Darby City Zoning Code
ARTICLE XVIII
Procedures and Standards for Conditional Uses
§ 153-143 Purpose.
A.
The purpose of this article is to provide standards and procedures for uses authorized only by conditional use within this chapter. In reviewing conditional uses, Borough Council may attach reasonable conditions and safeguards, in addition to those expressed in the article, as it may deem necessary to implement the purposes of this chapter and those of the MPC, Act 247, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
The reason for a use to be made conditional is the unusual and substantial impact it would exert upon the area and upon the public health, safety, and welfare, coordinated community development, parking and loading, traffic congestion, police and fire protection, emergency preparedness, sewer facilities, schools, recreational facilities, and public grounds.
§ 153-144 General requirements.
In any instance where Borough Council is required to consider a request for a conditional use permit, all notices, hearings, decision and orders concerning such request shall be made in conformity with the provisions of the State Planning Code (MPC), Act 247, 1968 as amended,[1] as well as the following provisions of this article.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
§ 153-145 Procedures and general standards.
A.
Application and fees. An application for a conditional use permit shall be made to the Zoning Officer, who after review shall forward such application to the Planning Commission and Borough Council. Such application shall be accompanied by a plan of the property showing the details of the proposed use, along with such other written and graphic material as may be required by the most recently adopted Delaware County Subdivision and Land Development Ordinance and other applicable provisions of this chapter. The application shall be accompanied by such fees as established by the Council for the administrative filing and reviews of conditional use permit applications.
B.
Planning Commission review and counsel. The Planning Commission shall perform a review and provide counsel to the Borough Council concerning the granting of approval or disapproval of the proposed conditional use. A written report may be submitted to Council before final action is taken on the proposal.
C.
Borough Council public hearing.
(1)
Within 60 days after the applicant files an application for a conditional use, the Borough Council shall hold a public hearing pursuant to public notice. Notice of the public hearing shall be given to those persons and agencies who would be entitled to notice if the same premises were subject to an application to the Zoning Hearing Board of Darby Borough as a special exception and to all others who have registered their names with the Darby Borough Zoning Officer.
(2)
After a full review of the application, the Council shall render a written decision, or when no decision is called for, make written findings on the application. When the application is contested or denied, the decision or written finding shall be accompanied by findings of fact or conclusions based thereon, together with any reasons therefore. The decision or written finding shall be made no later than 45 days after the last hearing.
(3)
The Borough Council shall approve or disapprove the application by resolution and shall send a written notification to the applicant within 10 days of a decision.
D.
Method of determination.
(1)
The Borough Council shall, within 45 days of the date of the last hearing, render a final decision and shall by official communication to the applicant either:
(a)
Approve the application as presented.
(b)
Disapprove the application as presented.
(c)
Approve the application, subject to specified conditions.
(2)
Failure to act within said period shall be deemed to be a grant of approval of the application.
(3)
If the application includes a land development plan then, after the Council has acted upon the application for conditional use, a detailed site plan review shall be required by the Borough. Such review shall be in accordance with the procedures outlined in the most recently adopted County Subdivision and Land Development Ordinance. If the applicant wishes to provide the necessary documentation, the Borough Council may consider the concurrent review of the conditional use requested and the detailed plans for the development. Time limits for review of the detailed plans, if necessary, will be governed by the most recently adopted County Subdivision and Land Development Ordinance.
E.
General requirements for review of conditional uses. In any instance where the Borough Council is required to consider a request for a conditional use, the Council shall consider the following factors, where appropriate, in addition to any specific standards listed in § 153-146:
(1)
That the proposed use is appropriate for the site in question in terms of size, topography, natural features, drainage, sewage disposal, water supply, accessibility, and availability of public services, and that adequate provisions be made to protect sensitive environmental features such as streams, wetlands, slopes, and mature trees.
(2)
That the proposed use is compatible with the character of the surrounding neighborhood and will not interfere with or detract from legitimate uses and adjacent properties and that adequate measures will be provided through building design, site layout, landscaping, planting, and operational controls to minimize any impacts caused by noise, light, glare, odors, smoke, fumes, traffic, parking, loading, and signage.
(3)
That the proposed conditional use will serve the best interest of the Borough, convenience of the community, and the public health, safety, and welfare.
(4)
That the proposed use is consistent with the community development objectives of Darby Borough that were adopted as part of this chapter.
(5)
That the proposed use promotes orderly development, proper population density, and the provision of adequate community facilities and services, including police and fire protection.
(6)
That the proposed use is suitable in terms of its effect on highway safety and traffic circulation, and that access, on-site circulation, and parking are adequate in view of anticipated traffic.
