Middle Smithfield Township
City Zoning Code

Applications for Planned Residential Developments;

Applications for subdivision and land development;

Applications for conditional use;

Applications for curative amendments;

Petitions for amendments to land use ordinances;

Appeals from the determination of the Zoning Officer or municipal engineer in the administration of any land use ordinance with reference to sedimentation and erosion control and storm water management insofar as they relate to a Subdivision and Land Development application; and

Applications for a special encroachment permit.

Administer the Zoning Ordinance in accordance with its literal terms and shall not have the power to permit any construction or any use or change of use which does not conform to this chapter;

To receive and examine all applications for zoning permits and shall issue or deny a zoning permit in accordance with the provisions of this chapter;

To receive applications for conditional use, use by special exception or requests for a variance and forward these applications to the Township Planning Commission, the Board of Supervisors, and/or the Zoning Hearing Board for action thereon in accordance with all applicable provisions of this chapter;

Shall have the right at any reasonable hour and after giving appropriate notice to make an inspection of buildings or land necessary for the proper execution of his/her duties and shall issue a written notice of violation to any person, firm or corporation violating any provision of this chapter;

Maintain records, whether issued or denied, of all applications, including permits, certificates of compliance and non-conformity, written decisions, variances, enforcement orders, reports and inspections;

Maintain map(s) showing current zoning classifications of all land within the Township;

At the request of the Governing Body, Planning Commission or Zoning Hearing Board shall review subdivision and land development applications for compliance with this chapter;

Receive and act upon any written complaint alleging a zoning violation;

At the request of the Governing Body, the Planning Commission or the Zoning Hearing Board, present facts, records, reports and/or testimony;

Shall issue certificates of compliance, after a personal on-site inspection, to verify that the work is in conformity with all provisions of the zoning permit;

Issue written stop, cease and desist orders, and issue written directive(s) for the correction of violations found;

Institute, in the name of the Township, any appropriate action and/or enforcement proceedings to insure full compliance with this Zoning Ordinance, as amended from time to time;

Following refusal to issue a zoning permit, the Zoning Officer shall receive applications for interpretations, appeals and variances and forward these applications to the Zoning Hearing Board for action thereon;

Revoke any order or permit issued under a mistake of fact, contrary to the law or a Township ordinance, or as a result of false and/or fraudulent information upon which the Zoning Officer or Zoning Hearing Board relied upon in issuing said order or permit; and

Serve such other functions as provided in this chapter and the Municipalities Planning Code.

Failure to secure a zoning permit prior to a change in use of land or structure;

Failure to secure a zoning permit prior to the erection, construction, demolition and/or modification of any structure or portion thereof;

Failure to secure a zoning permit prior to the excavation of land to prepare for the erection, modification, construction and/or alteration of any structure or portion thereof;

Placement of false statements on, or omitting relevant information from, an application for a zoning permit;

Undertaking an action in a manner which does not comply with a zoning permit; and/or

Violation of any condition imposed by a decision of the Zoning Hearing Board or the Board of Supervisors.

General. If it appears that a violation of the zoning ordinance has occurred, the Zoning Officer shall initiate enforcement proceedings by sending an enforcement notice as provided for in the MPC and notify, in writing, the governing body. Prior to sending an official enforcement notice, the Zoning Officer may, at his/her discretion, informally request compliance.

Formal notice. An official enforcement notice shall be sent via certified mail, return receipt requested and postage prepaid, to the owner of record of the parcel on which the alleged violation has occurred, to the address the owner of record has provided to the Township or, if none given, to the most-recent address maintained with the Monroe County Tax Assessment Office or Tax Claim Bureau for real estate tax notifications, to any person who has filed a written request to receive enforcement notices regarding the parcel, and to any other person requested in writing by the owner of record. Formal Notice may also be served by personal delivery.

Notice requirements. An enforcement notice shall state at least the following:

Causes of action. The enforcement provisions of this section are not in lieu of, are not intended to limit in any way, the Township's causes of action under Section 617 of the MPC and authority to institute any appropriate action or proceeding at law or in equity to enforce, prevent, restrain, correct or abate zoning violations or to require the removal or termination of the unlawful use of the structure, building, sign, landscaping, land or other activity in violation of the provisions of this chapter. Further, the remedies within the MPC are in addition to, and not exclusive to, any other remedies available to the Township as a result of violation of the Zoning Ordinance.

