Elverson City Zoning Code
ARTICLE XVII
Conditional Use
§ 290-1701 Procedures and criteria.
A.
Nothing in this section shall be construed to relieve the owner or their agent, the developer or the applicant for a conditional use approval from obtaining approval in accordance with Chapter 240, Subdivision and Land Development, or other applicable ordinances.
B.
The requirements of this section and the standards for specific types of conditional uses found elsewhere in this chapter shall be deemed an element of the definition under which a conditional use permit may be granted. The failure of the applicant to demonstrate compliance with these requirements, in the discretion of the Borough Council, may be deemed either a basis for establishing conditions or limitations on an approval or the basis for a denial of a conditional use application.
C.
General requirements.
(1)
Ownership. The tract of land under application for conditional use approval shall be in one ownership or shall be the subject of an application filed jointly by the owners of the entire tract and shall be under unified control. If ownership of the entire tract is held by more than one person or entity, the application shall identify and be filed on behalf of all of the said owners. Approval of the plan shall be conditioned upon agreement by the applicant or applicants that the tract shall be developed under single direction in accordance with the approved plan. No site preparation or construction shall be permitted other than in accordance with the approved plan. If ownership of all or any portion of the tract changes subsequent to approval of the plan, no site preparation or construction by such new owner or owners shall be permitted unless and until such owner or owners shall review the terms and obligations of the approved plan and agree in writing to be bound thereby with respect to development of the tract.
(2)
Sewer and water facilities. Applicant shall demonstrate evidence of adequate water supply and sewage disposal capability. The tract of land shall be served by a water supply system and a sewage system deemed acceptable by the Borough Council upon recommendation of the Borough Engineer. Such facilities shall be designed and constructed in compliance with §§ 240-617 and 240-623 of Chapter 240, Subdivision and Land Development, and the Elverson Borough Sewage Facilities (Act 537) Plan.
(3)
Development stages and permits. The development of a tract carried out in either a single phase or in stages shall be executed in accordance with a development agreement. The owner, developer and Borough shall enter into said agreement embodying all details regarding compliance with this chapter to assure the binding nature thereof on the overall tract and its development, which agreement shall be recorded with the final development plan.
(4)
Stormwater management. The control of erosion and sediment during construction and the ongoing management of stormwater on the tract shall be accomplished in accordance with applicable provisions of Article VI, Design Standards, of Chapter 240, Subdivision and Land Development, and Chapter 225, Stormwater Management, of the Code of the Borough of Elverson.
(5)
Covenants and restrictions. The language, terms and conditions of any proposed covenants or restrictions shall be subject to review and recommendation by the Borough Solicitor.
D.
Application.
(1)
Application for conditional use shall be filed with the Borough on such forms as may be prescribed for said purpose. The application shall be accompanied by a fee as prescribed by the Borough Council by resolution enacted after the approval of this chapter. The application shall state the following:
(a)
The name and address of the applicant.
(b)
The name and address of the owner of the real estate to be affected by the proposed conditional use application.
(c)
Evidence of authorization to act on behalf of the property owner(s) where the applicant is other than a legal or equitable owner of the property.
(d)
A description and location of the real estate on which the conditional use is proposed.
(e)
A statement of the present zoning classifications of the real estate in question, the improvements thereon, and the present use thereof.
(f)
A narrative description of the proposed use and a statement of the section(s) of this chapter which authorize(s) the conditional use.
(2)
Development plan. The application for conditional use approval shall be accompanied by a unified, overall site plan covering the entire tract, regardless of any intended phasing of development. The plan shall be prepared with sufficient detail to adequately illustrate the proposed development uses and nondevelopment uses of the tract, including (where appropriate) reserve areas for possible future expansion; coordinated internal and external vehicular and pedestrian circulation; well-related, convenient and efficient parking and loading areas; agreeable surroundings that provide comfort, safety and convenience for prospective residents, customers, and/or workers; and high quality design in terms of building relationship, facade treatment, signage, lighting, landscaped and planted buffers and screens, as well as other natural and constructed amenities in furtherance of the Comprehensive Planning objectives of the Borough of Elverson.
(4)
Market analysis.
(a)
Purpose. A market analysis, while not required, shall be submitted if requested by the Borough Council. If such an analysis is requested, it shall contain information indicating the likelihood of the proposed conditional use meeting with market support.
(b)
Contents of market analysis. A market analysis shall contain the following information:
[1]
Uses evaluated. A description of the land uses evaluated as a part of the market analysis shall be provided. Included shall be the nature of the proposed uses in terms of the intended attraction of the proposed use to neighborhood, community and/or regional populations and markets.
[2]
Identification of competition. Existing and approved developments that are likely to be in competition with the proposed use shall be identified. The analyst selected to perform the market study shall determine the area within which existing developments are likely to compete with the proposed use.
[3]
Analysis. Dependent upon type of use proposed, the market analysis shall include an identification of the trade area to be served, where relevant; the supportability of floor area to be devoted to specific use(s); a computation of existing floor areas of a nature similar to the use proposed; and a determination of the net supportable floor area within the trade area or study area defined.
