Middletown Township
City Zoning Code
City Zoning Code
ARTICLE XXVIII
Zoning Hearing Board
§ 275-204 Creation of Board.
A Zoning Hearing Board is hereby established by the Township Council in accordance with the provisions of Article IX of the Pennsylvania Municipalities Planning Code, as amended.[1] Hereinafter, as used in this article, the term "Board" shall refer to the Zoning Hearing Board, and the term "Planning Code" shall refer to the Pennsylvania Municipalities Planning Code.
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
§ 275-205 Membership and organization of Board.
A.
The membership of the Board shall consist of five residents of the Township appointed by the Township Council. Their terms of office shall be five years and shall be so fixed that the term of office of one member shall expire each year. Appointments to fill vacancies shall be only for the unexpired portion of the term of the member whose seat was vacated.
B.
The Township Council may appoint by resolution at least one but no more than three residents of the Township to serve as alternate members of the Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of this section, an alternate shall be entitled to participate in all proceedings and discussions of the Board to the same and full extent as provided by law for Board members, including specifically the right to cast a vote as a voting member during the proceedings, and shall have all the powers and duties set forth in this chapter and as otherwise provided by law. Alternates shall hold no other office in the Township, including membership on the Planning Commission and Code Enforcement Office. Any alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote as a member of the Board nor be compensated pursuant to the Municipalities Planning Code unless designated as a voting alternate member pursuant to this section.
C.
Removal of members. Any Board member may be removed for cause by a majority vote of the Township Council, 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.
D.
Organization of Board.
(1)
The 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 the members of the Board. As provided for by the Planning Code, the Board shall appoint a hearing officer(s) from its own membership to conduct any hearing on its behalf, and the parties may waive further action by the Board as provided in § 275-208 below.
(2)
The Zoning Hearing Board shall adopt rules and forms for its procedure in accordance with the provisions of this chapter. Meetings of the Zoning Hearing Board shall be held at the call of the Chairman and at such other times as the Zoning Hearing Board may determine. Such Chairman or, in his absence, the Acting Chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Zoning Hearing Board shall be open to the public.
(3)
The Zoning Hearing Board shall keep minutes of its proceedings, showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be filed in the office of the Township Manager and shall be a public record.
(4)
If, by reason of absence or disqualification of member, a quorum is not reached, the Chairman of the Board shall designate as many alternate members of the Board to sit on the Board as may be needed to provide a quorum. 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.
(5)
Within the limits of funds appropriated by the Township Council, the Board shall employ or contract for secretaries, clerks, attorneys, consultants and other technical and clerical services. However, the Solicitor for the Zoning Hearing Board shall be a different individual and from a different firm than the Solicitor for the Township Council.
§ 275-206 Functions of Board.
A.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1)
Challenge to the validity of the Zoning Ordinance or Zoning Map. The Zoning Hearing Board shall hear challenges to the validity of the Zoning Ordinance or Map as follows:
(a)
A landowner who, on substantive grounds, desires to challenge the validity of the ordinance or map or any provision thereof which prohibits or restricts the use of development of land in which he has an interest shall submit the challenge to either the Zoning Hearing Board or the Township Council.
(b)
Persons aggrieved by a use or development permitted on the land of another by the ordinance or map or any provision thereof who desire to challenge its validity shall:
(c)
In addition to the procedures set forth in Section 916.1 of the Municipalities Planning Code,[2] in all such challenges, the Zoning Hearing Board shall decide all contested questions and shall make findings on all relevant issues of fact and of interpretation and submit such findings as part of the record on appeal to the court.
[2]
Editor's Note: See 53 P.S. § 10916.1.
(3)
Challenges to the validity of this chapter raising procedural questions or alleged defects in the process of enactment or adoption, which challenges shall be raised by an appeal taken within 30 days after the effective date of said chapter.
(4)
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 or the issuance of any cease-and-desist order.
(5)
Appeals from a determination by the Township Engineer or the Zoning Officer with reference to the administration of the provisions of Chapter 120, Floodplain Management, of the Middletown Township Code of Ordinances.
(7)
Appeals from the determination of the Township Engineer or the Zoning Officer in the administration of this chapter or provision thereof with reference to sedimentation and soil erosion control and stormwater management, insofar as the same relate to development.
(8)
Requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant, subject to the standards prescribed by law and contained in § 272-209 below.
