Middle Smithfield Township
City Zoning Code
City Zoning Code
ARTICLE VIII
Administration
§ 080-010 Exclusive jurisdiction.
Pursuant to the MPC, as amended from time to time, the Middle Smithfield Township Board of Supervisors shall have exclusive jurisdiction to hear and render a decision in the following matters:
A.
Applications for planned residential developments;
B.
Applications for subdivision and land development;
C.
Applications for conditional use;
D.
Applications for curative amendments;
E.
Petitions for amendments to land use ordinances;
F.
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 stormwater management insofar as they relate to a subdivision and land development application;
G.
Applications for a special encroachment permit; and
§ 080-020 Liability.
Any review of activity within the floodplain review, site plan review, subdivision and land development review, erosion control review, wetland delineation review, stormwater management review, steep slope review or any other review, approval or permit under this chapter by an officer, employee, board, commission, solicitor, consultant, engineer or agency of the Township shall not constitute a representation, guarantee or warranty of any kind by the Township or its employees, officials, boards, solicitor(s), engineer(s), consultant(s) or agencies of the practicality or safety of any structure, use or subdivision or land development and shall create no liability upon nor a cause of action against the Township, entity or person for any damage that may result pursuant thereto.
§ 080-030 Fees.
A Township fee schedule for permits and applications may be established and amended by written resolution of the Board of Supervisors. No application or appeal shall be considered filed until all fees are paid.
§ 080-040 Amendments to this chapter.
The Board of Supervisors may amend and/or repeal any or all portions of this chapter on its own motion or after agreeing to hear a written request of any person, entity, landowner or the Planning Commission.
§ 081-010 Appointment.
The Zoning Officer shall be appointed by the Board of Supervisors and shall meet qualifications established by the municipality and shall be able to demonstrate, to the satisfaction of the municipality, a working knowledge of municipal zoning regulations. The Zoning Officer shall serve for such period as the governing body shall direct and shall receive such compensation as the governing body shall fix. The Board of Supervisors may designate other Township staffpersons to serve as Assistant Zoning Officer(s) who shall also meet qualifications established by the municipality and shall be able to demonstrate, to the satisfaction of the municipality, a working knowledge of municipal zoning. The Assistant Zoning Officer(s) shall serve for such period as the governing body shall direct and shall receive such compensation as the governing body shall fix. The Assistant Zoning Officer(s) may serve with the same authority and duties as a Zoning Officer. Neither a Zoning Officer nor any Assistant Zoning Officer shall hold any elected office within the Township, but may hold other appointed offices.
§ 081-020 Duties and powers.
The duties and powers of the Zoning Officer shall include the following:
A.
Administer this chapter 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;
B.
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.
C.
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.
D.
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;
E.
Maintain records, whether issued or denied, of all applications, including permits, certificates of compliance and nonconformity, written decisions, variances, enforcement orders, reports and inspections;
F.
Maintain map(s) showing current zoning classifications of all land within the Township;
G.
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;
H.
Receive and act upon any written complaint alleging a zoning violation:
(1)
A record of all written complaints and action taken shall be kept and maintained by the Zoning Officer;
(2)
A Zoning Officer shall not act upon any oral or unsigned complaint unless he/she deems it advisable or necessary to maintain the health, safety and/or welfare of the citizens of the Township;
(3)
Complaints involving intrusion into required yard setbacks shall be accompanied by verifiable proof of the alleged violation;
(4)
Complaints not involving a violation of a Township ordinance or the Code shall not be acted upon by a Zoning Officer but shall be deemed a private matter. The determination of the course of action on any complaint shall be made by the Zoning Officer after proper investigation.
I.
At the request of the governing body, the Planning Commission or the Zoning Hearing Board, present facts, records, reports and/or testimony;
J.
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;
K.
Issue written stop and cease-and-desist orders, and issue written directive(s) for the correction of violations found;
L.
Institute, in the name of the Township, any appropriate action and/or enforcement proceedings to insure full compliance with this chapter, as amended from time to time;
M.
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;
N.
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
O.
Serve such other functions as provided in this chapter.
§ 081-030 Liability.
If the Zoning Officer mistakenly issues a permit under this chapter, the Township shall not be liable for any later lawful withdrawal of such permit.
§ 081-040 Issuance of violations.
