Nether Providence Township
City Zoning Code
City Zoning Code
ARTICLE XXIII
Conditional Uses
§ 300-139 Purpose.
A.
Chapter 300, Zoning, of the Code of the Township of Nether Providence contains provisions for conditional uses, as permitted under Article VI, Section 603, second paragraph, item (2), of the Pennsylvania Municipalities Planning Code (Act 247).[1] The provisions consist of:
(1)
The standards and criteria to be applied to the various conditional uses in the review process.
(2)
The procedure to be followed for review of the application.
[1]
Editor's Note: See 53 P.S. § 10603(b)(2).
B.
The reason for a use being made conditional is the unusual impact it may exert upon one or more of the following: the public health, safety, morals, general welfare, coordinated and practical community development, proper density of population, civil defense, airports and national defense facilities, the provision of light and air, police protection, vehicle parking and loading space, transportation, water, sewerage, schools, public grounds and other public requirements. In addition, the purpose of the use being made conditional is to prevent one or more of the following: overcrowding of land, blight, danger and congestion in travel and transportation, loss of life, health or property from fire, flood, panic or other dangers.
§ 300-140 Procedure.
A.
Application for approval of a conditional use shall be in such form and with such supporting data as the Board of Commissioners or the Planning Commission may prescribe. The appropriate application fee, prescribed by resolution of the Board of Commissioners from time to time, shall be paid in advance.
B.
Upon receipt of an application for conditional use, the Planning Commission shall schedule it for preliminary consideration and discussion at a regular or special meeting within a reasonable time, not to exceed 45 days from original receipt date.
C.
The Planning Commission shall be authorized to require of the applicant such further engineering data, test reports, maps, surveys, plot plans, landscape plans, technical information, offers of dedication, bonds and other undertakings as may be necessary to determine and ensure compliance with the standards and criteria hereinbefore and hereinafter set forth.
D.
If the application involves a complex development, a detailed plan review may be required by the Township after the application of the use has been acted upon by the Planning Commission and the Board of Commissioners. This review shall be in accordance with procedures outlined in the Subdivision and Land Development Chapter of the Code, being Chapter 289. If the applicant wishes to provide the necessary documentation, the Township will consider the concurrent review of the conditional use requested and the detailed plans for the development of the use. Time limits for review of the detailed plans, if necessary, will be governed by Chapter 289 of the Code.
E.
No conditional use shall be recommended by the Planning Commission or approved by the Board of Commissioners unless, or except to the extent that, the general and specific standards and criteria are met and appropriate conditions and restrictions are attached to the approval to ensure continuing compliance therewith. The general standards and criteria are set forth below.
(1)
Taking into consideration the character and type of development in the area surrounding the proposed conditional use, such use, as permitted, shall constitute an appropriate use in the area which will not substantially injure or detract from the use of surrounding property or from the character of the neighborhood.
(2)
Existing public roads shall be adequate to serve additional traffic reasonably likely to be generated by the proposed use.
(3)
Development of the property for the proposed use shall promote or be consistent with the coordinated and practical community development, the provision of adequate public and community services, the public health, safety, morals and general welfare.
(4)
If the proposed site would be created by subdivision of a larger tract or parcel, the balance of such tract or parcel remaining shall be adequate and appropriate for its existing and continuing use in accordance with the foregoing standards.
(5)
Development of the property for the proposed use shall, if approved, be subject to and governed by the provisions of Chapter 289 of the Code, as amended, except as modified by this Article, and by the requirements of the Commonwealth of Pennsylvania, Department of Environmental Resources.
(6)
Development of the site for the proposed use shall be susceptible of regulation by appropriate conditions and restrictions to:
(a)
Ensure compatibility of any building to be erected or altered with the surrounding area in terms of size, shape, materials and placement of structures; and preservation and restoration of any historic buildings.
(b)
Control traffic, noise, signs, lights, parking and other anticipated activity upon the premises to avoid or minimize any adverse effect upon the peace, quiet, privacy and the character of the surrounding area.
(c)
Require such additional landscaping pursuant to an approved landscape plan, as may be appropriate for protective buffering of and the promotion of harmony with adjoining residential or other permitted uses.
(d)
Require, where appropriate, that the applicant enter into agreements to impose upon the property such deed restrictions as are, in the opinion of the Board of Commissioners and Township Planning Commission, necessary and reasonable to assure the continuation of conditions imposed upon approval of the development or use.
