Muhlenberg Township
City Zoning Code
City Zoning Code
ARTICLE XIII
Administration and Enforcement
§ 355-135 Statement of intent.
A.
The purpose and objective of the provisions established under Article XIII of this chapter are to establish specific regulations and guidelines for the administration and enforcement of this chapter of the Code.
B.
Where a conflict or discrepancy should arise concerning the procedural requirements specified within this chapter of the Code and the Pennsylvania Municipalities Planning Code, the Muhlenberg Township Solicitor shall review the conflict or discrepancy and advise the Board of Commissioners, Planning Commission, Zoning Officer, Engineer and/or Zoning Hearing Board of the procedural requirements that should be followed.
C.
The provisions established for administration and enforcement, as established under Article XIII of this chapter, shall be subject to the interpretation of the Muhlenberg Township Zoning Officer or other qualified professional, as designated by the Board of Commissioners. Should a dispute arise concerning the interpretation of these regulations, the person aggrieved by the interpretation may file an appeal with the Zoning Hearing Board. In all cases, the burden of proof and submission of technical evidence shall be the responsibility of the person appealing the interpretation of the Zoning Officer or other qualified professional, as designated by the Board of Commissioners.
D.
Where Muhlenberg Township has been identified as the person authorized to review, issue and/or enforce the provisions of Article XIII of this chapter, such person may include the Muhlenberg Township Zoning Officer, Code Enforcement Officer, Manager, Secretary, Engineer, Planner, Solicitor and/or other person that has been designated and authorized to conduct such tasks by the Muhlenberg Township Board of Commissioners.
§ 355-136 Building permits, zoning permits, certificates of use and occupancy, and other permits.
A.
The following general requirements shall apply to zoning permits, building permits and certificates of occupancy, as reviewed and issued by Muhlenberg Township:
(1)
Persons desiring to undertake any new construction, structural or site alteration, or changes in the use of a building or lot shall apply to Muhlenberg Township for a permit by filling out the appropriate application form and by submitting the required fee.
(2)
Muhlenberg Township shall either issue the appropriate permit or shall refuse the permit, indicating in writing the reason for refusal. Certain construction activities, alterations or land use activities may require approval of the Board of Commissioners, Planning Commission and/or Zoning Hearing Board.
(3)
If the permit is refused by Muhlenberg Township, the applicant may appeal such action in accordance with the provisions of the Muhlenberg Township Code.
(4)
After the permit has been received by the applicant, he may undertake the action that is specifically referenced on the approved permit application.
(5)
Upon completion of such action, the applicant may apply to Muhlenberg Township for an occupancy permit (where such a permit is required).
(6)
If Muhlenberg Township finds that the action of the applicant is in accordance with the zoning permit, building permit and any other required permits, the Zoning Officer shall issue an occupancy permit allowing the premises to be occupied.
B.
The following specific provisions shall apply to an application for a zoning permit and/or building permit within Muhlenberg Township:
(1)
No person shall erect, alter, convert, move or add to any building, structure or sign, or alter the use of any land or structure, until Muhlenberg Township issues a zoning permit and/or building permit to the person or applicant for said change or construction.
(2)
Unless otherwise specified by the chapter, a zoning permit and/or building permit is not required for normal maintenance and repairs.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
(3)
The following provisions shall apply to the types of procedural requirements for a use permitted by right, special exception or conditional use:
(a)
A zoning permit and/or building permit may be issued by Muhlenberg Township for all uses permitted by right, subject to the provisions and requirements of the chapter.
(b)
A zoning permit and/or building permit may be issued by Muhlenberg Township for all uses permitted as part of a zoning variance application which has been approved by the Zoning Hearing Board and subject to the provisions and requirements of the chapter.
(c)
A zoning permit and/or building permit may be issued by Muhlenberg Township for all uses permitted as part of a special exception application which has been approved by the Zoning Hearing Board and subject to the provisions and requirements of the chapter.
(d)
A zoning permit and/or building permit may be issued by Muhlenberg Township for all uses permitted as part of a conditional use application which has been approved by the Board of Commissioners and subject to the provisions and requirements of the chapter.
(4)
All applications for a zoning permit and/or building permit shall be made in writing to Muhlenberg Township and shall be accompanied by three complete sets of plans accurately drawn to scale, indicating or illustrating the following information, if applicable:
(a)
The actual dimensions and shape of the lot to be built upon.
(b)
The exact size and location on the lot of all buildings, structures or signs.
(c)
The number of lots or dwelling units.
(d)
Off-street parking spaces provided and/or loading facilities.
(e)
Statement indicating the existing or proposed use.
(f)
The detailed scale drawing of the structure, building, sign or other improvement, including the precise dimensions.
(g)
A written agreement or an attested statement that the applicant is the owner of the premises on which the improvement will be conducted or that the applicant has obtained the consent of the owner or lessee of such premises to improve the property in accordance with the application.
(h)
All other information necessary for such Zoning Officer to determine conformance with and provide for enforcement of this chapter;
(5)
If requested by Muhlenberg Township, the detailed information included with the zoning permit or building permit shall be prepared by a professional architect, engineer, planner, surveyor or contractor.
(6)
Upon approval or disapproval of the zoning permit and/or building permit, Muhlenberg Township shall return one copy of the permit application and plans to the applicant. The Muhlenberg Township shall indicate that the permit has been approved or disapproved by signing the application. Where appropriate, condition of approval should be specified on the zoning permit and/or building permit application. At least one copy of such plans shall be retained by Muhlenberg Township.