The Zoning Officer shall issue a notice of violation to any landowner, person or entity that shall commit or who shall permit any of the following actions to be committed in violation of this chapter:
A.
Failure to secure a zoning permit prior to a change in use of land or structure;
B.
Failure to secure a zoning permit prior to the erection, construction, demolition and/or modification of any structure or portion thereof;
C.
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;
D.
Placement of false statements on, or omitting relevant information from, an application for a zoning permit;
E.
Undertaking an action in a manner which does not comply with a zoning permit; and/or
F.
Violation of any condition imposed by a decision of the Zoning Hearing Board or the Board of Supervisors.
§ 081-050 Enforcement.
[Amended 3-10-2016 by Ord. No. 206]
A.
General. Enforcement of this Zoning Ordinance shall be in accordance with the Pennsylvania Municipalities Planning Code (MPC).[1] 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.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
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.
C.
Notice requirements. An enforcement notice shall state at least the following:
(1)
The name of the owner of record and any other person against whom the municipality intends to take action;
(2)
The location of the property in violation;
(3)
The specific violation with a description of the requirements which have not been met, citing in each instance the applicable provisions of the ordinance;
(4)
The date before which the steps for compliance must be commenced and the date before which the steps must be completed;
(5)
That the recipient of the notice has the right to appeal to the Zoning Hearing Board within 20 days of receipt of the notice of violation; and
(6)
That failure to comply with the notice within the time specified, unless extended by appeal to the Zoning Hearing Board, constitutes a violation.
D.
Presenting party. In any appeal of an enforcement notice to the Zoning Hearing Board, the municipality shall have the responsibility of presenting its evidence first.
E.
Filing fees. Any filing fee paid by a party to appeal an enforcement notice to the Zoning Hearing Board shall be returned to the appealing party by the Township if the Zoning Hearing Board, or any court in a subsequent appeal, rules in the appealing party's favor.
F.
Causes of action. The enforcement provisions of this section are not in lieu of, and 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 violation(s) 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 enforcement provisions, and the Township's causes of action under Section 617 of 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.
§ 081-060 Enforcement remedies.
A.
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 therefor in a civil enforcement proceeding commenced by the Township, pay a judgment of not more than $500, plus all court costs, including reasonable attorney's fees incurred by the Township as a result thereof.
B.
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.
C.
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.
D.
Fees. All judgments, costs and reasonable attorney's fees collected for the violation of this chapter, as amended from time to time, shall be paid over to the Township.
E.
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.
§ 081-070 Appeals.
The provisions for "Appeals to Court," as stated in the MPC, as amended from time to time, shall apply.
§ 082-010 Issuance of zoning permit.
Zoning permits shall be secured from the Zoning Officer prior to the erection of or addition to any building, structure or portion thereof, prior to the change in use of a building and/or change in the use of land, and prior to the change and/or extension of a nonconforming use.
A.
All applications for zoning permits shall be in writing on forms to be furnished by the Township.
B.
Zoning permit applications and all supporting documentation shall be submitted to the Zoning Officer with the required fee.
C.
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 ordinance.
D.
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 ordinance.
E.
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 within 30 days after the official date of acceptance of a complete application by the Zoning Officer.
F.
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 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 said date.
G.
An extension of time may be granted by the Zoning Officer upon application, in writing, by the applicant.
§ 082-020 Issuance of certificate of compliance.
A.
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.
B.
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 said zoning permit.
C.
A certificate of compliance shall be either granted or denied within 30 days after the official date of acceptance of a complete application by the Zoning Officer.
D.
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 ordinance and all other applicable ordinances and regulations of the Township.
§ 082-030 Issuance of certificate of nonconforming use.
The owner of the premises occupied by a lawful nonconforming use or structure may secure a certificate of nonconforming use from the Zoning Officer, which certificate shall run with the land.
§ 083-010 Membership.
[Amended 3-23-2017 by Ord. No. 213]
The Zoning Hearing Board shall be organized pursuant to the provisions of the MPC, as amended from time to time.
A.
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.
B.
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.
C.
Alternate members. The Board of Supervisors may, by resolution, appoint at least one, but not more than three, residents of the Township of Middle Smithfield to serve as alternate members of the Zoning Hearing Board. The term of office of alternate members shall be three years. Alternates shall hold no other elected or appointed office in the Township of Middle Smithfield, including service as a member of the Planning Commission or as a Zoning Officer, nor shall any alternate be an employee of the Township of Middle Smithfield.
