Phoenixville City Zoning Code
PART 9
ZONING HEARING BOARD, VARIANCES, SPECIAL EXCEPTIONS AND CONDITIONAL USES
§ 27-901 Zoning Hearing Board - Membership and Powers.
[Ord. No. 2025-2410, 8/12/2025]
2.
The following provisions shall apply to the establishment of the Borough Zoning Hearing Board:
A.
Newly appointed members of the Zoning Hearing Board shall serve five-year terms and shall be so fixed that the term of office of one member shall expire each year. Current members of the Zoning Hearing Board shall serve their remaining term of office as established prior to the adoption of this chapter and may be reappointed by the Borough Council upon expiration of their term of office to a new five-year term.
B.
The Zoning Hearing Board shall promptly notify the Borough Council of any vacancies which may occur. Appointments to fill vacancies shall be only for the unexpired portion of the term.
C.
The members of the Zoning Hearing Board shall hold no other office within the Borough.
D.
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 Borough Council taken after the member has received 15 days of 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.
E.
The Borough Council may appoint one resident to serve as an alternate member of the Zoning Hearing Board.
3.
The following provisions shall apply to the organization of the Borough Zoning Hearing Board:
A.
The Zoning Hearing Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves.
B.
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.
C.
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 MPC.
D.
The Zoning Hearing Board may appoint a solicitor or attorney to oversee the procedures of the hearing in accordance with the provisions of the MPC.
E.
The Zoning Hearing Board may make, alter and rescind rules and forms for its procedure consistent with the MPC and laws of the Commonwealth of Pennsylvania.
F.
If requested by the Borough Council, the Zoning Hearing Board shall submit an annual report of its activities to the Borough Council.
4.
The following provisions shall apply to expenditures and fees for the Zoning Hearing Board:
A.
The members of the Zoning Hearing Board may receive compensation for the performance of their duties and services, which shall be $50 per meeting attended.
B.
Within the limits of funds appropriated by the Borough Council, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services.
C.
The applicant before the Zoning Hearing Board shall deposit with the designated secretary or treasurer of the Borough 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, which may include the notice and advertising costs and all other necessary administrative overhead associated with conducting the hearing.
D.
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 the Borough the appropriate funds equal to such excess cost.
5.
The following provisions shall apply to the general functions of the Borough Zoning Hearing Board:
A.
The Zoning Hearing Board shall act in strict accordance with the procedures specified within this chapter and the MPC.
B.
The Zoning Hearing Board shall consider applications for variances, special exceptions, appeals concerning the interpretation of this chapter by the Zoning Officer, including, without limitation, preliminary opinions provided pursuant to Section 916.2 of the MPC,[2] and other duties that are specified by the Borough Code.
[2]
Editor's Note: See 53 P.S. § 10916.2.
C.
All appeals and applications made to the Zoning Hearing Board shall be in writing, on forms prescribed by the Borough Council or Zoning Hearing Board.
D.
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 exception 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.
6.
In all cases before the Zoning Hearing Board, the Borough Council, Planning Commission and Zoning Officer may review and comment on the application prior to rendering a decision.
§ 27-902 Zoning Hearing Board - Public Hearings and Procedures.
[Ord. No. 2025-2410, 8/12/2025]
1.
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 the written consent, on the record by the applicant and the Borough, be granted additional hearings to complete their opposition to the application, provided the applicant is granted an equal number of hearings for rebuttal.
A.
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 the Borough. 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 less 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 Borough Manager, Zoning Officer, Borough Council, Planning Commission, 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).
B.
Borough Council may establish reasonable fees to be paid by the applicant in accordance with the MPC.
2.
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 or findings by the Board and accept the decision or findings of the hearing officer as final.
3.
The parties to the hearing shall be the Borough, any person affected by the application who has made timely appearance of 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.
4.
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.
5.
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.
6.
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
7.
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.
8.
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 communications, 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.
9.
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, 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.
10.
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, 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.
§ 27-903 Zoning Variances.
[Ord. No. 2025-2410, 8/12/2025]
1.
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.
2.
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 MPC. 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.
3.
In all cases before the Zoning Hearing Board, the Borough Council, Planning Commission and Zoning Officer may review and comment on the zoning variance application prior to rendering a decision.
4.
The Zoning Hearing Board may grant a variance, provided that all the following findings are made where relevant in a given case:
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 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.
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 unnecessary hardship has not been created by the appellant.
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 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.
5.
Where the Zoning Hearing Board has jurisdiction over other zoning matters described under this chapter, 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. 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.
6.
