Caernarvon Township
City Zoning Code
City Zoning Code
ARTICLE VIII
Zoning Hearing Board
§ 500-80 Creation and membership.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
There is hereby created a Zoning Hearing Board. As used in this chapter, unless expressly indicated otherwise, the term "Board" shall refer to the Zoning Hearing Board. Members of the Board shall be appointed by the Board of Supervisors. The Board shall consist of five members, whose terms shall be five years and shall be fixed so that the term of office of no more than one member shall expire each year. Appointments to vacancies shall be only for the unexpired portion of the term. Members shall be residents of the Township and shall hold no other office in the Township. Of the two additional members appointed to create this five-member board, one shall be appointed for a one-year term and one shall be appointed for a two-year term. Member shall be removable for cause by the Board of Supervisor in accordance with the procedures established in the Pennsylvania Municipalities Planning Code, as amended, 53 P.S. § 10101 et seq. The governing body may appoint by resolution at least one but no more than three residents of the municipality to serve as alternate members of the Board. The term of office of an alternative member shall be three years. When seated pursuant to § 500-81, an alternate 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 of a member as otherwise provided by law. Alternates shall hold no other office in the municipality, including membership on the Planning Commission and Zoning Officer. Any alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote as a member of the Board unless designated as a voting alternate member pursuant to § 500-81.
§ 500-81 Organization; meetings.
The Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves. For the conduct of any hearing and taking of any action, a quorum shall not be less than a majority of all the members of the Board but where two members are disqualified to act in a particular matter, the remaining member may act for the Board. The Board may appoint a hearing officer from its own membership to conduct any hearing on its behalf and the parties may waive further action by the Board as provided in § 500-83B. The Board may make, alter, and rescind rules and forms for its procedures, consistent with this chapters of the Township and laws of the Commonwealth of Pennsylvania. Meetings shall be held at the call of the Chairman and at such other times as the Board may determine. All meetings of the Board shall be open to the public. The Board shall keep full public records of its business and shall submit a report of its activities to the Board of Supervisors once a year. 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. 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. Designation of an alternate pursuant to this section shall be made on a case by case basis in rotation according to declining seniority among all alternates.
§ 500-82 Expenditures.
Within the limits of funds appropriated by the Board of Supervisors, the Board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services. Members of the Board may receive compensation for the performance of their duties, as may be fixed by the Board of Supervisors, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors.
§ 500-83 Hearings.
The Board shall conduct hearings and make decisions in accordance with the following requirements:
A.
Notice shall be given to the public, the applicant, the County Planning Commission, the Zoning Officer, such other persons as the Board of Supervisors shall designate by ordinance and to any person who has made timely request for the same. Notices shall be given at such time and in such manner as shall be prescribed by ordinance or, in the absence of ordinance provisions, by rules of the Board. The Board of Supervisors may establish reasonable fees, based on cost, to be paid by the applicant and by persons requesting any notice not required by ordinance.
B.
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.
C.
The parties of 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 by the Board for that purpose.
D.
The Chairman or acting Chairman of the Board or the hearing officer presiding shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.
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, as the case may be, shall keep a stenographic record of the proceedings and a transcript of the proceedings and copies of graphic or written material received in evidence shall be made available to any party at cost.
H.
The Board or the hearing officer shall not communicate, directly or indirectly, with any party or his representatives in connection with any issue involved, except upon notice and opportunity for all parties to participate; shall not take notice of any communication, reports, staff memoranda or other materials unless the parties are afforded an opportunity to context the material so noticed; and shall not inspect the site or its surroundings after the commencement of hearings with any party or his/her representative unless all parties are given an opportunity to be present.
I.
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. Each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefore. Conclusions based on provisions of Act No. 247, the Pennsylvania Municipalities Planning Code, as amended,[1] or of any ordinance, rule or regulation shall contain a reference to the provisions relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found. If the hearing is conducted by a hearing officer, and there has been no stipulation that his/her decision or findings are final, the Board shall make his/her report and recommendations available to the parties and the parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings, and the Board's decision shall be entered no later than 45 days after the decision of the hearing officer. Where the Board has power to render a decision and the Board or hearing officer, as the case may be, fails to render the same within the period required by this subsection, the decision shall be deemed to have been rendered in favor of the applicant, unless the applicant has agreed in writing to an extension of time.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
J.