(7)
That existing public roads shall be adequate to serve additional traffic reasonably likely to be generated by the proposed use.
(8)
Financial hardship shall not be construed as a basis for granting conditional uses.
(9)
In granting any request for a conditional use, the Borough Council may attach reasonable conditions and safeguards in addition to those expressed in this article, as it may deem necessary to implement the purposes of the Pennsylvania Municipalities Planning Code[1] and this chapter. These conditions and safeguards may relate to, but may not be limited to, screening, lighting, parking, signage, noise, safety, aesthetics, and the minimization of noxious, offensive, or hazardous elements. Such conditional use shall be clearly authorized by a provision in this chapter and shall, where applicable, comply with the more specific standards relating to such use contained below in § 153-146 of this article and other relevant sections of this Zoning Ordinance.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(10)
In cases where conditional uses are not accompanied by specific standards listed below in this article, the regulations of Subsection F of this section shall apply.
F.
Requirements for review where standards are not provided. In cases where this article or Zoning Ordinance does not provide specific standards for conditional uses, the dimensional requirements below shall be applied by the Borough Council:
(1)
In residential districts, the area, bulk, and any other applicable requirements shall be no less stringent than those for single-family dwellings in the district where the use is proposed.
(2)
In nonresidential districts, the area, bulk, and any other applicable requirements shall be no less stringent than those for the use that requires the greatest dimensions in the applicable nonresidential district.
(3)
The Borough Council may require reasonable requirements in addition to those in Subsection F(1) or (2) above, provided that the Council makes one or more of the following determinations:
(a)
That the requirements of Subsection F(1) or (2) above are clearly:
[1]
Insufficient to accommodate the proposed building, facility, or use.
[2]
Insufficient to provide adequate area for parking and loading, as required by Article XIV, Parking Regulations.
[3]
Insufficient to provide for lot areas and dimensions necessary to protect the adjacent area from the potential adverse impacts of the proposed use, such as noise, vibration, air pollution, and similar impacts.
G.
Standards of proof.
(1)
An applicant for a conditional use permit shall have the burden of establishing both:
(a)
That his application falls within the provisions of this chapter, which affords to the applicant the right to seek a conditional use permit; and
(b)
That the allowance of a conditional use permit will not be contrary to the public interest.
H.
Impact on the public interest. In determining whether the allowance of a conditional use permit is contrary to the public interest, the Borough Council shall consider whether the application, if granted, will:
(1)
Adversely affect the public health, safety, and welfare due to changes in traffic conditions, drainage, air quality, noise levels, neighborhood property values, natural features, and neighborhood aesthetic characteristics.
(2)
Be in accordance with the community development objectives of Darby Borough that are part of this chapter.
(3)
Provide required parking in accordance with Article XIV.
(4)
Adversely affect the logical, efficient, and economical extension or provision of public services and facilities such as public water, sewers, refuse collection, police, fire protection, and public schools.
(5)
Otherwise adversely affect the public health, safety, or welfare.
I.
Expiration of conditional use permits. Unless otherwise specified by the Borough Council, a conditional use permit shall expire if the applicant fails to obtain a building permit within six months from the date of authorization thereof, unless the applicant can show that there were permitting delays beyond his control.
§ 153-146 Standards for specific uses.
The following conditional uses shall be reviewed in accordance with the specific provisions and standards listed below, as well as the procedural and more general standards for conditional uses in § 153-145 above.
A.
Wireless communication facilities.
(1)
Wireless communications antennas located on existing structures shall be allowed by conditional use in the HC Highway Commercial District, the INS Institutional District, the BI Business Institutional District and the IND Industrial District. They shall be allowed by right on federal, state, county, municipal and school district-owned sites for the following purposes: internal communication needs, emergency uses, and for use by wireless personal and commercial service providers and customers.
(2)
New wireless communications antenna support structures, as defined in Article II, shall be allowed by conditional use in the IND Industrial District and the INS Institutional District.
(3)
The following standards shall apply to the construction, erection, relocation or alteration of a cellular communications facility:
(a)
Location.
[1]
The applicant shall demonstrate, using accepted technological and documentary evidence, that the antenna and/or antenna support structure must be located where proposed in order to satisfy its function within the applicant's regional plan or grid system. An accurate description of each relevant "area of service" shall be included in such evidence.
