Lower Frederick Township
City Zoning Code
City Zoning Code
ARTICLE XIX
Zoning Hearing Board
§ 170-139 Appointment of members; removal; interpretation.
The Board of Supervisors shall appoint a Zoning Hearing Board consisting of three members. The Board of Supervisors shall designate one such member to serve until the first day of January following the original effective date of this chapter, one until the first day of the second January thereafter, and one until the first day of the third January thereafter; shall reappoint or appoint three successors on the expiration of their respective terms to serve three years, and shall fill any vacancy for the unexpired term of any member whose term becomes vacant.
A.
Any Board member may be removed for malfeasance, misfeasance, or nonfeasance in office or for other just cause by a majority vote of the Board of Supervisors. The member must be given 15 days' written 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.
Zoning Hearing Board members may hold no other office in the Township.
C.
The word "Board" when used in this article shall mean the Zoning Hearing Board.
§ 170-140 Alternate members.
The Township Board of Supervisors may appoint by resolution no more than three residents of the Township to serve as alternate members of the Board. The term of office of an alternate shall be three years.
A.
If, by reason of absence or disqualification of a member, 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. An alternate so designated 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 this article and as otherwise provided by law.
B.
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.
C.
Designation of an alternate shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.
D.
Alternate members may hold no other office in the Township.
E.
Any alternate may participate in any proceeding or discussion of the Board but may not vote as a member nor be compensated unless designated as a voting alternate as provided above.
§ 170-141 Organization.
A.
The Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves.
B.
For the conduct of any hearing and the taking of any action, a quorum shall be no less than two voting members.
C.
The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the Township and the laws of the commonwealth.
D.
The Board shall keep full public records of its business, which records shall be the property of the Township, and shall submit reports of its activities to the Township as requested by the Board of Supervisors.
§ 170-142 Jurisdiction.
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 the curative challenge and amendment process.
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 filed within 30 days after the effective date of said ordinance.
C.
Appeals from the determination of the Zoning Officer, including the granting or denial of any permit, or failure to act on the application therefor, the issuance of any enforcement notice 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 Floodplain Conservation District or the Steep Slope Conservation District, or such provisions within a land use ordinance.
E.
Applications for variances from the terms of this chapter.
F.
Applications for special exceptions under the terms of this chapter.
G.
Appeals from the determination of the Zoning Officer or Township Engineer in the administration of ordinance provisions for sedimentation and erosion control and stormwater management insofar as the determination does not involve an application pursuant to Chapter 145, Subdivision and Land Development.
§ 170-143 Orders.
When the order, requirement, decision, or determination of a Township officer is appealed to the Board, the Board shall have the power to reverse or affirm in whole or in part, and the decision of the Board shall be enforced as though it were the decision of the officer from which the appeal was taken.
§ 170-144 Appeal or application to Board.
[Amended 11-7-2018 by Ord. No. 18-07]
Challenges and appeals may be filed with the Board in writing by the landowner affected, any officer or agency of the Township, or any person aggrieved. Requests for variance or special exception may be filed by any landowner or any tenant with permission of the landowner. An appeal or application regarding a matter within the jurisdiction of the Zoning Hearing Board may be filed with the Township Secretary on forms provided by the Zoning Hearing Board. The applicant shall provide five printed copies and one electronic copy of the application and accompanying materials, and shall include:
A.
The name, telephone number, and address of the applicant, and of the applicant's representative(s) or agent(s), where applicable.
B.
The name and address of the record owner of the property that is the subject of the application or appeal. Where the applicant is not the record owner of the subject property, a signed statement from the record owner authorizing the applicant to pursue the specific appeal or application shall also be included.
C.
A brief description and location of the subject property, along with a survey and/or sketch of the property boundaries.
D.
A statement of the present zoning classification of the subject property with the improvements thereon, and the present use thereof.
E.
A statement of the section of this chapter under which consideration by the Board is requested, along with a summary of reasons or arguments in support of request.