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/her not later than the day following its date. To all other persons who have filed their name and address with the Board not later then 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.
§ 500-84 Functions.
A.
The Board shall perform the following functions:
(1)
To hear and decide appeals where it is alleged that the Zoning Office has failed to follow prescribed procedures or he/she misinterpreted or misapplied any provision of this chapter or map or rules or regulations governing the actions of the Zoning Officer.
(2)
Variances.
(a)
To hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. In any instance where the Zoning Hearing Board is required to consider a variance, the Board shall not grant a variance unless it has determined:
[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 this Chapter 500, Zoning, 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 this Chapter 500, Zoning, 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.
(b)
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this act and this Chapter 500, Zoning.
(c)
The person applying for a variance shall introduce evidence at the hearing which will allow the Zoning Hearing Board to make these determinations or to decide that it cannot make these determinations and thus cannot grant a variance.
(d)
When considering requests for variances, the Board shall consider:
[1]
Whether the proposed variance will impair the development of the Comprehensive Plan for the Township and whether the proposed variance is inconsistent with the goals and policies of the Comprehensive Plan.
[2]
Whether the surrounding streets are sufficient to handle any expected increase in traffic generated by the proposed use.
[3]
Whether the proposed variance is consistent with the spirit, intent and purpose of this chapter.
[4]
Whether the proposed variance will have an adverse effect upon the logical and economical extension of public services and facilities, such as public water, police, and fire protection and public schools.
[5]
Whether the applicant acquired the land or structure involved with a knowledge that he would subsequently request a variance.
(3)
To hear and decide requests for special exceptions where this chapter provides for special exceptions to be granted or denied by the Board pursuant to expressed standards and criteria.
(a)
No special exception shall be granted unless the Zoning Hearing Board shall determine that:
[1]
The proposed use does not impair the development of the Comprehensive Plan.
[2]
The surrounding streets are sufficient to handle any expected increase in traffic generated by the proposed use.
[3]
The proposed use will not adversely affect the public health, safety, or general welfare.
[4]
The required area, yard, and bulk requirements and all other requirements of the applicable zoning district are met.
[6]
The proposed use is not incompatible with the use of adjacent land.
[7]
Services and utilities are available to adequately service the proposed use.
(b)
In granting a special exception, the Board may require such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.
(4)
To hear challenges to the validity of this chapter or map except as indicated in § 500-87E or when a landowner appeals a substantive question regarding the validity of this chapter to the Board of Supervisors. In all such challenges, the Board shall take evidence and make a record thereon as provided in § 500-83. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact which shall become part of the record on appeal to court.
(5)
Where the Board has jurisdiction over a zoning matter pursuant to Subsection A(1), (2) and (4), the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any municipal ordinance or requirement pertaining to the same development plan or development. In any case, the Board shall have no power to pass upon the nonzoning issues, but shall take evidence and make a record thereon as provided in § 500-82. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
(6)
To exercise any other power specifically granted to the Board under the terms of this chapter, provided these powers are not in conflict with the functions listed above.
B.
In exercising the above-mentioned functions, the Board may reverse or affirm, wholly or in part, or may modify the order, requirement, decision, or determination, including any order requiring an alleged violator to stop, cease and desist, or discontinue and may make such order, requirement, decision or determination, including a stop order or orders to cease and desist as ought to be made.
§ 500-85 Special exceptions.
Applications for those uses permitted as special exceptions in a particular zoning district shall be made in writing to the Board on a form specified for such purpose and shall contain the material required for a building permit.
§ 500-86 Variances.
Application for variances from the requirements of this chapter shall be made in writing to the Board on a form specified for such purpose and shall contain the material required for a building permit, together with statements providing evidence pertinent to the requirements of § 500-84A(2) above.
