New Hanover Township
City Zoning Code
City Zoning Code
PART 27
APPEALS AND AMENDMENTS
§ 27-2701 Appeals and Jurisdiction.
[Ord. 3/29/1990A, § 2100]
The following types of appeals are set forth in Articles VI and IX of the Pennsylvania Municipalities Planning Code (MPC), § 909.1, 53 P.S. § 10909.1 et seq., and each has its own procedures as noted.
Type of Appeal | Agency of Jurisdiction | |
|---|---|---|
A. | Validity of Ordinance Procedural Question | Zoning Hearing Board |
B. | Validity of Ordinance Substantive Questions; Landowner Appeals | Zoning Hearing Board or Board of Supervisors |
C. | Validity of Ordinance Substantive Questions; Person Aggrieved Appeals | Zoning Hearing Board |
D. | Appeal of the Zoning Officer's Determination No validity question involved; Landowner Appeals | Zoning Hearing Board |
E. | Appeal of the Zoning Officer's Determination, No validity question; Persons Aggrieved Appeals | Zoning Hearing Board |
§ 27-2702 Validity of Ordinance; Procedural Questions.
[Ord. 3/29/1990A, § 2101]
Questions of an alleged defect in the process of enactment or adoption of any ordinance or map shall be raised by an appeal taken directly from the action of the Board of Supervisors to the Montgomery County Court of Common Pleas not later than 30 days from the effective date of this chapter or Map.
§ 27-2703 Validity of Ordinance; Substantive Questions; Landowner Appeals.
[Ord. 3/29/1990A, § 2102; as amended by Ord. 93-2, 2/8/1993, §§ 84, 85]
1.
A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provision thereof, which prohibits or restricts the use or development of land in which he has an interest, shall submit the challenge either:
B.
To the Board of Supervisors, together with a request for a curative amendment. The Board of Supervisors shall hold a hearing as provided in this section. The curative amendment shall be referred to the Planning Commission as per § 27-2708.
C.
The submissions referred to in Subsection 1A and B, above, shall be governed by the following (references to "the Board" shall mean Zoning Hearing Board or Board of Supervisors, depending on the type of appeal):
(1)
The landowner shall make a written request to the Board that it hold a hearing on his challenge. The request shall contain a short statement reasonably informing the Board of the matters that are in issue and the grounds for the challenge. Such statement shall contain a certification that the landowner did not know at the time of the application that the Township has resolved to consider a particular scheme or rezoning by publication of notice of hearings on a proposed Comprehensive Plan or proposed zoning ordinance or otherwise, or that the scheme of rezoning would be inconsistent with the landowner's proposed use; provided, that this rezoning scheme had reached sufficient particularity to disclose that, if adopted, it would cure the defect in this chapter attached by the substantive challenge.
(2)
The request may be submitted at any time after this chapter or map takes effect; but if an application for a permit or approval is denied thereunder, the request shall be made not later than the time provided for appeal from the denial thereof. In such case, if the landowner elects to make the request to the Board of Supervisors and the request is timely, the time within which he may seek review of the denial of the permit or approval on other issues shall not begin to run until the request to the Board of Supervisors is finally disposed of.
(3)
The request shall be accompanied by plans and other materials describing the use or development proposed by the landowner in lieu of the use or development permitted by the challenged ordinance or map. Such plans and other material shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a permit so long as they provide reasonable notices of the proposed use of development and a sufficient basis for evaluating the challenged ordinance or map in light thereof. The applicant shall submit all impact statements as specified in Part 24, Impact Statements. Nothing contained herein shall preclude the landowner from first seeking a final approval before submitting his challenge.
(4)
If the submission is made to the Board of Supervisors, the request shall be accompanied by an amendment or amendments to this chapter proposed by the landowner to cure the alleged defects therein.
(5)
Notice of the hearing required by § 27-2709 shall include notice that the validity of this chapter or Map is in question and shall give the place where and the times when a copy of the landowner's request, including the plans submitted pursuant to Subsection 1C and the proposed amendments, if any, submitted under Subsection 1D may be examined by the public.
(6)
The Board shall hold a hearing upon the landowner's request commencing not later than 60 days after the request is filed, unless the landowner requests or consents in writing to an extension of time.
D.
Hearings pursuant to Subsection 1A or B shall be held by the Zoning Hearing Board or the Board of Supervisors, as the case may be. The Board shall conduct hearings and make decisions in accordance with the following requirements:
(1)
The parties to the hearing shall be New Hanover Township, any persons affected by the application who have made timely appearance of record before the Board, and any other persons, including representatives of civic or community organizations permitted to appear by the Board. The Board may require that all persons who wish to be considered parties enter appearances in writing on forms provided for that purpose at least 24 hours in advance of the hearing.