D.
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.
E.
Vacancies. Appointments to fill vacancies shall be only for the unexpired portion of a term and shall be made by the Board of Supervisors.
F.
Additional qualifications. Each Zoning Hearing Board member must:
(1)
Demonstrate a working knowledge of zoning prior to appointment.
(2)
Become familiar with the Pennsylvania Municipalities Planning Code.
(3)
Within one year of the member's appointment to the Zoning Hearing Board (or the amendment of § 083-010 providing for this requirement), attend Pennsylvania Municipal Planning Education Institute's ("PMPEI's") core course on zoning; and within two years of the member's appointment to the Zoning Hearing Board (or the amendment of § 083-010 providing for this requirement), attend PMPEI's core course on zoning administration. The Township shall pay the member a stipend of $30 per hour for course time to meet these requirements, plus:
(4)
After a member's second year of appointment to the Zoning Hearing Board, the member shall attend, annually, three hours of continuing education pertaining to municipal planning and/or zoning, through one or more seminars, trainings and/or workshops (collectively, "seminar"). The Township shall pay the member's seminar costs and related expenses, but no stipend. The seminar shall be sponsored by a Township-approved provider, which shall include, without limitation, the Penn State Extension, Pennsylvania Municipal Planning Education Institute, Pennsylvania State Association of Boroughs, Pennsylvania State Association of Township Supervisors, or similar nationally or state-recognized planning organization or municipal association, or the Monroe County Planning Commission.
§ 083-020 Organization.
A.
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.
B.
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.
C.
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.
§ 083-030 Meetings.
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. The Chairperson, or, in his/her absence, the Acting Chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the Zoning Hearing Board shall be open to the public.
§ 083-040 Minutes and records.
The Zoning Hearing Board shall keep full 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, which records shall be the property of the municipality. The Zoning Hearing Board shall submit a report of its activities to the Supervisors as requested by the Supervisors.
§ 083-050 Jurisdiction.
Pursuant to the MPC, as amended from time to time, the Zoning Hearing Board shall have exclusive jurisdiction to hear and render a decision in the following matters:
A.
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.
B.
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 therefor, the issuance of any cease-and-desist order or the registration or refusal to register any nonconforming use, structure or lot.
C.
Appeals from the determination of the municipal engineer or Zoning Officer with reference to the administration of a floodplain or flood hazard ordinance or such provisions within a land use ordinance.
D.
Applications for variances from the terms of this chapter and any flood hazard ordinance or such provisions within a land use ordinance, pursuant to the MPC, as amended from time to time.
E.
Applications for special exceptions under this chapter or floodplain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to the MPC, as amended from time to time.
F.
Appeals from the determination of any officer or agency charged with the administration of any transfer of development rights or performance density provisions of this chapter.
G.
Appeals from the Zoning Officer's determination under the MPC, as amended from time to time.
H.
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 stormwater management insofar as the same relate to development not involving Article V or VII applications of the MPC.
§ 083-060 Requests for variances.
A.
The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. The Board may by rule prescribe the form of application and may require preliminary application 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:
(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 condition generally created by the provisions of this chapter 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 this chapter 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 appellant;
(4)
That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, not substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
(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 in issue.
B.
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 this chapter.
C.
A variance, whether labeled dimensional or use, is appropriate only where the property, not the person, is subject to hardship. Types of variances are as follows:
(1)
Dimensional variance. A dimensional variance is the most common type of variance and is appropriate only where the property, not the person, is subject to hardship. An applicant is not entitled to a dimensional variance where the application merely seeks to maximize the economic value of the property or enterprise.
(2)
Use variance. A use variance provides relief from the restrictions as to the use of the property. The Zoning Hearing Board may grant a use variance in lieu of rezoning, a curative amendment or validity challenge. A use variance is appropriate only where the property, not the person, is subject to hardship. The applicant must demonstrate and prove to the Zoning Hearing Board that:
(3)
Validity variance. A validity variance is intended to prevent the operation of municipal regulation on a parcel of property, such that the property is in effect confiscated, and to permit the proposed use of land where such use is reasonable.