(7)
Approval or denial of the requested zoning permit application or building permit application shall be made within 30 days from the date the application was considered complete by Muhlenberg Township. In denying a zoning permit application or building permit application, Muhlenberg Township shall inform the applicant of the reasons for denial and specify the provision(s) of the chapter which has not been satisfied. Applicants shall be informed of their rights of appeal and provided with all necessary information to pursue such appeals.
(8)
Zoning permits and/or building permits shall expire within one year from date of issuance if the work described in any permit has not begun. If the work described in any zoning permit and/or building permit has begun, said permit shall expire after one year, exclusive of any time required for administration and permitting, from date of issuance thereof, within which time said work shall be completed.
C.
The following specific provisions shall apply to an application for a certificate of use and occupancy within Muhlenberg Township:
(1)
A certificate of use and occupancy shall be required upon the completion of the work and improvements authorized as part of the zoning permit and/or building permit. It shall be unlawful to use and/or occupy any structure, building and/or portions thereof in any manner until a certificate of use and occupancy has been issued by Muhlenberg Township.
(2)
The application for certificate of use and occupancy shall be submitted on such form as Muhlenberg Township may prescribe.
(3)
Muhlenberg Township shall inspect any structure, building, sign, improvements and/or land or portions thereof to determine compliance with the chapter and permit requirements. If satisfied that the completed work is in conformity with the chapter and permit requirements, a certificate of use and occupancy shall be issued.
(4)
Upon inspection, Muhlenberg Township shall either grant or deny the certificate of use and occupancy, in writing, within 15 days from the date of application or last inspection.
(5)
In situations in which performance standards are imposed, no certificate of occupancy shall become permanent until 30 days after the use or facility is fully operating and only after, upon inspection by Muhlenberg Township, it is determined that the facility is in compliance with the performance standards. After said inspection, Muhlenberg Township shall notify the applicant that the facility is in full compliance with all performance standards and that the certificate of use and occupancy is permanent or that the facility does not comply and that the certificate of use and occupancy is still temporary. In no case shall a temporary certificate of use and occupancy extend 90 days past the date of first inspection.
(6)
The certificate of use and occupancy shall be kept on the premises and shall be publicly displayed in a manner required by the Muhlenberg Township Code.
(7)
Upon a violation of any terms specified by the Muhlenberg Township Code, the certificate of use and occupancy shall be surrendered to Muhlenberg Township.
D.
The following specific provisions shall apply to an application for a special use permit, seasonal permit and/or temporary permit within Muhlenberg Township:
(1)
Where a special use, seasonal use or a temporary use are permitted by this chapter, Muhlenberg Township may issue a special use permit or a temporary use permit to the applicant.
(2)
A special use permit may be issued for a use having a periodic, intermittent or short duration of time not exceeding 30 consecutive or cumulative days within a calendar year. Such special uses shall include the following: carnivals; circuses; bazaars; fairs; municipal and civic events; the sale of food, product and similar merchandise; and other similar activities conducted by a nonprofit or charitable organization, provided that activities are conducted on the same premises as the use and location of the principal activity of the sponsor.
(3)
A seasonal or temporary use permit may be issued for a use having a short time period, which shall not exceeding 90 consecutive or cumulative days within a calendar year. The seasonal or temporary use shall be a permitted use specified by the chapter or within the zoning district in which the use is located.
E.
The owner of the premises occupied by a lawful nonconforming use or structure may secure a certificate of nonconforming use or structure from Muhlenberg Township. Such certificate shall be authorized by Muhlenberg Township and shall certify to the owner his right to continue such nonconforming use or structure.
F.
Pursuant to the provisions of the Muhlenberg Township Code, additional permits may be required by local, regional, county, state and federal agencies, which shall be issued prior to the commencement of any improvement or site activities.
§ 355-137 Zoning Officer.
A.
The provisions of this chapter of the Code shall be enforced by an agent, to be appointed by the Board of Commissioners, who shall be known as the "Zoning Officer." The Zoning Officer shall not hold any elective office that conflicts with his or her normal duties and shall continue to serve Muhlenberg Township until such time as the Board of Commissioners declares otherwise.
B.
The Zoning Officer is to enforce the provisions of this chapter of the Code and shall have such duties and powers as are referenced by this chapter. The Zoning Officer's duties shall include, but are not limited to, the following:
(1)
Receive, examine and process permit applications for zoning, land use, buildings and signs.
(2)
To issue permits for the construction, alteration, repair, extension, replacement, occupancy, and uses of land which are in accordance with the regulations of this chapter of the Code.
(3)
To record and file all applications for permits and accompanying plans and documents and keep them for public record.
(4)
To inspect nonconforming uses, buildings and lots of records by examining them periodically, with the view of eliminating the nonconforming uses under the existing laws and regulations and to issue certificates of occupancy for them.
(5)
Upon the request of the Board of Commissioners, the Planning Commission or the Zoning Hearing Board, present to such bodies facts, records and any similar information on specific requests to assist such bodies in reaching their decisions.
(6)
To be responsible for the keeping up-to-date of this chapter and the Zoning Map, which is filed with the Muhlenberg Township Manager or Secretary, and to include any amendments thereto.
(7)
To keep an official record of all business and activities, including complaints of a violation of any of the provisions of this chapter and of the action taken consequent to each such complaint.
(8)
Issue permits for uses permitted by right, variance, special exception or conditional use, as specified within this chapter of the Code.
C.
Any person, partnership or corporation who or which shall violate the provisions of this chapter shall be held accountable for his or its actions in accordance with the provisions specified by the Muhlenberg Township Code.