(e)
Require that the applicant make provision for the safe flow of anticipated normal daily traffic in the immediate vicinity of the development and, where appropriate, provide more than one means of ingress and egress and adequate deceleration lanes.
(f)
Permit, where appropriate, staged development and to set deadlines for such staging and conditions for the proper maintenance of that portion of the property not being developed.
F.
The Planning Commission shall conduct a full review of the application and shall hold at least one public hearing thereon not later than 60 days after the receipt of such application. The cost of such public hearing or hearings, limited to the cost of giving notice and the taking and transcription of a stenographic record, shall be home by the applicant. Notice of the public hearing, shall be given to those persons and agencies who would be entitled to notice if the same premises were the subject of an application to the Zoning Hearing Board for special exception and to all others who have registered their names with the Zoning Officer for that purpose.
G.
After a full review of the application, the Planning Commission shall transmit the application to the Board of Commissioners accompanied by a written report of its findings and recommendations, including all recommended conditions, a copy of which report shall be furnished the applicant. Such report shall be made by the Planning Commission no later than 45 days after the close of the record.
H.
The Board of Commissioners shall consider and discuss the application and the report of the Planning Commission at its next regular meeting. Upon request, the applicant and others affected by the application shall be afforded reasonable opportunity to be heard.
I.
The Board of Commissioners shall approve or disapprove the application by resolution and will send a written notification to the applicant within 10 days of the decision. Failure of the Board to act within a reasonable time shall constitute refusal of the application.
J.
In case of approval it shall affirm, modify and/or supplement the conditions and requirements recommended by the Commission, as the Board may find proper, pursuant to the standards and criteria set forth above. Unless otherwise provided in the resolution of approval, any subsequent extension of the approved conditional use shall require a reapplication. The Board, as a condition of approval, may require the execution of a developer's agreement, containing the conditions and requirements of the development.
§ 300-141 Special conditions for conditional uses.
A.
The Township shall approve any conditional use proposed if it finds that the use meets all the applicable objectives and requirements indicated below, complies with all the site plan review criteria set forth in Chapter 289 of the Code and complies with other applicable provisions of this article. For certain conditional uses, the criteria governing them appear in this Article below instead of in the article in which the use appears and/or additional criteria appearing herein below.
(1)
Group child day-care home.[1]
(b)
The single-family detached dwelling shall be located on a lot which has its own exclusive accessway to a street, public or private (no property with a common driveway may be used as a group child day-care home).
(d)
There shall be no structural change to the exterior of the single-family detached dwelling to accommodate the group child day-care home.
(e)
No directional, identifying or other type sign for the group child day-care home shall be permitted.
(f)
The hours of operation of the group child day-care home shall be limited to the hours of 7:00 a.m. to 7:00 p.m. prevailing time.
(g)
The group child day-care home shall be operated by a permanent resident of the single-family detached dwelling.
(h)
No group child day-care home shall be located closer than 1,000 feet from any other group child day-care home. The 1,000-foot distance shall be measured by drawing a circle with a one-thousand-foot radius around the proposed facility at the center.
(i)
No smoking shall be permitted in the single-family detached dwelling during the hours of operation of the group child day-care facility.
(j)
The premises used for any group child day-care home shall be subject to inspection during normal business hours by Township officials and agents, including the Health Officer and Fire Marshal, to determine compliance with all applicable Township ordinances and codes.
(k)
The premises used for any group child day-care home shall contain a play area of a minimum of 1,000 square feet, located in the rear yard of the single-family dwelling, enclosed by a fence with a minimum height of four feet, substantially constructed and maintained in a safe and first-class condition. All outdoor play equipment shall be used and kept within the fenced-in play area. Children, when outdoors of the group child day-care home, shall not be allowed to play outside the fenced area.
(l)
The premises used for any group child day-care home shall contain an automatic fire alarm system which will detect a fire and activate an on-site alarm and notify an emergency call monitoring station.
(m)
The premises used for any group child day-care home shall contain portable fire extinguisher equipment in accordance with the provisions of the National Fire Protection Association, 10 Standard, 1978 Edition, which equipment shall be inspected and maintained in accordance with said standard. The caregiver shall be trained in the emergency use of such portable fire extinguisher equipment.