Any person, partnership or corporation who or which has violated or permitted the violation of the provisions of this chapter shall, upon being found liable therefore in a civil enforcement proceeding commenced by the Township, pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by the Township as a result thereof.

Magisterial district judge. No judgment shall commence or be imposed, levied or payable until the date of the determination of a violation by the magisterial district judge. If the defendant neither pays nor timely appeals the judgment, the Township may enforce the judgment pursuant to the applicable rules of civil procedure.

Separate violations. Each day that a violation continues shall constitute a separate violation, unless the magisterial district judge determining that there has been a violation further determines that there was a good faith basis for the person, partnership or corporation violating this chapter to have believed that there was no such violation, in which event there shall be deemed to have been only one violation until the fifth day following the date of determination of a violation by the magisterial district judge and thereafter each day that a violation continues shall constitute a separate violation.

Fees. All judgments, costs and reasonable attorney's fees collected for the violation of this Zoning Ordinance, as amended from time to time, shall be paid over to the Township.

Stay of proceedings. The court of common pleas, upon petition, may grant an order of stay, upon cause shown, tolling the per diem fine pending a final adjudication of the violation and judgment.

All applications for zoning permits shall be in writing, on forms to be furnished by the Township.

Zoning permit applications and all supporting documentation shall be submitted to the Zoning Officer with the required fee.

Such applications shall contain all information necessary for the Zoning Officer to ascertain whether the proposed erection, alterations, addition, use or change in use complies with the provisions of this chapter.

The Zoning Officer may require that the applicant employ a registered professional surveyor to establish and certify measurements, when it is deemed necessary to insure compliance with all provisions of this chapter.

Issuance of zoning permits. Zoning permits not requiring action of the Zoning Hearing Board, the Board of Supervisors or the Planning Commission, shall be granted or denied after the official date of acceptance of a complete application by the Zoning Officer.

After issuance of the zoning permit and until construction or alteration is completed, said permit placard shall be displayed prominently on or attached to the building or area for which issued, so that the said permit can be observed by third parties. A zoning permit shall expire if construction has not been commenced within six months after the date of issuance or has not been completed within three years from the said date.

An extension of time may be granted by the Zoning Officer upon application in writing by the applicant.

Upon completion of the erection and/or alteration of any building, use or portion thereof, authorized by a zoning permit, the holder of such permit shall notify the Zoning Officer of such completion and when required request a certificate of compliance in writing.

The requirement to request a certificate of compliance upon completion shall be noted on the zoning permit by the Zoning Officer at the time of issuance of the said zoning permit.

A certificate of compliance shall be either granted or denied after the official date of acceptance of a complete application by the Zoning Officer.

The granting of a certificate of compliance shall be certification by the Zoning Officer that the work has been inspected and approved by the Township Building Code Official (who may have to issue a certificate of occupancy if construction is involved), as applicable, as well as the Zoning Officer, and that the work is in conformity with the provisions of the zoning permit, this chapter and all other applicable ordinances and regulations of the Township.

Creation of Board. The Township Board of Supervisors hereby creates a Zoning Hearing Board consisting of five members, appointed by the Board of Supervisors pursuant to the MPC, as amended from time to time, who shall perform all the duties and have all the powers prescribed by state statutes and as herein provided.

Membership of Board. The Zoning Hearing Board shall consist of five residents of the Township appointed by the Board of Supervisors. The existing terms of office shall continue, with terms of office being five years, and with the terms being so fixed that the term of office of one member shall expire each year. Members of the Board shall hold no other office in the Township, either elected or appointed.

Alternate members. The Board of Supervisors may appoint alternate members of the Zoning Hearing Board in accordance with the applicable provisions of the MPC, as amended from time to time. Alternate members shall hold no other office in the municipality, either elected or appointed.

Removal of members. Any 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' 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 within 10 days after receipt of the notice of intent to take a vote.

