Ben Avon City Zoning Code
ARTICLE XI
Application and Review Process
§ 2000-1100 Requests for Reasonable Accommodation.
[Ord. 738, 8/18/2009]
A.
Persons with a claim for reasonable accommodation under the Fair Housing Amendments Act or the Americans with Disabilities Act shall submit the request in writing to the applicable Zoning Officer on an application form which shall require that the following information may be reasonably needed to process the request, be provided:
(1)
Specific citation of the Zoning Ordinance provision from which reasonable accommodation is requested.
(2)
The name and address of the applicant.
(3)
The specific description of the reasonable accommodation sought and the particulars, including exact admonitions of any proposed structural of locational accommodation.
(4)
The condition of the applicants for which reasonable accommodation is sought.
(5)
A description of the hardship, if any, that the applicants will incur absent provision of the reasonable accommodation requested.
(6)
A description of any alternative methods of relieving the claimed hardship that have been considered and the reason, if any, why applicants have rejected such alternatives.
(7)
A statement describing why the requested accommodation is necessary to afford the applicants an opportunity equal to a non-handicapped or non-disabled person to use and enjoy the dwelling in question.
(8)
A description of the manner in which the accommodation, if granted, will be terminated or removed if no longer required to afford equal housing opportunity to handicapped or disabled persons.
(9)
A statement of any facts indicating whether or not non-handicapped or non-disabled persons would be permitted to utilize the property in question in a manner similar sought by applicants.
B.
The applicable Zoning Officer may hold any meetings and/or hearing necessary in his discretion to elicit information or argument pertinent to the request for accommodation.
C.
The applicable Zoning Officer's decision shall be in writing and shall state the reasons for the decision.
D.
The applicable Zoning Officer shall issue his written decision to the applicants and the applicable Borough within 30 days of filing of the request for accommodation.
E.
A request for reasonable accommodation should be directed in the first instance to the applicable Zoning Officer. In considering a request for reasonable accommodation, the applicable Zoning Officer shall, with the advice of the counsel of the applicable Borough Solicitor, apply the following criteria.
(1)
Whether the applicants are handicapped or disabled within the meaning of the Federal Fair Housing Act Amendments or the Americans with Disabilities Act.
(2)
The degree to which the accommodation sought is related to the handicap or disability of the applicant.
(3)
A description of hardship, if any, that the applicants will incur absent provisions of the reasonable accommodation requested.
(4)
The extent to which the requested accommodation is necessary to afford the applicant(s) an opportunities equal to a non-handicapped or nondisabled person to use and enjoy the dwelling in question.
(5)
The extent to which the proposed accommodation may impact other property owners in immediate vicinity.
(6)
The extent to which the proposed accommodation may be consistent with or contrary to the zoning purposes promoted by the Zoning Ordinance, the Comprehensive Plan, and the Community Development Objectives set forth in the Zoning Ordinance.
(7)
The extent to which the requested accommodation would impose financial and administrative burdens upon the applicable Borough.
(8)
The extent to which the requested accommodation would impose an undue hardship upon the applicable Borough.
(9)
The extent to which the accommodation would require a fundamental alteration in the nature of the Borough's regulatory policies, objectives and regulations.
(10)
The extent to which the requested accommodation would result in a subsidy, privilege, or benefit not available to non-handicapped or disabled persons.
(11)
The permanency of the requested accommodation and the conditions under which such accommodation will be removed, terminated or discontinued which no longer needed to provide handicapped or disabled persons with equal opportunity to use and enjoy the dwelling in question.
(12)
The extent to which the requested accommodation will increase the value of the property during and after its occupancy by applicants.
§ 2000-1101 Special Exception Procedures of Approval.
[Ord. 738, 8/18/2009]
A.
Approval of Uses by Special Exception. The applicable Zoning Hearing Board shall hear and decide requests for uses by special exception. The applicable Zoning Hearing Board shall not evaluate an application for a use by special exception unless and until:
(1)
A written application for approval of a use by special exception is submitted to the applicable Zoning Officer. The application shall indicate the section of this Ordinance under which approval of the use by special exception is sought and shall state the grounds upon which it is requested. The application shall include the following:
(a)
A Development Plan, as defined by the applicable Ordinance.
[Amended by Ord. No. 780, 8/31/2017]
(b)
A written statement showing compliance with the applicable express standards and criteria of this Article for the proposed use.