(n)
The caregiver shall document and install an emergency evacuation plan which shall be kept on the premises used for any group child day-care home and shall monthly conduct an evacuation drill pursuant to the evacuation plan and keep on the premises a record of the date, time and result of all such evacuation drills. All caregiver assistants shall be thoroughly instructed on the details of this plan. Each child (except infants) shall also be so instructed.
(o)
At least one caregiver shall be present at all times who has been trained in and is currently certified under the auspices of the American Red Cross in adult and infant cardiopulmonary resuscitation (CPR).
[1]
Editor's Note: Section 2 of Ord. No. 585, provided as follows:
"Any group child day home located in any residence district on the effective date of this ordinance and being lawfully operated pursuant to a certificate of compliance issued by the Department may continue in operation pursuant to continued compliance with said certificate of compliance and upon securing from the Board of commissioners a conditional use within six months from the date of this ordinance and upon the following conditions to be imposed by the Board of Commissioners and agreed to in writing by the operator:
"The group child day-care home use shall be a conditional use personal to the owner of and permanent resident living in the promises and holding a valid certificate of compliance issued by the Department, which use shall not be transferable and shall cease to operate and be considered as abandoned at any time upon expiration or nonrenewal or revocation of the certificate of compliance by the Department or upon determination by the Department that the group child day-care home is being operated in violation of any of the rules and regulations of the Department."
(2)
Adult entertainment uses.
[Added 1-16-1997 by Ord. No. 605]
(a)
Objectives. Because adult entertainment uses tend to bring with them secondary concerns that impact on the health, safety and general welfare concerns of Nether Providence Township, the Township desires to restrict or limit the location where such uses can locate.
[1]
The Township does not intend to effect or suppress any activities protected by the First Amendment of the United States Constitution, but instead address these secondary effects. Neither is it the intent nor effect of these ordinance provisions to condone or legitimize the distribution of obscene material.
[2]
Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the Board of Commissioners and on findings incorporated in the cases of City of Renton v. Playtime Theaters Inc., 475 U.S. 41 (1986), Young v. American Afini Theaters, 426 U.S. 50 (1976), and Northend Cinema, Inc. v. Seattle, 585 P. 2d 1153 (Washington 1978), and on studies in other communities including, but not limited to Phoenix, Arizona; Minneapolis, Minnesota; Saint Paul, Minnesota; Manatee County, Florida; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Los Angeles, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; and Beaumont, Texas; and also on findings found in the Report of Attorney General's Working Group on the Regulation of Sexually Oriented Businesses (June 6, 1989, State of Minnesota), the Board of Commissioners finds:
[a]
Sexually oriented businesses lend themselves to ancillary, unlawful and unhealthy activities that may go uncontrolled by the operators of the establishments. Further, there is presently no mechanism to make the owners of these establishments responsible for the activities that occur on their premises.
[b]
Certain employees of sexually oriented businesses defined in this Subsection A(2) as adult theaters and cabarets engage in higher incident of certain types of sexually oriented behavior at these businesses than employees of other establishments.
[c]
Sexual acts, including masturbation, oral and anal sex, occur at sexually oriented businesses, especially those which provide private or semiprivate booths or cubicles for viewing films, videos or live sex shows, as defined under this Subsection A(2) as adult bookstores, adult novelty shops, adult video stores, adult motion-picture theaters or adult arcades.
[d]
Offering and providing such space encourages such activities which create unhealthy conditions.
[e]
Persons frequent certain adult theaters, adult arcades and other sexually oriented businesses for the purpose of engaging in sex within the premises of such sexually oriented businesses.
[f]
At least 50 communicable diseases may be spread by activities occurring in sexually oriented businesses including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (AIDS), genital herpes, hepatitis B, Non-B amebiasis, salmonella infections and shigella infections.
[g]
Since 1981 and to the present, there has been an increasing cumulative number of reported cases of AIDS caused by the human immunodeficiency virus (HIV) in the United States: 600 in 1982; 2,200 in 1983; 4,600 in 1984; 8,555 in 1985; and 253,448 through December 31, 1992.
[h]
As of May 1, 1995, there have been 13,559 reported cases of AIDS in the State of Pennsylvania.
[i]
Since 1981 and to the present, there has been an increasing cumulative number of persons testing positive for the HIV antibody test in Delaware County, Pennsylvania.