(a)
The applicant must also establish, to the Zoning Hearing Board's satisfaction, that:
(b)
The Zoning Hearing Board may also grant a validity variance when a property owner shows that the land has no value or only distressed value as a result of the regulation. This includes the applicant providing proof that either:
(4)
De minimus variance. A de minimus variance grants a minimal reduction of a dimensional zoning requirement. Because such a variance does not affect the public interest, it may be granted by the Zoning Hearing Board even though the traditional statutory grounds for a variance as set forth herein have not been established.
(5)
Variance by estoppel. A variance by estoppel is a claim in equity that arises when a property owner establishes that municipal inaction has amounted to active acquiescence in an illegal use. [Note: This claim in equity is distinct from a claim to a vested right (affirmative action by the municipality, e.g., issued permit).] The Zoning Hearing Board may grant a variance by estoppel if the property owner establishes all of the following:
(a)
A long period of municipal failure to enforce the law, when the municipality knew or should have known of the violation, in conjunction with some form of active acquiescence in the illegal use;
(b)
The landowner acted in good faith and relied innocently upon the validity of the use throughout the proceeding;
(c)
The landowner made substantial expenditures in reliance upon his belief that his use was permitted; and
(d)
The denial of the variance would impose an unnecessary hardship on the applicant.
D.
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.
E.
The Zoning Officer shall issue written notification to the property owner that the variance has expired and is null and void and that no future zoning or building permits shall be issued without the property owner securing a new variance.
F.
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, but does not, however, 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, at which point the Zoning Officer shall issue written notification to the property owner that the variance has expired and is null and void and that no future zoning or building permits shall be issued without the property owner securing a new variance.
G.
In response to a property owner stating good cause, in writing, the Zoning Officer may extend, in writing, 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.
§ 083-070 Procedures for applications and appeals.
A.
The Zoning Hearing Board shall act in strict accordance with the procedure specified by law and by this ordinance. 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 ordinance 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.
B.
In the event the procedures set forth in this ordinance 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.
C.
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.
(1)
Time limitations. 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 an appropriate municipal 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 had no notice, knowledge or reason to believe that such approval had been given. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest.
(2)
The failure of anyone other than the landowner to appeal from an adverse decision on a preliminary approval or from an adverse decision by a Zoning Officer on a challenge to the validity of an ordinance or map pursuant to the MPC, as amended from time to time, shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved plan as noted in this subsection.
§ 083-080 Stay of proceedings.
Upon filing of any application and/or appeal to the Zoning Hearing Board, and during the pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or of any agency or body, and all official action thereunder, shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies to the 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 Board or by the court having jurisdiction of zoning appeals, on petition, after notice to the Zoning Officer or other appropriate agency or body. When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the 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 to continuing the proceedings before the Board. 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 and shall proceed in accordance with the requirements set forth in the MPC, as amended.
§ 083-090 Hearings and decisions.
The Board shall conduct hearings and make decisions in accordance with the following requirements:
A.
Public notice shall be given, and written notice shall be given to the applicant, the Zoning Officer, 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.
B.
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.
C.
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 ensure 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.
D.
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 the decision or findings by the Board and accept the decision of findings of the hearing officer as final.
E.
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.
F.
The Chairman or Acting Chairman of the Board or the hearing officer presiding shall have the 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.
G.
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.
H.
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
I.
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.
J.
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.
K.
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 therefor. Conclusions based on any provisions of this chapter 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 light of the facts found. If the hearing is conducted by a hearing officer and there has been no stipulation that his decision or findings are final, the Board shall make his report and recommendations available to the parties within 45 days, and the parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings, and the Board's decision shall be entered no later than 30 days after the report of the hearing officer. Except for challenges filed under Section 916.1,[1] where the Board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided in Subsection C, 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. When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a decision as hereinabove provided, the Board shall give public notice 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 Subsection A of this section. 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.
[1]
Editor's Note: See 53 P.S. § 10916.1.
L.
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 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 or purchased under the terms of the Freedom of Information Act,[2] as amended.
[2]
Editor's Note: See 5 U.S.C. § 552 et seq.
§ 084-010 Permit application for permitted uses.
The Zoning Officer shall issue a permit under this chapter in response to an application for a use that is permitted by right if it meets all of the requirements of this chapter.
A.
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. A zoning permit for a permitted use shall be issued or denied by the Zoning Officer, on his own authority, within 30 days after the filing of a complete and properly prepared application.