(c)
A map showing and identifying all lots within 200 feet of the property for which use by special exception approval is requested and a list of the names and addresses of the owners of these lots from the most recent records of the Allegheny County Tax Assessors Office.
(d)
A traffic Impact analysis, if required by the applicable Ordinance.
[Amended by Ord. No. 780, 8/31/2017]
(2)
A hearing pursuant to public notice per MPC § 908(1) is held by the applicable Zoning Hearing Board. Said hearing shall be conducted in accordance with the procedures specified provisions of MPC § 908(1.2) and MPC § 908(2) through (8).
(3)
Decision and approval procedures for the Zoning Hearing Board shall be as those defined as part of MPC § 908(9).
(4)
The delivery of decision for the Zoning Hearing Board shall be as those defined as part of MPC § 908(10).
(5)
In considering an application for approval of a use by special exception, the applicable Zoning Hearing Board may prescribe appropriate conditions and safeguards in conformity with the spirit and intent of this Ordinance. A violation of such conditions and safeguards, when made part of the terms and conditions under which approval of a use by special exception is granted, shall be deemed a violation of this Ordinance.
B.
Expiration of Approval of Use by Special Exception. An approved special exception use shall be complete within 18 months following the date of approval, unless the applicable Zoning Hearing Board has established a different completion date at the time of approval. Also, the applicable Zoning Hearing Board may grant an extension of time for any completion date if the applicant or his agent requests such an extension and if good cause for the extension is shown. There are no other exceptions to this rule. If, at the end of the eighteen-month period or extended completion period, the special exception use is not completed, and if no extension has been granted, the approval of the special exception use shall be null and void.
C.
Expiration of Approval of Use by Special Exception Granted Prior to Effective Date of this Ordinance. Approval of a use by special exception granted prior to the effective date of this Ordinance shall expire automatically without written notice to the applicant if no application for a grading permit, building permit or zoning certificate to undertake the construction or authorize the occupancy described in the application for approval of the use by special exception is submitted within 12 months of the effective date of this Ordinance or as specified in the approval, unless the applicable Zoning Hearing Board, in their sole discretion, extends approval of the use by special exception upon written request of the applicant received prior to its expiration. The maximum extension permitted shall be one twelve-month extension.
§ 2000-1102 Conditional Uses Procedure for Approval.
[Ord. 738, 8/18/2009]
A.
Approval of Conditional Uses.
(1)
The applicable Borough Council shall hear and decide requests for conditional uses within 45 days after the last hearing before the governing body. Where the application is contested or denied, each decision shall be accompanied by findings of fact or conclusions based thereon, together with any reasons therefore. Conclusions based on any provisions of this Ordinance or any other ordinance contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found.
(2)
Where the applicable Borough Council fails to render the decision within the period required by this subsection or fail to commence, conduct or complete the required hearing as provided in § 908(1.2) of the Pennsylvania Municipalities [Planning] Code, within 60 days from the date of the applicant's request for a hearing or fails to complete the hearing no later than 100 days after the completion of the applicant's case-in-chief, unless extended for good cause upon application to the Allegheny County Court of Common Pleas, 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 failure of the governing body to meet or render a decision as hereinabove provided, the Borough Council shall give public notice of the decision within 10 days from the last day it could have met to render a decision in the same manner as required by the public notice requirements of this act. If the applicable Borough Council shall fail to provide such notice, the applicant may do so.
(3)
Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction. A copy of the final decision or, where no decision is called for, the findings shall be delivered to the applicant personally or mailed to him no later than the day following its date.
(4)
Given the requirements of subsections (1) through (3), the applicable Borough Council shall not evaluate a conditional use application unless and until:
(a)
A written application for conditional use approval is submitted to the applicable Zoning Officer no less than 10 working days prior to the regular meeting of the Joint Planning Commission for review. Review procedures by the Joint Planning Commission shall be conducted in conformance with those defined in the Pennsylvania Municipalities Planning Code.
(b)
The application shall indicate the section of this Ordinance under which conditional use approval is sought and shall state the grounds upon which it is requested. The applicable Zoning Officer shall determine the completeness of the application and either accept the applications complete and properly filed or return the application to the applicant for resubmission if the application is incomplete and improperly filed. If the application is returned as incomplete, a written notice, which cites the specific requirements of this Ordinance, which have not been met, shall be sent to the applicant. The application shall include the following:
(i)
A Development Plan, as defined by the applicable Ordinance.