F.
A reasonably accurate description of the improvements or changes intended to be made under the application. In addition, there shall be attached a plot plan of the property to be affected, indicating the location and size of the lot, and the size and location of the existing and proposed improvements or changes.
G.
A list of the owners of all land adjacent to the applicant's land, to be supplied by the applicant, who shall obtain the list at his or her own cost and expense from the Montgomery County Board of Assessment Appeals, or from the Township Tax Collector, or from other municipalities when the adjacent land is outside the Township, along with:
H.
Any and all additional information that may be required by the Zoning Hearing Board.
I.
Payment to the Township in accordance with a fee schedule recommended by the Zoning Hearing Board and adopted by the Township Board of Supervisors, as amended.
(1)
Fees for hearings may include compensation for the Secretary and members of the Board, notice and advertising costs, and necessary administrative overhead connected with the hearing.
(2)
The costs may not include legal expenses of the Board, expenses for engineering, architectural, or other technical consultants, or expert witness costs.
§ 170-145 Action on application or appeal.
Upon receipt of an application, the Zoning Hearing Board Chairman shall fix a reasonable time and place for a public hearing on the application. Said hearing shall occur no more than 60 days after the application is made to the Secretary, unless the applicant has agreed in writing to an extension of time.
§ 170-146 Public notice of hearing.
The Board shall schedule a public hearing and shall give public notice as follows:
A.
By publishing a notice once a week for two successive weeks in a newspaper of general circulation in the Township. Such notice shall state the time and place of the hearing, the particular nature of the matter to be considered at the hearing and the specific ordinance provisions that permit consideration by the Zoning Hearing Board. The first publication shall not be more than 30 days and the second not less than seven days from the date of the hearing.
B.
By mailing or serving written notice to the record owner, applicant, and applicant's representative.
C.
By conspicuously posting written notice of hearing on the affected tract of land at least one week prior to the meeting.
D.
By mailing or serving the notice to adjacent land owners by utilization of the envelopes provided by the applicant pursuant to § 170-144G.
E.
By mailing or serving notice thereof to the Zoning Hearing Board members, Board of Supervisors, and Planning Commission Chairman.
F.
By mailing a notice to any and all parties in interest who have entered their appearance, and to any person registered for that purpose.
§ 170-147 Hearing procedures.
A.
Zoning Hearing Board hearings shall be held at the call of the Chairman and at such times as the Board may determine. Hearings shall be conducted by the Zoning Hearing Board.
B.
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 for that purpose.
C.
The Chairman or Acting Chairman may administer oaths and issue subpoenas to compel the attendance of witnesses and production of relevant documents and papers, including witnesses and documents requested by the parties.
D.
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.
E.
Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.
F.
The Board shall keep a stenographic record of the proceedings.
(1)
The appearance fee for a stenographer shall be shared equally by the applicant and the Board.
(2)
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 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.
G.
Except upon notice and opportunity for all parties to be present, to participate, and to inspect and contest materials, the Board shall not:
(1)
Communicate, directly or indirectly, with any party or his or her representative in connection with any issue involved.
(2)
Take notice of any communication, report, staff memorandum, or other material, except advice from the solicitor.
(3)
Inspect the subject site or its surroundings after commencement of hearings with any party or his or her representative.
§ 170-148 Decision of Board.
A.
The Zoning Hearing Board shall render a written decision or make written findings on the application within 45 days of the last hearing before the Board. When 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 a Township ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is found appropriate in the light of the facts found.
B.
Where the Board fails to render the decision within the required period, or fails to hold the required hearing within 60 days of application, 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.
C.
When a decision has been deemed to have been rendered in favor of the applicant because of the failure of the Board to hold a hearing or render a decision as provided, the Board shall give public notice of said deemed decision within 10 days from the last day it could have met to render a decision. Such notice shall be given in the manner prescribed by § 170-146 herein. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
D.
A copy of the final decision or findings shall be delivered to the applicant personally or mailed to him or her 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 other wise a brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.
