Franconia Township City Zoning Code
ARTICLE XXIII
Zoning Hearing Board
[Amended 3-14-77 by Ord. No. 88]
[1]
Editor's Note: Provisions of this article were originally adopted as Art. XVII of the Zoning Ordinance but were redesignated as Art. XXIII upon codification at the request of the Township Board of Supervisors.
§ 145-155 Appointment; membership; vacancies.
[Amended 10-9-1990 by Ord. No. 172]
A.
The Zoning Hearing Board shall consist of three members appointed by resolution of the Board of Supervisors. The terms of office of the members of the Board shall be three years and shall be so fixed that the term of office of one member shall expire each year. 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. Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by 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.
B.
The Board of Supervisors may by resolution appoint two residents of Franconia Township to serve as alternate members of the Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of Subsection C of this section, an alternate member shall be entitled to participate in all proceedings and discussions of the Board to the same and full extent as provided by law for Board members, including specifically the right to cast a vote as a voting member during the proceedings, and shall have all the powers and duties set forth in the Pennsylvania Municipalities Planning Code[1] as otherwise provided by law and in this chapter. Alternates shall hold no other office in the Township, including membership on the Planning Commission and Zoning Officer. Any alternate may participate in any proceeding or discussion of the Board, but shall not be entitled to vote as a member of the Board nor be compensated unless designated as a voting alternate member pursuant to Subsection C of this section.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
C.
If, by reason of absence or disqualification of a member of the Board, a quorum is not reached, the Chairman of the Board shall designate as many alternate members of the Board to sit on the Board as may be needed to provide a quorum. Any alternate member of the Board shall continue to serve on the Board in all proceedings involving the matter or case for which the alternate was initially appointed until the Board has made a final determination of the matter or case. Designation of an alternate pursuant to this subsection shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.
D.
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 members of the Board.
§ 145-156 Powers and duties.
[Amended 10-9-1990 by Ord. No. 172]
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
A.
Substantive challenges to the validity of any land use ordinance, except those brought before the Board of Supervisors pursuant to Sections 609.1 and 916. 1(a)(2) of the Pennsylvania Municipalities Planning Code, as amended.[1]
[1]
Editor's Note: See 53 P.S. §§ 10609.1 and 10916.1(a)(2).
B.
Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption, which challenges shall be raised by an appeal taken within 30 days after the effective date of said ordinance.
C.
Appeals from a determination of the Zoning Officer, including but not limited to the granting or denial of any permit or failure to act on an 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 a determination by the Township Engineer or the Zoning Officer with reference to the administration of any floodplain or flood hazard ordinance or such provisions within a land use ordinance.
E.
Variances.
(1)
Applications for variances from the terms of this chapter, including Article XVIII governing the FP Floodplain Conservation District, or like provisions within any other land use ordinance. The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant, and 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 any 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 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 applicant.
(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.
(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 of the Pennsylvania Municipalities Planning Code, as amended.[2]
[2]
Editor's Note: See 53 P.S. § 10101 et seq.
F.
Applications for special exceptions where authorized under the provisions of this chapter, including Article XVIII, FP Floodplain Conservation District, or such similar provisions within any land use ordinance. Where the provisions of this chapter authorize special exceptions to be granted or denied 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 of the Pennsylvania Municipalities Planning Code, as amended.[3]
[3]
Editor's Note: See 53 P.S. § 10101 et seq.
G.
Appeals from a determination of any officer or agency charged with the administration of any transfers of development rights or performance density provisions as may be provided in this chapter.
H.
Appeals from a determination by the Zoning Officer under Section 916.2 of the Pennsylvania Municipalities Planning Code, as amended.[4]
[4]
Editor's Note: See 53 P.S. § 10916.2.
I.
Appeals from a determination of the Zoning Officer or Municipal Engineer in the administration of any land use ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development under Chapter 122, Subdivision and Land Development, of the Franconia Township Code.
§ 145-157 Standards for actions.
A.
In any instance where the Board is required to consider an exception or variance to the Zoning Ordinance in accordance with the provisions of the chapter, the Board shall, among other things:
(1)
Consider the suitability of the property for the use desired; assure itself that the proposed change is consistent with the spirit, purpose and intent of the Zoning Ordinance.
(2)
Determine that the proposed change will not substantially injure or detract from the use of neighboring property, or from the character of the neighborhood, and that the use of the property adjacent to the area included in the proposed change or plan is adequately safeguarded.