[Amended by Ord. No. 780, 8/31/2017]
(ii)
A written statement showing compliance with the applicable express standards and criteria of this Article for the proposed use.
(iii)
A map showing and identifying all lots within 200 feet of the lot for which conditional use approval is requested and a list of the names and addresses of the owners of these lots from the most recent records of the Allegheny County Tax Assessors Office.
(iv)
A traffic impact analysis, if required or by the requirements of this Article.
(c)
A written recommendation is received from the Joint Planning Commission or 30 days has passed from the date of the Joint Planning Commission meeting at which the application is first considered for approval.
(d)
A hearing pursuant to public notice per MPC § 908(1) is held by the applicable Borough Council. Said hearing shall be conducted in accordance with the procedures specified provisions of MPC § 908(1.2).
(e)
Decision and approval procedures for the Council shall be as those defined as part of MPC § 913.2(b)(1).
(f)
The delivery of decision for the Council shall be as those defined as part of MPC § 908(10).
(g)
In granting a conditional use, the applicable Borough Council may attach such reasonable conditions and safeguards in addition to those expressed in this Ordinance, as it may seem necessary to implement the purposes of the Municipalities Planning Code and this Ordinance.
B.
Expiration of Conditional Use Approval. An approved conditional use shall be complete within 18 months following the date of approval, unless the applicable Council has established a different completion date at the time of approval. Also, the applicable Council may grant an extension of time for any completion date if the applicant or his agent requests such an extension and if good cause for the extension is shown. There are no other exceptions to this rule. If, at the end of the eighteen-month period or extended completion period, the conditional use is not completed, and if no extension has been granted, the approval of the conditional use shall be null and void.
C.
Expiration of Conditional Use Approval Granted Prior to Effective Date of this Ordinance. Conditional use approval granted prior to the effective date of this Ordinance shall expire automatically without written notice to the applicant if no application for a grading permit, building permit or zoning certificate to undertake the construction or authorize the occupancy described in the application for conditional use approval is submitted within 12 months of the effective date of this Ordinance or as specified in the approval, unless the Borough Council, in their sole discretion, extends conditional use approval upon written request of the applicant received prior to its expiration. The maximum extension permitted shall be one twelve-month extension.
§ 2000-1103 Use of Flood-Prone Land.
[Ord. 738, 8/18/2009]
Areas of lot designated as being floodprone should be encouraged for parking, outdoor storage of non-flammables, non-liquid, non-buoyant materials, or planted buffer area. Such areas may be used for all other permitted uses within the Zoning District where located when such use is in strict compliance with the requirements of this Ordinance.
A.
Identification.
(1)
Flood-prone areas (floodplain areas) shall be any areas of the applicable Borough which are identified as Zone A (area of special flood hazard) on the current Flood Insurance Rate Map (FIRM) as issued by the Federal Emergency Management Agency (FEMA) dated October 4, 1995, and any revision thereto.
(2)
Determination of the Regulatory Flood Elevation. For the purposes of this Ordinance, the regulatory flood elevation, i.e., the one-hundred-year flood elevation plus a freeboard safety factor of 1 1/2 feet shall be used. When available, information from other Federal, State and other acceptable sources shall be used to determine the one-hundred-year flood elevation, as well as a floodway area, if possible. When no other information is available, the one-hundred-year flood elevation shall be determined by using a point on the boundary of the identified floodplain area which is nearest the construction site in question. In helping to make this necessary elevation determination, other sources of data, where available, shall be used such as:
(a)
Corps of Engineers — Floodplain Information Reports.
(b)
U.S. Geological Survey — Flood Prone Quadrangles.
(c)
U.S.D.A., Natural Resource Conservation Service — County Soil Surveys (Alluvial Soils).
(d)
Known high-water marks from past floods.
(e)
In lieu of the above, the applicable Borough may require the applicant to determine the elevation with hydrologic and hydraulic engineering techniques. Hydrologic and hydraulic analyses shall be undertaken only by professional engineers or others of demonstrated qualifications, who shall certify that the technical methods used correctly reflect currently accepted technical concepts. Studies, analyses, computations, etc., shall be submitted in sufficient detail to allow a thorough technical review.
(3)
Changes in Designation of Area(s). The delineation of any of the identified floodprone area(s) may be revised by the applicable Borough Council where natural or man-made changes have occurred and/or where more detailed studies conducted or undertaken by the U.S. Army Corps of Engineers, river basin commission or other qualified agency or individual documents the notification for such changes. However, prior to any such change, approval must be obtained from the Federal Insurance Administration (FIA).
