Lower Mount Bethel Township
City Zoning Code
City Zoning Code
PART 18
ZONING HEARING BOARD
§ 27-1801 Jurisdiction, Establishment and Membership.
[Ord. No. 2022-02, 7/11/2022]
1.
Purpose. The purpose of this Part is to establish regulations to govern the establishment, functions, and procedures of the Zoning Hearing Board, appointed by the Board of Supervisors in accordance with Article IX of the Pennsylvania Municipalities Planning Code, as amended.[1] Membership of the Zoning Hearing Board shall be appointed as prescribed below.
[1]
Editor's Note: See 53 P.S. §§ 10901 through 10918.
2.
Zoning Hearing Board Jurisdiction. The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final decisions in the following matters.
A.
Substantive challenges to the validity of this chapter or Zoning Map, except those brought before the Township Board of Supervisors pursuant to § 609.1, Curative Amendments, and § 916.1(a)(2), Validity of Ordinances, of the Pennsylvania Municipalities Planning Code (MPC).[2]
[2]
Editor's Note: See 53 P.S. §§ 10609.1 and 10916.1(a)(2) .
B.
Appeals from the determination of the Township zoning officer, including, but not limited to, the granting or denial of any permit, or failure to act on the application therefore, the issuance of any cease-and-desist order, misinterpretation, or misapplication of any provision of a valid ordinance or map, or any valid rule or regulation of the Township governing the action of the Township zoning officer, or the registration or refusal to register any nonconforming use, structure, or lot.
C.
Appeals from a determination by the Township engineer or the Township zoning officer with reference to the administration of any floodplain provision within Part 11, FP Overlay - Floodplain Area Regulations.
D.
Applications for variances from the terms of the Zoning Ordinance or floodplain provisions within Part 11, Floodplain Area Regulations, pursuant to § 910.2 of the MPC, Zoning Hearing Board's Function; Variances.
E.
Applications for special exceptions under the Zoning Ordinance pursuant to § 27-1804 of this chapter, floodplain provisions within Part 11, Floodplain Area Regulations, or such provisions within a land use ordinance, pursuant to § 912.1 of the MPC, Zoning Hearing Board's Function; Special Exceptions.
F.
Appeals from the Township zoning officer's determination under § 916.2 of the MPC, Procedure to Obtain Preliminary Opinion.
G.
Appeals from the determination of the Township zoning officer or Township engineer in the administration of this chapter or any land use ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development not involving Pennsylvania Municipalities Planning Code Article V or VII applications.[3]
[3]
Editor's Note: See 53 P.S. §§ 10501 through 10516 or 53 P.S. §§ 10701 through 10713.
H.
Appeals from the determination of any officer or agency charged with the administration of any transfers of development rights or performance density provisions of the Zoning Ordinance.
3.
Appointment.
A.
The membership of the Zoning Hearing Board shall consist of five residents of the Township appointed by resolution by the Board of Supervisors for a normal term of office of five years, starting at the date of appointment. The first appointment shall be one for one year, one for two years, one for three years, one for four years, and one for five years so that the term of office of one member shall expire each year. The Zoning Hearing Board shall promptly notify the Board of Supervisors of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Zoning Hearing Board shall hold no other appointed or elective office in the Township, and shall not be employees of the Township.
B.
Alternate Members.
(1)
The Board of Supervisors may appoint by resolution at least one but no more than three residents of the Township to serve as alternate members of the Zoning Hearing Board.
(2)
The term of office of an alternate member shall be three years.
(3)
When seated pursuant to the provisions of Subsection 3.B.(1) of this chapter, an alternate shall be entitled to participate in all proceedings and discussions of the Zoning Hearing Board to the same and full extent as provided by law for Zoning Hearing 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 by the Pennsylvania Municipalities Planning Code, as amended,[4] and as may otherwise be provided for by law.
[4]
Editor's Note: See 53 P.S. §§ 10101 et seq.
(4)
Alternates shall hold no other elected or appointed office in the Township, including service as a member of the Planning Commission or as a Township zoning officer, nor shall any alternate be an employee of the Township.