B.
Every application for a zoning permit shall include a copy of the applicant's deed 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.
(1)
Site plan. The applicant shall submit a minimum of two copies of a site plan with the application if the application involves a new principal building, expansion of a principal building, the addition of an accessory structure or a use. The site plan shall be drawn to scale and show the following:
(a)
Locations, dimensions and uses of existing and proposed structures, parking and loading areas and location of existing and proposed uses of areas of land, with existing features clearly distinguished from proposed features.
(b)
Notes showing the dimensions of all buildings from lot lines and street rights-of-way.
(c)
Locations of any watercourses, wetlands and any one-hundred-year floodplains.
(d)
Proposed lot area, lot widths and other applicable dimensional requirements, including lot number and section.
(e)
The exact size and locations on the lot of the proposed structure or structures or alterations of an existing structure and of other existing structures on the same lot.
(f)
The existing and intended use of all structures, existing or proposed, the use of land and the number of dwelling units the structure is designed to accommodate.
(g)
Locations and widths of existing and proposed sidewalks, if applicable.
(h)
Well and primary and alternate septic system locations, if applicable.
(2)
Additional information. Any application under this chapter shall include the following information unless the Zoning Officer determines such information is unnecessary to determine compliance with this chapter, as amended from time to time:
(a)
The address of the lot.
(b)
Name and address of the applicant and of the owner of the property, if different from the applicant. If the applicant is incorporated, the legal names and day telephone numbers of the officers of the organization/corporation.
(c)
A description of the proposed use of the property.
(d)
All other applicable information listed on the official Township application form.
(e)
Such additional information that the Zoning Officer may determine is reasonably necessary to determine compliance with this chapter.
C.
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.
D.
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, not to exceed six months, is authorized, in writing, by the Zoning Officer.
E.
All applications for zoning permits in a C1, C2 or I District, and any nonresidential use in a CON, R1, R2 or R3 Zoning District, shall include the following;
§ 084-020 Permit application for conditional uses.
All applications for a public hearing involving a conditional use as designated by this chapter shall be submitted to the Zoning Officer and shall be processed in accordance with the following:
B.
Submission requirements. Submission of an application for a public hearing on a conditional use shall be comprised of the following:
(1)
One originally signed, complete and properly prepared application for a public hearing on forms furnished by the Township, as well as 13 additional copies of the application for distribution as noted below.
(2)
Fourteen copies of a site plan or a land development plan, as may be required under this chapter.
(3)
Fourteen copies of a statement of purpose, intent and extent of the proposed conditional use.
(4)
Fourteen copies of any other requests for variance(s) and/or modifications of regulations that may be necessary, including the reasons therefor.
(5)
Fourteen copies of any other information or data the applicant deems necessary or desirable to be submitted.
(6)
Should a conditional use consist of or include any real property lying within a distance of 500 feet from the boundary of any adjoining Township, two additional copies of all documents and information shall be submitted.
C.
The submission date of a conditional use application and transmittal of submitted material by the Zoning Officer shall be as follows:
(1)
The submission date of the conditional use application shall be when the Zoning Officer has determined that the application is complete and all required documents and information as noted above and elsewhere in this chapter have been submitted and the required fee has been paid. After the Zoning Officer has completed a review of the application and determined it to be complete, the date of that determination shall be entered onto the originally signed application form as the submission date.
(2)
The Zoning Officer, through the Board of Supervisors, shall determine the date of the public hearing, which must be within 60 days of the submission date, as determined above. The date that has been set for the public hearing shall be entered onto the originally signed application form as the hearing date.
(3)
After the hearing date has been set and entered onto the originally signed application, the Zoning Officer shall also enter the dates of the publication of required public notice, advertised as follows:
(a)
Public notice shall be published once each week for two successive weeks in a newspaper of general circulation in the municipality. Such notice shall state the time and place of the hearing and the particular nature of the matter to be considered at the hearing. The first publication shall not be more than 30 days, and the second publication shall not be less than seven days, prior to the date of the hearing.
(b)
The Zoning Officer shall conspicuously post a copy of the public notice on the affected tract of land at least seven days prior to the date of the hearing.
(c)
Such notice shall state the time and place of the hearing and the particular nature and location of the matter to be considered at the hearing.