Vacancies. Appointments to fill vacancies shall be only for the unexpired portion of a term and shall be made by the Board of Supervisors.

The Zoning Hearing 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 of the members of the Board, but the Board may appoint a hearing officer from its own membership to conduct a hearing on its behalf and the parties may waive further action by the Board as provided herein.

The Chairman of the Zoning Hearing Board may designate duly appointed alternate members to substitute, as voting alternate members, for any absent members or members who have recused themselves or have been disqualified. If, by reason of absence or disqualification of a member, a quorum is not reached, the chairperson of the Zoning Hearing 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 section shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.

The Zoning Hearing Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the municipality and laws of the Commonwealth.

Substantive challenges to the validity of any land use ordinance, except those brought before the governing body pursuant to the MPC for curative amendments and validity challenges.

Appeals from the determination of the 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, or the registration or refusal to register any nonconforming use, structure or lot.

Appeals from the determination of the municipal engineer or Zoning Officer with reference to the administration of a flood plain or flood hazard ordinance or such provisions within a land use ordinance.

Applications for variances from the terms of this Zoning Ordinance and any flood hazard ordinance or such provisions within a land use ordinance, pursuant to the MPC, as amended from time to time.

Applications for special exceptions under this chapter or flood plain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to the MPC, as amended from time to time.

Appeals from the determination of any officer or agency charged with the administration of any transfer of development rights or performance density provisions of the zoning ordinance.

Appeals from the Zoning Officer's determination under the MPC, as amended from time to time.

Appeals from the 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 storm water management insofar as the same relate to development not involving Article V or VII applications of the MPC.

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 applicant shall first complete a written application and submit it to the Zoning Officer(s). The Zoning Hearing Board may grant a variance, provided that all of the following findings are made where relevant in a given case:

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 the MPC and the zoning ordinance.

A variance, whether labeled dimensional or use, is appropriate, only where the property, not the person, is subject to hardship.

A property owner shall have 12 months from the date of issuance and approval of a variance to secure applicable zoning and building permits. If a property owner fails to secure applicable zoning and building permits within 12 months from the date of the variance approval, the variance shall expire. The Zoning Officer may conclusively presume that the applicant/property owner has waived, withdrawn or abandoned approvals and permits and may consider all such approvals and permits to have become null and void.

A property owner shall commence construction within 12 months of the issuance of the first zoning and/or building permit, as it pertains to the issuance of a variance. If a property owner has timely secured his/her zoning and building permits, however, does not commence construction on said permits within 12 months from the first date of issuance, then the variance and accompanying zoning and building permits shall expire. The Zoning Officer may conclusively presume that the applicant/property owner has waived, withdrawn or abandoned approvals and permits and may consider all such approvals and permits to have become null and void.

In response to a property owner applying for relief and stating good cause in writing, the Zoning Hearing Board may extend the time limit for completion of work to a maximum of 36 months from the date the first zoning or building permit was issued after the issuance of the variance.

The Zoning Hearing Board shall act in strict conformance with the procedure specified by law and by this chapter. All appeals and applications made to the Zoning Hearing Board shall be in writing on forms prescribed by the Board. Every appeal or application shall refer to the specific provision of this chapter involved and shall set forth the interpretation that is claimed, the use for which a specified permit is sought or the details of the variance that is applied for and the grounds on which it claims that the variance should be granted, as the case may be.

In the event the procedures set forth in this chapter shall be in conflict with or contrary to the procedures set forth in the MPC, as amended from time to time, then and in such event the procedures set forth in the MPC shall prevail.

Applications and appeals to the Zoning Hearing Board together with the required filing fee, as established by the governing body from time to time by resolution, shall be submitted to the Zoning Officer.

Public notice shall be given and written notice shall be given to the applicant, the zoning officer, the board of supervisors, and the last known principal owner of record of each property that is immediately adjacent to or immediately across the street from the subject property, and to any person who has made timely request for the same, however, failure to provide such notice shall not be grounds for an appeal. 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.

