New Hanover Township
City Zoning Code
City Zoning Code
PART 26
ZONING HEARING BOARD
§ 27-2601 Establishment of the Board.
[Ord. 3/29/1990A, § 2000]
A Zoning Hearing Board is established in order that the objectives of this chapter may be fully and equitable achieved and that a means for competent interpretation of this chapter be provided.
§ 27-2602 Membership, Terms of Office.
[Ord. 3/29/1990A, § 2001]
The Zoning Hearing Board shall consist of five members, appointed by the Board of Supervisors for overlapping five-year terms. Members of the Board shall hold no other Township office. Alternates may be appointed as provided for under the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq.
§ 27-2603 Removal of Members.
[Ord. 3/29/1990A, § 2002]
Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Board of Supervisors which appointed the member taken after the member has received 15 days' advance notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member shall request it in writing.
§ 27-2604 Procedure.
[Ord. 3/29/1990A, § 2003; as amended by Ord. 93-2, 2/8/1993, § 78]
1.
Officers. The Board shall elect a Chairman from its membership, shall appoint a secretary, and shall prescribe rules in accordance with the provisions of the Municipalities Planning Code, 53 P.S. § 10101 et seq., and this chapter for the conduct of its affairs. The Chairman, or in his absence the acting Chairman, may administer oaths and compel the attendance of witnesses.
2.
Meetings. Meetings shall be open to the public and shall be at the call of the Chairman and at such other times as the Board shall specify in its rules of procedure. 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 a majority of members are disqualified to act in a particular matter, the remaining officer may act for the Board. The 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 Board.
3.
Records and Decisions. The 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 immediately in the office of the Board and shall be a public record.
4.
Compensation. The Board of Supervisors shall fix per meeting compensation for the members of the Board, according to a schedule adopted by resolution of the Supervisors upon the enactment of this chapter or as such schedule may be amended from time to time.
5.
Transcripts. The Board or the hearing officer, as the case may be, shall keep a stenographic record and transcript of the proceedings, and copies of graphic or written material received in evidence shall be made available to any party at cost.
6.
Annual Report. The Board shall submit a report of its activities to the Board of Supervisors as requested by the Supervisors.
§ 27-2605 Powers and Duties; Interpretation.
[Ord. 3/29/1990A, § 2004]
1.
Upon appeal from a decision by the Zoning Officer, the Zoning Hearing Board shall decide any questions:
A.
Involving the interpretation of any provisions of this chapter, including determination of the exact location of any district boundary, if there is uncertainty with respect thereto.
B.
Where it is alleged there is error in any order, requirement, decision or determination including any order requiring an alleged violation to stop, cease and desist made by the Zoning Officer in the enforcement of this chapter.
2.
An appeal of the decision of the Zoning Officer will not act as a stay of a cease and desist order.
§ 27-2606 Powers and Duties; Variances.
[Ord. 3/29/1990A, § 2005]
1.
Applicability. Upon appeal from a decision by the Zoning Officer, the Zoning Hearing Board shall have the power to vary or adapt the strict application of any of the requirements of this chapter, where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of this chapter or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition on such piece of property, the strict application of any regulation enacted under this chapter would result in peculiar and exceptional and undue hardship upon the owner of such property, but in no other case.
2.
Condition. In general, the power to authorize a variance from the terms of this chapter shall be sparingly exercised and only under peculiar and exceptional circumstances.
3.
Requirements and Standards. No variance in the strict application of the provisions of this chapter shall be granted by the Board unless the Board finds that the requirements and standards are satisfied. The applicant must prove that the variance will not be contrary to the public interest and that practical difficulty and unnecessary hardship will result if it is not granted. In particular, the applicant shall establish and substantiate that the request for the variance is in conformance with all the requirements and standards listed below:
A.
That there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of this chapter in the neighborhood or district in which the property is located.
B.
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.
C.
That such necessary hardship has not been created by the applicant.
D.
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.
E.
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.
4.
Conditions. In granting any variance, the Board may attach reasonable conditions and safeguards as it may be necessary to implement the purposes of this chapter and the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq., as amended.
§ 27-2607 Powers and Duties; Special Exceptions.