The approval of a variance, if authorized by the Zoning Hearing Board, which anticipates construction or modification of a structure or building, 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 is 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 or structure situated thereon shall not thereafter be used except in conformity with the regulations of the district in which it is located.
7.
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 shall consider such application in accordance with state law.
§ 27-904 Special Exceptions.
[Ord. No. 2025-2410, 8/12/2025]
1.
The Zoning Hearing Board shall hear requests for special exception applications, as permitted under the provisions of this chapter. 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 there.
2.
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 MPC, 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.
3.
The Zoning Hearing Board shall consider the comments issued by Borough Council, Planning Commission, Engineer, Zoning Officer and/or other agencies that could assist the Zoning Hearing Board with the special exception 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.
4.
The Zoning Hearing Board shall consider the following issues prior to rendering its decision on a special exception application:
A.
That such use is consistent with the Borough Comprehensive Plan.
B.
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.
C.
That such special exception shall only be granted subject to any applicable conditions and safeguards as required by this chapter.
D.
That such use shall not adversely affect the health, safety and/or welfare of residents or property owners within the general neighborhood.
E.
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.
F.
The Board may impose such conditions, in addition to those required, as are necessary to assure that the intent of the Zoning Chapter 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.
5.
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, building, 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 is initiated within said one-year term or said term is expressly extended as part of the initial approval or a further extension of the term being granted by the Zoning Hearing Board prior to the expiration of the one-year period. 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 property, building, or structure or structure situated thereon shall not thereafter be used except in conformity with the regulations of the district in which it is located.
§ 27-905 Conditional Uses.
[Ord. No. 2025-2410, 8/12/2025]
1.
Borough Council shall hear requests for conditional use applications, as permitted under the provisions of this chapter. By so providing, the Borough Council 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.
3.
Prior to the commencement of the conditional use hearing or during the proceedings of the conditional use hearing, the Borough Council may consider the comments of the Planning Commission, Zoning Officer, Engineer, the appointed professional consultants and/or other agencies that could assist Borough Council 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.
4.
All of the standards for conditional uses hereinafter set forth shall, where relevant, apply to all conditional uses within the Borough 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 Borough Council, 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 Borough Council 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 Part 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 Part to abrogate or impair any other such standards or requirements.
5.
Borough Council shall consider the following general issues and site requirements prior to rendering its decision on a conditional use application:
A.
That such use is consistent with the Comprehensive Plan.
B.
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.
C.
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.
D.
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 an acceptable level of service.
E.
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.
F.
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.
G.
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 from being ascertainable beyond the boundaries of the property.
H.
The applicant shall provide evidence with supporting documentation that the local fire department has the abilities to provide adequate fire protection and emergency management services for the proposed use.
I.
Where, in the opinion of Borough Council, 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.
J.
The applicant shall provide evidence with supporting documentation that the existing or proposed sanitary sewage disposal facilities have sufficient capacity for the proposed use.
K.
The applicant shall provide evidence with supporting documentation that the existing or proposed municipal water supply facilities have sufficient capacity for the proposed use.
L.
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.
6.
The following provisions shall apply for the public hearing procedures and administrative requirements for all conditional use applications within the Borough:
A.
Borough Council 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 the 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 Borough Council, in which event the date agreed upon by the applicant shall be considered timely for purposes of this subsection.
B.
The applicant shall provide written notification of the filing of an application for conditional use to all property owners within 200 feet of the subject property as follows:
(1)
The 200 feet shall be measured at a right angle from all points on every property line.
(2)
The names and addresses of the adjacent property owners shall be obtained from records of the Chester County Tax Assessment Office.
(3)
The notification shall be sent by regular first-class mail, postage prepaid, a minimum of 14 days prior to the first scheduled public hearing of the Borough Council. At the hearing, the applicant shall provide a copy of the actual notice mailed and a list of those names and addresses to which the notice was sent.
(4)
At a minimum, the written notice shall contain the street address of the parcel, a general description of what is proposed by the applicant, the time, date and location of the hearing where the application will be considered, and shall inform the property owner that only one notice will be provided and that he or she is not required to attend but may attend if interested.
C.
As part of the conditional use hearing, Borough Council may consider those comments issued by the Planning Commission, Zoning Officer, Engineer, the appointed professional consultants and all other agencies providing comments, as may be authorized by the Borough Code and the Pennsylvania Municipalities Planning Code.[2]
[2]
Editor's Note: See 53 P.S. § 10101 et seq.
D.
Borough Council shall conduct the hearing or Borough Council 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 Borough Council. However, the appellant or the applicant, as the case may be, in addition to the Borough, may, prior to the decision of the hearing, waive decision or findings by Borough Council 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.