(9)
Requests for special exceptions where this chapter states that a special exception may be granted or denied by the Board in accordance with express standards and criteria contained in this chapter.
§ 275-207 Hearings and decisions.
The Board shall conduct hearings and make decisions in accordance with the requirements of the Planning Code and any pertinent provisions of this chapter or the Rules of the Board:
A.
Upon the filing of an appeal with the Board, an application for a special exception or variance from the terms of this chapter or a challenge, the Board shall fix a time and place for a public hearing thereon, subject to the provisions of the Planning Code, and shall give notice thereof in accordance with the provisions of Subsection E below.
B.
The hearings shall be conducted by the Board, or the Board may appoint any member as a hearing officer. The decision or, where no decision is called for, the findings, shall be made by the Board; but the parties may waive decision or findings by the Board and accept the decisions or findings of the hearing officer as final. The parties to the hearing shall be the Township, any person affected by the application who has made timely appearance or record before the Board and any other person including civic or community organizations permitted to appear by the Board.
C.
The Chairman, 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 cross-examine adverse witnesses on all relevant issues. At the hearing, any party may appear in person, by agent or by attorney.
D.
The Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings; and a transcript of the proceedings and copies of graphic or written material received in evidence shall be made available at cost to any party requesting such materials. In the absence of a stenographer, the hearing may be recorded for purposes of transcribing the record at a later time.
E.
Notice requirements. In any case where the Zoning Hearing Board shall hold a public hearing, the Board shall, at the minimum, give notice of such hearing as follows, which notice shall state the time and the place of the hearing and the particular nature of the matter to be considered at the hearing:
(1)
By publishing a notice thereof once each week for two successive weeks in a newspaper of general circulation in the Township, provided that the first publication shall be not more than 30 days or less than 14 days from the date of the hearing.
(2)
By mailing or delivering due notice thereof to the applicant and other parties in interest, who shall be at least those persons whose properties adjoin the property in question, to the Township Council, the Township Manager, and to every association of residents of the Township who shall have registered their names and addresses for this purpose with the Zoning Hearing Board for the current year.
(3)
Notice of hearings, both published and written, shall state, in addition to the time, place and purpose of the hearing, the location of the lot, tract or structure involved and the nature and extent of the relief sought and the general nature of the question involved. Notice of said hearing shall be conspicuously posted at least one week prior on the affected tract of land. The hearing shall be held within 60 days from the date of the applicant's request, unless the applicant has agreed, in writing, to an extension of time.
F.
Notice of decision.
(1)
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, subject to all additional requirements of the Planning Code. Where the Board has power to render a decision and the Board or the hearing officer, as the case may be, fails to render the same within the period required by the Planning Code, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed, in writing, to an extension of time.
(2)
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.
(3)
Unless otherwise specified by the Board, a special exception or variance shall expire if the applicant fails to obtain a building permit within one year from the date of authorization thereof. The opinion of the Zoning Hearing Board shall set forth the date on which relief granted shall expire.
(a)
The applicant shall have the right to seek an extension of the one-year limitation for a period not to exceed one additional year by making a written request to the Zoning Hearing Board at least 30 days prior to the expiration date set forth in the Zoning Board opinion or decision. The case shall be thereafter promptly scheduled for review on the request for an extension. Applications for a one-year extension shall be granted unless opposition is registered in person or by letter.
(b)
The Zoning Hearing Board shall consider whether the evidence presented demonstrates a change of circumstances which has occurred since the time relief was originally granted and whether such change in circumstances would have an adverse impact on the health, safety and welfare of the citizens of the Township of Middletown. Evidence offered by the applicant at the prior hearing shall be received into evidence as prima facie proof of the applicant's right to relief.
(c)
In no event shall the Zoning Hearing Board extend the relief granted more than one time. The relief granted is void, not voidable, two years beyond the date relief was first granted.
§ 275-208 Zoning appeals.
A.
Appeals before Zoning Board and to court. All appeals, applications or challenges which properly come before the Board in accordance with the requirements of the Planning Code and all appeals to courts shall be subject to the time limitations and requirements of Article X and any other applicable provision of said code. Appeals and proceedings to challenge an ordinance may be filed with the Board, in writing, by the landowner affected, any officer or agency of the Township or any person aggrieved. Requests for a variance and for special exception may be filed with the Board by any landowner or any tenant with the permission of such landowner.