[Ord. 3/29/1990A, § 2006; as amended by Ord. 93-2, 2/8/1993, §§ 79, 80; Ord. 95-8, 9/25/1995, § 3G, 40; Ord. 95-8B, 11/27/1995, § 30; Ord. 99-2, 6/28/1999, §§ 49 — 55; Ord. 01-6, 10/22/2001, § 27; Ord. 09-03, 6/22/2009, § 23; Ord. No. 21-02, 4/1/2021; Ord. No. 22-05, 5/5/2022; Ord. No. 25-03, 8/7/2025]
1.
Applicability. The Zoning Hearing Board shall have the power to approve special exceptions when this chapter specifically requires the obtaining of such approval and for no other use or purpose.
2.
Conditions and Standards. In granting a special exception, the Zoning Hearing Board shall make findings of fact consistent with the provisions of this chapter. The Board shall not approve a special exception except in conformance with the conditions and standards outlined in this chapter.
3.
The general requirements and standards applicable to all special exceptions. The Board shall grant a special exception only if it finds adequate evidence presented by the applicant that proposed special exception is duly authorized under provisions of this chapter, that the application falls within the terms of the specific provisions following for special exceptions; and that the proposed use complies with all other requirements of this chapter. The Zoning Hearing Board, in granting a special exception, may attach such reasonable conditions and safeguards as it may deem necessary to implement the purpose of this chapter. The Board shall, among other things, require that any proposed use and location be:
A.
In accordance with the Township Comprehensive Plan and consistent with the spirit, purposes and the intent of this chapter.
B.
In the best interests of the Township, the convenience of the community and the public welfare.
C.
Suitable for the property in question, and designed, constructed, operated and maintained so as to be in harmony with and appropriate in appearance to the existing or intended character of the general vicinity.
D.
In conformance with all applicable requirements of this chapter.
E.
Suitable in terms of effects of highway traffic and safety with adequate access arrangements to protect streets from undue congestion and hazard.
F.
In accordance with sound standards of subdivision and land development practice where applicable. The Zoning Hearing Board may impose reasonable conditions regarding layout, circulation and performance it deems necessary to ensure that any proposed development will secure substantially the objectives of this chapter.
4.
The requirements and standards applicable to specific uses as special exceptions. In addition to the requirements specified in this chapter, the applicant shall provide the additional information required below and any additional information necessary for the Zoning Hearing Board to make its evaluation:
A.
B.
C.
D.
F.
G.
Use B5 Life Care Facility and Use B6 Full Care Facility.
(3)
The applicant shall provide certification that municipal sewer service and Public Utilities Commission certified water service will be provided to the development.
(4)
A traffic impact study shall be provided.
(5)
Access to the roads adjoining the development shall be evaluated to ensure safe access.
J.
K.
Use B9f Accessory Trades Business.
L.
Use B9g Accessory Repair Services and Other Home Occupations.
(1)
Specify the type of service or home occupation to be conducted on the premises.
(2)
Designate the location of all buildings and their uses and all areas for the storage of materials, equipment and items for service.
M.
Use B11 Retirement Village.
(1)
Each applicant for special exception approval to develop or operate a retirement village shall submit to the Zoning Hearing Board a proposed set of regulations to control such operation, including the definition of age limitations of residents and other restrictions to be placed upon the residents, their activities and admission procedures and requirements to ensure the purposes and requirements for this use will be met.
(2)
The applicant shall submit for review by the Zoning Hearing Board proposed methods for the ownership and maintenance of common elements within the retirement village.
(3)
Proposed accessory facilities, as noted in § 27-305, Subsection 2, Use B11(2) and (7), shall be identified by the applicant. The location within the retirement village shall be identified. Access to the roads adjoining the development shall be evaluated to ensure safe access without the imposition of nonresidential traffic on the surrounding residential areas and developments.
(5)
A traffic impact study shall be provided.
(6)
The need for buffer improvements, in addition to the requirements of § 27-2106, shall be considered by the Zoning Hearing Board.
(7)
When a proposed retirement village is located adjacent to an existing retirement village, the interconnection of street and pedestrian improvements shall be evaluated and made wherever possible.
(8)
Connection to the Township's bicycle trail system shall be made wherever possible.
O.
Use C2 School, Use C4 Hospital and Use C5 Nursing Home.
(1)
Describe and locate the principal use, all accessory uses, structures and activities to be conducted on the premises.
(2)
Provide traffic, water and sewage facilities impact studies.
