Darby Township City Zoning Code
PART 17
ZONING HEARING BOARD
§ 27-1700 Establishment and Membership.
[Ord. 670, 12/12/2007]
A Zoning Hearing Board, consisting of five members appointed by the Commissioners of overlapping terms of five years each, is established for the purpose of carrying out the function of a Zoning Hearing Board as approved by law. Members of the Board shall be residents of the Township except that no more than one member of the Board may also be a member of the Planning Board.
§ 27-1701 Organization of the Zoning Hearing Board.
[Ord. 670, 12/12/2007]
The Board shall elect a Chairman from its membership and, within the limits of funds appropriated by the Township Commissioners; the Board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services.
§ 27-1702 Hearings.
[Ord. 670, 12/12/2007]
The Board shall meet within 60 days of receipt of an application to hear and consider such matters which shall properly come before it. All such meetings shall be open to the public.
§ 27-1703 Persons Entitled to Initiating Action Before the Board.
[Ord. 670, 12/12/2007]
Appeals from the Zoning Officer pursuant to § 27-1716 hereof and proceedings to challenge an ordinance under § 27-1717 hereof may be filed by an officer or agency of the Township or by any person aggrieved. Requests for variance under § 27-1718 and for special exception under § 27-1719 hereof may be filed by any landowner or tenant with the permission of such landowner.
§ 27-1704 Manner of Initiating Before the Board.
[Ord. 670, 12/12/2007]
All actions before the Board shall be initiated by a written application for hearing, which shall be filed with the Zoning Officer at which the particular matter is to be heard. All applications shall be made on forms specified by the Board, and no application form shall be accepted unless the same shall be fully and legibly completed and unless all exhibits and supplemental material required by the application shall be attached.
§ 27-1705 Time Limitations.
§ 27-1706 Notice of Hearing.
[Ord. 670, 12/12/2007]
Notice of the time and place of all hearings shall be given by mail to the applicants and to all persons who shall own real estate within 500 feet of any property that shall be the subject of the application. Notice of the hearing of any particular application shall also be given to any person who shall timely request the same in writing. Notice of the time and the place of all hearings shall be given by publishing the same in a newspaper of general circulation within the Township. All notices required by this section shall be given at least five days prior to the date of the hearing for which notice is given. In addition to the written notice provided herein, written notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.
§ 27-1707 Parties.
[Ord. 670, 12/12/2007]
Parties to any hearing shall be any person entitled to notice under § 27-1706 without special request therefor who has given timely appearance of record before the Board and any other person permitted by the Board to appear.
§ 27-1708 Witnesses.
[Ord. 670, 12/12/2007]
The Chairman or Acting Chairman of the Board shall have the 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.
§ 27-1709 Representation.
[Ord. 670, 12/12/2007]
The parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond and present evidence and cross-examine adverse witnesses on all relevant issues.
§ 27-1710 Rules of Evidence.
[Ord. 670, 12/12/2007]
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
§ 27-1711 Record.
[Ord. 670, 12/12/2007]
The Board shall keep a record of the proceedings, stenographical, 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.
§ 27-1712 Communications.
[Ord. 670, 12/12/2007]
The Board shall not communicate, directly or indirectly, with any party or his representative in connection with any issue involved except upon notice and opportunity for all parties to participate, shall not take notice of any communication, reports, staff memoranda, or other materials, except advice from its solicitor, unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surrounding after commencement of hearings, with any party or his representative unless all parties are given an opportunity to be present. "Board" as used herein shall include not only the members, but also the secretary, clerk, legal counsel or consultant of the Board.
§ 27-1713 Decisions.
[Ord. 670, 12/12/2007]
The Board 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. Each decision shall be accompanied by findings of fact and conclusion based thereon together with the reasons therefor. Conclusions based on any provisions of any statute, ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in light of the facts found. Where the Board has power to render a decision and fails to do so within the forty-five-day period above prescribed, the decision shall be deemed to have been rendered in favor of the applicant.
§ 27-1714 Copies of Decisions.
[Ord. 670, 12/12/2007]
A copy of the final decision or, when 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 names and addresses 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 finding and a statement of the place at which the full decision or findings may be examined.
§ 27-1715 Appeals to the Courts.
[Ord. 670, 12/12/2007]
Zoning appeals may be taken to the court by any party before the Board or any officer or agency of the Township, as provided by law.
§ 27-1715.1 Appeals to the Zoning Hearing Board.
[Added by Ord. 711, 12/4/2013]
1.
Appeals to the Zoning Hearing Board may be taken by any person aggrieved or by any officer, department, board or bureau of the Township affected by any decision of the Building Inspector. Each appeal shall be taken within a reasonable time as provided by the rules of the Board by filing with the officer from whom the appeal is taken, and with the Zoning Hearing Board, a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken. An appellant or an applicant for a special exception or for a variance shall, at the time of filing of the appeal or application, pay a filing fee to the Township Secretary in accordance with the following schedule:
2.
If the expenses are less, that amount will be refunded. If expenses are more, that amount will be assessed to the applicant prior to determination of the issue.
§ 27-1716 Appeals from the Zoning Officer.
[Ord. 670, 12/12/2007]
The Board shall hear and decide appeals where it is alleged by the appellant that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of the Zoning Ordinance or Map.
§ 27-1717 Challenge to the Validity of the Ordinance or Map.