(4)
Boundary Disputes. Should a dispute concerning any district boundary arise, an initial determination shall be made by the Joint Borough Planning Commission and any party aggrieved by this decision may appeal to the applicable Zoning Hearing Board. The burden of proof shall be on the appellant.
B.
Application Procedures. All applications for building permits, proposed subdivisions, or other development located within or adjacent to any identified floodplain areas, shall, in addition to all other required information, provide the specific information described herein.
(1)
A plan which accurately delineates the area which is subject to flooding, the location of the proposed construction, the location of any other floodprone development or structures, and the location of any existing or proposed stream improvements of protective works. The plan shall show:
(a)
All such proposals are consistent with the need to minimize flood damage.
(b)
All utilities and facilities, such as sewer, gas, electrical and water systems are located, elevated, and constructed to minimize or eliminate flood damage.
(c)
Adequate drainage is provided so as to reduce exposure to flood hazards.
(d)
Existing and proposed contours; information concerning one-hundred-year flood elevations, and other applicable information such as uplift forces, associated with the one-hundred-year flood; size of structures, location and elevation of streets, water supply and sanitary sewage facilities; soil types; and floodproofing measures.
(e)
Adequate information demonstrating the flood carrying capacity of any affected water course whether or not it is to be altered.
(f)
Prior to any proposed alteration or relocation of any stream or any watercourse, etc., within the applicable Borough, a permit shall be obtained from the Department of Environmental Resources, Dams and Encroachment Division, as specified in the Water Obstruction Act of 1913, as amended.
(g)
Under no circumstances shall any use, activity, and/or development adversely affect the capacity of the channels or floodways of any watercourse, drainage ditch, or any other drainage facility or system.
(h)
Further, notification of the proposal shall be given to all affected adjacent municipalities. Copies of such notifications shall be forwarded to both the Federal Insurance Administration and the Department of Community Affairs.
(2)
Applications for a building permit shall show the elevation of the lowest floor (including basement) based upon National Geodetic Vertical Datum of 1929.
(3)
A document certified by a registered professional engineer or architect that the proposed construction has been adequately designed against flood damage and that the plans for development of the site adhere to the restrictions cited in this Ordinance. Such statement shall include a description of the type and extent of flood proofing measures which have been incorporated into the design, and the level to which any structures have been floodproofed.
C.
Specific Design Requirements.
(1)
Structures.
(a)
All buildings and structures and substantial improvements thereto shall be designed, located and constructed so as to offer the minimum obstruction to the flow of water and shall be designed to have a minimum effect upon the height of flood waters.
(b)
All buildings and structures and substantial improvements thereto shall be firmly anchored in accordance with accepted engineering practices to prevent flotation, collapse or lateral movement.
(c)
Within any identified flood-prone area, the elevation of the lowest floor (including basement) of residential structures shall be at or above the regulatory flood elevation.
(d)
Within any identified flood-prone area, the elevation of the lowest floor (including basement) of nonresidential structures shall be at or above the regulatory flood elevation or be flood-proofed up to that height.
(e)
Any structure, or part thereof, which is not elevated to the regulatory flood elevation, shall be floodproofed in a completely or essentially dry manner in accordance with the W1 or W2 space classification standards contained in the publication entitled "Flood-Proofing Regulations" published by the U.S. Army Corps of Engineers (June 1972, as amended March 1992) or with some other equivalent standard. All plans and specifications for such floodproofing shall be accompanied by a statement certified by a registered professional engineer or architect which states that the proposed design and methods of construction are in conformance with the referenced standards.
(f)
Fully or partially enclosed space below the lowest floor (including basement) is prohibited.
(g)
Floors, Walls and Ceilings.
(i)
Wood flooring at or below the regulatory flood elevation shall be installed to accommodate a lateral expansion of the flooring, perpendicular to the flooring grain, without causing structural damage to the building.
(ii)
Plywood used at or below the regulatory flood elevation shall be of a "marine" or "water resistant" variety.
(iii)
Walls and ceilings at or below the regulatory flood elevation shall be designed and constructed of materials that are "water resistant" and will withstand inundation.
(iv)
Windows, doors and other components at or below the regulatory flood elevation shall be made of metal or other "water resistant" material.
(h)
Paints and Adhesives.