The governing body may prescribe reasonable fees with respect to hearings before the zoning hearing board. Fees for said hearings may include compensation for the secretary and members of the zoning hearing board, notice and advertising costs and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses of the zoning hearing board, expenses for engineering, architectural or other technical consultants or expert witness costs.

The first hearing before the board or hearing officer shall be commenced within 60 days from the date of receipt of the applicant's application, unless the applicant has agreed in writing to an extension of time. Each subsequent hearing before the board or hearing officer shall be held within 45 days of the prior hearing, unless otherwise agreed to by the applicant in writing or on the record. An applicant shall complete the presentation of his case-in-chief within 100 days of the first hearing. Upon the request of the applicant, the board or hearing officer shall assure that the applicant receives at least seven hours of hearings within the 100 days, including the first hearing. Persons opposed to the application shall complete the presentation of their opposition to the application within 100 days of the first hearing held after the completion of the applicant's case-in-chief. An applicant may, upon request, be granted additional hearings to complete his case-in-chief provided the persons opposed to the application are granted an equal number of additional hearings. Persons opposed to the application may, upon the written consent or consent on the record by the applicant and municipality, be granted additional hearings to complete their opposition to the application provided the applicant is granted an equal number of additional hearings for rebuttal.

The hearings shall be conducted by the board or the board may appoint any member or an independent attorney as a hearing officer. The decision, or, where no decision is called for, the findings shall be made by the board; however, the appellant or the applicant, as the case may be, in addition to the municipality, may, prior to the decision of the hearing, waive decision or findings by the board and accept the decision of findings of the hearing officer as final.

The parties to the hearing shall be the municipality, 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 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.

The chairman or acting chairman of the board or the hearing officer 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 requested by the parties.

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.

Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.

The board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings. 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 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 thereof.

The board or the hearing officer 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 their solicitor, unless the 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 representative unless all parties are given an opportunity to be present.

The board or the hearing officer, as the case may be, 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 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 therefore. Conclusions based on any provisions of this act or of any ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found. See additional provisions in Article IX of the MPC.

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 or purchased under the terms of the Freedom of Information Act, as amended.

Submittal. All applications submitted to the Zoning Officer for a zoning permit involving a permitted use, as designated by this chapter, shall be in compliance with this section.

Every application for a zoning permit shall include a copy of the applicant's deed or lease and shall contain the following information and be accompanied by the required fee and by a site plan/plot plan drawn to scale and signed by the person responsible for such drawing.

Upon the issuance of a zoning permit, the Zoning Officer shall return one copy of an endorsed permit and one copy of an endorsed site plan to the applicant along with a signed job placard which shall be conspicuously displayed on the job site during all phases of construction. In the event the application is denied, reasons for such denial shall be transmitted to the applicant in writing. One copy of the endorsed permit shall be forwarded to the Monroe County Tax Assessment office.

Any zoning permit shall expire if construction has not commenced within six months after the date of issuance, or has not been completed within three years from said date, unless an extension has been authorized by the Township.

If approval of soil erosion plans from the County Soil Conservation District is required, the applicant shall submit proof to the Township that the submittal was made and the zoning permit may be issued upon the County Soil Conservation District's approval.

If a zoning permit is for activity that will need approval under the SALDO, the permit shall be automatically conditioned upon obtaining the SALDO approval.

Jurisdiction. The governing body shall hear all applications for conditional use and render their decision in accordance with the requirements of § 913.2 of the MPC, as amended from time to time.

Submission requirements. Submission of an application for a public hearing on a conditional use shall be comprised of the following:

The submission date of a conditional use application and transmittal of submitted material by the Zoning Officer shall be as follows:

Planning commission review. In reviewing an application for a conditional use, the Planning Commission should take into consideration the specific requirements of the proposed conditional use as outlined in this chapter, as well as, but not limited to, the design, location and adequacy of traffic issues, parking, landscaping, screening, illumination, and necessary public services and facilities and similar factors relating to the health, safety, welfare, comfort, and convenience of the public in general and of the residents of the immediate neighborhood in particular. The site plan and/or land development plan that may be required with an application must be of sufficient detail and accuracy for the Commission to adequately review the application for the factors noted in this paragraph.