D.
Should a dispute arise concerning the interpretation of this chapter by the Zoning Officer, the person aggrieved by the interpretation may file an appeal with the Zoning Hearing Board.
§ 355-138 Zoning Hearing Board.
B.
The following provisions shall apply to the establishment of the Muhlenberg Township Zoning Hearing Board:
(1)
The members of the Zoning Hearing Board shall serve three-year terms that shall be so fixed that the term of office of one member shall expire each year.
(2)
The Zoning Hearing Board shall promptly notify the Board of Commissioners of any vacancies which may occur. Appointments to fill vacancies shall be only for the unexpired portion of the term.
(3)
The members of the Zoning Hearing Board shall hold no other offices within Muhlenberg Township.
(4)
Any member of the Zoning Hearing Board may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Board of Commissioners 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.
(5)
The Board of Commissioners may appoint one resident to serve as an alternate member of the Zoning Hearing Board.
C.
The following provisions shall apply to the organization of the Muhlenberg Township Zoning Hearing Board:
(1)
The Zoning Hearing Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves.
(2)
For the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of all members of the Board, but where two members are disqualified to act in a particular matter, the remaining member may act for the Zoning Hearing Board.
(3)
The Zoning Hearing Board may appoint a hearing officer from its own membership to conduct any hearing on its behalf, and the parties may waive further action by the Zoning Hearing Board, as provided within the Muhlenberg Township Code.
(4)
The Zoning Hearing Board may appoint a solicitor or attorney to oversee the procedures of the hearing in accordance with the provisions of the Muhlenberg Township Code.
(5)
The Zoning Hearing Board may make, alter and rescind rules and forms for its procedures consistent with the Muhlenberg Township Code and laws of the Commonwealth of Pennsylvania.
(6)
If requested by the Board of Commissioners, the Zoning Hearing Board shall submit an annual report of its activities to the Board of Commissioners.
D.
The following provisions shall apply to expenditures and fees for the Muhlenberg Township Zoning Hearing Board:
(1)
The members of the Zoning Hearing Board may receive compensation for the performance of their duties and services, which shall be established by the Board of Commissioners.
(2)
Within the limits of funds appropriated by the Board of Commissioners, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services.
(3)
The applicant before the Zoning Hearing Board shall deposit with the designated Secretary or Treasurer of Muhlenberg Township such a sum of money as shall be deemed sufficient by the Zoning Hearing Board and established in a resolution to pay the cost of the expenses for the hearing. These costs may include compensation for the members of the Zoning Hearing Board, the secretary, clerk, legal counsel, consultants, the notice and advertising costs, and all other necessary administrative overhead associated with conducting the hearing.
(4)
Funds deposited in excess of the actual cost of the requested hearing shall be returned to the applicant upon completion of the proceedings, and in the event that the cost of the hearing exceeded the funds deposited, the applicant shall pay to the designated Secretary or Treasurer of Muhlenberg Township the appropriate funds equal to such excess cost.
E.
The following provision shall apply to the general functions of the Muhlenberg Township Zoning Hearing Board:
(1)
The Zoning Hearing Board shall act in strict accordance with the procedures specified within the Muhlenberg Township Code and the Pennsylvania Municipalities Planning Code.
(2)
The Zoning Hearing Board shall consider applications for variances, special exceptions, appeals concerning the interpretation of this chapter by the Zoning Officer, and other duties that are specified by the Muhlenberg Township Code.
(3)
All appeals and applications made to the Zoning Hearing Board shall be in writing on forms prescribed by the Board of Commissioners or Zoning Hearing Board.
(4)
Every appeal or application shall refer to the specific provision of this chapter involved and shall exactly set forth the interpretation that is claimed, the grounds for any challenges to validity of this chapter, the use for which a special use permit is sought, or the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be.
F.
In all cases before the Zoning Hearing Board, the Board of Commissioners, Planning Commission and Zoning Officer may review and comment on the application prior to the rendering of a decision.
§ 355-139 Public hearings and procedures.
A.
The first hearing shall be commenced within 60 days from the date of the applicant's request, unless the applicant has agreed, in writing, to an extension of time. Each subsequent hearing before the Zoning Hearing 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 (the part of the hearing in which the applicant presents evidence to support his or her claim or defense) within 100 days of the first hearing. Upon the request of the applicant, the Zoning Hearing Board shall assure that the applicant receives at least seven hours of hearings within the 100 days, including the first hearing. Persons opposed to the application shall complete the presentation of their opposition to the application within 100 days of the first hearing held after the completion of the applicant's case in chief. An applicant may, upon request, be granted additional hearings to complete his case in chief, provided the persons opposed to the application are granted an equal number of additional hearings. Persons opposed to the application may, upon written consent, be granted additional hearings to complete their opposition to the application, provided the applicant is granted an equal number of hearings for rebuttal.
B.
The Zoning Hearing Board shall give notice of the public hearing in accordance with the following:
(1)
By publishing a notice once each week for two successive weeks in a newspaper of general circulation within Muhlenberg Township. Such notice shall state the time and place of the public hearing and the particular nature of the matter to be considered at the hearing. The first publication shall be not more than 30 days and the second publication shall be not more than seven days from the date of the hearing.
(2)
By mailing a notice thereof to the parties of interest at least 14 days prior to the public hearing.
(3)
By mailing or issuing a notice to the Muhlenberg Township Manager, Zoning Officer, Secretary, Board of Commissioners, Planning Commission, Berks County Planning Commission (if requested) and to every person or organization who or which shall have registered with the Zoning Hearing Board for the purpose of receiving such notices.
