, provided
that the following findings are made where relevant in a given case.
The burden of proof shall rest with the applicant.
(1)
That there are unique physical circumstances or conditions,
including irregularity, narrowness or shallowness of a 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 generally created by the provisions of this Zoning
Chapter in the neighborhood of 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 this Zoning Chapter and that the
authorization of a variance is therefore necessary to enable the reasonable
use of the property.
(3)
That such 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 in issue.
(6)
For uses, structures, or any development within the Floodplain District,
the applicant shall present all evidence and information necessary
to comply with the standards and regulations of the Brecknock Township
Floodplain Management Ordinance.[4]
[Amended 3-8-2016 by Ord.
No. 209-2016]
(7)
The applicant shall inform the Board whether any structures
on the property are listed upon the National Register of Historic
Places, the Pennsylvania Register of Historic Sites and Landmarks
or any other registry of historic structures.
(8)
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. The Board shall require that adequate
on- or off-site water and sewage disposal facilities are available
for the use intended.
(9)
Unless otherwise specified by the Board or by law,
a variance shall expire if the applicant fails to obtain a zoning
permit within three months from the date of authorization thereof
by the Board or by the court if such variance has been granted after
an appeal or fails to complete any erection, construction, reconstruction,
alteration or change in use authorized by the variance approval within
one year from the date of authorization thereof by the Board or by
the court if such variance has been granted after an appeal. The Board,
upon written application and for reasonable cause shown, may extend
the approval for an additional period of up to one year.
(10)
Any site plan or plot plan presented in support of the variance pursuant to § 110-102 shall become an official part of the record for said variance. Approval of any variance shall also bind the use in accordance with the submitted site plan or plot plan. Should a change in the site plan or plot plan be required as a part of the approval of the use, the applicant shall revise the site plan or plot plan prior to the issuance of a zoning permit and present such revised plan to the Zoning Officer. Any subsequent change to the use on the subject property not reflected on the originally approved site plan or the amended site plan filed with the Zoning Officer prior to the issuance of the zoning permit shall require the grant of another variance to authorize such change.
All applications for hearings before the Board
shall be made on forms adopted by the Board of Supervisors. No application
shall be considered complete until any required fees have been paid.
No application shall be complete until a site plan has been submitted.
All applications requesting approval to establish or expand a nonresidential
use or which concern a residential use containing 10 or more dwelling
units shall submit a plan drawn to a scale of not more than 100 feet
to the inch, which shall include all of the following:
A.
The location of all existing floodplains, watercourses,
railroads, areas of subsidence, wooded areas (marking all wooded areas
to be cleared), bridges, culverts and other significant natural features
on the tract and within 200 feet of the tract.
B.
The location of all streets, adjoining tracts and
buildings within 200 feet of the tract.
C.
The location of all proposed land uses, including
residential uses by types.
D.
Size and intensity of use data, including the number
of residential or commercial lots, lot sizes, the number and types
of dwelling units and the density per acre of each type of dwelling
unit.
E.
The location and arrangement of all open spaces and
yards, landscaping, fences and buffer yards, including the methods
and materials to be employed for screening.
F.
The location, size (numbers shown), arrangement and
capacity of all areas to be used for motor vehicle access, off-street
parking, off-street loading and unloading and provisions to be made
for lighting such areas.
G.
The dimensions (numbers shown), location and methods
of illumination for signs and exterior lighting.
H.
The location and dimensions of sidewalks and all other
common areas.
I.
If applicable, a description of any proposed industrial
or commercial operation in sufficient detail to indicate the effects
of those operations in producing noise, glare, air pollution, water
pollution, fire hazards, traffic congestion or other safety hazards.
J.
Provisions to be made for the treatment and disposal
of sewage and industrial wastes and for water supply. The applicant
shall indicate whether on-lot sewage disposal is proposed and, if
so, whether the site has been tested for an initial and a replacement
on-lot sewage disposal system and, if no such testing has been performed,
whether it is possible to meet the requirements for an initial and
replacement system based upon the size of the property and required
isolation distances.
K.
Site contours at two-foot intervals.
L.
All proposed site grading and drainage provisions
and proposals.
M.
Zoning districts and applicable area, bulk and yard
requirements.
N.
Certification by the person who prepared the site
plan.
O.
Certification of ownership and acknowledgment of plans
signed by owner and developer.
The Board shall conduct hearings and make decisions
in accordance with the following requirements:
A.
The Board shall fix a reasonable time and place for
the public hearing and shall give notice thereof stating the time
and place of the hearing and the particular nature of the matter to
be considered as follows:
(1)
By publishing notice thereof once each week for two
successive weeks in a newspaper of general circulation in the Township.
The first publication shall be not more than 30 days and the second
publication shall be not less than seven days from the date of the
hearing.
(2)
By mailing a notice thereof to the applicant.
(3)
By mailing a notice thereof to the Zoning Officer,
the Township Secretary and to every person or organization who shall
have registered with the Zoning Hearing Board for the purpose of receiving
such notices.
(4)
By posting notice conspicuously on the affected tract
of land at least one week prior to the hearing.
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, but the parties may waive decision 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 applicant,
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 by the Board for that purpose.
E.
The Chairman or Acting Chairman of the Board or the
hearing officer presiding shall have the power to administer oaths
and issue subpoenas to compel the attendance of 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. 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 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 its
Solicitor, unless the 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.
J.
The Board or 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 provision of this chapter or of any act, rule or regulation shall contain a reference to the provision relied upon 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 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 the 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 to render a decision as hereinabove provided, the Board shall give public notice of said decision within 10 days from the last day it could have met to render a decision in the same manner provided in Subsection A 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
Zoning Hearing Board no 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.
A.
Appeals from the denial of an application by the Zoning
Officer or from the issuance of a notice of violation and/or cease-and-desist
order shall be made within 30 days of the denial of said permit or
issuance of said notice of violation and/or cease-and-desist order.
B.
No person shall be allowed to file any proceeding
with the Zoning Hearing Board later than 30 days after any application
for development, preliminary or final, has been approved by the Board
of Supervisors or later than 30 days after a permit has been issued
by the Zoning Officer if such proceeding is designed to secure reversal
or limit the approval or the permit in any manner unless such person
alleges and proves that he had no notice or knowledge or reason to
believe that such approval has 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.
C.
No appeal shall be considered filed with the Board
unless any applicable filing fee has been paid.