(5)
Any alternate may participate in any proceeding or discussion of the Zoning Hearing Board, but shall not be entitled to vote as a member of the Zoning Hearing Board nor be compensated pursuant to Subsection 6., unless designated as a voting alternate member pursuant to Subsection 3.B.
4.
Organization.
A.
The Zoning Hearing Board shall elect its chairperson and vice-chairperson from its membership, who shall serve annual terms as such and may succeed themselves.
B.
The Zoning Hearing Board shall elect a recording secretary from its membership, who shall serve annual terms as such and may succeed himself or herself.
5.
Removal of Members. Any Zoning Hearing 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. Such a vote may be taken only after the member has received at least 15 days advance written notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member requests it in writing.
6.
Compensation and Expenditures for Services.
A.
The members of the Zoning Hearing Board shall receive compensation for the performance of their duties as shall be fixed by resolution of the Board of Supervisors, but in no case shall such rate exceed the rate of compensation authorized to be paid to the Township Supervisors.
B.
Alternate members of the Zoning Hearing Board may receive compensation, as may be fixed by the Board of Supervisors, for the performance of their duties when designated as an alternate member pursuant to the provisions of this Part and § 906 of the Pennsylvania Municipalities Planning Code,[5] but in no case shall such compensation exceed the rate of compensation authorized to be paid to members of the Board of Supervisors.
[5]
Editor's Note: See 53 P.S. §§ 10906.
C.
Within the limits set by the Board of Supervisors by motion, the Zoning Hearing Board may employ or contract for staff or clerical secretaries, clerks, legal counsel, consultants, and other technical and clerical services. The Township solicitor shall not serve as solicitor for the Zoning Hearing Board.
7.
Meetings.
A.
Meetings of the Zoning Hearing Board shall be held at the call of the chairperson, and at such other times as the Zoning Hearing Board may determine. Meetings shall be at sufficiently frequent intervals, at the discretion of the Zoning Hearing Board, for the efficient conduct of its business. All meetings shall be open to the public.
B.
For the conduct of any hearing and the taking of any action, a quorum shall be not less three members of the Zoning Hearing Board. The chairperson of the Zoning Hearing Board may designate alternate members of the Zoning Hearing Board to replace any absent or disqualified member. Further, if a quorum is not attained by reason of absence or disqualification of a member, then the chairperson of the Zoning Hearing Board shall designate as many duly appointed alternate members of the Zoning Hearing Board to sit on the Zoning Hearing Board as may be needed to provide a quorum. Any alternate member of the Zoning Hearing Board shall continue to serve on the Zoning Hearing Board in all proceedings involving the matter or case for which the alternate was initially appointed until the Zoning Hearing Board has made a final decision 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.
§ 27-1802 Procedure.
[Ord. No. 2022-02, 7/11/2022]
1.
Rules of Procedure. The Zoning Hearing Board may make, adopt, alter, and rescind rules and forms for its procedure, consistent with the provisions of the Pennsylvania Municipalities Planning Code,[1] any other applicable laws of the Commonwealth, and this chapter, as it may deem necessary to the proper performance of its duties and the proper exercise of its powers.
[1]
Editor's Note: See 53 P.S. §§ 10101 et seq.
2.
Fees. The applicant or appellant shall pay all fees as prescribed by the Township's fee schedule as adopted from time to time when the application or appeal is filed. No application or appeal shall be considered to be complete or properly filed, and the Zoning Hearing Board shall be under no obligation to commence a hearing, until all such fees have been paid. The manner and form of payment for the fees shall be as determined or permitted by the Township.
3.
Hearings.
A.
The Zoning Hearing Board shall conduct hearings and make decisions in accordance with the requirements of § 908 of Pennsylvania Municipalities Planning Code.[2] Where there is an unresolvable conflict between any provision of this chapter and said § 908, the requirement(s) of § 908 shall govern.
[2]
Editor's Note: See 53 P.S. §§ 10908.
B.
The Zoning Hearing Board shall conduct a public hearing for all decisions it must make.
C.