(4)
The Zoning Hearing Board or Zoning Officer may mail notice of the hearing to the owner of every lot within 500 feet of the lot or building in question, provided that failure to give notice, either in part or in full, as stated by this subsection, shall not invalidate any action by the Zoning Hearing Board.
(5)
The required notices by this section shall state the location of the lot or building that is the subject of the application, as well as the general nature of the request(s) being made by the applicant(s).
(6)
The Board of Commissioners may establish reasonable fees to be paid by the applicant in accordance with the provisions of the Muhlenberg Township Code.
C.
The Zoning Hearing Board shall conduct the hearings or the Zoning Hearing 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 of findings by the Board and accept the decision or findings of the hearing officer as final.
D.
The parties to the hearing shall be Muhlenberg Township, any person affected by the application who has made timely appearance or record before the Zoning Hearing Board and any other person, including civic or community organizations, permitted to appear by the Zoning Hearing Board. The Zoning Hearing Board shall have 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.
E.
The Chairman or Acting Chairman of the Zoning Hearing Board or the hearing officer presiding shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and documents requested by the parties.
F.
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.
G.
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
H.
The Zoning Hearing 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 to any party at cost.
I.
The Zoning Hearing 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 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.
J.
The Zoning Hearing 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 Zoning Hearing Board or hearing officer. 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 act, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found. If the hearing is conducted by a hearing officer and there has been no stipulation that his decision or findings are final, the Zoning Hearing Board shall make his report and recommendations available to the parties, and the parties shall be entitled to make written representations thereon to the Zoning Hearing Board prior to final decision or entry of findings, and the Zoning Hearing Board's decision shall be entered no later than 45 days after the decision of the hearing officer. Where the Zoning Hearing Board has power to render a decision and the Zoning Hearing Board or the hearing officer, as the case may be, fails to commence, conduct or complete the required hearing as required by this chapter of the Code, 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. Nothing in this subsection shall prejudice the right of any party opposing the application to urge that such decision is erroneous.
K.
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 by certified mail not later than the day following its date. To all other persons who have filed their names and addresses with the Board no later than the last day of the hearing, the Zoning Hearing Board shall provide by mail or otherwise brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.
§ 355-140 Zoning variances.
A.
The Zoning Hearing Board shall hear requests for zoning variance applications where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. The zoning variance application shall be considered by the Zoning Hearing Board in accordance with the provisions specified by this chapter of the Code.
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 this chapter and the Pennsylvania Municipalities Planning Code.[1] The Zoning Hearing Board may, by rule, prescribe the form of application and may require a preliminary application to be issued and reviewed by the Zoning Officer.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
C.
In all cases before the Zoning Hearing Board, the Board of Commissioners, Planning Commission and Zoning Officer may review and comment on the zoning variance application prior to rendering a decision.
D.
The Zoning Hearing Board may grant a variance, provided that all 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 condition, and not circumstances or conditions 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 of adjacent property, nor be detrimental to the public welfare.
(5)
That the variance as granted by the Zoning Hearing Board is the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
E.
Where the Zoning Hearing Board has jurisdiction over other zoning matters described under this chapter of the Code, the Zoning Hearing Board shall also hear all appeals which an applicant may elect to bring before it with respect to any municipal ordinance or requirement pertaining to the same lot, parcel, property or development. In any such case, the Zoning Hearing Board shall have no power to pass upon the non-zoning-related issues but shall take evidence and make a record in accordance with the procedures established by this chapter of the Code. At the conclusion of the hearing, the Zoning Hearing Board shall make findings on all relevant issues of fact, which shall become part of the record on appeal to the court.
F.
The approval of a variance, if authorized by the Zoning Hearing Board, which anticipates construction or modification of a structure, creation of new or revised lot lines or dimensional standards for a property or structure situated thereon, shall be valid and remain in effect for a term of one year from the date of said approval and shall thereafter expire and be void unless said construction, modification, new or revised lot lines or dimensional standards or change of use or occupancy be initiated within said one-year term or said term is expressly extended as part of the initial approval. In the event that the activity anticipated by the variance should not be initiated within one year of the approval or such additional term as may be expressed in the approval, or should the activity which is the subject of the variance be discontinued, the premises or structure situated thereon shall not thereafter be used except in conformity with the regulations of the district in which it is located.
G.
For zoning variance applications, where compliance with the minimum dimensional requirements and/or maximum coverage requirements of this chapter of the Code are considered to be "de minimis" in terms of their impact, the Zoning Hearing Board may consider the following provisions:
(1)
A de minimis zoning variance application shall only apply to the following conditions: where the minimum dimensional or setback requirement for the principal building or accessory structure cannot be achieved but is within 5% of complying with the requirement specified by this chapter; where the minimum dimensional or setback requirement for the principal or accessory use cannot be achieved but is within 5% of complying with the requirement specified by this chapter; and where the maximum building or lot coverage requirement cannot be achieved but is within 5% of complying with the requirement specified by this chapter of the Code.
(2)
The applicant shall submit a completed zoning variance application to the Zoning Officer, who shall determine if the de minimis provisions of this chapter of the Code apply.
(3)
If the Zoning Officer determines that a de minimis zoning variance applies as defined by this chapter of the Code, the application shall be forwarded to the Zoning Hearing Board for consideration.
(4)
The Zoning Hearing Board shall schedule and conduct an informal hearing to consider the de minimis zoning variance application. All adjacent property owners and residents shall be notified of the application and the date of the informal hearing.