[4]
Conclusions. The analyst shall proffer an opinion regarding the likelihood of the proposed use meeting with market support. Included in the conclusions shall be a statement regarding the appropriate time frame to consider construction of the development and scheduling of the development. Additionally, the types of tenants (if a leased project) which are likely to meet with market support in the development shall be identified.
E.
Procedures.
(1)
Upon receipt of a complete application for conditional use approval per § 290-1701D above the Borough shall submit the application for recommendation to the Planning Commission. Upon receipt of the application, the Planning Commission shall review the conditional use request with the applicant at its next regularly scheduled meeting or at a special meeting, at the discretion of the Planning Commission. If the Planning Commission does not transmit its recommendations to the Borough Council by the date set by the Council for public hearing for consideration of the conditional use application, Council shall proceed to consider such application without the recommendation of the Commission. The Planning Commission may extend its period of deliberation beyond 60 days upon written authorization by the applicant. Should applicant submit new or revised plans for development under application for conditional use approval during the period of review by the Planning Commission, the said review period shall start anew and prior plans shall be deemed withdrawn.
(2)
After review by the Planning Commission, the Borough Council shall hold a public hearing on the conditional use application in accordance with the following procedures:
(a)
Notice of the hearing shall be given to the public by publication in a newspaper of general circulation in the Borough in accordance with the requirements for public notice established in the Municipalities Planning Code. Abutting property owners shall be notified in writing no less than 14 days prior to the scheduled hearing. Additionally, like notice thereof shall be given to the applicant, the Code Enforcement Officer, and to any person who has made timely written request for same. Notice of the hearing shall be conspicuously posted on the affected tract of land at least one week prior to the date of the hearing.
(b)
The Borough Council shall conduct its first hearing on the application within 60 days from the date the application is filed with the Borough, unless the applicant has agreed in writing to an extension of time. The hearings shall be conducted by the Borough Council, or the Borough Council may appoint any member or an independent attorney as a hearing officer. Each subsequent hearing before Borough Council or a hearing officer shall be held within 45 days of the prior hearing, unless otherwise agreed to by the applicant in writing or on the record. An applicant shall complete the presentation of their case-in-chief within 100 days of the first hearing. Upon the request of the applicant, the Borough Council or hearing officer shall assure that the applicant receives at least seven hours of hearings within the 100 days, including the first hearing. Persons opposed to the application shall complete the presentation of their opposition to the application within 100 days of the first hearing held after the completion of the applicants case-in-chief. An applicant may, upon request, be granted additional hearings to complete their case-in-chief, provided the persons opposed to the application are granted an equal number of additional hearings. Persons opposed to the application may, upon the written consent or consent on the record by the applicant and municipality, be granted additional hearings to complete their opposition to the application, provided the applicant is granted an equal number of additional hearings for rebuttal.
(c)
The parties to the hearing shall be the Borough, any person affected by the application who has made timely appearance of record before the Borough Council, and any other person, including civic or community organizations, permitted to appear by the Borough Council. The Borough Council shall have the power to require that all persons who wish to be considered parties submit written requests on such forms as the Borough Council may provide for that purpose.
(d)
The Chairman or Acting Chairman of the Borough Council 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)
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
(f)
The Borough Council shall keep a record of the hearing proceedings. Copies of the written or graphic material received in evidence shall be made available to any party at cost.
(g)
Decision.
[1]
The decision or, where no decision is called for, the findings shall be made by the Borough Council. However, the appellant or the applicant, as the case may be, in addition to the municipality may, prior to the decision of the hearing, waive decision or findings by the Borough Council and accept the decision or findings of the hearing officer as final.
[2]
Borough Council shall render a written decision or, when no decision is called for, make written findings on the conditional use application within 45 days after the last hearing before the Borough Council. Where the application is contested or denied, each decision shall be accompanied by findings of fact or conclusions based thereon, together with any reasons therefor. Conclusions based on any provisions of this act or of any 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.
[3]
Where the Borough Council fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided herein, 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 the failure of the Borough Council to meet or render a decision as hereinabove provided, the Borough Council shall give public notice of the decision within 10 days from the last day it could have met to render a decision in the same manner as required by the public notice requirements of this act. If the Borough Council shall fail to provide such notice, the applicant may do so.
[4]
A copy of the final decision or, where no decision is called for, of the findings shall be personally delivered to the applicant and the parties before the Borough Council or mailed to them not later than the day following the date of the decision.
(h)
Appeals from a determination of the Borough Council pursuant to any application for a conditional use shall be only as prescribed and within such times permitted by the applicable provisions of the Municipalities Planning Code.