(2)
The Chairman or acting Chairman of the Board shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents required by the parties.
(3)
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 to cross-examine adverse witnesses on all relevant issues.
(4)
The Board 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.
(5)
The Board shall not communicate, directly or indirectly, with any party or his representatives in connection with any issue involved, except upon notice and where all parties have the opportunity to participate. The Board shall not take notice of any communication, report, staff memoranda or other materials so noticed, and shall not inspect the site or its surroundings after the commencement of hearings with any party unless all parties are given an opportunity to be present.
(6)
The Board shall render a written decision, or render its findings on the application, within 45 days after the last hearing before the Board or hearing officer. Conclusions based on the provision of any Act of the commonwealth, or ordinance, rule or regulation, shall contain a reference to the provision relied upon and the reasons why the conclusion is deemed appropriate in light of the facts found. Where the Board fails to render its decision within 45 days, the decision shall be deemed to have been rendered in favor of the applicant, unless the applicant has agreed in writing to an extension of time.
(7)
A copy of the final decision or, where no decision is called for, of the findings shall be delivered to the applicant personally or mailed to him not later than the day following its date. To all other persons who have filed their name and address with the Board prior to the close of the hearings, the Board shall make a brief notice of the decision or findings and a notice of the place where they may examine the full decision or findings.
E.
After submitting a challenge to the Zoning Hearing Board or Board of Supervisors as provided in Subsection 1A and B, of this section, the landowner may appeal to court by filing same within 30 days after notice of the report of the Zoning Hearing Board is issued, or after the Board of Supervisors has denied the landowner's request for a curative amendment. Failure to appeal the denial of a request for a curative amendment shall not preclude the landowner from thereafter presenting the same validity questions by commencing a proceeding as provided in Subsection 1A of this section.
F.
For purposes of Subsection 1D(6), the landowner's request of a curative amendment is denied when the Board of Supervisors notifies the landowner that it will not adopt the amendment; or the Board of Supervisors adopts another amendment which is unacceptable to the landowner; or the Board of Supervisors fails to act on the landowner's request, in which event the denial is deemed to have occurred on the 45th day after the close of the last hearing on the request unless the time is extended by mutual consent between the landowner and the Township.
§ 27-2704 Validity of Ordinance; Substantive Questions; Appeals by Persons Aggrieved.
[Ord. 3/29/1990A, § 2103]
1.
Persons aggrieved by a use or development permitted on the land of another, by an ordinance or map or any provisions thereof, who desire to challenge its validity on substantive grounds shall submit their challenge to the Zoning Hearing Board as "Challenge to the Validity of Ordinance or Map," § 27-2608 of this chapter. The submission shall be governed by the following:
A.
A written request shall be submitted to the Board that it hold a hearing on the challenge. The request shall contain a short statement reasonably informing the Board of the matters in issue and the grounds for the challenge.
B.
No person shall be allowed to file any proceeding with the Board later than 30 days after an application for development, preliminary or final, has been approved by an appropriate Township officer, agency or body, if such proceeding is designed to secure reversal or to limit the approval in any manner.
C.
The Zoning Hearing Board shall hold a hearing in accordance with § 27-2703.D.
D.
After submitting his challenge to the Board as provided in this section, any party aggrieved may take the same to the Montgomery County Court of Common Pleas, by appeal filed not later than 30 days after written notice of the report of the Board is issued.
§ 27-2705 Applications, Decisions and Orders Not Involving the Validity of an Ordinance; Landowner Appeals.
[Ord. 3/29/1990A, § 2104]
1.
A landowner who desires to file a zoning application or to secure review or correction of a decision or order of the Board of Supervisors or of any officer or agency of the Township which prohibits or restricts the use or development of land in which he has an interest on the grounds that such decision or order is not authorized by or is contrary to the provisions of any ordinance or map shall proceed as follows:
A.
From a decision of the Board of Supervisors or planning agency under a subdivision or land development ordinance, the landowner may appeal directly to court or to the Zoning Hearing Board under § 27-2609, Unified Appeals, in cases where that section is applicable.
B.
To the extent that the Board has jurisdiction of the same under § 27-2605, Interpretation of Zoning Officer's Decisions, all other appeals shall lie exclusively to the Zoning Hearing Board.
C.
Applications for variances or special exceptions shall be made exclusively to the Zoning Hearing Board.
2.