(d)
A copy of the application form with the above dates, along with a copy of the public notice and a cover letter requiring attendance at the public hearing and Planning Commission review date, shall be forwarded to the applicant by certified mail, with a return receipt requested, within 30 days of the submission date.
(4)
A minimum of 10 days prior to the next regularly scheduled Planning Commission meeting, the Zoning Officer shall transmit copies of the application form and all supporting data and information as follows:
(a)
The original application form and one copy of the supporting data and information shall remain with the Zoning Officer for the Zoning Officer's file.
(b)
One copy of the application form, supporting data and information shall be provided to each of the three Supervisors.
(c)
One copy of the application form, supporting data and information shall be provided to the Solicitor to the Board of Supervisors and the Planning Commission, along with a notice that a review and report shall be submitted to the Planning Commission.
(d)
One copy of the application form, supporting data and information shall be provided to the Township Secretary for use as the public inspection copy.
(e)
One copy of the application form, supporting data and information shall be provided to the Planning Commission Engineer, along with a notice that a review and report shall be submitted to the Planning Commission.
(f)
One copy of the application form, supporting data and information shall be provided to each of the seven Planning Commission members, along with a request for comments and recommendations.
D.
Planning Commission review. In reviewing an application for a conditional use, the Planning Commission shall 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 subsection.
E.
Planning Commission action. Within 10 days of the regularly scheduled Planning Commission meeting referenced above, at which time the application for the conditional use shall have been taken into consideration, the Commission shall 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 be construed as a favorable recommendation of the Commission.
F.
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:
(1)
All hearings shall be held as advertised. Testimony shall be taken under oath.
(2)
The first hearing before the Board 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 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 shall ensure that the applicant receives at least seven hours of hearings within 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.
(3)
The Board shall not communicate directly or indirectly with any party or his representative(s) 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 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 the hearings with any party or his representative unless all parties are given the opportunity to be present.
(4)
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.
(5)
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.
(6)
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
(7)
The Board shall keep a stenographic record of the proceedings. A transcript of the proceedings and copies of graphic or written material received in evidence shall be made available to any party according to the fee schedule.
G.
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:
(1)
Compliance with this chapter. The applicant shall establish, by credible evidence, that the application complies with all applicable requirements and objective criteria set forth in this chapter such as:
(a)
The kind of use (i.e., the threshold definition of what is authorized as a conditional use);
(b)
Specific requirements or standards applicable to a particular conditional use (e.g., special setbacks); and shall be suitable for the property in question and designed, constructed, operated and maintained so as to be in harmony with and appropriate in appearance to the existing and intended character of the general vicinity.
H.
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.
(1)
In granting a conditional use, the Board may attach such reasonable conditions and safeguards, in addition to those expressed standards and criteria that were set forth in this ordinance, as it may deem necessary to implement the purposes of this chapter, other than those related to off-site transportation or road improvements. An applicant for conditional use approval is bound by any imposed conditions that he/she does not object to or appeal from.
(2)
Where the application is contested or denied, each decision shall be accompanied by findings of fact or conclusions based thereon, together with any reasons therefor. Conclusions based on any provisions of the MPC 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 light of the facts found.
(3)
Where the governing body fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearings as provided in the MPC, 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. When a decision has been rendered in favor of the applicant because of the failure of the governing body to meet or render a decision as hereinabove provided, the governing body shall give public notice of the decision within 10 days from the last day it could have met to render a decision in the same manner as required by the public notice requirements of the MPC. If the governing body shall fail to provide such notice, the applicant may do so.
(4)
Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
(5)
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 no later than the day following its date.
I.
Subdivision and land development approval. An applicant that successfully obtains conditional use approval must still obtain subdivision and/or land development approval.
J.
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:
(1)
An application for a zoning permit for a granted conditional use shall be issued to the applicant within 30 days after the submission date of said application.
(2)
If the Zoning Officer finds the permit application complete and correct in all aspects of the granted conditional use, he shall approve and endorse said application and, when a site plan has been submitted, endorse both copies of said site plan.
(3)
One copy of the endorsed application, the endorsed site plan, when applicable, and a completed and signed job placard shall be returned to the applicant. The signed job placard must be conspicuously displayed on the job site during all phases of construction of the permitted conditional use.
(4)
One copy of the endorsed permit shall be forwarded to the Monroe County Tax Assessment office.
