Lower Providence Township Montgomery County
City Zoning Code
City Zoning Code
ARTICLE XXII
Zoning Hearing Board
§ 143-158 Membership; terms; appointments; removal.
A.
The word "Board" when used in this article shall mean the Zoning Hearing Board.
B.
The membership of the Board shall, upon the determination of the governing body, consist of either three or five residents of the municipality appointed by resolution of the governing body. The terms of office of a three-member board shall be three years and shall be so fixed that the term of office of one member shall expire each year. If a three-member board is changed to a five-member board, the members of the three-member board shall continue in office until their term of office would expire under prior law. The terms of office of a five-member board shall be so fixed that the term of office of one member of the five-member board shall expire each year. The governing body shall appoint two additional members to the Board with terms scheduled to expire in accordance with the provisions of this section. The Board shall promptly notify the governing body of any vacancies that occur. Appointments to fill such vacancies shall be only for the unexpired portion of the term. Members of the Board shall hold no other public office.
[Amended 12-7-2000 by Ord. No. 451]
C.
Any board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the governing body which appointed the member, taken after the member has received 15 days' advanced 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.
§ 143-159 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.
Alternate members may hold no other office in the Township.
§ 143-160 Organization; rules of procedure; records.
A.
The Board shall annually elect officers from its membership.
B.
For the conduct of any hearing and the taking of any action, a quorum shall be no less than two voting members, but the Board may appoint from its own membership a hearing officer to conduct any hearing on its behalf, and the parties may waive further action by the Board.
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 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 Township Board of Supervisors.
§ 143-161 Jurisdiction.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in accordance with the requirements of Article IX of the Municipalities Planning Code, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
§ 143-162 Appeals; application.
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 a 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 Zoning Officer on forms provided by the Zoning Hearing Board and shall state:
A.
The name 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 and notarized statement from the record owner, authorizing the applicant to pursue the specific appeal or application.
C.
A copy of the deed to the subject property.
D.
A brief description and location of the subject property, along with a survey and/or sketch of the property boundaries.
E.
A statement of the present zoning classification of the subject property with the improvements thereon and the present use thereof.
F.
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.
G.
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.
H.
A list of all landowners within 500 feet of 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 Lower Providence Township and other municipalities when the adjacent land is outside the Township.
I.
A payment to the Township in accordance with a fee schedule adopted and amended from time to time by the Township Board of Supervisors, in accordance with the requirements of Article IX of the Municipalities Planning Code, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
J.
A properly completed Lower Providence Township Zoning Hearing Board application form that is signed and notarized by the applicant and the property owner.
[Added 10-20-2011 by Ord. No. 602]
§ 143-163 Board action on application or appeal.
A.
Immediately upon receipt of an application, the Zoning Officer shall promptly forward the application to the Zoning Hearing Board Solicitor.
B.
The Zoning Hearing Board Solicitor, in consultation with the Chairperson, 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 Township, unless the applicant has agreed, in writing, to an extension of time.
C.
A true and correct copy of the application and all related information shall be forwarded to each member of the Zoning Hearing Board and to the Chairperson of the Township Board of Supervisors, the Township Manager and the Township Solicitor.
§ 143-164 Notice of hearing.
The Board shall schedule a public hearing and shall give public notice, as well as written notice as follows:
A.
Written notice shall be given to:
(1)
The record owner, applicant and applicant's representative.
(2)
All adjacent landowners within 500 feet.
(3)
The Township Board of Supervisors, Solicitor, Manager and Zoning Officer.
(4)
All parties in interest who have entered their appearance and any other person registered for that purpose.
B.
Written notice shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.
§ 143-165 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.
B.
Hearings may be conducted by the Board, which may appoint any member as a hearing officer. The decision or findings shall be made by the Board; however, the applicant may, prior to a decision, waive a decision or findings by the Board and accept the decision or findings of the hearing officer as final.
C.
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.
D.
The Chairperson or acting Chairperson or hearing officer 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.
E.
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.
F.
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
G.
The Board or the hearing officer shall keep a record of the proceedings. The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board or hearing officer, or shall be paid by the person appealing from the decision of the Board 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.
H.
The Board or hearing officer shall not, except upon notice and opportunity for all parties to be present, participate and inspect and contest materials, engage in the any of the following activities:
(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, reports, staff memoranda or other materials, 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.
§ 143-166 Decision of Board.
A.
The Zoning Hearing Board or hearing officer shall render a written decision or, when no decision is called for, make written findings on the application within 45 days of the last hearing. When the application is contested or denied, the decision shall be accompanied by findings of fact and conclusions based upon findings. Conclusions based on any provision of a Township ordinance shall contain a reference to the provision.
B.
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 Board shall make his or her report and recommendations available to the parties within 45 days and the parties shall be entitled to make written representations to the Board prior to final decision or entry of findings. The Board's decision shall be entered no later than 30 days after the report of the hearing officer.
C.
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.
D.
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. 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.
E.
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 otherwise, brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.
§ 143-167 General standards for Board review.
In the consideration of an application, the Board shall:
A.
Consider the suitability of the property for the use desired and assure itself that the proposed change is consistent with the spirit, purpose and intent of the Zoning Ordinance and Comprehensive Plan.
B.
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 adjacent property is adequately safeguarded.