§ 170-149 Standards for variances and special exceptions.
A.
Variance.
(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 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 and not the circumstances or conditions generally created by the provisions of this chapter 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 the 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 health, safety or 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.
B.
Special exception. The Zoning Hearing Board shall hear and decide requests for special exceptions in accordance with the standards and criteria found in the particular section of this chapter that permits application for said special exception. In granting any special exception, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.
§ 170-150 Challenges and appeals.
Decisions on appeals and applications to the Board, other than variances and special exceptions, shall be considered in accordance with the following:
A.
Time limitations on appeals.
(1)
All appeals from determinations adverse to a landowner shall be filed by the landowner within 30 days after notice of the determination is issued.
(2)
Appeals designed to secure reversal or limit the approval of any application for development, preliminary or final, shall be filed with the Board no later than 30 days after the application is approved by an appropriate Township officer or agency, unless the person filing proves that he had no notice, knowledge, or reason to believe that such approval had been given. If such person succeeded to his or her interest after such approval, he or she shall be bound by the knowledge of his or her predecessor in interest.
B.
Effect of filing. Upon filing of any proceeding before the Board, and during its pendency, all land development pursuant to any challenged Ordinance, order or approval of the Zoning Officer or of any agency or body, and all official action thereunder, shall be stayed unless the Zoning Officer, agency, or body certifies to the Board facts indicating imminent peril to life or property, in which case the development or official action shall not be stayed other than by a restraining order granted by the Board or by a court having jurisdiction of zoning appeals.
C.
Substantive validity challenge. A landowner who desires to challenge, on substantive grounds, the validity of a Zoning Map or ordinance provision or any other provision which prohibits or restricts the use or development of land in which he or she has an interest, may submit the challenge either to the Zoning Hearing Board or, with a request for curative amendment, to the Township Board of Supervisors (see § 170-176 of this chapter).
(1)
The written application to the Zoning Hearing Board shall contain the reasons for the challenge.
(2)
Public notice of the hearing shall include notice that the validity of the ordinance or map is in question, and shall specify the place and time where a copy of the request and its accompanying materials may be examined by the public.
(3)
Based upon the testimony at the hearing(s), the Board shall determine whether the challenged ordinance or map is defective, as alleged. If the challenge is found to have merit, the decision of the Board shall include recommended amendments to the challenged ordinance which will cure the defects found.
(4)
In reaching its decision, the Board shall consider the plans and explanatory material submitted by the landowner, and shall also consider:
(a)
The impact of the proposal upon roads, sewer facilities, water supplies, schools, emergency services and other public services and facilities.
(b)
If the proposal is for residential use, the impact of the proposal upon regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to and affordable by classes of persons otherwise unlawfully excluded by the challenged provisions of the ordinance or map.
(c)
The suitability of the site for the intensity of use proposed, with respect to the site's soils, slopes, woodland, wetlands, floodplains, aquifers, natural resources and other natural features.
(d)
The impact of the proposed use on the site's soils, slopes, woodland, wetlands, floodplains, aquifers, natural resources and other natural features; the degree to which these are protected or destroyed, the tolerance of the resources to development, and any adverse environmental impacts.
(e)
The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.
(5)
If the Board fails to act on the request within 45 days of the last hearing, a denial of the request is deemed to have occurred.
§ 170-151 Expiration.
Unless otherwise specified by the Board, a special exception or variance shall expire if the applicant fails to obtain any and all permits within one year of the date of the decision. The applicant may apply to the Board for postponement of the expiration, providing in writing an explanation of the reasons why permits were not obtained and a request for a postponement to a specific date. All parties who originally received notification of the Board's decision in the matter shall be notified of the postponement of expiration, at the applicant's expense.
§ 170-152 Appeal to court.
Any persons aggrieved by the decision of the Board may within 30 days thereafter appeal to the Court of Common Pleas of Montgomery County by petition in such form as may be prescribed or authorized by law.