[j]
The number of cases of early (less than one year) syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982 and 45,200 through November of 1990.
[k]
The number of cases of gonorrhea in the United States reported annually remains at a high level, with over 500,000 cases being reported in 1990.
[l]
The Surgeon General of the United States, in his report of October 22, 1986, has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components and from an infected mother to her newborn.
[m]
According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.
[n]
Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy and, in part, because of the unregulated nature of the activities and the failure of the owners and the operators of the facilities to self-regulate those activities and maintain those facilities.
[o]
Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view adult-oriented films.
[3]
The purpose of these conditional use provisions is to minimize, where conditions permit, the secondary concerns which include difficulties for law enforcement, municipal maintenance, trash, deleterious effects on business and residential property values, increased crime, particularly corruption of the morals of minors and prostitution, and encourage residents and businesses to move elsewhere.
(b)
Yard and area regulations.
[1]
In addition to the yard and area regulations applicable to all uses, no adult entertainment use shall be located within 100 feet of.
[a]
A church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities.
[b]
A public or private educational facility including but not limited to child day-care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges and universities; school includes the school grounds, but does not include the facilities used primarily for another purpose and only incidentally as a school.
[c]
A licensed premises, licensed pursuant to the alcoholic beverage control regulations of the Commonwealth of Pennsylvania.
[d]
Any other adult entertainment use.
[e]
A boundary of a residential district as defined in the Nether Providence Township Zoning Code.
[f]
A public park or recreational area which has been designated for park or recreational activities including but not limited to a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, wilderness areas or other similar public land within the Township which is under the control, operation or management of the Township park and recreation authorities or other similar land within the Township which is under the control, operation or management of private parties and open and available for use by the general public.
[g]
An entertainment business which is oriented primarily towards children and family entertainment.
[2]
For the purpose of Subsection A(2)(b), Yard and area regulations, of this section, measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the building or structure used as the part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a use listed in Subsection A(2)(b), Yard and area regulations. Presence of a municipal, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this section.
(c)
Screening and buffering. Any lot which is to be used for any adult entertainment use shall contain screening and buffering along property lines adjoining other zoning districts in accordance with the provisions of the Zoning Code of Nether Providence.
(d)
Data. Sufficient additional data shall be submitted to enable the Planning Commission and the Board of Commissioners to determine that the requirements of this and other ordinances of the Township relevant to the proposed use have been fulfilled, and that the owners and operators of proposed adult entertainment facilities demonstrate a desire and ability to comply with the ordinances of the Township and to prevent their establishments from being used for any illegal activities.
(3)
Increase in building area in C-Commercial District from 15% to a maximum of 25%. In order to qualify for an increase in building area conditional use, the lot must comply with the following conditions and restrictions:
[Added 3-8-2001 by Ord. No. 694]
(b)
Impervious ground cover.
[1]
Previously developed lot. The land development plan for the lot being the subject of the conditional use must show a reduction in existing impervious coverage by not less than 5% of the lot area.
[2]
Undeveloped lots. The impervious coverage of the Lot being the subject of the conditional use shall be limited to 80%.
(c)
The conditional use application shall include a certification of a traffic engineer licensed in the Commonwealth of Pennsylvania as a Professional Engineer that the proposed building area will not have an adverse impact on pedestrian or vehicular traffic on the lot and having ingress and egress to the lot.
(d)
The conditional use application shall include a land development plan showing sidewalks that conform to Township ordinances.
(e)
The conditional use application shall include stormwater calculations prepared by a professional engineer licensed in the Commonwealth of Pennsylvania. The land development for the lot shall provide a decrease in the rate of storm water run-off from the lot of not less than 10%.
(f)
The conditional use application shall include a landscape plan prepared by a landscape architect licensed in the Commonwealth of Pennsylvania. The landscape plan shall be submitted to the Township Planning Commission and Township Shade Tree Commission for review at least 30 days prior to the conditional use hearing. The landscape plan must contain sufficient plantings to support a finding by the Township Commissioners that the increase from 15% to not more than 25% of building area preserves or improves the visual impact of the lot from neighboring properties.
(g)
At the conditional use hearing, the applicant shall present sufficient evidence to support a finding by the Commissioners that the performance standards in § 300-91 have been satisfied or and where nonconforming conditions exist, that the nonconforming conditions remain the same or are lessened.