Appeals may be filed with the Zoning Hearing Board in writing by the landowner affected or his or her agent with the written permission of such landowner, by any officer or agency of the Township, or any person aggrieved. All appeals, challenges, and any other applications for hearing to the Zoning Hearing Board shall be in writing on forms prescribed by the Zoning Hearing Board and shall be submitted to the secretary of the Zoning Hearing Board. Every such application for hearing shall refer to the specific provision of this chapter involved and shall exactly set forth the interpretation that is claimed, the grounds for any challenges to the validity of this chapter, the use for which a special exception is sought, or the detail 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. Requests for a variance under § 27-1805 and for a special exception under § 27-1804 may be filed with the Zoning Hearing Board by any landowner or any tenant with the written permission of such landowner.
D.
The hearings shall be conducted by the Zoning Hearing Board, or the Zoning Hearing Board may appoint a hearing officer from its own membership to conduct any hearing on its behalf. The decision or, where no decision is called for, the findings or other further action shall be made by the Zoning Hearing Board. However, the parties to the hearing, in addition to the Township, may, prior to the decision of the hearing, waive the decision or findings or other further action being made by the Zoning Hearing Board as provided in § 908 of Pennsylvania Municipalities Planning Code[3] and accept the decision or findings of the hearing officer as final.
[3]
Editor's Note: See 53 P.S. §§ 10908.
4.
Time Limitations.
A.
No person shall be allowed to file any proceeding with the Zoning Hearing 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 or she had no notice, knowledge, or reason to believe that such approval had been given. If such person has 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.
All appeals to the Zoning Hearing Board from determinations adverse to the landowners or applicant shall be filed by the landowner or applicant within 30 days after notice of the determination is issued.
C.
Challenges to the validity of this chapter or the Zoning Map 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.
D.
In the case of an appeal from a preliminary opinion by the Township zoning officer, where such appeal is requested by a person other than the landowner, such appeal must be filed within 30 days of the second public notice of the preliminary opinion.
E.
All appeals, applications, and other requests to the Zoning Hearing Board shall be filed not less than 30 days before the date of the Zoning Hearing Board's meeting at which the appellant or applicant desires that the appeal be heard or application be considered provided, that the first hearing before the Zoning Hearing Board or hearing officer shall be commenced within 60 days from the date of receipt of the appeal or application.
5.
Notice of Hearings.
A.
Public notice of the appeal or application and hearing shall be given and written notice of same shall be given to the applicant, the Township zoning officer, and to any person who has made timely request for the same. The Zoning Hearing Board shall publish the public notice, in a newspaper of general circulation in the Township, in accordance with the Pennsylvania Municipalities Planning Code.[5] Written notice of the appeal or application and hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing. Also, the owners of property adjacent to or within 300 feet of the property for which action is requested shall be notified by letter of the hearing not less than 14 days prior to said hearing. The names and addresses of these property owners shall be supplied to the Zoning Hearing Board by the applicant.
[5]
Editor's Note: See 53 P.S. §§ 10101 et seq.
B.
In any matter that relates to a property which lies within 500 feet of the boundary of another township, the secretary of the Zoning Hearing Board shall transmit to the secretary of such other township a copy of the official notice of the public hearing on such matter, not later than one day after publication thereof. Such other township shall have the right to appear and to be heard at such public hearing.
6.
Parties to the Hearings. The parties to the hearing shall be the Township, any person affected by the application who has made timely appearance of record before the Zoning Hearing Board, and any other person including civic or community organizations permitted to appear by the Zoning Hearing Board. The Zoning Hearing 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 Zoning Hearing Board for that purpose.
7.
Minutes and Records.
A.
The Zoning Hearing Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings. The fees and costs for such record shall be apportioned and paid in accordance with § 908(7) of the Pennsylvania Municipalities Planning Code.[6]
[6]
Editor's Note: See 53 P.S. § 10908(7).
B.
The Zoning Hearing Board shall keep full and public records of its proceedings showing the vote of each member upon each question or if absent or failing to vote indicating such fact. The Zoning Hearing Board shall also keep full public records of its business and other official action, copies of which shall be immediately filed with the Township secretary. The Zoning Hearing Board shall submit an annual report of its activities each year to the Township.
8.