(5)
If the zoning permit application is incomplete and/or incorrect, the application shall be rejected with the reasons for the rejection stated thereon or attached thereto.
§ 084-030 Permit application for special exception uses.
Where the governing body has stated that special exceptions are to be granted or denied by the Zoning Hearing Board pursuant to express standards and criteria, the Zoning Hearing Board shall hear and decide requests for such special exceptions in accordance with such standards and criteria. In granting a special exception, the Zoning Hearing Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of the MPC and this chapter.
A.
Jurisdiction. The Zoning Hearing Board shall hear all applications for special exception and render its decision in accordance with the requirements of the MPC.
B.
Submission requirements. Submission of an application for a public hearing on a special exception use shall be comprised of the following:
(1)
One application for a public hearing, complete and properly prepared. Forms are furnished by the Township.
(2)
Ten copies of a tentative site plan of the proposed special exception use. If a fully engineered subdivision and land development plan will be required, it may be submitted separately, such as after a special exception is approved.
(3)
Ten copies of a statement of purpose and extent of the special exception. This statement should outline, in detail, the special exception use, any future changes and present and future ownership.
(4)
Ten copies of other requests for variance or waivers that may be necessary, including the reasons therefor.
(5)
Ten copies of any other information or data the applicant may deem necessary or desirable to be submitted.
(6)
Should a special exception use consist of or include any real property lying within a distance of 500 feet from the boundary of any adjoining Township, two additional copies of all documents and information shall be submitted.
C.
The submission date of the special exception use application and the transmittal of the submitted material by the Zoning Officer shall be as follows:
(1)
The submission date of a special exception use application shall be when the Township Zoning Officer has determined that the application is complete and all required documents and information have been submitted and the required fee has been paid. The submission date shall be entered on the application for a public hearing form.
(2)
A public hearing shall be held within 60 days from the date of the submission of the application, unless the applicant has agreed, in writing, to an extension of time.
(3)
The Zoning Officer shall determine the date of the public hearing, after consulting with the solicitor to the Zoning Hearing Board, and shall enter that date on said application form, along with dates of the public notice which shall be advertised as follows:
(a)
Public notice shall be published once each week for two successive weeks in a newspaper of general circulation in the municipality. Such notice shall state the time and place of the hearing and the particular nature of the matter to be considered at the hearing. The first publication shall not be more than 30 days, and the second publication shall not be less than seven days, from the date of the hearing.
(b)
The Zoning Officer shall conspicuously post a copy of the public notice on the affected tract of land at least seven days prior to the date of the hearing.
(c)
Such notice shall state the time and place of the hearing and particular nature and location of the matter to be considered at the hearing.
(d)
A copy of the application form with the above dates, along with a copy of the public notice and a cover letter requiring attendance at the public hearing and the Planning Commission meeting date, for review and recommendation, shall be forwarded to the applicant by certified mail, with a return receipt requested, within 30 days of the submission date.
(e)
The Zoning Officer shall submit the application to the Planning Commission for their review and recommendations. However, the Zoning Hearing Board shall meet the time limits of the state law for a decision, regardless of whether the Township Planning Commission has provided comments.
(4)
Within 15 days of the submission date, the Zoning Officer shall transmit one copy of the application form and one copy of all supporting data and information to the following:
(a)
Each member of the Zoning Hearing Board.
(b)
Solicitor to the Zoning Hearing Board.
(c)
The Secretary of the Township; this copy is for public inspection.
(d)
Solicitor to the Planning Commission.
(e)
The recording secretary of the Planning Commission shall receive the final two copies for distribution as follows:
[1]
One copy for the Planning Commission Engineer, including a request for a review and report to be submitted to the Planning Commission. The submittal to the Engineer must be at least 10 days prior to the regularly scheduled or special meeting at which the special exception use is to be considered by the Planning Commission.
[2]
One copy for the Planning Commission members, along with a request for comments and recommendations.
D.
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.
E.
Planning Commission action. 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 be construed as a favorable recommendation of the Planning Commission.
F.
Hearings/decision. The procedures for a public hearing shall follow the requirements listed under § 083-090 of this chapter.