(5)
If required by the Zoning Hearing Board or if requested by the applicant or other parties of interest, a stenographic record of the informal hearing shall be made by a certified court reporter, whose appearance fee shall be reimbursed by the applicant. The cost of the original transcript shall be paid by Muhlenberg Township or by any party requesting an original transcript.
(6)
The Zoning Hearing Board shall consider the de minimis zoning variance application and all other informal testimony before rendering a decision. If approved, the legal counsel for the Zoning Hearing Board shall issue a letter to the applicant and Zoning Officer outlining the terms of the decision with any specific conditions. If disapproved, the legal counsel for the Zoning Hearing Board shall issue a letter to the applicant and Zoning Officer outlining the decision with any specific reasons for denial. The written decision shall be issued to the applicant and Zoning Officer within 15 days of the decision.
§ 355-141 Special exceptions.
A.
The Zoning Hearing Board shall hear requests for special exception applications, as permitted under the provisions of this chapter of the Code. By so providing, the Zoning Hearing Board recognizes that certain uses may or may not be appropriate at every location within any specific district and, where it appears that a use permitted by special exception fails to comply with all of the definitional aspects thereof or would be contrary to the public health, safety, morals and/or welfare of the community at specific locations within a district, that the use would not be permitted.
B.
In granting any special exception, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter and the Pennsylvania Municipalities Planning Code, as amended. The Zoning Hearing Board may, by rule, prescribe the form of application and may require a preliminary application to be issued and reviewed by the Zoning Officer.
C.
The Zoning Hearing Board shall consider the comments issued by the Muhlenberg Township Board of Commissioners, Planning Commission, Engineer, Zoning Officer and/or other agencies that could assist the Zoning Hearing Board with the special exception use application. All such comments shall be made either in writing and presented as evidence during the hearing or as part of sworn testimony at the public hearing.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
D.
The Zoning Hearing Board shall consider the following issues prior to rendering its decision on a special exception application:
(1)
That such use is consistent with the Muhlenberg Township Comprehensive Plan.
(2)
That such use shall be one which is specifically authorized as a special exception use within the zoning district wherein the applicant seeks a special exception.
(3)
That the property is suitable for the use desired and that the proposed request is consistent with the goals, objectives and policies established within this chapter of the Code.
(4)
That such special exception shall only be granted subject to any applicable condition and safeguards as required by this chapter of the Code.
(5)
That such use shall not adversely affect the general character of the neighborhood and/or property values of the adjacent uses.
(6)
That such use shall not adversely affect the health, safety and/or welfare of residents or property owners within the general neighborhood.
(7)
That there will be no adverse effect of the proposed special exception upon the logical, efficient and economical extension of public facilities and services, including public water, sanitary sewers, streets, police and fire protection, public schools, and all other similar facilities and services that are considered appropriate by the Zoning Hearing Board.
(8)
That any unique circumstances for which the special exception is sought were neither created by the owner of the property nor were due to, or the result of, general conditions within the zoning district in which the property is located.
(9)
That the proposed location of any residential or nonresidential use is suitable with respect to probable effects upon highway traffic and assures adequate access arrangements in order to protect major streets and highways from undue congestion and hazard.
(10)
The adequacy of sanitation and public safety provisions, where applicable; a certificate of adequacy of sewage and water facilities shall be provided from a governmental health agency in such case required herein or deemed advisable.
(11)
The Board may impose such conditions in addition to those required as are necessary to assure that the intent of this Zoning Ordinance is complied with, which conditions may include but are not limited to harmonious design of buildings; planting and its maintenance as a sight or sound screen; the minimizing of noxious, offensive or hazardous elements; and adequate standards of parking and sanitation.
E.
Where the Zoning Hearing Board has jurisdiction over other zoning matters described under this chapter of the Code, the Zoning Hearing Board shall also hear all appeals which an applicant may elect to bring before it with respect to any municipal ordinance or requirement pertaining to the same lot, parcel, property or development. In any such case, the Zoning Hearing Board shall have no power to pass upon the non-zoning-related issues but shall take evidence and make a record in accordance with the procedures established by this chapter of the Code. At the conclusion of the hearing, the Zoning Hearing Board shall make findings on all relevant issues of fact, which shall become part of the record on appeal to the court.
F.
The approval of a special exception, if authorized by the Zoning Hearing Board, which anticipates construction or modification of a structure, creation of new or revised lot lines or dimensional standards for a property or structure situated thereon, shall be valid and remain in effect for a term of one year from the date of said approval and shall thereafter expire and be void unless said construction, modification, new or revised lot lines or dimensional standards or change of use or occupancy be initiated within said one-year term or said term is expressly extended as part of the initial approval. In the event that the activity anticipated by the special exception should not be initiated within one year of the approval or such additional term as may be expressed in the approval, or should the activity which is the subject of the special exception be discontinued, the premises or structure situated thereon shall not thereafter be used except in conformity with the regulations of the district in which it is located.
G.
As part of the special exception application, the Zoning Hearing Board may consider certain background studies, plans and/or reports that may be required as supplemental documentation to support the special exception application. The Zoning Hearing Board shall reserve the right to either require, not require or defer the submittal of certain background studies, plans and/or reports as part of the special exception application. If not required or deferred as part of the special exception application, the required background studies, plans and/or reports shall be appropriately considered by Muhlenberg Township as part of the application for a subdivision plan, land development plan and/or permit.
§ 355-142 Conditional uses.
A.
