East Caln Township City Zoning Code
ARTICLE VIII
Zoning Hearing Board
§ 225-37 Establishment and membership.
[Amended 11-5-1997 by Ord. No. 1997-5]
There shall be a Zoning Hearing Board ("Board") which shall consist of five members who shall be appointed by resolution of the Board of Supervisors. The members of the Board shall be residents of the Township. The members' terms of office shall be five years and their appointments shall be such that the term of office of one member shall expire each year. The Board shall promptly notify the Board of Supervisors of any vacancies which occur. Appointments to fill vacancies shall be by resolution and shall be only for the unexpired portion of the term filled. Members of the Board shall hold no other office or position in the Township. Any member of the Board may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Board of Supervisors 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.
§ 225-38 Organization.
[Amended 11-5-1997 by Ord. No. 1997-5]
A.
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 needed and shall not be less than a majority of all the members of the Board.
B.
The Board may appoint a hearing officer from its membership to conduct any hearing on its behalf and the parties may waive further action by the Board as provided in § 225-40. The Board may make, alter and rescind rules, forms and procedures consistent with ordinances of the Township and laws of the Commonwealth. The Board shall keep full public records of its business, which records shall be the property of the Township, an shall submit a report of its activities to the Board of Supervisors whenever requested by the Board of Supervisors.
§ 225-39 Expenditures for services; fees.
A.
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 and alternates may receive compensation for the performance of their duties, as may be fixed by the Board of Supervisors, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors.
B.
The applicant and appellants ("applicants") before the Board shall deposit with the Treasurer of the Township such a sum of money as shall be prescribed by the Board of Supervisors to pay the costs ("costs") of Board expenses attendant to hearings. These costs shall include, but need not be limited to, notice and advertising cost, one-half of the stenographers' appearance fees, administrative overhead expenses occasioned by the proceedings including the compensation paid to the Secretary and Board members. Any funds deposited in excess of the actual cost of the requested hearing shall be returned to the applicants upon completion of the proceedings. In the event that the costs exceed the funds deposited, applicants shall pay to the Treasurer of the Township funds equal to such excess costs within 10 business days from the mailing by the Township Treasurer of a statement itemizing the costs.
§ 225-40 Hearings.
The Board shall conduct hearings and make decisions in accordance with the following requirements:
A.
The Board shall fix a reasonable time and place for public hearings and shall give notice thereof as follows:
(1)
By publishing a notice thereof once each week for two successive weeks in a newspaper of general circulation in the Township stating the date, time and place of the hearing and the nature of the matter to be considered. The first publication shall be not more than 30 days and the second publication shall be not less than seven days prior to the date of the hearing.
(2)
By mailing a written notice to the applicant, the Zoning Officer, the members of the Board of Supervisors, the members of the Township Planning Commission, the Chester County Planning Commission, and to any person who has made timely request for the same.
(3)
By conspicuously posting a notice of the hearing on the affected tract of land. Said notice shall be posted at least seven days prior to the date of the hearing.
(4)
By mailing a notice thereof to the owners of record of all property within 100 feet of the affected tract of land and to any other persons designated by the ordinance.
B.
The hearing shall commence no later than 60 days from the time the application is received, unless the applicant agrees to an extension in writing.
C.
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; however, the applicant, appellant and Township may waive decision or findings by the Board and accept the decision or findings of the Hearing Officer as final.
D.
The parties to the hearing shall be the Township, any person affected by the application who has made timely appearance of record before the Board and any person, including civic or community organizations permitted to appear by the Board. All, except the Township, who wish to be considered parties must enter appearances in writing on forms provided by the Board.
E.
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 production of relevant documents requested by the parties of the Board.
F.
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.
G.
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
H.
The Board or the Hearing Officer, as the case may be, shall keep a stenographic record of the proceedings. The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board or Hearing Officer, or shall be paid by the person appealing from the decision of the Board is such appeal is made and in either event the cost of additional copies shall be paid by the person requesting such copy or copies. In other cases the party requesting the original transcript shall bear the cost thereof.
I.
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, except advice from their Solicitor, unless the parties are afforded the opportunity to contest the material so noticed and shall not inspect the site or its surroundings after the commencement of hearings with any party or his representatives unless all parties are given an opportunity to be present.
J.
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 least hearing before the Board or Hearing Officer. Where the application is contested or denied, 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 Act, this or other ordinance or any 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 decision or findings are final, the Board shall make his report and recommendations available to the parties within the above 45 days and the parties shall be entitled to make written representations thereon to the Board prior to the final decision or entry of findings, and the Board's decision shall be entered no later then 30 days after the report of the Hearing Officer. Where the Board fails to render the decision within the period required by this subsection or fails to commence the required hearing within 60 days from the date a properly completed application is received, 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 Board to meet or render a decision as hereinabove provided, the Board shall give public notice of said decision, in the same manner as provided in Subsection A of this section, within 10 days from the last day it could have met to render a decision.
K.
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 by certified or registered mail not later than the next business 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 certified or registered 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.
§ 225-41 Jurisdiction.
[Amended 12-21-1994 by Ord. No. 1994-1; 2-19-2025 by Ord. No. 2025-02]
The Board shall have exclusive jurisdiction to hear and render adjudications in the following matters:
A.