All appeals to the Zoning Hearing Board pursuant to this section shall be filed within 30 days after notice of the decision is issued; or if no decision is made, within 30 days after it is deemed to have been made under the provisions of this chapter and the Municipalities Planning Code, 53 P.S. § 10101 et seq.
3.
The Zoning Hearing Board shall hold a hearing in accordance with § 27-2703.D.
§ 27-2706 Decisions and Orders Not Involving the Validity of an Ordinance; Appeals by Persons Aggrieved.
[Ord. 3/29/1990A, § 2105]
Application shall be made directly to the Zoning Hearing Board under the provisions of § 27-2704, where such action involves a question of a determination by the Zoning Officer, Planning Commission or other Township official.
§ 27-2707 Power of Amendment.
[Ord. 3/29/1990A, § 2106]
The Board of Supervisors may, from time to time, amend, supplement, change, modify or repeal this chapter, including the Zoning Map. When doing so, the Board of Supervisors shall proceed in the manner prescribed in this chapter.
§ 27-2708 Who May Initiate.
[Ord. 3/29/1990A, § 2107]
1.
Proposals for amendment, supplement, change, modification or repeal may be initiated by the Board of Supervisors on its own motion, by the Planning Commission or by petition of one or more owners of property to be affected by the proposed amendment, subject to the following provisions:
A.
Proposals Originated by the Board of Supervisors. The Board of Supervisors shall refer every proposed amendment, supplement, change, modification or repeal originated by the Board to the Township and County Planning Commissions.
B.
Proposals Originated by the Planning Commission. The Planning Commission may at any time transmit to the Board of Supervisors any proposal for the amendment, supplement, change, modification or repeal of this chapter.
C.
Proposals Originated by a Citizen's Petition. Each petition by one or more owners of property to be affected by a proposal for amendment, supplement, change or modification shall be signed and acknowledged, and submitted in writing to the Secretary of the Board of Supervisors. On receipt of said petition, the Board of Supervisors shall transmit a copy of the petition to the Planning Commission. The applicant shall submit the information required in Part 24, Impact Statement. For the purposes of this section, the area wherein a change of zoning is sought shall be not less than five acres or 1,000 feet of lineal frontage, whichever is less. This procedure is not intended to apply to the circumstances specifically provided for in § 27-306.
§ 27-2709 Notice of Hearings.
[Ord. 3/29/1990A, § 2209]
1.
No such amendment, supplement, change, modification or repealer shall become effective until after a public hearing in relation thereto at which parties in interest and citizens shall have an opportunity to be heard. Public notice of each hearing to consider amendments (except continued hearings) shall be given not more than 30 days and the second publication shall not be less than seven days from the date of the hearing. Such notice shall be published once each week for two successive weeks in a newspaper of general circulation within the Township. Such notice shall state the time and place of the hearing and the particular nature of the proposed amendment, and shall reference a place within the Township where copies of the proposed amendment may be examined without charge or obtained for a charge not greater than the cost thereof.
2.
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 perimeter of 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.
The Board of Supervisors shall publish the proposed amendment once in one newspaper of general circulation in the Township not more than 60 days nor less than seven days prior to passage. Publication of the proposed amendment shall include either the full text thereof or the title and a brief summary, prepared by the Township Solicitor and setting forth all the provisions in reasonable detail.
4.
In the event substantial amendments are made in the proposed amendment, before voting upon enactment, the Board of Supervisors shall, at least 10 days prior to enactment, readvertise in one newspaper of general circulation in the Township, a brief summary setting forth all the provisions in reasonable detail together with a summary of amendments.
§ 27-2710 Review by the Planning Commission.
[Ord. 3/29/1990A, § 2210]
1.
In the case of an amendment other than prepared by the Township Planning Commission, the Board of Supervisors shall submit such amendment to the Township Planning Commission and the Montgomery County Planning Commission at least 30 days prior to the hearing on such proposed amendment to provide the Planning Commissions an opportunity to submit recommendations.
2.
In the case of an amendment prepared by the Township Planning Commission, the Board of Supervisors shall submit such amendment to the Montgomery County Planning Commission at least 30 days prior to the hearing on such proposed amendment to provide the County Planning Commission an opportunity to submit recommendations.
3.
The recommendations of the Planning Commission shall be made to the Board of Supervisors within 45 days and action on the proposed amendment shall not be taken until such recommendations are made. If, however, the Planning Commission fails to act within 45 days, the Board of Supervisors shall proceed without the recommendations. The recommendations of the Township Planning Commission shall include a specific statement as to whether or not the proposed amendment is in accordance with the objectives of the New Hanover Township Comprehensive Plan.