§ 500-87 Appeals.
A.
Parties appellant before the Board. Appeals from an action of the Zoning Officer or challenges to this chapter and map 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 a special exception may be filed with the Board by any landowner or any tenant with the permission of such landowner.
B.
Time limitations and persons aggrieved.
(1)
No person shall be allowed to file any proceeding with the Board later than 30 days after any application for development, preliminary or final, has been approved by an appropriate Township officer, agency, or body if such proceeding is designed to secure reversal or to limit the approval in any manner unless such person alleges and proves that he/she had no notice, knowledge, or reason to believe that such approval had been given. If such person has succeeded to his/her interest after such approval, he/she shall be bound by the knowledge of his/her predecessor in interest.
(2)
The failure of anyone other than the landowner to appeal from an adverse decision by the Zoning Officer on a challenge to the validity of this chapter or map pursuant to § 500-84A(4) shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative or preliminary approval.
C.
Stay of proceedings. Upon filing of any proceeding referred to in § 500-83 and during its pendency before the Board, all land development pursuant to any challenged ordinance, order, or approval of the Zoning Officer or of any agency or body, and all official action thereunder shall be stayed unless the Zoning Officer or any appropriate agency or body certifies to the Board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the Board or by the court having jurisdiction of zoning appeals on petition after notice to the Zoning Officer or other appropriate agency or body. When an applicant 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. The question of whether or not such petitions should be granted and the amount of the bond shall be within the sound discretion of the court.
D.
Appeals to court. Appeals to court shall be in accordance with the procedures established in Section 1008 Act 93 of 1972.[1] Appeals to court shall be taken to the Court of Common Pleas of Berks County.
[1]
Editor's Note: Act 93 of 1972 was repealed 12-21-1988 by P.L. 1329, No. 170; see now 53 P.S. § 11001-A et seq.
E.
Validity of ordinance: procedure questions. Questions of an alleged defect in the process of enactment or adoption of this chapter or map shall be raised by an appeal taken directly from the action of the Township Supervisors to the Common Pleas Court of Berks County filed not later than 30 days from the effective date of this chapter or map.
F.
Validity of ordinance: substantive questions.
(1)
Landowner appeals.
(a)
A landowner who, on substantive grounds, desires to challenge the validity of this chapter or map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge either to the Zoning Hearing Board for a report thereon or to the Board of Supervisors, together with a request for a curative amendment.
(c)
After submitting his/her challenge to the Board of Supervisors, the landowner may appeal to court by filing the challenge within 30 days after notice of the report of the Board is issued, or after the Township Supervisors have denied the landowner's request for a curative amendment.
(2)
Appeals by persons aggrieved.
(a)
Persons aggrieved by a use or development permitted on the land of another by this chapter or map or provision thereof who desire to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a report thereon.
(c)
After submitting his/her challenge to the Board, any party aggrieved may take the same to court by appeal filed not later than 30 days after notice of the report of the Board is issued.
G.
Applications, decisions, and orders not involving the validity of an ordinance.
(1)
Landowner appeals. A landowner who desires to file a zoning application or to secure review or correction of a decision or order of the Township Supervisors or any officer or agency of the Township which prohibits or restricts the use or development of land in which he/she has an interest on the grounds that such decision or order is not authorized by or is contrary to the provision of an ordinance or map shall proceed in accordance with Section 1006 of Act 93 or 1972.[4]
[4]
Editor's Note: Act 93 of 1972 was repealed 12-21-1988 by P.L. 1329, No. 170; see now 53 P.S. § 11001-A et seq.
(2)
Appeals by persons aggrieved.
(a)
Persons aggrieved by a use or development permitted on the land of another who desire to secure review or correction of a decision or order of the governing body or of any officer or agency of the municipality which has permitted same, on the grounds that such decision or order is not authorized by or is contrary to the provisions or an ordinance or map shall first submit their objections to the Zoning Hearing Board.
(c)
Appeals to court from the decision of the Zoning Hearing Board may be taken by any party aggrieved by appeal filed not later than 30 days after notice of the decision is issued.