The Board of Commissioners shall hear requests for conditional use applications, as permitted under the provisions of this chapter of the Code. By so providing, the Board of Commissioners recognizes that certain uses may or may not be appropriate at every location within any specific district and, where it appears that a conditional use fails to comply with all of the definitional aspects thereof or would be contrary to the public health, safety, morals and/or welfare of the community at specific locations within a district, that the use would not be permitted there.
C.
Prior to the commencement of the conditional use hearing or during the proceedings of the conditional use hearing, the Board of Commissioners shall consider the comments of the Muhlenberg Township Planning Commission, Zoning Officer, Engineer, the appointed professional consultants and/or other agencies that could assist the Board of Commissioners with the merits of the conditional use application. All such comments shall be made either in writing and presented as evidence during the hearing or as part of sworn testimony at the conditional use hearing.
D.
All of the standards for conditional uses hereinafter set forth shall, where relevant, apply to all conditional uses within Muhlenberg Township and are deemed definitional in character so that the failure to comply with any standards shall be deemed a failure to bring the applicant within that definitional aspect for which a conditional use may be granted, or in the discretion of the Board of Commissioners, such failure to comply with the standards may be deemed a basis for the imposition of appropriate conditions to such grant. It is further the intention of the Board of Commissioners that the standards hereinafter described shall be deemed additional standards and shall in no way impair any other applicable standard described elsewhere in this chapter. Where there is a conflict between the standards set forth in this article and other standards elsewhere established by this chapter or other applicable ordinances, it is intended that the more stringent thereof shall apply, and it is not the intent of this article to abrogate or impair any other such standards or requirements.
E.
The Board of Commissioners shall consider the following general issues and site requirements prior to rendering its decision on a conditional use application:
(1)
That such use is consistent with the Muhlenberg Township Comprehensive Plan.
(2)
That the property is suitable for the use desired and that the proposed request is consistent with the goals, objectives and policies established within this chapter of the Code.
(3)
That the minimum and maximum dimensional requirements for the proposed use within the appropriate zoning district shall be held in compliance by the applicant.
(4)
The applicant shall establish by a fair preponderance of credible evidence that the use intended at the location intended shall not be contrary to the public health, safety, morals and/or public welfare.
(5)
The applicant shall provide evidence with supporting documentation that the capacity of the road system providing access to the property or lot in question has sufficient capacity to accommodate the use and that when the incremental increase in traffic attributable to the proposed use is superimposed upon the existing use of the road it shall not lower the level of service of the roads or any portions thereof or any street intersections below a level of service C.
(6)
The applicant shall provide evidence with supporting documentation that the interior traffic circulation for the proposed use at the proposed location, including but not limited to acceleration and deceleration lanes where required at the proposed entrances to the location, shall be adequate to provide safe and convenient circulation for users of the facility, visitors to the facility, employees of the facility and all emergency vehicles that may require entrance thereon.
(7)
The applicant shall provide evidence with supporting documentation that the facility or use provides safe and convenient pedestrian access and internal circulation within the grounds of the facility and particularly for points of access from the facility to the parking areas.
(8)
The applicant shall provide evidence with supporting documentation that adequate screening and buffering is provided between the lands in question and surrounding residential uses and residentially zoned districts to screen the facility from view and preclude any glare from lighting or noise being ascertainable beyond the boundaries of the property.
(9)
The applicant shall provide evidence with supporting documentation that the local fire departments have the abilities to provide adequate fire protection and emergency management services for the use.
(10)
The applicant shall provide evidence with supporting documentation that adequate water storage is available within the region for firefighting purposes, which shall include but not be limited to pumping at all hours at a minimum of 25 pounds per square inch (psi) pressure without impairing the uses of the water supply for ordinary purposes on the premises, and shall be in compliance with all applicable governmental regulations.
(11)
Where in the opinion of the Board of Commissioners the use or facility may require supervision and protection, the applicant shall provide evidence with supporting documentation that additional security measures will be accounted for by the owner or site manager so the facility or use does not create a continuous burden on the emergency management services and providers.
(12)
The applicant shall provide evidence with supporting documentation that the existing or proposed sanitary sewage disposal facilities have sufficient capacity for the proposed use. Where on-lot sewage disposal methods are permitted, the applicant shall consult with the Muhlenberg Township Sewage Enforcement Officer to determine if on-lot sewage disposal is a viable option considering the proposed use, wastewater flow and site characteristics.
(13)
The applicant shall provide evidence with supporting documentation that the existing or proposed municipal water supply facilities have sufficient capacity for the proposed use. Where water supply methods are permitted, the applicant shall consult with a qualified hydrogeologist to determine if on-lot water supply is a viable option considering the proposed use, groundwater supply and site characteristics.
(14)
The applicant shall provide evidence with supporting documentation that there will be no increase in surface water runoff and erosion within the property or at the boundaries of the facility as a result of the site improvements, as specified under Chapter 310, Subdivision and Land Development, of the Code.
F.
The general standards required in this section or elsewhere within this chapter shall be deemed a part of the definitional aspect under which a conditional use may be granted, and the failure of the applicant to establish his compliance with all of the standards shall, in the discretion of the Board of Commissioners, be deemed either a basis for the establishing of conditions or limitations on an approval or the basis for a determination that the applicant has not brought himself within the definitional use for which a conditional use may be granted.
G.
The following provisions shall apply for the public hearing procedures and administrative requirements for all conditional use applications within Muhlenberg Township:
(1)
The Board of Commissioners shall schedule and hold a public hearing on the application pursuant to public notice within 60 days from the date of the applicant's request for a hearing. The request for a hearing shall be accompanied by a completed application on required form. The date for the scheduling of the first hearing may be extended by the applicant on the record or in writing addressed to the Board of Commissioners, in which event the date agreed upon by the applicant shall be considered timely for purposes of this subsection.