(3)
Determine that the proposed change will serve the best interests of the Township, the convenience of the community (where applicable) and the public welfare.
(4)
Consider the effect of the proposed change upon the logical, efficient and economical extension of public service and facilities, such as public water, sewers, police and fire protection and public schools.
(5)
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 streets from undue congestion and hazard.
(6)
Be guided in its study, review and recommendation by sound standards of subdivision practice where applicable.
(7)
Impose such conditions, in addition to those required, as are necessary to assure that the intent of the Zoning Ordinance is complied with, which conditions may include, but are not limited to, harmonious design of buildings, planting and its maintenance as a sight or sound screen, the minimizing of noxious, offensive or hazardous elements and adequate standards of parking and sanitation.
(8)
Determine that there are special circumstances or conditions fully described in the findings applying to the land or buildings for which the variance is sought, which circumstances or conditions are such that the application of the provisions of this chapter would deprive the applicant of the reasonable use of such land or building.
(9)
Determine that the unique circumstances for which the variance is sought were neither created by the owner of the property nor were due to or the result of general conditions in the district in which the property is located.
B.
Whereas by the provisions of §§ 145-30.1, 145-34.1, 145-38.1 and 145-202.1 the Zoning Hearing Board is authorized to grant a special exception for an in-law suite (second housekeeping unit), as defined herein, the following additional standards shall apply:
[Added 5-12-1986 by Ord. No. 128; amended 7-10-1995 by Ord. No. 222; 3-11-1996 by Ord. No. 233; 8-17-2009 by Ord. No. 363; 4-12-2010 by Ord. No. 367]
(1)
The owner(s) of the residence in which the in-law suite is created shall occupy at least one of the dwelling units.
(2)
Definitions. As used in Subsection B, the following terms shall have the meanings indicated:
FAMILY
Any number of individuals living together as a single, nonprofit, housekeeping unit and doing their cooking on the premises, when said individuals are related by blood, marriage or adoption, including any number of foster children under the care of same; or no more than five unrelated individuals living together as a single, nonprofit, housekeeping unit. This definition excludes the occupants of a club, fraternity or sorority house, community residential facility, transient establishment, such as a halfway house for recovering drug addicts and alcoholics, lodge, residential club, boardinghouse or rooming house, and also excludes unrelated mentally ill persons unless certified by county mental health/mental retardation programs as capable of residing in a dwelling, and further excludes unrelated persons receiving treatment under Article III, Involuntary Examination and Treatment, or Article IV, Determinations Affecting Those Charged with Crime or Under Sentence, of the Act of July 9, 1976, P.L. 817, No. 143, known as the "Mental Health Procedures Act."[1]
[1]
Editor's Note: See 50 P.S. § 7101 et seq.
(3)
As a special exception, the Zoning Hearing Board may interpret the term "family" to mean any number of individuals living together, when all members are related by blood, marriage or legal adoption, as two housekeeping units with separate cooking facilities, subject to the following restrictions:
(a)
The second housekeeping unit shall be a maximum of 40% of the size of the primary housekeeping unit and no larger than 1,000 square feet.
(b)
The occupants of the second housekeeping unit shall be limited to two in number. The age restrictions of the Fair Housing Act, Subpart E, Housing for Older Persons, shall apply.
(c)
The second housekeeping unit shall be an integral part of the structure, with an interior connection such that, upon the termination of its use as a second housekeeping unit, the rooms may be incorporated back into the original single-family residence. It shall be attached and shall not have a separate entrance. The Zoning Officer shall have the sole discretion in determining compliance of the design with this condition.
(d)
The owner of the property shall execute an agreement with the Township, which shall be recorded with the County Recorder of Deeds, which shall require the immediate removal of all food preparation facilities from the second housekeeping unit at such time as the unit is no longer being utilized by either of the persons or person for whom the original permission was granted.
(e)
This use shall be limited to single-family detached dwellings.
(4)
Additions. Additions to an existing dwelling designed to allow the creation of an in-law suite in that dwelling shall be permitted; provided that yard and building coverage requirements of this chapter are maintained and the addition will facilitate the creation of an otherwise allowed in-law suite in a logical manner considering design, layout and safety factors.
(5)
Exterior alterations.
(a)
Alterations to the exterior of the existing dwelling, other than those to improve the maintenance and attractiveness of the dwelling, shall be minimized; after creation of the in-law suite, the building shall maintain the usual appearance of a single-family detached dwelling and shall remain compatible with the character of the surrounding neighborhood.