(3)
In granting conditional use approval, where such use is authorized under this chapter the Borough Council may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purpose of the Municipalities Planning Code and this chapter. Conditional uses shall be subject to compliance with particular standards contained in this chapter and criteria defined in the application review process. The standards described shall be deemed additional and shall in no way impair any other applicable standard from this or any other Borough ordinance. The applicant shall be responsible for demonstrating compliance with all standards and criteria required for conditional use approval. The conditions of approval may include, but need not be limited to:
(4)
The applicant shall have the burden to prove, by a preponderance of the evidence, that the proposed use will comply in all respects with this and other Borough ordinances, county, state or federal legislation. The Borough Council may retain such consultants as necessary to review and certify the accuracy of submitted plans and documents, reasonable and necessary charges therefor to be borne by the applicant. When the applicant does not provide information as required, then it shall be presumed that the proposed use is not in accordance with the requirements applicable for the granting of conditional use approval.
(5)
Any grant of conditional use approval shall be deemed null and void 12 months from the date of such approval if, within that period, no application is made for a building permit, a use and occupancy permit, or subdivision or land development approval, as appropriate, unless the Borough Council shall grant an extension at its sole discretion.
F.
Criteria for review of conditional use applications. The following criteria shall be used as a guide by the Borough Council in evaluating a proposed conditional use. It shall be the burden of the applicant to demonstrate compliance with all applicable criteria:
(1)
Any applicant for conditional use approval shall have the burden of demonstrating to the satisfaction of the Borough Council that provision is made to adequately reduce or minimize any noxious, offensive, dangerous or hazardous feature or features thereof, as the case may be. Council may deny conditional use approval where Applicant has failed to do so or where any use otherwise is deemed to be dangerous or potentially dangerous to the public health, welfare or safety, or which constitutes or may constitute a public hazard whether by fire, explosion or otherwise.
(2)
The use(s) proposed shall be limited to those authorized as conditional uses within the district in which the lot or parcel is situated. The property subject to conditional use application shall be suitable for the use desired.
(3)
The size, scope, extent and character of the conditional use desired shall be consistent with the spirit, purposes and intent of the Elverson Borough Comprehensive Plan, Open Space Plan, and this chapter.
(4)
The proposed use at the location set forth in the application shall be in the public interest and serve the public health, safety, morals and general welfare.
(5)
Consideration of the character and the type of development in the area surrounding the location for which the request is made, and a determination that the proposed use is appropriate in the area and will not injure or detract from the use or value of the surrounding properties or from the character of the neighborhood.
(6)
The development, if more than one building, will consist of a harmonious grouping of buildings or other structures.
(7)
There will be no adverse effect of the proposed conditional use upon the logical, efficient and economical extension of public services and facilities, such as public water, sewers, police and fire protection, recreational opportunities, open space and public schools and, where necessary, adequate arrangements for expansion or improvement of such services and facilities are ensured.
(8)
The design and use of any new construction and proposed change in use of existing buildings will be compatible with the existing designs and uses in the immediate vicinity and that the proposed design or use shall be compatible with the character of the neighborhood.
(9)
If the development is to be carried out in progressive stages, each stage shall be so planned that the conditions and intent of this chapter shall be fully complied with at the completion of any stage.
(10)
The location and layout of the proposed use is suitable with respect to probable effects upon highway traffic and assures adequate access arrangements in order to protect major streets and highways from undue congestion and hazard. The proposed use will not lower the level of service on adjacent road segments and intersections as defined by the most recent edition of the Highway Capacity Manual from the Transportation Research Borough Council. As a policy, proposed projects should incorporate designs which assure safe and efficient access and maintain a level of service C, as a minimum, on all adjacent road segments and intersections.
(11)
The interior traffic circulation shall provide safe and convenient circulation for all users, including pedestrian and vehicular modes of transit. Applicant shall demonstrate that sufficient safeguards, such as parking, traffic control, screening, and setbacks, can be implemented to remove any potential adverse influences the use may have on adjoining uses. In addition, all emergency access design considerations shall be addressed and incorporated into the proposed plan.
(12)
The adequacy of sanitation and public safety provisions, where applicable, and the necessity to provide a certificate of adequacy of sewage and water facilities from a governmental health agency in any case where required or deemed necessary.
(13)
Sufficient land area shall be available to be able to effectively screen the proposed conditional use from adjoining different uses if required by the Borough Council.
(14)
Consideration of any other development impacts and/or proposed mitigation identified by the submitted site analyses.
(15)
Consideration of likelihood of market success of proposed use(s), as indicated by market analyses, where required.
(16)
The Borough Council shall consider additional standards and criteria set forth in § 290-1611, Standards for review of special exceptions, to the degree the Borough Council deems such standards to be applicable to review of the conditional use application.
(17)
Uses shall meet the provisions and requirements of Chapter 240, Subdivision and Land Development, of this Code and all other applicable ordinances and regulations, whether or not propounded by Elverson Borough.
(18)
The Borough Council may impose such conditions, in addition to those required, as are necessary to assure that the intent of this chapter is complied with, which conditions may include, but are not limited to, harmonious design of buildings, screen plantings and its maintenance as a sight or sound screen, the minimizing of noise, glare and noxious, offensive or hazardous elements, and adequate standards of parking and sanitation.