[Ord. 670, 12/12/2007]
Except as provided in § 27-1718 relating to variances, the Board shall have no power to pass upon the validity of any provision of the ordinance or map adopted by the Commissioners. Recognizing that challenges to the validity of the ordinance or map may present issues of fact and of interpretation which may lie within the special competence of the Board, and to facilitate speedy disposition of such challenges by the Court, the Board may hear all challenges wherein the validity of the ordinance or map presents any issue of fact or of interpretation, not hitherto properly determined at a hearing before another competent agency or body, and shall take evidence and make a record thereon as herein prescribed. At the conclusion of the hearing, the Board shall decide all contested questions of interpretation and shall make findings on all relevant issues of fact, which shall become part of the record on appeal to the Court.
§ 27-1718 Variance.
[Ord. 670, 12/12/2007]
1.
The Board shall hear requests for variances where it is alleged that the provisions of the Zoning Ordinance inflict unnecessary hardship upon the appellant. The Board may grant a variance, provided that the following findings are made where relevant in a given case:
A.
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 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 the Zoning Ordinance in the neighborhood or district in which the property is located;
B.
That because of such physical circumstances or condition, there is no possibility that the property can be developed in strict conformity with the provisions of the Zoning Ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;
C.
That such unnecessary hardship has not been created by the appellant;
D.
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; and
E.
That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification of the regulation in issue.
2.
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purpose of this chapter.
§ 27-1719 Special Exceptions.
[Ord. 670, 12/12/2007]
1.
Where this chapter has provided for 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 the Ordinance, as it may deem necessary to implement the purpose of this act and the Zoning Ordinance.
2.
Standards for Review of Special Exceptions.
A.
In any instance where the Board is required to consider a request for a special exception, the Board shall consider the following factors, where appropriate:
(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 will be made to protect sensitive environmental features such as streams, lakes, 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 adverse impacts caused by noise, lights, glare, odors, smoke, fumes, traffic, parking, loading and signage.
(3)
That the proposed special exception will serve the best interests of the Township, and convenience of the community, and the public health, safety and welfare.
(4)
That the proposed use is consistent with the Darby Township Comprehensive Plan.
(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.
B.
Financial hardship shall not be construed as a basis for granting special exceptions.
C.
In granting any special exception, the Board may attach reasonable conditions and safeguards in addition to those expressed in this Zoning Code as it may deem necessary to implement the purposes of the Planning Code and this Zoning Code, which conditions and safeguards may relate to, but not be limited to screening, lighting, off-street parking, noise, safety, aesthetics and the minimization of noxious, offensive or hazardous elements. Such special exceptions shall be clearly authorized by the provisions in this Zoning Code and shall comply with the more specific standards relating to such special exception contained in sections of this Zoning Code relating to uses by special exception.
3.
Standards of Proof.
A.
For Variances. An applicant for a variance shall have the burden of establishing both:
B.
For Special Exceptions. An applicant for a special exception shall have the burden of establishing both:
C.
Evaluation of the Impact of an Application on the Public Interest. In determining whether the allowance of a special exception or variance is contrary to the public interest, the Board 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 Darby Township Comprehensive Plan;
(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.
4.
Expiration of Special Exception and Variances. Unless otherwise specified by the 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.
5.
Conditional Uses Where Specific Dimensional Standards Are Not Provided. In cases where this Zoning Code does not provide specific dimensional standards for uses permitted by special exception, the following general dimensional standards will be applied by the Board of Commissioners:
A.
In residential districts, the area, bulk and any other applicable requirements shall be not less than those for single-family dwellings in that district or in the next more restrictive district in which single-family dwellings are permitted.
B.
In nonresidential districts, the area, bulk and any other applicable requirements shall be not less than those for the use which requires the greatest dimensions in the applicable nonresidential district.
C.
The governing body may require additional, reasonable but more stringent requirements than those required herein, provided that the Board of Commissioners makes one or more of the following determinations:
(1)
Insufficient to accommodate the proposed building, facility, or use, and that larger dimensional requirements would substantially alleviate that condition.
(2)
Insufficient to provide adequate area for parking and loading, as required by Part 13, and that larger dimensional requirements would substantially alleviate that condition.
(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, and that larger dimensional requirements would substantially alleviate that condition.
6.
Regulations for Home Occupations. Home occupations with one employee shall be permitted in Residential Districts.
A.
The occupation (or profession) shall be conducted entirely within the dwelling and shall be clearly incidental and secondary to the residential use of the dwelling.
B.
Only one occupation per dwelling shall be permitted.
C.
Not more than one person other than the resident shall be engaged as an employee or volunteer.
D.
Not more than 25% of the gross floor area of the dwelling shall be used for the home occupation. Areas used for storage shall be included in this calculation.
E.
No external alterations inconsistent with the residential use shall be permitted.
F.
There shall be no display of materials or products visible from outside the dwelling.
G.
No noise, vibration, smoke, glare or any other impact shall be noticeable at or beyond the property line.
H.
There shall be no outdoor storage of equipment, materials or supplies.
J.
Deliveries from commercial suppliers may not be made more than once each week and shall not restrict traffic circulation.
K.
A home occupation shall in no case be operated before 7:00 a.m. or after 10:00 p.m. Monday through Friday.
L.
All home occupations shall be subject to periodic inspection by a local official.
M.
A special exception shall not be granted when it appears to the Zoning Hearing Board that the proposed home occupation will constitute a fire hazard to neighboring residences, will adversely affect neighboring property value or will constitute a nuisance or otherwise be detrimental to the neighbors because of excessive traffic, noise, odor, or other negative circumstances.