(b)
The converted dwelling shall have no more than the existing number of entrances along the front of the building. All other entrances to either the principal or accessory dwelling units shall be located on the side or rear of the building.
(c)
No new unenclosed exterior stairways shall be allowed on the front of the converted dwelling.
(d)
Necessary changes in the number or placement of windows to provide adequate light and air will be allowed, but shall be minimized; any changes which occur must be done in a manner consistent with the architectural character of the dwelling.
(6)
Parking. A minimum of one all-weather off-street parking space, with unrestricted ingress and egress to the street, shall be provided for the in-law suite, in addition to that required for the original dwelling unit.
(7)
Heath and Safety Code requirements.
(a)
Both units in the converted dwelling shall conform to all requirements of the applicable building, health, fire and sanitary codes which regulate structural soundness, overcrowding, fire protection, sewage disposal and water supply.[2]
[2]
Editor's Note: See also Ch. 47, Building Construction, Ch. 48, Construction Codes, Uniform, Ch. 68, Electrical Standards, Ch. 104, Plumbing, Ch. 112, Sewers and Sewage Disposal and Ch. 141, Water Conservation.
(b)
If an on-site sewer or water system are to be used, the applicant shall submit evidence to the Zoning Hearing Board showing that the total number of occupants in the two units will not exceed the maximum capacities for which the original one-unit system were designed, unless those systems are to be expanded, in which case the expansion approvals are to be submitted. Any connection to or addition to an existing on-site sewer system shall be subject to the review and approval of the Sewage Enforcement Officer.
(8)
Submission of plans.
(a)
The applicant shall submit to the Zoning Hearing Board:
[1]
Sketch floor plan(s) showing the location, size and relationship of both the accessory apartment and the primary dwelling within the building;
[2]
Rough elevations showing the modification of any exterior building facade to which changes are proposed; and
[3]
A site development sketch plan properly showing and locating the dwelling and other existing buildings; all property lines; any proposed addition (along with minimum building setback lines; the location, size and extent of all underground utilities; and the length, width and function of all rights-of-way and easements potentially affecting that addition); the required parking spaces for both dwelling units; and any one-hundred-year floodplain, fifteen-percent or greater slopes or other natural or man-made conditions which might affect these items.
(b)
All plans and elevations shall be clear and concise and drawn to a scale of not less than one inch equals four feet for the floor plan(s) and elevation(s) and one inch equals 20 feet for the site development plan.
C.
Where, by the provisions of § 145-76.1, the Zoning Hearing Board is authorized to grant a special exception for a cellular telephone site, as defined in this chapter, the following standards shall apply, in addition to the standards required by Subsection A of this section:
[Added 3-11-1996 by Ord. No. 231; amended 5-8-2000 by Ord. No. 282; 4-12-2010 by Ord. No. 367]
(1)
The applicant shall present evidence to demonstrate that the proposed cellular telephone site will serve the following purposes:
(a)
To accommodate the need for cellular communications antennas while regulating their location and number in the municipality.
(b)
To minimize adverse visual effects of cellular communications antennas and antenna support structures through proper design, siting and vegetative screening.
(c)
To avoid potential damage to adjacent properties from antenna support structure failure and falling ice, through engineering and proper siting of antenna support structures.
(d)
To encourage the joint use of any new antenna support structures, to reduce the number of such structures needed in the future.
(2)
Standards for approval of special exceptions.
(a)
All other uses ancillary to the antenna and associated equipment (including a business office, maintenance depot, vehicle storage, etc.) are prohibited from the site, unless otherwise permitted in the zoning district in which the site is located.
(b)
The applicant must demonstrate, using technological evidence, that the antenna must go where it is proposed in order to satisfy its function in the applicant's grid system.
(c)
Antenna height. The applicant shall demonstrate that the antenna is the minimum height required to function satisfactorily. No antenna that is taller than this minimum height shall be approved.
(d)
Setbacks from base of antenna support structure. The minimum distance between the base of the support structure or any guy wire anchors and any property line shall be the greatest of the following:
[1]
Thirty percent of antenna height;
[2]
The minimum setback in the underlying zoning district;
[3]
Forty feet.
(e)
Antenna support structure safety. The applicant shall demonstrate that the proposed antenna and support structure are safe and the surrounding areas will not be negatively affected by support structure failure, failing ice or other debris, electromagnetic fields or radio frequency interference. All support structures shall be fitted with anti-climbing devices, as approved by the manufacturers.