(3)
For nursery schools, kindergartens and elementary schools, sufficient drop-off/pick-up area for children or additional off-street parking spaces shall be provided.
P.
Use C6 Cemetery.
(1)
Specify the type of cemetery; all accessory uses and structures to be located on the premises.
Q.
Use D1 Recreational Facility, D2 Private Recreational Facility, D3 Private Club, and D4 Community Center.
R.
Use E1 Medical Office, Use E2 Veterinary Office and Use E3 Office.
(1)
Specify the type of practice, office, structures and accessory uses that will be located on the premises.
(2)
If located in a residential zoning district, such uses must take access from and have frontage on a major collector or minor collector road.
(4)
Evaluate the hours of operation to determine if they are appropriate for the neighborhood.
(5)
If Use E2 Veterinary Office, specify if animals will be boarded on the premises.
S.
Use E4 Office Park.
T.
Use F2 Day-care center.
(1)
Specify the types of uses, activities, structures and accessory uses that will be located on the premises.
(2)
Access shall be evaluated for proper sight distance.
(3)
Evaluate the hours of operation to determine if they are appropriate for the neighborhood.
(4)
Sufficient drop-off/pick-up area for children or additional off-street parking spaces shall be provided.
U.
V.
Use F2 Retail Store, Use F5 Village Shop or Business, Use F6 Service Business, Use F7 Financial Establishment, Use F9 Eating Place, or Use F12 Repair Shop.
(1)
Specify the types of uses, activities, structures and accessory uses that will be located on the premises.
(2)
Evaluate the hours of operation to determine if they are appropriate for the neighborhood.
(5)
Evaluate the proposed storage area of materials and refuse and the potential impact on neighboring properties. All outside storage shall be located behind a building, shall be located within an enclosed structure, and the enclosed structure shall be screened from adjoining properties by buffer material or fencing.
W.
Use F10 Drive-In/Other Eating Places and Use F11 Tavern.
X.
Use F16 Amusement Hall/Arcade.
Y.
F17 Outdoor Entertainment.
(1)
Specify the types of uses, activities, structures and accessory uses that will be located on the premises.
(2)
Specify the hours of operation and methods to abate impacts on surrounding residential properties, particularly after 9:00 p.m.
(3)
Indicate how parking areas will be screened from view of adjacent residential properties.
AA.
BB.
Use F21 Golf Course.
(1)
Specify the types of uses, activities and accessory uses that will be located on the premises.
(2)
Evaluate the adequacy of parking and access.
(3)
Indicate how parking areas will be screened from view of adjacent residential properties.
(4)
Evaluate the hours of operation and lighting improvements to determine if they are appropriate for the neighborhood.
(5)
Provide traffic, water, sewer and environmental impact studies.
EE.
FF.
Use H3 Wholesale, Storage, Warehouse.
II.
Use H10 Fuel Storage and Distribution.
(1)
Specify the types of uses, activities, operations, structures and accessory uses that will be located and conducted on the premises.
(2)
Designate the location of all buildings and their uses and all areas for the storage of fuels, materials and equipment.
(3)
Access shall be evaluated for proper sight distance.
(4)
Provide information on proposed methods for containing fuel spills and other emergencies.
JJ.
Use H11 Junkyards.
(1)
Specify the types of uses, activities, operations, structures and accessory uses that will be located and conducted on the premises.
(2)
Designate the location of all buildings and their uses and all areas for the storage of materials, junk and equipment.
(3)
Provide traffic impact and natural resource impact studies.
(4)
Proposed information on proposed methods for containing petroleum products, battery acid and other harmful fluids and materials from contaminating the groundwater.
KK.
(Reserved)
MM.
Use H14 Resource Recovery Facility and Use H15 Solid Waste Landfill.
(1)
Specify the types of uses, activities, operations, structures and accessory uses that will be located and conducted on the premises.
(2)
Designate the proposed location of all buildings and their uses and all areas for the storage of materials, refuse and equipment.
(3)
Provide traffic, water, sewage and natural resource impact studies.
RR.
TT.
Use G5 Cellular Communications/Telecommunications Facility.
(1)
The applicant shall demonstrate that the antenna is the minimum height required to function satisfactorily. No antenna that is taller than the minimum needed to function properly shall be approved.
(2)
The applicant shall demonstrate, using technological evidence, that the antenna must be located where it is proposed in order to satisfy its function in the company's grid system.