E.
Any substantial revisions to the application or plan made by the applicant subsequent to filing of the application or plan may be subject to further review and recommendations by Borough agencies and consultants. In such event, the Zoning Officer shall secure from the applicant a written extension of the date within which Borough Council must hold a public hearing pursuant to the provisions of this chapter. If the applicant fails to execute the extension, Borough Council shall decide the conditional use application on the basis of the plan and application as originally filed.
F.
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 the Borough as part of the initial application. The cost of the original transcript shall be paid by the Borough 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.
G.
Borough Council 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 Borough Council. The date of the decision may be extended by the applicant either on the record or in writing addressed to Borough Council. 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, the MPC 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.
H.
If, after the conclusion of the public hearing(s), the application is amended or revised, Borough Council 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 Borough Council 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 Borough Council failed to commence the hearings, complete the hearings or render a decision as required by this section, Borough Council 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 Borough Council 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.
7.
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 Borough 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 the Borough for review and consideration.
8.
Unless otherwise specified by Borough Council in its decision and order, a conditional use approval shall expire if the applicant does not secure a building permit or, if no building permit is required, then a use and occupancy permit, within 12 months from the date of the Council's written approval of the conditional use application, unless the applicant makes written application to Borough Council for an extension of time, which shall be based upon reasonable cause shown. No formal hearing shall be required by Borough Council in the consideration of such application. An extension of time may be granted by Borough Council for a period of time considered appropriate by Borough Council.
§ 27-906 Reasonable Accommodation.
[Ord. No. 2025-2410, 8/12/2025]
1.
Purpose. It is the policy of the Borough, pursuant to the federal Fair Housing Act,[1] to provide individuals with disabilities reasonable accommodation in rules, policies, practices and procedures to ensure equal access to housing and facilitate the development of housing for individuals with disabilities.
[1]
Editor's Note: See 42 U.S.C. § 3601 et seq.
2.
Applicability.
A.
"Reasonable accommodation," in the context of this chapter means, providing individuals with disabilities or developers of housing for people with disabilities, flexibility in the application of land use and zoning and building regulations, policies, practices and procedures, or even waiving certain requirements, when it is necessary to eliminate barriers to housing opportunities.
B.
An individual with a disability is someone who has a physical or mental impairment that limits one or more major life activities; anyone who is regarded as having such impairment; or anyone with a record of such impairment.
C.
A request for reasonable accommodation may be made by any individual with a disability, his or her representative, or a developer or provider of housing for individuals with disabilities, when the application of a land use, zoning or building regulation, policy, practice or procedure acts as a barrier to fair housing opportunities.
3.
Requests for reasonable accommodation shall be in writing and provide the following information:
A.
Name and address of the individual(s) requesting reasonable accommodation;
B.
Name and address of the property owner(s);
C.
Address of the property for which accommodation is requested;
D.
Description of the requested accommodation and the regulation(s), policy or procedure for which accommodation is sought; and
E.
Reason that the requested accommodation may be necessary for the individual(s) with the disability to use and enjoy the dwelling.
4.
Any information identified by an applicant as confidential shall be retained in a manner so as to respect the privacy rights of the applicant and shall not be made available for public inspection, to the extent permitted by law.
5.
A request for reasonable accommodation in regulations, policies, practices and procedures may be filed at any time that the accommodation may be necessary to ensure equal access to housing. A reasonable accommodation does not affect an individual's obligations to comply with other applicable regulations not at issue in the requested accommodation.
6.
If an individual needs assistance in making the request for reasonable accommodation, the jurisdiction will provide assistance to ensure that the process is accessible.
7.
The Zoning Officer shall issue a written decision on a request for reasonable accommodation within 30 days of the date of the application and may either grant, grant with modifications, or deny a request for reasonable accommodation.
8.
In determining whether a requested accommodation is reasonable, the Zoning Officer shall consider:
A.
Whether the housing, which is the subject of the request for reasonable accommodation, will be used by an individual with disabilities protected under fair housing laws;
B.
Whether the requested accommodation is necessary to make housing available to an individual with disabilities protected under the fair housing laws;
C.
Whether the requested accommodation would impose an undue financial or administrative burden on the jurisdiction; and
D.
Whether the requested accommodation would require a fundamental alteration in the nature of the jurisdiction's Zoning Ordinance.
9.
The written decision on the request for reasonable accommodation shall explain in detail the basis of the decision. All written decisions shall give notice of the applicant's right to appeal and to request reasonable accommodation in the appeals process. The notice of decision shall be sent to the applicant by certified mail.