(f)
Fencing. A fence shall be required around the antenna support structure and other equipment, unless the antenna is mounted on an existing structure. The fence shall be eight feet in height.
(g)
Landscaping. The applicant shall be required to present a landscaping plan showing compliance as nearly as possible with the landscape regulations of Article IX of Chapter 122, Subdivision and Land Development.
(h)
In order to reduce the number of antenna support structures needed in the community in the future, the proposed support structure shall be required to accommodate other users, including other cellular communication companies, and local police, fire and ambulance companies.
(i)
The applicant must demonstrate that it is licensed by the Federal Communications Commission.
(j)
Required parking. If the cell site is fully automated, adequate parking shall be required for maintenance workers. If the site is not automated, the number of required parking spaces shall equal the number of people on the largest shift.
(k)
Antenna support structures under 200 feet in height should be painted silver or have a galvanized finish retained, in order to reduce the visual impact. Support structures may be painted green up to the height of nearby trees. Support structures 200 feet in height or taller, or those near airports, shall meet all Federal Aviation Administration (FAA) regulations. No antenna support structure may be artificially lighted except when required by the FAA.
(l)
The applicant shall be required to assure removal of the tower and support structure if use of the tower is discontinued.
(m)
The applicant shall submit a full site plan for the proposed cellular telephone site showing the antenna, antenna support structure, building, fencing, buffering, access and all other items required for a land development plan by Chapter 122 (Subdivision and Land Development).
§ 145-158 Reversals or modifications of orders.
In exercising the above-mentioned powers, the Board may reverse or affirm, wholly or in part, or may modify the order, requirement, decision or determination appealed from and may make such additional order, requirement, decision or determination as ought to be made, and to that end, shall have all the powers of the officer from whom the appeal is taken.
§ 145-159 Rules of procedure; form of appeals and applications.
The Board shall adopt rules of procedure in accordance with the several provisions of this chapter as to the manner of filing appeals or applications for special exceptions or for variance from the terms of this chapter. All appeals and applications made to the Board shall be in writing, on forms prescribed by the Board. Every appeal or application shall refer to the specific provision of the ordinance involved and shall exactly set forth the interpretation that is claimed, the use for which the special exception is sought, the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be.
§ 145-160 (Reserved) [1]
[1]
Editor's Note: Former § 145-160, Meetings, was repealed 10-9-1990 by Ord. No. 172.
§ 145-161 Notice; hearing; decision.
[Amended 10-9-1990 by Ord. No. 172]
The Board shall conduct hearings and make decisions in accordance with the following requirements:
A.
Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer, such other persons as the Township may designate by ordinance and any person who has made timely request for the same. Written notices shall be given at such time and in such manner as shall be prescribed by rules of the Board. 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.
B.
The hearing shall be held within 60 days from the date of the applicant's request, unless the applicant has agreed, in writing, to an extension of time.
C.
The hearing shall be conducted by the Board. The decision, or, where no decision is called for, the finding, shall be made by the Board.
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 other person, including civic or community organizations, permitted to appear by the Board. The Board shall have the 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.
E.
The Chairman or Acting Chairman of the Board 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 required by the parties.
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 shall keep a stenographic record of the proceedings.
I.
The Board 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 its solicitor, unless the parties are afforded an opportunity to contest the materials so noticed; and shall not inspect the site or its surroundings after the commencement of hearings with any party or his representative unless all parties are given an opportunity to be present.
J.
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. 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 Pennsylvania Municipalities Planning Code, as amended,[1] or any provisions of this chapter, 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.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
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 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.
§ 145-162 Expiration of special exceptions and variances.
A special exception or variance shall expire if the applicant fails to obtain a permit within one year of the date of authorization thereof and shall thereafter be subject to expiration in accordance with Article XXI, § 145-142, of this chapter.
§ 145-163 (Reserved) [1]
[1]
Editor's Note: Former § 145-163, Appeals from decision of Board, was repealed 10-9-1990 by Ord. No. 172.
§ 145-164 Fees.
[Amended 10-9-1990 by Ord. No. 172]
Application before the Zoning Hearing Board shall be accompanied by a cash payment to the Township Zoning Officer in accordance with the Fee Schedule adopted by resolution of the Board of Supervisors, as such schedule may be amended from time to time. The appearance fee for a stenographer shall be shared equally by the applicant and the Board. The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board or shall be paid by the person appealing from the decision of the Board if an 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.