(3)
The applicant for a new antenna tower shall demonstrate that he has contacted the owners of existing or approved tall structures within 1/4-mile radius of the site proposed for a new tower, asked permission to install the antenna on those structures, and was denied for reasons other than economic matters. Such structures would include smoke stacks, water towers, tall buildings, antenna support structures of other communications companies, other communications towers (fire, police, etc.), and other structures which are permitted to exceed the maximum height requirement pursuant to § 27-1910 of this chapter. The application to construct a new tower may be denied if the applicant has not demonstrated a good faith effort to mount the antenna on another structure.
(4)
The applicant shall demonstrate that the proposed antenna and support structure are safe and the surrounding areas will not be negatively affected by support structure failure, falling ice or other debris, electromagnetic fields or radio interference. All support structures shall be fitted with anti-climbing devices, as approved by the manufacturers.
(5)
The need for additional buffer improvements shall be evaluated.
(6)
The applicant shall demonstrate that it is licensed by the Federal Communications Commission.
(7)
The applicant shall demonstrate compliance with any requirements of the Federal Aviation Administration and the airport area protection standards of this chapter.
(8)
The applicant shall agree to accommodate other users, including other communications companies, and local police, fire, and ambulance companies, in the use of the antenna support structure. Alternatively, the applicant shall demonstrate reasons for the exclusion of other users. The intent is to reduce the number of antenna support structures needed in the community in the future.
(9)
Where the communications facility is located on a property with another principal use, access shall be shared, except where the applicant demonstrates that combined access is not practical.
UU.
Use F2a Older and Disabled Adult Daily Living Center.
(1)
Specify the types of uses, activities, structures and accessory uses that will be located on the premises.
(2)
Specify the hours of operation to determine if they are appropriate for the neighborhood.
(3)
Provide for adequate drop-off/pick-up area or provide for additional off-street parking.
(4)
Provide for adequate access for fire and/or emergency service vehicles that would not be impeded by parked vehicles and normal onsite traffic patterns.
(5)
Identify a designated entity or person who would be responsible for communications with the Township should municipal or emergency services be required.
(6)
Determine if the joint use of the property for the proposed center and a residential use would have impacts on the neighborhood and adjoining properties.
VV.
Use D5 Golf Course-Residential Community; Country Club; Clubhouse Facilities.
(1)
The applicant shall provide a site plan which clearly illustrates and identifies all uses proposed for the development. The plan shall identify the proposed location of residential and nonresidential uses. The proposed floor area for specific nonresidential uses shall be identified. Types of residential dwellings shall be identified. The internal road system shall be illustrated. The layout of the golf course shall be illustrated. The site plan shall be submitted to the Board of Supervisors and the Planning Commission, for sketch plan review, prior to submission of an application for special exception to the Zoning Hearing Board.
(2)
The applicant shall submit a traffic impact statement as specified in § 22-822. The applicant shall provide a thorough evaluation of potential impacts on all intersections which involve an arterial or any collector road within 1/2 mile of the development site. All traffic generation calculations shall be based on public access and use of the golf course, clubhouse and country club facilities within the development.
(3)
The applicant shall submit an identification of any building which is 100 years or older. The applicant shall identify proposed uses of any such building. The Zoning Hearing Board shall evaluate any proposals to remove or demolish any such buildings and the applicant shall provide justification that no reasonable use is possible for any such building.
(4)
The applicant shall certify that water and sewer service capacities are available to serve all proposed uses. In the event an onsite water supply well is proposed for irrigation, a water impact study, as specified in § 27-2407, shall be provided.
(6)
The Fire Marshall shall provide a recommendation on the safety aspects related to any proposed buildings over 35 feet in height. The applicant shall address methods necessary to ensure safety and adequate emergency egress from any such buildings. The Zoning Hearing Board shall also consider the impact of such tall buildings on the surrounding area or neighborhood.
(7)
The need for buffer improvements, in addition to the requirements of this chapter, shall be considered by the Zoning Hearing Board.
WW.
Use F35 Combined Convenience Commercial (CCC).
(1)
Identify the specific uses proposed.
(2)
A traffic impact study shall be provided.
(3)
Evaluate the adequacy of parking, access and internal circulation.
(4)
Specify the hours of operation and methods to abate impacts on surrounding residential properties, particularly after 10:00 p.m.