[2]
An applicant for a new antenna support structure shall demonstrate that it has contacted the owners of suitable structures within a one-half-mile radius of the location of the proposed antenna support structure for permission to install the antenna(s) on those structures and that such permission has been denied by all such owners due to structural, engineering or operational issues or financial considerations. The Borough Council may deny an application to construct a new antenna support structure if the applicant has not made a good-faith effort to mount the antenna(s) on an existing structure.
(b)
Height.
[1]
The maximum height of an antenna on an existing structure or antenna support structure shall be 100 feet.
[2]
The applicant shall demonstrate that the antenna(s) and/or the antenna support structure must be at the height proposed in order to satisfy its function in the applicant's regional plan or grid system. The applicant shall also demonstrate that the support structure and antenna height requested is not in excess of the minimum required to function satisfactorily.
[3]
An antenna that is attached to an existing support structure such as a telephone, electric or utility pole, existing wireless communications support structure smoke stack, water tower or other similar tall structure, or occupied building, shall not exceed the height of the existing structure by more than 15 feet.
(c)
Setbacks. The minimum distance between the base of any antenna support structure, including any guy-wire anchors, and other associated facilities and any property line or right-of-way line, shall be at least the minimum setback requirements for the district in which the support structure and associated facilities are located or 100% of the tower height, whichever is greater.
(d)
Antenna support structure safety.
[1]
The applicant shall provide to the Borough a report from a structural engineer registered in Pennsylvania attesting that the proposed antenna support structure meets the standards of either the Electronics Industries Association (EIA) or the Telecommunications Industry Association (TIA). When a wireless communications facility to be mounted on a building or other structure, a report from a structural engineer registered in Pennsylvania attesting that the proposed installation will not exceed the structural capacity of the building or other structure, considering wind and other loads associated with the structure.
[2]
A soil report complying with the standards of the Geotechnical Investigations ANSI/EIA-222-E, as amended, shall be submitted to the Borough Engineer to document and verify that the design specifications of the foundation for the antenna support structure, and anchors for guy wires, if used, are in conformance with applicable standards.
[3]
The applicant shall demonstrate that the proposed wireless communications facility is designed in such a manner that no part of the facility shall attract or deflect light onto adjacent properties.
(e)
Licensing and applicable regulations. An applicant for a wireless communications facility must demonstrate that it is licensed by the Federal Communication Commission (FCC) and provide the Borough Manager with a copy of such license. The application shall also provide a certificate of insurance evidencing general liability coverage in the minimum of $1,000,000 per occurrence and property damage coverage in the minimum amount of $1,000,000 per occurrence covering the communications tower and communications antennas.
(f)
Building and zoning permits. The applicant shall obtain building and zoning permits as required by applicable Borough ordinances for antenna support structures and any other associated telecommunications equipment or facilities meeting the definition of a "structure" in this Zoning Ordinance and shall comply with all applicable requirements for inspections and certifications.
(g)
Site plan. The applicant shall provide a full site plan, showing all existing and proposed structures and improvements, including, but not limited to, the antenna(s), antenna support structure, building, fencing, landscaping and means of ingress and egress. The plan shall comply will applicable requirements of a site plan as stated in the most recently adopted version of the County Subdivision and Land Development Ordinance.
(h)
Fencing. A security fence shall be required around an antenna support structure and associated facility equipment. The security fence shall be a maximum of eight feet in height and maintained in proper condition. No barbed-wire or razor-wire fencing shall be permitted.
(i)
Signs. No sign or other structure shall be mounted on the wireless communications facility, except as may be required by the FCC, Federal Aviation Administration (FAA) or other governmental agency.
(j)
Lighting. Antenna support structures shall meet all FAA regulations regarding lighting. No antenna support structure may be artificially lighted except when required by the FAA or other governmental authority. When lighting is required by the FAA or other governmental authority, it shall be oriented inward so as not to project onto surrounding properties. The applicant shall promptly report any outage or malfunction of FAA-mandated lighting to the appropriate governmental authorities.
(k)
Landscaping. The antenna support structure shall be landscaped to screen as much of it as possible. Borough Council, at its discretion, may permit or require a combination of topography, walls, decorative fences, or other features instead of landscaping if, in the opinion of the Council, such alternative features achieve the same or greater degree of screening as the required landscaping as defined below:
[1]
An evergreen screen shall be required on the outside of any security fence, surrounding the antenna support structure and totally screening it base and the fence. The evergreen screen shall be a minimum of six feet in height at planting high and grow to a minimum of 15 feet in height at maturity.
[2]
Existing vegetation on and around the land site shall be preserved to the greatest possible extent.
(l)
Annual inspection and report.