Witnesses and Evidence. The chairperson or acting chairperson of the Zoning Hearing Board or the hearing officer presiding may administer oaths and shall have the power to issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties to the hearing. Such parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond and present evidence and argument and to cross-examine adverse witnesses on all relevant issues. Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.
9.
Communications With the Parties. The Zoning Hearing Board or the hearing officer shall not communicate, directly or indirectly, with any party or his or her 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 the Zoning Hearing Board's solicitor, unless all parties are afforded an 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 or her representative unless all parties are given an opportunity to be present.
10.
Decisions. The Zoning Hearing Board or the hearing officer 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 Zoning Hearing 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 Pennsylvania Municipalities Planning Code,[7] of this chapter, or of other Township 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.
A.
If the hearing is conducted by a hearing officer, and there has been no stipulation that his or her decision or findings are final, the Zoning Hearing Board shall make his or her report and recommendations available to all parties within 45 days, and the parties shall be entitled to make written representations thereon to the Zoning Hearing Board prior to final decision or entry of findings. The Zoning Hearing Board's final decision or findings shall be entered no later than 30 days after the report of the hearing officer.
B.
Except for challenges under § 27-1806 of this chapter, where the Zoning Hearing Board fails to render the decision within the time periods required by Subsection 1806.I.[8] of this chapter, fails to commence the required hearing within 60 days from the date of the applicant's request for a hearing, or fails to comply with the time requirements of § 908(1.2) of the Pennsylvania Municipalities Planning Code,[9] then the decision shall be deemed to have been rendered in favor of the applicant unless he or she has agreed in writing to an extension of time. When a decision has been rendered in favor of the applicant because of the failure of the Zoning Hearing Board to meet or render a decision as herein above provided, then the Zoning Hearing Board shall give public notice of said decision, pursuant to the requirements of the Pennsylvania Municipalities Planning Code, and shall notify all parties of said decision within 10 days from the last day it could have met to render a decision in the same manner as provided in § 908(1.2) of the Pennsylvania Municipalities Planning Code.[10] If the Zoning Hearing Board shall fail to provide such notice, the applicant may do so. Nothing in this section shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
C.
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 or her not later than the day following its date. To all other persons who have filed their name and address with the Zoning Hearing Board no later than the last day of the hearing, the Zoning Hearing 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.
[7]
Editor's Note: See 53 P.S. §§ 10101 et seq.
§ 27-1803 Appeals on Interpretation of the Zoning Ordinance or Map.
[Ord. No. 2022-02, 7/11/2022]
1.
The Zoning Hearing Board is hereby authorized, upon an appeal by an affected landowner and/or his or her authorized representative, any officer or agency of the Township, or any person aggrieved, to hear and decide:
A.
Any matter where an appellant or his or her agent or attorney alleges that the Township zoning officer was in error in refusing to issue a zoning permit or use and occupancy certificate;
B.
Any matter where an appellant alleges that the Township zoning officer was in error in his or her determination as to the exact location of a zoning district boundary line on the Zoning Map that forms a part of this chapter;
C.
Any other matter relating to this chapter, where an appellant seeks a review of any decision, order or ruling made by the Township zoning officer;
D.
Any matter which the Township zoning officer appeals on grounds of doubt as to the meaning or intent of any provision of this chapter or as to the location of a zoning district boundary line on the Zoning Map.
§ 27-1804 Special Exception Uses.
[Ord. No. 2022-02, 7/11/2022]
1.
Where a use requires a special exception review by the Zoning Hearing Board, the applicant shall request a hearing by the Zoning Hearing Board. The applicant shall submit all materials relevant to the special exception request, including, but not limited to, those plans, documents, and supporting materials that demonstrate compliance with the regulations and criteria of Part 13, Natural Resources Conservation, Part 14, Common Regulations, Part 15, Supplementary Regulations, and other applicable provisions of this chapter.
2.
The Zoning Hearing Board shall hear and decide on the request for each special exception in accordance with the standards and criteria use set forth below. In granting a special exception, the Zoning Hearing Board may attach such reasonable conditions and safeguards, in addition to those expressed in the chapter, as it may deem necessary to implement the purposes of the Zoning Ordinance:
A.