B.
Time limitations. No person shall be allowed to file any proceeding with the Board later than 30 days after any application for development, preliminary or final, has been approved by the appropriate Township officer, agency or body if such proceeding is designed to secure reversal or to limit the approval in any manner, unless such person alleges and proves that he 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.
§ 275-209 Standards for variances and special exceptions.
In any instance where the Zoning Hearing Board is required to consider a special exception or variance in the Zoning Ordinance or Zoning Map in accordance with the provisions of this chapter, the Board shall, among other things, consider the following standards:
A.
In the case of a variance:
(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 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, nor substantially or permanently impair the appropriate use or development or adjacent property, not 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 the case of a special exception, the Board shall consider all standards and criteria as set forth in Article XXII and the following matters in determining whether or not the proposed special exception is appropriate and in harmony with the general purpose and intent of the chapter:
(1)
The size, scope, extent and character of the exception desired.
(2)
The character and type of development in the area surrounding the location for which the exception is desired.
(3)
Whether or not the proposed exception would be an appropriate use in the area or whether it would be detrimental to the surrounding area.
(4)
The zoning classification of the area affected.
(5)
The number, extent and scope of nonconforming uses, if any, in the area.
(6)
The anticipated future development of the area.
(7)
The effect, if any, of the proposed exception on other properties in the area.
(8)
Whether or not the proposed exception would affect the health, safety, morals and general welfare of the people of the residents in the surrounding area.
(9)
The effect of the proposed exception on traffic in the area and the nature of the surrounding traffic conditions, so that appropriate regulations may be imposed on any proposed uses to provide for off-street parking either equal to or greater than the off-street parking facilities required within the area by any other then applicable ordinance.
(10)
Whether the special exception authorized will represent the minimum modification to use the area requirements to afford necessary relief.
(11)
The effect of the proposed exception upon the logical, efficient and economical extension of public services and facilities such as public water, sewers, police, fire protection and schools.
C.
In granting any variance or special exception, 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 the Planning Code and Zoning Ordinance, which conditions and safeguards may relate to, but are not limited to, the harmonious design of buildings, planting and its maintenance as a sight or sound screen, lighting, noise, safety and the minimizing of noxious, offensive or hazardous elements.
D.
In the case of a special exception or variance, it shall be the responsibility of the applicant to present such evidence as is necessary to demonstrate that the proposed use or modification complies with the pertinent criteria and standards set forth in this section.
§ 275-210 Fees and charges.
A.
When any person, firm or corporation shall appeal to the Zoning Hearing Board or shall apply to the Zoning Board for a variance and/or special exception, each such application and/or appeal, as the case may be, shall be accompanied by the payment of an application fee, which shall be payable to the Township of Middletown. Said fee shall be in accordance with the Township fee schedule and be used by the Township of Middletown to defray the costs for each hearing held in connection with the application and/or appeal. The fee for all other applications to the Zoning Hearing Board relating to zoning, including challenges to the Zoning Ordinance or Map, shall be governed by the Township fee schedule.
B.
Fees are to be used to defray costs such as:
(1)
The appearance fee for a stenographer, which 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 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.
(2)
Advertising required by law for hearing or hearings.
(3)
Postage and photocopy costs incurred by the Township of Middletown.
(4)
Salaries of Township Council or Zoning Hearing Board members in attendance at hearing or hearings, as the case may be.
(5)
Such other reasonable and necessary costs incurred by the Township Council or Zoning Hearing Board, as the case may be, in connection with the application or appeal. 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.
In the event that a hearing on an application or appeal is conducted by the Township Council or the Zoning Hearing Board on the same date as another hearing or hearings which are subject to the provisions of this section and there are costs incurred by the Township which are not assignable to one particular application or appeal, said common costs shall be prorated by the Township among the various applicants in accordance with the Municipalities Planning Code and other applicable law.
D.
In the event that the costs set forth above exceed the payment made to the Township as required by this section, said applicant shall, upon demand by the Township, make payment to the Township of such additional costs as have been or will be incurred by the Township in connection with the application or appeal.
E.
In the event that the total costs payable to the Township authorized therein do not exceed payment or payments made by an applicant to the Township, the balance shall be returned to the applicant at the conclusion of the application or appeal.