[1]
The owner of an antenna support structure shall submit to the Borough Engineer proof of the annual inspection of the antenna support structure and antenna(s) by an independent professional engineer as required by the EIA/TIA/ANSI codes. Based upon the results of such inspection, the Borough may require the removal or repair of such facility. In the event the annual inspection is not performed in a timely manner, the owner shall be subject to civil enforcement proceedings in accordance with Section 617.2 of the Pennsylvania Municipalities Planning Code (MPC)[1] and applicable Borough ordinances.
[1]
Editor's Note: See 53 P.S. § 10617.2.
[2]
Along with the proof of inspection, the owner shall submit an annual report to the Borough containing ownership information and the name, address and emergency contact information for the operator of such facility, as well as any technical and engineering specifications of the facility and its associated network as the Borough Manager deem necessary.
(m)
Interference. In the event the wireless communications facility causes interference with the radio or television reception of any Borough resident for a period of three continuous days, the resident shall notify the owner or the Borough Manager of such interference and the owner, at the owners sole expense, shall thereafter ensure that any interference problems shall be corrected promptly.
(n)
Abandonment. If the use the wireless communications facility is abandoned, or not in use for a period of six months or longer, the owner shall remove the facility from the site within six months of such abandonment or discontinuance of use. All costs of removal shall be borne by the owner. In the event the removal is not performed in a timely manner, the owner shall be subject to civil enforcement proceedings in accordance with Section 617.2 of the Pennsylvania Municipalities Planning Code (MPC)[2] and applicable Borough ordinances.
[2]
Editor's Note: See 53 P.S. § 10617.2.
B.
Day-care centers and group day-care homes. Day-care centers and group day-care homes shall be permitted by right in the INS Institutional District and the TOD Transit-Oriented Development District and as conditional uses in the HC Highway Commercial, BI Business Institutional Districts. Day-care centers shall be permitted as part of a church, school or other similar institution or as a standalone independent use. Group day-care homes shall comply with all the provisions for a day-care center, except for Subsection B(1), (2), and (3) below.
(1)
The minimum lot size for day-care centers shall be 750 square feet per child and shall not be less than the minimum required for the district in which it is located.
(2)
Not less than 40 square feet of indoor play area per child shall be provided for day-care centers, excluding bathrooms, hallways, and other areas not suited for play.
(3)
Not less than 75 square feet of outdoor play area per child shall be provided for day-care centers, excluding parking areas, garage areas, and other areas not suited for play.
(4)
Outdoor play activities shall be limited to the hours between 8:00 a.m. and sunset as defined by the National Weather Service.
(5)
A fence at least four feet high shall be placed around all outdoor play areas. Such fence must reach the ground to prevent children from crawling underneath. No outdoor play equipment shall be located closer than 10 feet to an abutting property line.
(6)
Each facility shall be fully protected by smoke detectors, sprinklers and fire extinguishers as specified by all relevant state building and firesafety codes and Borough ordinances.
(7)
Each facility shall provide for the discharge and pickup of children on a driveway, approved parking area, or directly in front of the facility. The area selected for discharge and pickup must be free from traffic hazards to children.
(8)
All pedestrian pathways to and from a day-care center or group day-care home shall be to meet the State Department of Public Welfare standards for safety and security if utilized during non-daylight hours. Specific areas for lighting are entranceways, pedestrian access to the outdoor play areas, sidewalks used in non-daylight hours, dropoff areas, supply delivery areas and all parking lots.
(9)
When a center is adjacent to streets of different classifications, ingress and egress to the center shall be from the street of lowest classification, if possible.
(10)
When a day-care center is located in a multiuse building, the entrances and exits shall provide direct access to the day-care center so that walking through other significant portions of the building is avoided.
(11)
Day-care centers shall not be placed closer than 500 feet from another day-care facility.
(12)
No part of a facility may be located within 300 feet of gasoline pumps or underground gasoline storage tanks or any other storage area for explosive materials.
(13)
The Borough Council may require planting and screening consistent with the character of uses adjacent to the facility.
(14)
Each facility must hold an approved Pennsylvania Department of Public Welfare (DPW) registration, certificate, or license, as appropriate, and meet all current DPW regulations and any applicable state or local building codes or firesafety codes. Where the above regulations differ from those of the Pennsylvania DPW, the more stringent regulation shall apply.
(15)
The operator of a day-care center will allow the Zoning Officer to enter the property at reasonable times to inspect for compliance with the requirements of this section and all other applicable municipal and state ordinances or regulations.
(16)
Signs shall comply with all relevant provisions of Article XV.
(17)
Parking shall be provided in accordance with all relevant provisions of Article XIV.