(1)
Burden of proof. At the hearing on an application for special exception, 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 Zoning Hearing Board, that the application complies as follows, to wit:
(a)
Compliance with this chapter. The applicant shall establish, by credible evidence, that the application complies with all applicable requirements and objective criteria set forth in this chapter, such as:
[1]
The kind of use (i.e., the threshold definition of what is authorized as a special exception);
[2]
Specific requirements or standards applicable to a particular special exception (e.g., special setbacks); and shall be suitable for the property in question and designed, constructed, operated and maintained so as to be in harmony with and appropriate in appearance to the existing and intended character of the general vicinity.
(b)
Compliance with other laws. The applicant shall establish, by credible evidence, that if approval is conditioned upon compliance with other specific applicable Township, state and federal laws, regulations and permits, the applicant shall provide the required permits or other proof of compliance to the Township prior to the issuance of any zoning permit, building permit, certificate of compliance and/or recording of an approved land development plan.
(2)
Decision. The Zoning Hearing Board shall render a written decision and make written findings on the special exception use application within 45 days after the last hearing before the Board.
(a)
In granting a special exception use, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of this chapter, other than those related to off-site transportation or road improvements.
(b)
If the applicant has provided sufficient information to the Zoning Hearing Board to allow the Zoning Hearing Board to determine that the proposed use will comply with the objective criteria as set forth in this chapter, the applicant is entitled to approval because the use is presumed to be consistent with the public health, safety and welfare.
(c)
Where the application is contested or denied, each decision shall be accompanied by findings of fact or conclusions based thereon, together with any reasons therefor. Conclusions based on any provisions of the MPC 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 light of the facts found.
(d)
Failure of the Zoning Hearing Board to render a decision within the time period set forth in the MPC, as amended from time to time, or failure to conduct the required hearing in the manner provided by the MPC will result in a decision deemed to have been rendered in favor of the application. Notice of such deemed approval must be provided in accordance with the provisions of the MPC, as amended.
(e)
Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
G.
A land development plan shall be submitted for review and approval.
H.
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:
(1)
An application for a zoning permit for a granted special exception use shall be issued to the applicant within 30 days after the submission date of a complete application.
(2)
If the Zoning Officer finds the permit application complete and correct in all aspects of the granted special exception use, the Zoning Officer shall approve and endorse said application and when a land development plan or site plan has been submitted, endorse one copy of said plan.
(a)
One copy of the endorsed permit application, the endorsed land development plan and/or site plan, when applicable, and a completed and signed job placard shall be returned to the applicant.
(b)
The signed job placard must be conspicuously displayed on the job site during all phases of construction of the permitted special exception.
(3)
If the zoning permit application is incomplete and/or incorrect, the application shall be rejected with the reasons for the rejection stated thereon or attached thereto.
§ 085-010 Curative amendments.
A.
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 upon by the governing body of the municipality.
B.
Applicant. The applicant for a curative amendment must be the landowner as defined in the MPC, as amended from time to time.
C.
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:
D.
Factors to be considered. In considering the curative amendment and accompanying plan, the governing body must also consider:
(1)
The impact of the proposal upon roads and other infrastructure;
(2)
The impact of regional housing needs and whether the proposal is actually available and affordable by classes otherwise excluded by the challenged ordinance;
(3)
The physical suitability of the site;
(4)
The impact of the proposed use on the physical site; and
(5)
The impact of the proposal on the preservation of agricultural and other land uses which are essential to public health and welfare.
E.
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. The zoning validity challenge is deemed waived when the governing body adopts an alternative zoning amendment that is unacceptable to the applicant for curative amendment.
§ 085-020 Substantive validity challenges.
A.
Jurisdiction. The MPC, as amended from time to time, provides for the Zoning Hearing Board to hear substantive validity challenges.
B.
Examples. Such challenges include, but are not limited to:
(1)
Spot zoning (special legislation): singling out property indistinguishable in character from surrounding property for the economic benefit or to the economic detriment of the owner.
(2)
Fair share [Note: Fair share arguments relate to residential uses]: tripartite analysis includes:
(3)
De facto or de jure exclusion.
(4)
Lack of standards.
(5)
Ultra vires: not authorized by law or preempted by law.
(6)
Irrationality.
D.
Acceptance or denial. If the Zoning Hearing Board grants the substantive validity challenge, then the successful validity challenger shall receive site-specific relief in the nature of an approval of his/her proposed plan of development accompanying the challenge, subject to compliance with other Township regulations (e.g., stormwater management).