The size, scope, extent, and character of the special exception request is consistent with the community development objectives articulated in the Zoning Ordinance, is consistent with the Comprehensive Plan of the Township, conforms with all requirements of the Subdivision and Land Development Ordinance,[1] reflects sound engineering and land development design and construction principles, practices and techniques, and promotes the harmonious and orderly development of the zoning district involved;
B.
The proposed special exception is an appropriate use consistent with the character and type of development in the area surrounding the location for which the request is made and will not substantially impair, alter, or detract from the use of surrounding property or of the character of the neighborhood in light of the zoning classification of the area affected; the effect on other properties in the area; the number, extent, and scope of nonconforming uses in the area; and the presence or the absence in the neighborhood of conditions or uses which are the same or similar in character to the condition or use for which applicant seeks approval;
C.
The proposed special exception is suitable with respect to traffic and highways in the area and provides for adequate access and off-street parking arrangements in order to protect major streets and highways from undue congestion and hazard;
D.
The proposed special exception is reasonable in terms of the logical, efficient, and economical extension of public services and facilities, such as public water, sewers, police, fire protection, and public schools, and ensures adequate arrangements for the extension of such services and facilities in specific instances;
E.
Conditions are being imposed on the grant of the request necessary to ensure that the general purpose and intent of the property adjacent to the area included in the proposed special exception is adequately safeguarded with respect to harmonious design of buildings, aesthetics, planting and its maintenance as a sight or sound screen, landscaping, hours of operation, lighting, numbers of persons involved, allied activities, ventilation, noise, sanitation, safety, smoke and fume control, and the minimizing of noxious, offensive or hazardous elements;
F.
The proposed special exception does not materially and adversely affect the safety, health, and general welfare of the Township.
3.
Any subsequent amendment or addition to plans for which a permit is sought shall be subject to further review and public hearing by the Zoning Hearing Board.
§ 27-1805 Variances.
[Ord. No. 2022-02, 7/11/2022]
1.
General Description of Power. In addition to and separate from the power of the Zoning Hearing Board to grant permits for special exception uses, as provided in § 27-1804, the Zoning Hearing Board shall have the power to authorize, upon appeal, in specific cases such variance from the terms of this chapter as will not be contrary to public interest, where owing to special conditions a literal enforcement of the provisions of the Ordinance will result in unnecessary hardship, and so that the spirit of the chapter shall be served and substantial justice done.
2.
Granting of Variances.
A.
The Zoning Hearing Board may by rule prescribe the form of application for variances and may require preliminary application to the Township zoning officer for a decision on a variance request before the request is heard by the Zoning Hearing Board.
B.
The Zoning Hearing Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship on the applicant.
C.
In granting any variance, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.
D.
The Zoning Hearing Board may grant a variance, provided the following findings are made where relevant in a given case:
(1)
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 zoning district in which the property is located;
(2)
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 the Zoning Ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;
(3)
That such unnecessary hardship has not been created by the applicant;
(4)
That the variance, if authorized, will neither alter the essential character of the neighborhood or zoning 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;
(5)
That, in the case where the property is located in part or totally within the designated floodplain, the granting of a variance will not increase the base flood elevation; and
(6)
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.
E.
In addition, the Zoning Hearing Board shall, to the full extent permitted by law, consider the factors and criteria listed in Subsection 3.C. below when considering a request for a variance.
F.
In the case of a request for a variance, it shall be the responsibility of the applicant to present such evidence as is necessary to demonstrate that the proposed use or modification complies with the pertinent criteria or standards set forth in this section and in Part 15, Supplementary Regulations.
3.
Specific Types of Variances. In conformity with the general power to vary or modify the provisions of this chapter, as provided in Subsection 2.A., and pursuant to the guiding principles stated in Subsection 2.B.(4), the following specific types of variances, among others, may be granted:
A.
To permit the enlargement or extension of a nonconforming use or building on the lot occupied by such use or building prior to the adoption of this chapter or amendment thereto, which made such use or building nonconforming, in accordance with the provisions of Part 16;
B.
To modify the side yard requirements on the side street frontage of a corner lot, in cases where such requirements would unduly reduce the buildable width of such corner lot;
4.