(i)
Paints and other finishes used at or below the regulatory flood elevation shall be of "marine" or "water-resistant" quality.
(ii)
Adhesives used at or below the regulatory flood elevation shall be of a "marine" or "water resistant" variety.
(iii)
All wooden components (doors, trim, cabinets, etc.) shall be finished with a "marine" or "water-resistant" paint or other finishing material.
(2)
Utilities.
(a)
All new or replacement sanitary sewage systems, water, gas, and oil supply systems shall be designed to prevent infiltration of flood waters into the system and discharges from the system into flood waters. Additional provisions shall be made for the drainage of these systems in the event that flood water infiltration occurs.
(b)
All stationary mechanical equipment such as water heaters, furnaces, air conditioning and ventilating systems shall be located above the regulatory flood elevation.
(c)
Electrical distribution panels shall be at least three feet above the regulatory flood elevation. Separate electrical circuits shall serve lower levels and shall be dropped from above.
(d)
No part of any on site sewage disposal system shall be located within any identified flood prone area.
(3)
No materials that are buoyant, flammable, explosive, or in time of flooding, could be injurious to human, animal, or plant life, shall be stored below the regulatory flood elevation.
(4)
The finished elevation of proposed new streets shall be no less than the regulatory flood elevation.
D.
Existing Structures in Identified Floodprone Areas. Structures existing in any identified floodprone area prior to the enactment of this Ordinance, but which are not in compliance with these provisions, may continue to remain subject to the following:
(1)
Any modification, alteration, reconstruction, or improvement of any kind to an existing structure, to an extent or amount of less than 50% of its market value, shall be elevated and/or floodproofed to the greatest extent possible.
(2)
Any modification, alteration, reconstruction, or improvement of any kind to an existing structure, to an extent or amount of 50% or more of its market value, shall be undertaken only in full compliance with the provisions of this Ordinance.
(3)
No expansion or enlargement of an existing structure shall be allowed within any floodway area that would cause any increase in the elevation of the one-hundred-year flood.
E.
Prohibited Activities Within a Floodplain Area. Within any identified floodplain area the following shall be prohibited:
(1)
The construction, development or operation of any hospital, nursing home or related care facility; jail or prison, mobile homes and/or mobile home parks.
(2)
Any other construction or development which may endanger human life.
(3)
Any construction or development which would include in its use or operation the production, use of or storage of any dangerous material or substance such as listed below but not limited thereto:
(a)
Acetone.
(b)
Ammonia.
(c)
Benzene.
(d)
Calcium carbide.
(e)
Carbon disulfide.
(f)
Celluloid.
(g)
Chlorine acid.
(h)
Hydrochloric acid.
(i)
Hydrocyanic acid.
(j)
Magnesium.
(k)
Nitric acid and oxides of nitrogen.
(l)
Petroleum products (gasoline, fuel oil, etc.).
(m)
Phosphorus.
(n)
Potassium.
(o)
Sodium.
(p)
Sulfur and sulfur products.
(q)
Pesticides (including insecticides, fungicides and rodenticides).
(r)
Radioactive substances, insofar as such substances are not otherwise regulated.
F.
Variances. If compliance with any of the requirements of this Ordinance would result in an exceptional hardship to a landowner or developer, the applicable Borough may, upon request, grant relief from the strict application of the requirements. Requests for variances shall be considered in accordance with the procedures contained in the MPC and the following:
(1)
No variance shall be granted to allow any of the prohibited activities or for any of the other requirements pertaining specifically to development which may endanger human life.
(2)
No variance shall be granted for any construction, development, use or activity within any floodway area that would cause any increase in the one-hundred-year flood elevation.
(3)
In reviewing any request for a variance, the applicable Borough shall consider, at a minimum, the following:
(a)
There is good and sufficient cause.
(b)
Failure to grant the variance would result in exceptional hardship to the applicant.
(c)
The granting of the variance will (i) neither result in an unacceptable or prohibited increase in flood heights, additional threats to public safety or extraordinary public expense; (ii) nor create nuisances, cause fraud on or victimize the public, or conflict with any other applicable State or local ordinances and regulations.
(d)
Notwithstanding any of the above, however, all structures shall be designed and constructed so as to have the capability of resisting the one-hundred-year flood.
(5)
A complete record of all variance requests and related actions shall be maintained by the applicable Borough. In addition, a report of all variances granted during the year shall be included in the annual report to the Federal Insurance Administration.