C.
Determine that the proposed change will serve the best interests of the Township, the convenience of the community (where applicable) and the public welfare.
D.
Consider the effect of the proposed change upon the logical, efficient and economical extension of public services and facilities such as public water, sewers, police and fire protection and public schools.
E.
Consider the suitability of the proposed location of use with respect to probable effects upon highway traffic and assure adequate access arrangements in order to protect major roads from undue congestion and hazard.
F.
Be guided in its study, review and recommendation by sound standards of subdivision and land development practice where applicable.
G.
Impose such conditions and safeguards in addition to those required as are necessary to assure that the intent of this chapter and the Comprehensive Plan are 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, loading and sanitation.
H.
The Zoning Hearing Board shall be limited to consideration of applications as they relate to ordinance provisions in effect at the time of the application. The Township Board of Supervisors shall retain the exclusive right to enact and amend ordinances.
§ 143-168 Specific standards for variances and special exceptions.
A.
Variance. The Board shall hear requests for variances where it is alleged that the provisions of the Zoning Ordinance inflict unnecessary hardship upon the applicant. The Board may grant a variance, provided that all of 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 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.
(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 the unnecessary hardship has not been created by the applicant.
(4)
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.
(5)
That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation at issue.
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 the Zoning Ordinance that permits application for said special exception and with the general standards in § 143-167 of this article.
C.
Burden of proof. For variances, the burden of proof shall be on the applicant. For special exceptions, the applicant shall be entitled to the special exception unless others can prove that it would adversely affect the public health, safety, morals or welfare.
D.
Standards of proof.
[Added 10-21-1999 by Ord. No. 440]
(1)
Special exception case. An applicant for a special exception shall have the burden of establishing by competent evidence and testimony both:
(a)
That the applicant's application falls within the provisions of the ordinance which accords to the applicant the right to seek a special exception; and
(b)
That the allowance of a special exception will not be contrary to the public interest.
(2)
Variance case. An applicant for a variance shall have the burden of establishing:
(a)
All the requirements of § 910.2 of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805, No. 247, as amended, 53 P.S. § 10910.2;
(b)
That literal enforcement of the provisions of this chapter will result in unnecessary hardship, as the term is defined by relevant statutory provisions and case law; and
(c)
That the allowance of a variance will not be contrary to the public interest.
(3)
Zoning Hearing Board considerations. In considering whether the allowance of a special exception or variance is contrary to the public interest, the Zoning Hearing Board shall consider whether the application, if granted, will:
(a)
Substantially increase traffic congestion in the streets surrounding the subject site;
(b)
Increase the risk of fire or panic or otherwise endanger the public safety;
(c)
Overcrowd the land or create undue concentration of population;
(d)
Be suitable for the property in question so as to be consistent with the spirit and purpose of the provisions of this chapter;
(e)
Intrude upon the adequacy of natural light and air to adjoining properties;
(f)
Create extraordinary burdens on public, private or community water systems or upon groundwaters or wells within the neighborhood;
(g)
Overburden the public sanitary sewer system within the Township occasion environmental problems with on-site sanitary sewer installations;
(h)
Place undue burdens upon the police, fire, ambulance or other emergency services provided throughout the neighborhood;
(i)
Cause adverse affects to the appropriate use of adjacent properties in the neighborhood where the property is located;
(j)
Cause risk or danger to the safety of persons or property by improper location or design of facilities for ingress and egress to and from the property in question; or
(k)
Otherwise adversely affect the public health, safety, morals or general public welfare of the community.
(4)
Burden of proof. In all cases, whether special exception, variance, interpretation, appeals from the Building Inspector or any other appeals lawfully brought before the Zoning Hearing Board, the applicant shall have the burden of proof, including the duty of presenting credible, relevant and pertinent evidence and testimony to persuade the Zoning Hearing Board that the applicant has satisfied the criteria set forth in this section. In addition to the foregoing, where an applicant has been specifically requested by the Zoning Hearing Board to provide specific evidence or testimony on any item set forth in Subsection D(3)(a) through (j), supra, or in the event that any party opposing any application shall claim that the proposal before the Zoning Hearing Board will cause any effects upon the matters addressed in Subsection D(3)(a) through (j), supra; then the applicant's burden of proof shall include the obligation of presenting credible, relevant and pertinent evidence on such topics as to persuade the Zoning Hearing Board that the relief requested by the applicant will not be contrary to the public interest with respect to the criteria placed at issue.
§ 143-169 Review of challenges and appeals.
A.
Time limitations on appeals.
(1)
All appeals from determinations adverse to the landowners 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 alleges and proves that he or she had not 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. When an appeal is filed, further development or official action pursuant to the appealed determination or approval shall be stayed until issuance of a final decision or findings by the Board. If the Zoning Officer or other Township agency presents facts to the Board indicating that such a stay would cause imminent peril to life or property, development or official action can only be stayed by restraining order granted by the Board or by a court of competent jurisdiction.
C.
Substantive validity challenge. A landowner who desires to challenge, on substantive grounds, the validity of a map or ordinance 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.
(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 and other public service 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, by 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, woodlands, 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.
§ 143-170 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 six months of the date of authorization thereof.
§ 143-171 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 in accordance with the provisions of Article X-A of the Municipalities Planning Code, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