Variance relief shall not be afforded to authorize a use that is not permitted in the Zoning Ordinance and which could more properly be considered a rezoning request to be heard and decided by the Board of Supervisors.
§ 27-1806 Challenges to the Validity of the Zoning Ordinance or Map.
[Ord. No. 2022-02, 7/11/2022]
1.
The Zoning Hearing Board shall hear challenges to the validity of this chapter or the Zoning Map from:
A.
A landowner who, on substantive grounds, desires to challenge the validity of this chapter or Zoning Map or any provision thereof which prohibits or restricts the use or development of land in which he or she has an interest;
B.
A person aggrieved by a use or development permitted on the land of another by this chapter or Zoning Map or any provision thereof and desiring to challenge its validity on substantive grounds.
2.
The Zoning Hearing Board shall not hear questions of an alleged defect in the process of enactment of adoption of this chapter, which shall instead be heard directly by the Court of Common Pleas pursuant to § 11002-A(b) of the Pennsylvania Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. §§ 10101 et seq.
3.
The landowner or persons aggrieved shall submit a written request to the Zoning Hearing Board that it hold a hearing on the challenge. The request shall contain a short statement reasonably informing the Zoning Hearing Board of the matters that are at issue and the grounds for the challenge. A request submitted by a landowner shall be accompanied by plans and other materials describing the use or development proposed in lieu of the use or development permitted by this chapter or the Zoning Map. Such plans and other materials shall not be required to meet the drawing requirements or standards prescribed in the Lower Mount Bethel Township Subdivision and Land Development Ordinance[2] for preliminary, tentative, or final approval or for the issuance of a permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis for evaluating this chapter or the Zoning Map in the light thereof. Nothing herein contained shall preclude the landowner from first seeking a final approval before submitting his or her challenge.
4.
Notice of such hearing shall include notice that the validity of this chapter or the Zoning Map is in question. Where the challenge is that of a landowner, the notice shall also give the place where and the times when a copy of the landowner's request, including the plans and other materials submitted, may be examined by the public.
5.
If a hearing has been held by the Board of Supervisors covering the same matters at which a stenographic record has been taken, the Zoning Hearing Board shall, upon motion of any party, accept said record as the record in the case before the Zoning Hearing Board, but the Zoning Hearing Board shall not be precluded from taking additional evidence.
6.
Based upon the testimony presented at the hearing or hearings, the Zoning Hearing Board shall determine whether the challenged ordinance or map is defective, as alleged by the landowner. If a challenge heard by the Zoning Hearing Board is found to have merit, the decision of the Zoning Hearing Board shall include recommended amendments to the challenged ordinance which will cure the defects found. In reaching its decision, the Zoning Hearing Board shall consider the amendments, 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, and other public service facilities;
B.
If the proposal is for a 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 this chapter or the Zoning Map;
C.
The suitability of the site for the intensity of use proposed by the site's soils, slopes, woodlands, wetlands, floodplains, aquifers, natural resources, and other natural features;
D.
The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, natural resources and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts; and
E.
The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.
7.
The Zoning Hearing Board shall decide on all contested quantities and shall make findings on all relevant issues of fact.
8.
All other procedures or restrictions of the Zoning Hearing Board, applicant, landowner, Township, or aggrieved person, or any other person, relating to any challenge under this section shall comply with § 916.1 of the Pennsylvania Municipalities Planning Code.[3]
[3]
Editor's Note: See 53 P.S. § 10916.1.
§ 27-1807 Burden of Proof; Conditions.
[Ord. No. 2022-02, 7/11/2022]
To the maximum extent permitted by law, all burdens of proof and persuasion shall be upon the landowner in connection with any variance, special exception, or other application or appeal before the Zoning Hearing Board. In allowing a variance or special exception, the Zoning Hearing Board may attach such reasonable conditions and safeguards based on the standards, criteria, and purposes expressed in the chapter, as it may deem necessary to implement the purposes of the Pennsylvania Municipalities Planning Code and this Zoning Ordinance.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
§ 27-1808 Mediation Option.
[Ord. No. 2022-02, 7/11/2022]
1.