Substantive challenges to the validity of this or any other land use ordinance, except challenges/requests brought to the Board of Supervisors for a curative amendment.
B.
Challenges to the validity of this or any other land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption. Such challenges shall be raised by an appeal taken within 30 days after the effective date of the challenged ordinance.
C.
Appeals from the determination of the Zoning Officer including, but not limited to, the granting or denial of any permit or failure to act on the application therefor, the issuance of any cease and desist order or the registration or refusal to register any nonconforming use, structure or lot.
D.
Appeals from the determination by the Township Engineer or Zoning Officer with reference to the administration or provisions of the floodplain or flood hazard regulations of this or any other chapter.
E.
Application for variances from the terms of this chapter.
F.
Applications for special exception under the terms of this chapter.
G.
Appeals from the determination of any officer or agency charged with the administration of performance density provisions of this chapter.
H.
Appeals from the Zoning Officer's determination under § 916.2 of the Act.
J.
Appeals from the Zoning Officer's determination for reasonable accommodations or modifications requested by or on behalf of individuals with disabilities.
§ 225-42 Functions.
A.
Challenge to the validity of Zoning Ordinance or Map. As provided for in § 225-41A and B the Board shall hear substantive challenges to the validity of this chapter, other land use ordinances or the Zoning Map including questions of an alleged defect in the process of enactment or adoption. In all such challenges, the Board shall take evidence, make a record and render a decision thereon as provided in § 225-40.
B.
Appeals from the Zoning Officer. As provided for in § 225-41C, D, G and H the Board shall hear and decide appeals where it is alleged by the appellant that the Zoning Officer or Township Engineer has failed to follow prescribed procedures or has 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 Township Engineer.
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. The Board may by rule prescribe the form of application and may require preliminary application to the Zoning Officer. The Board may grant a variance provided that all of 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 this chapter in the neighborhood or district in which is property is located.
(b)
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 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, not substantially or permanently impair the appropriate use or development of adjacent property nor be detrimental to the public welfare.
(e)
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.
(2)
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter and the Act. In all cases, the Board shall require that adequate water and sewage disposal facilities are available for the use intended.
D.
Special exceptions.
(1)
The Board shall hear and decide requests for special exceptions in accordance with the standards and criteria specified in this chapter. 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 Act.
(2)
In any instance where the Board is required to consider a special exception in accordance with the provisions of this chapter, the Board shall, in addition to the express standards and criteria specified in this chapter, among other things:
(a)
Assure itself that the special exception, if granted, is consistent with the spirit, purpose and intent of this chapter.
(b)
Determine that the special exception, if granted, will not substantially injure or detract from the use of the neighborhood property or from the character of the neighborhood and that the use of the property adjacent to the property under consideration is adequately safeguarded.
(c)
Determine that the special exception, if granted, will serve the best interests of the Township, the convenience of the community (where applicable) and the public welfare.
(d)
Consider the effect of the special exception upon the logical, efficient and economical extension of public water, sewers, police and fire protection and public schools and assure adequate arrangements for sanitation in specific instances.
(e)
Be guided in its study, review and recommendations by sound standards of subdivision practice where applicable.
(f)
Limit the development of State and County highway frontage, insofar as possible, so as to limit the total number of access points and encourage the frontage of buildings on parallel marginal roads or on roads perpendicular to the highway.
(g)
Consider the suitability of the proposed location of an industrial or commercial use with respect to probable effects upon highway traffic and assure adequate access arrangements in order to protect major highways from undue congestion and hazard.
(h)
Ascertain the adequacy of sanitation and public safety provisions, where applicable, including requiring, where necessary or deemed advisable, a certificate of adequacy of sewage and water facilities from the Chester County Board of Health and/or appropriate governmental agency.
(i)
Require that all commercial or industrial parking, loading access or service areas shall be adequately illuminated at night while in use, and that such lighting, including sign lighting, shall be arranged so as to protect the highway and neighboring properties from direct glare or hazardous interference of any kind.
(j)
Impose such conditions, in addition to those specifically required, as are deemed by the Board to be necessary to assure that the general purpose and intent of this chapter and the Act are complied with, which conditions may include, but are not limited to, harmonious design of buildings, plantings and their maintenance as a sight or sound screen and to minimize noxious, offensive or hazardous elements.
§ 225-43 Parties appellant before Board.
Appeals under § 225-42B and proceeding the challenge of any ordinance under § 225-42A may be filed with the Board in writing by the landowner affected, any officer or agency of the Township or any person aggrieved. Request for a variance under § 225-42C and for special exception under § 225-42D may be filed with the Board by any landowner or any tenant with the written permission of such landowner.
§ 225-44 Time limitations.
A.
No person shall be allowed to file any proceeding with the Board later than 30 days after an application for development, preliminary or final, has been approved by the 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 no 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. The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan pursuant to § 709 of the Act or from an adverse decision by the Zoning Officer on a challenge to the validity of an ordinance or map pursuant to § 916.2 of the Act shall preclude an appeal from final approval except in the case where the final submission substantially deviates from the approved tentative approval.
B.
All appeals from determinations adverse to the landowner shall be filed by the landowner within 30 days after notice of determination is issued.
§ 225-45 Stay of proceedings.
Upon filing of any proceeding referred to in § 225-43 and during its pendency before the Board, all land development pursuant to any challenged ordinance, order of approval of 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.