Planning commission action. Within 10 days of the regularly scheduled Planning Commission meeting referenced above, at which time the application for the conditional use should have been taken into consideration, the Commission should act to recommend to the Supervisors, in writing, that the conditional use be approved, approved with modifications or disapproved. Failure of the Planning Commission to act within the time frames set forth above shall not by itself delay action by the Supervisors.

Board of supervisors action. The governing body shall, after appropriate public notice, conduct public hearings and make decisions and findings in accordance with the following:

Burden of proof. The applicant has the burden of proof and shall provide the board with sufficient plans, studies and/or other data necessary to demonstrate to the satisfaction of the governing body that the application complies as follows, to wit:

Decision. The Board shall render a written decision or, when no decision is called for, make written findings on the conditional use application within 45 days after the last hearing before the governing body.

Subdivision and land development approval. An applicant that successfully obtains conditional use approval must still obtain subdivision and/or land development approval, if applicable.

Zoning officer's action. All zoning permits for a conditional use as granted by the Board of Supervisors shall be issued, rejected or denied by the Zoning Officer in accordance with the following procedures:

Jurisdiction. The Zoning Hearing Board shall hear all applications for special exception and render its decision in accordance with the requirements of the MPC.

Submission requirements. Submission of an application for a public hearing on a special exception use shall be comprised of the following:

The submission date of the special exception use application and the transmittal of the submitted material by the Zoning Officer shall be as follows:

Planning commission review. In reviewing the application for a special exception hearing, the commission shall take into consideration the design, location, and adequacy of traffic access, parking, landscaping, screening, illumination, and necessary public services and facilities and any other similar factors relating to the health, safety, welfare, comfort, and convenience of the public in general and of the residents of the immediate neighborhood in particular.

Planning commission recommendation. Within 30 days of the filing of the application with the Zoning Officer, the Commission shall act to recommend to the Zoning Hearing Board, in writing, that the tentative site plan be approved, approved with modifications or disapproved. Failure on the part of the Commission to act within 30 days shall not by itself delay action by the Zoning Hearing Board.

Hearings/decision. The procedures for a public hearing shall follow the requirements listed under § 083-080 of this chapter.

A subdivision and/or land development plan shall thereafter be submitted for review and approval, if applicable.

Zoning officer's action. All zoning permits for a special exception as granted by the Zoning Hearing Board shall be issued, rejected or denied by the Zoning Officer in accordance with the following procedures:

Jurisdiction. The MPC, as amended from time to time, permits a validity challenge in the nature of a curative amendment to be heard and decided by the governing body of the municipality.

Applicant. The applicant for a curative amendment must be the landowner as defined in the MPC, as amended from time to time.

Procedure. A curative amendment must be accompanied by a written request that the challenge and proposed amendment be heard and decided as provided in the MPC (validity challenges), as amended from time to time. The request must state:

Factors to be considered. In considering the curative amendment and accompanying plan, the governing body must also consider:

Acceptance or denial. The governing body may deny the request, or accept the curative amendment with or without revision, or adopt an alternative amendment to cure the invalidity.

Procedure. The written substantive validity challenge shall include (1) a written challenge, with explanation, and (2) a site development plan.

Acceptance or denial. The Zoning Hearing Board shall approve or deny the substantive validity challenge. See the provisions of the MPC concerning relief. If a substantive validity challenge (after any appeals) is finally decided in favor of the applicant, it shall not relieve the applicant from complying with any Township requirements that were not part of the successful challenge.

Factors to be considered. In considering the curative amendment and accompanying plan, the governing body must also consider:

Acceptance or denial. The governing body may deny the request, or accept the curative amendment with or without revision, or adopt an alternative amendment to cure the invalidity.

Procedure. The written substantive validity challenge shall include 1) a written challenge, with explanation, and 2) a site development plan.

Acceptance or denial. The Zoning Hearing Board shall approve or deny the substantive validity challenge. See the provisions of the MPC concerning relief. If a substantive validity challenge (after any appeals) is finally decided in favor of the applicant, it shall not relieve the applicant from complying with any Township requirements that were not part of the successful challenge.