(2)
As part of the conditional use hearing, the Board of Commissioners shall consider those comments issued by the Muhlenberg Township Planning Commission, Zoning Officer, Engineer, the appointed professional consultants and all other agencies providing comments, as may be authorized by the Muhlenberg Township Code and the Pennsylvania Municipalities Planning Code.
(3)
The Board of Commissioners shall conduct the hearing or the Board of Commissioners 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 of Commissioners. However, the appellant or the applicant, as the case may be, in addition to Muhlenberg Township, may, prior to the decision of the hearing, waive decision or findings by the Board of Commissioners and accept the decision or findings of the hearing officer as final. All hearings must be completed no later than 100 days after the completion of the applicant's case in chief, unless extended for good cause upon application to the Court of Common Pleas.
(4)
Any substantial revisions to the application or plan made by the applicant subsequent to filing of the application or plan or its review by the Planning Commission shall be subject to review and recommendation by the Planning Commission as specified within this chapter of the Code. In such event, the Zoning Officer shall secure from the applicant a written extension of the date within which the Board of Commissioners must hold a public hearing pursuant to the provisions of this chapter of the Code. If the applicant fails to execute the extension, the Board of Commissioners shall decide the conditional use application on the basis of the plan and application as originally filed.
(5)
A stenographic record of the hearing shall be made by a certified court reporter, whose appearance fee shall be reimbursed through the application fee paid to Muhlenberg Township as part of the initial application. The cost of the original transcript shall be paid by Muhlenberg Township or by any party requesting an original transcript. In either case, the cost of additional copies shall be paid by the party or person requesting such copies.
(6)
The Board of Commissioners 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 Board of Commissioners. The date of the decision may be extended by the applicant either on the record or in writing addressed to the Board of Commissioners. Where the application is contested or denied, each decision shall be accompanied by findings of fact, reasons or conclusions based thereon. Any conclusions based upon this chapter of the Code, the Pennsylvania Municipalities Planning Code, or any rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found. A copy of the 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.
(7)
If after the conclusion of the public hearing(s) the application is amended or revised, the Board of Commissioners shall hold one or more public hearings thereon as may be necessary and shall issue a new decision thereon in conformance with the procedure established in this section. In the event that the Board of Commissioners fails to commence the public hearing within 60 days from the date of the applicant's request for a hearing or fails to complete the hearing no later than 100 days after the completion of the applicant's case in chief, unless extended for good cause upon application to the Court of Common Pleas, 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 the Board of Commissioners failed to commence the hearings, complete the hearings, or render a decision as required by this section, the Board of Commissioners 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 this section. If the Board of Commissioners shall fail to provide such notice, the applicant may do so. Nothing in this section shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
H.
Unless otherwise permitted by the Board of Commissioners, the approval of an approved conditional use which anticipates construction or modification of a structure, creation of new or revised lot lines or dimensional standards for a property or structure situated thereon shall be valid and remain in effect for a term of one year from the date of said approval and shall thereafter expire and be void unless said construction, modification, new or revised lot lines or dimensional standards or change of use or occupancy be initiated within said one-year term or said term is expressly extended as part of the initial approval. In the event that the activity anticipated by the special exception should not be initiated within one year of the approval or such additional term as may be expressed in the approval or should the activity which is the subject of the special exception be discontinued, the premises or structure situated thereon shall not thereafter be used except in conformity with the regulations of the district in which it is located.
I.
Nothing in this section shall be construed to relieve the applicant for a conditional use approval from obtaining all other required approvals mandated by the Muhlenberg Township Code as well as other pertinent laws, ordinances and regulations that have been adopted by local, state and federal agencies. This may include the submission of a subdivision plan and/or land development plan to be prepared by the applicant and submitted to Muhlenberg Township for further review and consideration.
J.
Upon obtaining all necessary approvals from Muhlenberg Township, the applicant may be eligible for an occupancy permit for the conditional use, as permitted under the provisions of the Muhlenberg Township Code.
K.
As part of the conditional use application, the Board of Commissioners may consider certain background studies, plans and/or reports that may be required as supplemental documentation to support the conditional use application. The Board of Commissioners shall reserve the right to either require, not require or defer the submittal of certain background studies, plans and/or reports as part of the conditional use application. If not required or deferred as part of the conditional use application, the required background studies, plans and/or reports shall be appropriately considered by Muhlenberg Township as part of the application for a subdivision plan, land development plan and/or permit.
§ 355-143 Amendments.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
The Board of Commissioners may from time to time amend, supplement, change, modify or repeal the contents of this chapter of the Code, including the Zoning Map. Any amendment, supplement, reclassification or change may be initiated by the Board of Commissioners, Planning Commission, or by a petition to the Board of Commissioners from a property owner within Muhlenberg Township.
A.
Public hearing and notice requirements.
(1)
Before voting on the enactment of an amendment, the Board of Commissioners shall hold a public hearing thereon, pursuant to public notice, and pursuant to mailed notice and electronic notice if applicable per 53 P.S. § 10109. 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.
(2)
In addition, if the proposed amendment involves a Zoning Map change, notice of said public hearing shall be conspicuously posted by the Township at points deemed sufficient by the Township along the tract to notify potentially interested citizens. The affected tract or area shall be posted at least one week prior to the date of the hearing.
