Concord Township City Zoning Code
ARTICLE XXVIII
Zoning Hearing Board - Variances, Special Exceptions, Appeals
§ 210-239 Establishment of Board.
[Amended 1-5-1998 by Ord. No. 221; 2-2-1999 by Ord. No. 237; 12-5-2000 by Ord. No. 253; at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
The Township Council shall appoint a Zoning Hearing Board consisting of five residents of the Township. The terms of office of the five-member Board shall be five years and shall be so fixed that the term of office of one member shall expire each year, beginning the first Monday of January 2000. The Board shall promptly notify the governing body of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Board shall hold no other office in the municipality. The word "Board," when used in this section, shall mean the Zoning Hearing Board, and the term "Planning Code" shall refer to the Pennsylvania Municipalities Planning Code.[1] Members of the Board shall receive compensation for attending hearings and for the performance of their duties; such compensation rate as may be established from time to time by the Concord Township governing body by resolution.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
§ 210-240 Removal of members.
[Amended 12-5-2000 by Ord. No. 253]
Any Board member may be removed for failure to attend hearings and meetings of the Board by a majority vote of the Township Council, taken after the member has received 15 days' advance notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member shall request it, in writing.
§ 210-241 Election of officers.
[Amended 3-5-1991 by Ord. No. 177]
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 the taking of any action, a quorum shall be not less than a majority of all the members of the Board, but 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 § 210-243. The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the municipality and laws of the commonwealth. The Board shall keep full public records of its business and shall submit a report of its activities to the governing body once a year.
§ 210-242 Powers of Board.
The Zoning Hearing Board shall have the following powers:
A.
Appeals from the Zoning Officer. The Board shall hear and decide appeals where it is alleged by the appellant that the Zoning Officer or the person who administers the Concord Township Zoning Ordinance had failed to follow prescribed procedures or had misinterpreted or misapplied any provision of a valid ordinance or map or any valid rule or regulation governing the action of the Zoning Officer or the person who administers the Concord Township Zoning Ordinance.
B.
Challenge to the validity of any ordinance or map. The Board shall hear challenges to the validity of this chapter or to the Zoning Map which properly come before the Board in accordance with the Municipalities Planning Code and shall take evidence, decide contested questions, make findings on all relevant issues of fact and make a record thereof, as prescribed by said code and by this chapter.
C.
Variances.
(1)
The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant.
(2)
A variance from the terms of this chapter shall not be granted by the Board unless and until a written application for a variance is submitted by the applicant who shall have the burden of establishing that:
(a)
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.
(b)
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 and that the authorization of the variance is therefore necessary to enable the reasonable use of the property.
(c)
Such unnecessary hardship has not been created by the appellant.
(d)
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.
(e)
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.
(3)
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the Municipalities Planning Code and this chapter of the Concord Township Code.
D.
Special exceptions.
(1)
Where the Township Council in this chapter has stated special exceptions to be granted or denied by the Board pursuant to express standards and criteria, the Board shall hear and decide requests for such special exceptions in accordance with such 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 this chapter and the Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(2)
An applicant for a special exception shall have the burden of establishing both:
(3)
In determining whether the allowance of a special exception or a variance is contrary to the standards of law, the Board shall consider whether the application, if granted, will:
(a)
Substantially increase traffic congestion in the streets.
(b)
Increase the danger of fire or panic or otherwise endanger the public safety.
(c)
Overcrowd the land or create an undue concentration of population.
(d)
Impair an adequate supply of light and air to adjacent property.
(e)
Be consistent with the surrounding zoning and uses.
(f)
Adversely affect the Comprehensive Plan of the Township.
(g)
Unduly burden water, sewer, school, park or other public facilities.
(h)
Otherwise adversely affect the public health, safety, morals or general welfare.
E.
General requirements; variances and special exceptions.
(1)
In all cases, the applicant's burden of proof shall include the duty of presenting credible evidence sufficient to persuade the Board that applicant has satisfied the criteria set forth in Subsections C(2) and D(2). In any case where the Board requests that the applicant produce evidence relating to the criteria set forth in Subsection D(3) of this section or any other party opposing the application shall have established by evidence the possibility that an allowance of the application will have any of the effects listed in Subsection D(3) of this section, the applicant's burden of proof shall include the burden presenting credible evidence sufficient to persuade the Board that allowance of a special exception or variance will not violate this chapter with respect to the criteria so placed in issue.
[Amended 3-5-1991 by Ord. No. 177]
(2)
Standards for specific uses. In addition to the general requirements and standards set forth in § 210-242A through E, the Township Council of Concord Township may from time to time create additional conditions, requirements and standards for specific uses which may be allowed by the Zoning Hearing Board.