(5)
Indicate how parking and refuse storage and lighting will be screened from the view of adjacent properties.
5.
Expiration. Unless otherwise specified by the Board, a special exception shall expire if the applicant fails to obtain a permit in connection therewith within six months of the date of authorization thereof.
§ 27-2608 Powers and Duties; Challenge to the Validity of Ordinance or Map.
[Ord. 3/29/1990A, § 2007; as amended by Ord. 93-2, 2/8/1993, § 81]
The Board shall hear challenges to the validity of this chapter or Zoning Map, except as indicated in Act 247, §§ 609.1 and 909(1)(b)(4), 53 P.S. §§ 10609.1, 10909(1)(b)(4). In all such challenges, the Board shall take evidence and make a record thereon as provided in § 27-2703.D(4) of this chapter. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
§ 27-2609 Powers and Duties; Unified Appeals.
[Ord. 3/29/1990A, § 2008; as amended by Ord. 93-2, 2/8/1993, § 82]
Where the Board has jurisdiction over a zoning matter pursuant to §§ 27-2605, 27-2606 and 27-2608, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any Township ordinance or requirement pertaining to the same development. In any such case, the Board shall have no power to pass upon the nonzoning issues, but shall take evidence and make a record thereon as provided in § 27-2703.D(4). At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact which shall become a part of the record on appeal to the court.
§ 27-2610 Actions of the Board in Exercising Powers.
[Ord. 3/29/1990A, § 2009]
In exercising the above-mentioned powers, the Zoning Hearing Board may in conformity with law and the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as in its opinion ought to be made. Notice of such decision shall forthwith be given to all parties in interest.
§ 27-2611 General Rules and Procedures for Appeals and Applications.
[Ord. 3/29/1990A, § 2010]
1.
Any appeal from the ruling of the Zoning Officer concerning the enforcement and interpretation of the provisions of this chapter shall be filed with the Zoning Officer within 30 days after the date of the Zoning Officer's adverse decision.
2.
All appeals and applications made to the Board shall be in writing on standard forms prescribed by the Zoning Hearing Board and accompanied by fees prescribed by resolution of the Board of Supervisors.
3.
All appeals and applications shall refer to the specific provisions of this chapter involved. The landowner or applicant shall first apply for a zoning permit. The Zoning Officer shall review the application and list items or matters to be addressed. A zoning permit will be issued only after a variance or special exception has been granted.
§ 27-2612 Who May Appeal.
[Ord. 3/29/1990A, § 2011]
Appeals to the Zoning Hearing Board may be taken by any person or municipal official aggrieved or affected by any provision of this chapter or by any decision, including any order to stop, cease and desist, issued by the Zoning Officer in enforcing the provisions of this chapter.
§ 27-2613 Notice of Hearings.
[Ord. 3/29/1990A, § 2012]
Upon the filing of an application for a special exception, variance or interpretation of this chapter with the Zoning Hearing Board, the Board shall fix a reasonable time and place for a public hearing thereon and give notice as defined in the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq. The hearing shall be held within 60 days from the date the applicant files a request for a special exception, variance or interpretation of this chapter.
§ 27-2614 Hearings.
[Ord. 3/29/1990A, § 2013]
All hearings shall be conducted in accordance with the procedure set forth in § 27-2703.D.
§ 27-2615 Court Appeals.
[Ord. 3/29/1990A, § 2014; as amended by Ord. 93-2, 2/8/1993, § 83]
Any persons aggrieved by any decision of the Zoning Hearing Board or the Board of Supervisors may, within 30 days after entry of such decision (as provided in 42 Pa.C.S. § 5572) appeal to the Court of Common Pleas of Montgomery County, by petition duly verified, setting forth that such decision is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, and specify the grounds upon which he relies. Such appeals shall be made in accordance with Article X-A of the Pennsylvania Municipalities Planning Code, 53 P.S. § 11001-A et seq.
§ 27-2616 Fees and Escrow Deposits.
[Ord. 3/29/1990A, § 2015]
The applicant for any hearing before the Zoning Hearing Board shall at the time of making application, pay to the Zoning Officer, for the use of the Township, a fee in accordance with a fee schedule adopted by resolution of the Board of Supervisors upon enactment of this chapter or as such schedule may be amended from time to time. In addition, an escrow deposit may be required. The escrow deposit requirements shall be set from time to time by resolution of the Board of Supervisors.