Parties to proceedings authorized in this Part, including appeals to court, may utilize mediation as an aid in completing such proceedings. Mediation shall supplement, not replace, those procedures provided for in this Part and the Pennsylvania Municipalities Planning Code[1] once they have been formally initiated.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
2.
In no case shall the Zoning Hearing Board initiate mediation or participate as a mediating party.
3.
Participation in mediation shall be wholly voluntary. The appropriateness of mediation shall be determined by the particulars of each case and the willingness of the parties to negotiate.
4.
Prior to commencement of the mediation process, the mediating parties, assisted by the mediator as appropriate, shall develop terms and conditions defining:
A.
Funding for the mediation process;
B.
Selection of a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures in the Commonwealth of Pennsylvania and demonstrated skills in mediation;
C.
Completion of the mediation process, including time limits for such completion;
D.
Suspension of time limits otherwise authorized by this chapter and the Pennsylvania Municipalities Planning Code[2], provided that there is written consent by the mediating parties, and by an applicant or the Township's Board of Supervisors if either is not a party to the mediation;
[2]
Editor's Note: See 53 P.S. § 10101 et seq.
E.
Identification of all parties and affording them the opportunity to participate in the mediation process;
F.
Whether some or all of the mediation sessions shall be open or closed to the public. Such determination shall be subject to applicable legal restraints;
G.
That mediated solutions shall be in writing and signed by the mediating parties, and shall be subject to the review and approval of the appropriate decision-making body of the Township, pursuant to the procedures set forth by this chapter and the Pennsylvania Municipalities Planning Code.[3]
[3]
Editor's Note: See 53 P.S. § 10101 et seq.
5.
No offers or statements made in the mediation sessions, excluding the final written mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceeding.
6.
Nothing in this section shall be interpreted as expanding or limiting municipal police powers or as modifying any principles of substantive law.
§ 27-1809 Stay of Proceedings.
[Ord. No. 2022-02, 7/11/2022]
1.
Upon filing of any proceeding described in this Part and during its pendency before the Zoning Hearing Board, all land development pursuant to any challenged ordinance, order, or approval of the Township zoning officer or of any agency or body, and all official action thereunder, shall be stayed unless the Township zoning officer or any other appropriate agency or body certifies to the Zoning Hearing 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 Zoning Hearing Board or by the court having jurisdiction over zoning appeals. Such restraining order shall be granted only upon petition and after notice of such petition has been given to the Township zoning officer or other appropriate agency or body.
2.
When an application for development, preliminary or final, has been duly approved and proceedings intended to reverse or limit such approval are filed with the Zoning Hearing 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 of continuing the proceedings before the Zoning Hearing Board.
3.
After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the applicant for a bond to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for a bond.
4.
The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him or her if an appeal is taken from a final decision of the court.
5.
The question of whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court. An order denying a petition for bond shall be interlocutory. An order directing the responding party to post a bond shall be interlocutory.
6.
If an appeal is taken by a respondent to the petition for a bond from an order of the court dismissing a zoning appeal for refusal to post a bond and the appellate court sustains the order of the court below to post a bond, then the respondent to the petition for a bond, upon motion of the petitioner and after hearing in the court having jurisdiction of zoning appeals, shall be liable for all reasonable costs, expenses, and attorney fees incurred by the petitioner.
§ 27-1810 Zoning Appeals to Court.
[Ord. No. 2022-02, 7/11/2022]
1.
Zoning Appeals. Zoning appeals shall include appeals from decisions of the Zoning Hearing Board and appeals upon reports of the Zoning Hearing Board in proceedings to challenge the validity of this Zoning Ordinance or Zoning Map.
2.
Who May Appeal. Zoning appeals shall be filed with the Court of Common Pleas of the County of Northampton, Pennsylvania, by any party before the Zoning Hearing Board, or any officer or agency of the Township, or any other aggrieved person.
3.
Time Limitation. All zoning appeals shall be filed with the Court no later than 30 days after the issuance of notice of the decision or report of the Zoning Hearing Board.
5.
Applicability of Judicial Remedies. Nothing contained in this chapter shall be construed to deny the applicant the right to proceed directly to court where appropriate, pursuant to the Pennsylvania Rules of Civil Procedure No. 1091 (relating to action in mandamus).