(3)
Expiration of special exceptions and variances. Unless otherwise specified by the Zoning Hearing Board, a special exception or variance shall expire if the applicant fails to obtain a building permit within six months from the date of authorization thereof.
§ 210-243 Public 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 Delaware County Planning Commission, the Zoning Officer or the person who administers the Concord Township Zoning Ordinance and to any person who made timely request for the same. Notices shall be given at such time in such manner as shall be prescribed by rules of the Board. Reasonable fees, based on cost, are to be paid by the applicant and by persons requesting any notice not required by ordinance, as established by the Township Council. In addition to the notice provided herein, notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.
[Amended 1-5-1998 by Ord. No. 221]
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 to the hearing shall be the Township of Concord, any person affected by the application who has made timely appearance of record before the Board and any other person, including civic and community organizations, permitted to appear before the Board. The Board shall have 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 contest the material so noticed; and shall not inspect the site or its surroundings with any party or his representative unless all parties are given an opportunity to be present.
I.
Decision.
(1)
The Board or the 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 therefor. Conclusions based on any provisions of the state code or of any Township ordinance, rule or regulation shall contain a reference to the provision 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 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 final decision or entry of findings, and the Board's decision shall be entered no later than 30 days after the decision of the hearing officer. Where the Board fails to render a 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, to an extension of time.
[Amended 1-5-1998 by Ord. No. 221]
(2)
When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a decision as herein provided, the Township shall give public notice of said decision within 10 days in the same manner as provided in Subsection A of this section. Nothing in this subsection shall prejudice the right of any party opposing the application to urge that such decision is erroneous.
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 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.
[Amended 1-5-1998 by Ord. No. 221]
§ 210-244 Appeals.
A.
Appeals before the Zoning Board and to court. All appeals, applications or challenges which properly come before the Board in accordance with the requirements of the Municipalities Planning Code, and all appeals to court shall be subject to the time limitations and requirements of Article X-A of the MPC and any other applicable provision of said code. The proceedings set forth in said Article X-A shall constitute the exclusive mode for securing review of any ordinance, decision, determination or order of the Township Council, its agencies or officers adopted or issued pursuant to the Municipalities Planning Code. Appeals to court shall be taken to the Court of Common Pleas of Delaware County.
B.
Unified appeals. Where the Board has jurisdiction over a zoning matter pursuant to § 210-242A through D, 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 such cases, the Board shall have no power to pass upon the nonzoning issues, but shall take evidence and make a record thereon as provided in § 210-243. 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.
C.
Parties appellant before Zoning Board. Appeals under § 210-242A and proceedings to challenge an ordinance under § 210-242B may be filed with the Board, in writing, by any officer or agency of the Township or any person aggrieved. Requests for a variance under § 210-242C and for special exception under § 210-242D may be filed with the Board by any landowner or any tenant with the permission of such landowner.
D.
Time limitations. The time limitations for raising certain issues and filing certain proceedings with the Board shall be the following:
(1)
No person shall be allowed to file any proceeding with the Board later than 30 days after any application for building permit or any other application has been approved or rejected 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 had not notice, knowledge or reason to believe that such approval had 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.
(2)
The failure of anyone other than the landowner to appeal from an adverse decision on a tentative or preliminary plan pursuant to Section 709 of the Pennsylvania Municipalities Planning Code[1] or from an adverse decision by a zoning officer on a challenge to the validity of an ordinance or map pursuant to Section 916.2 of the Pennsylvania Municipalities Planning Code[2] 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.
[Amended 1-5-1998 by Ord. No. 221]
E.
Stay of proceedings. Upon filing of any proceeding referred to § 210-244C of this chapter and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or the person who administers the Concord Township Zoning Ordinance or of any agency or body and all official action there under shall be stayed unless the Zoning Officer or any other 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 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. 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. After consideration of all evidence presented, if the court determines that the appeal is frivolous and is for the purpose of delay, it shall grant the petition. 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. 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.
[Amended 1-5-1998 by Ord. No. 221]
§ 210-245 Compliance with Pennsylvania Municipalities Planning Code.
It is the intent of the Township Council of Concord Township that the provisions of this Article XXVIII comply with the requirements of the Pennsylvania Municipalities Planning Code as the same exists from time to time.[1] Therefore, any amendment to the provisions of the Planning Code or any inconsistency between the provisions of the Planning Code and the provisions of this Article XXVIII shall be resolved by applying the provisions of the Pennsylvania Municipalities Planning Code as the same may then exist, and such provisions shall be deemed to supersede any inconsistent or contrary provision of this Article XXVIII.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.