(3)
Further, at least 30 days prior to the hearing date, notice of the public hearing shall be mailed to property owners within the area being rezoned.
(4)
If after any public hearing held upon an amendment the proposed amendment is changed substantially or is revised to include land previously not affected by it, the Board of Commissioners shall hold another public hearing, pursuant to public notice, and mailed notice and electronic notice, if applicable, before proceeding to vote on the amendment.
B.
The Board of Commissioners shall refer each petition or proposal for change or amendment, whether under this article or under another article, to the Planning Commission, which shall consider whether or not such proposed change or amendment would be, in the view of the Planning Commission, consistent with and desirable in furtherance of the Comprehensive Plan upon which this chapter is based, as the same may be modified from time to time. The Planning Commission shall transmit its recommendations and conclusions to the Board of Commissioners within 30 days. The Board of Commissioners shall take such recommendations and conclusions into consideration in reaching its decision, but shall not be bound thereby.
C.
The Board of Commissioners shall submit the proposed zoning amendment to the Berks County Planning Commission at least 30 days prior to the hearing for its review and comments. The Board of Commissioners shall take such comments into consideration in reaching its decision, but shall not be bound thereby.
D.
The public hearing shall be conducted in accordance with the appropriate provisions that are established within the Muhlenberg Township Code and the Pennsylvania Municipalities Planning Code.
E.
If the zoning amendment is enacted by the Board of Commissioners, an endorsed copy of the zoning amendment shall be forwarded to the Berks County Planning Commission within 30 days of enactment.
§ 355-144 Curative amendments.
A.
A landowner who desires to challenge on substantive grounds the validity of this chapter of the Code which prohibits or restricts the use or development of land in which he has an interest may submit a curative amendment to the Board of Commissioners with a written request that his challenge and proposed amendment be heard. All such landowner curative amendments shall be decided as provided in accordance with the appropriate provisions that are established within the Muhlenberg Township Code and the Pennsylvania Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
Muhlenberg Township by formal action may declare this chapter of the Code or portions thereof substantively invalid and propose the preparation of a municipal curative amendment to overcome such invalidity. All such municipal curative amendments shall be decided as provided in accordance with the appropriate provisions that are established within the Muhlenberg Township Code and the Pennsylvania Municipalities Planning Code.
C.
All landowner curative amendments and/or municipal curative amendments shall be referred to the Muhlenberg Township Planning Commission and the Berks County Planning Commission at least 30 days prior to the initial hearing date to provide both agencies with an opportunity to submit recommendations.
D.
The advertisement, posting and scheduling of the public hearing shall be conducted in accordance with the appropriate provisions that are established within the Muhlenberg Township Code and the Pennsylvania Municipalities Planning Code.
E.
If the landowner curative amendment and/or the municipal curative amendment is enacted by the Board of Commissioners, an endorsed copy of the amendment shall be forwarded to the Berks County Planning Commission within 30 days of enactment.
§ 355-145 Appeals.
A.
All appeals concerning the review, application, interpretation and decisions authorized by this chapter of the Code shall be in accordance with the appropriate provisions that are established within the Muhlenberg Township Code and the Pennsylvania Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
All appeals concerning an alleged error in the processing or enactment of any components of this chapter of the Code shall be raised by appeal taken directly from the action of the Board of Commissioners to the appropriate court, which shall not be filed later than 30 days from the effective date of this chapter of the Code.
§ 355-146 Filing fees and costs.
A.
The Board of Commissioners shall establish by resolution a schedule of fees, charges and expenses, as well as the collection procedures, for zoning permits, certificates of occupancy, special exceptions, variances and appeals and other matters pertaining to this chapter of the Code. The resolution or schedule of the fees shall be available for inspection in the office of the Muhlenberg Township Zoning Officer.
B.
The Board of Commissioners may alter or change the schedule of the fees by resolution in accordance with the appropriate provisions established within the Muhlenberg Township Code and the Pennsylvania Municipalities Planning Code.
C.
Until all application fees, charges and expenses have been paid in full, Muhlenberg Township does not have the obligation to take action on any application or appeal.
§ 355-147 Violations, penalties and remedies.
A.
Any person, partnership or corporation who or which has violated or permitted the violation of the provisions of this chapter of the Code shall, upon being found liable in a civil enforcement proceeding commenced by Muhlenberg Township, pay a judgment of not more than $500 plus all court costs, including reasonable attorneys' fees incurred by a municipality as a result thereof. 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, Muhlenberg Township may enforce the judgment pursuant to the applicable Rules of Civil Procedure. Each day that a violation continues shall constitute a separate violation, unless the Magisterial District Judge determines otherwise as prescribed by the Pennsylvania Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
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.
C.
Nothing contained in this chapter of the Code shall be construed or interpreted to grant to any person or entity other than Muhlenberg Township the right to commence any action for enforcement pursuant to this chapter of the Code.
D.
In the event any building, structure or land is or is proposed to be erected, constructed, reconstructed, altered, converted, maintained or used in violation of this chapter of the Code, or in case any land, building or structure for which a use and occupancy permit is required is conveyed or possession otherwise transferred to a bona fide purchaser or lessee without obtaining such certificate of occupancy and delivering the same to such bona fide purchaser or lessee at or prior to conveyance or transfer of possession, whichever first occurs, the Board of Commissioners, in addition to other remedies, may institute in the name of Muhlenberg Township any appropriate action or proceeding to prevent, restrain, correct or abate such building, structure or land or the conveyance thereof, or to prevent in or about such premises any act, conduct, business or use constituting a violation.