Reserve Township, PA Zoning Ordinance

§ 430-23 Purpose.

The purpose of this article is to define the following administrative provisions: zoning permits, how to get zoning permits, variances, how to get a variance, special exception uses, conditional uses, procedures for obtaining permits for special exception and condition uses, lists the standards that the Zoning Hearing Board is to utilize in determining whether or not to grant a special exception use, lists the standards that the Township Board of Commissioners is to employ in determining whether or not to grant a conditional use, how this chapter is enforced, how landowners may contest the Zoning Officer's determinations, how landowners may dispute the validity of this chapter and the chapter's administrative provisions that are relevant to municipal officials such as the zoning-related duties of the Zoning Official, Township Board of Commissioners, and the establishment and conduct of the Zoning Hearing Board.

§ 430-24 Zoning permits.

When zoning permits are needed: A zoning permit is needed before a landowner may have a nonsign structure erected, constructed, altered, razed, converted, or moved onto his or her lot; or have a nonconforming, nonsign structure reconstructed, structurally altered, or moved on his or her lot (unless this chapter specifically states otherwise). Article XI, Signs, explains when zoning permits are required for signs. No land improvements or other development activities shall be commenced before the involved landowner has a zoning permit for these activities.

The procedure for obtaining a zoning permit. Anyone who wishes to obtain a zoning permit shall follow the procedure below.

(1)

Application for permits. All applications for zoning permits shall be accompanied by a drawing in duplicate, drawn to a scale of one inch equals 40 feet, actually showing the shape and dimensions of the lot to be built upon, the exact size and location of any buildings existing on the lot, the lines within which the proposed building or structure shall be erected or altered, the existing and intended use of each building or part of a building, the number of households or dwelling units the building is designed to accommodate, and such information as may be necessary to determine compliance with this chapter and all other pertinent ordinances. Both copies of such plans shall be approved. One copy shall remain with the Township and one will be returned to the applicant. All applications with accompanying plans and documents shall become a public record after a permit is issued or denied.

(2)

Issuance or denial of permits. The issuance or denial of zoning permits shall follow the following procedure.

(a)

Filing. An application shall not be officially filed until all required information has been submitted. Within 30 days of this official filing, the Zoning Officer shall either issue or deny the zoning permit in writing citing the sections of this chapter provision not met. Aggrieved parties may appeal the Zoning Officer's decision as per Article III, § 430-34 of this chapter.

(b)

Review. The Zoning Officer shall not issue a permit unless it is determined that.

[1]

The proposed development complies with the provisions of this chapter and all other pertinent ordinances; and

[2]

The permit meets approvals through the interdepartment review process.

(c)

Decision. If these determinations are made, then the Zoning Officer shall issue a zoning permit. If the Zoning Officer does not act within the required thirty-day time period, then the permit shall be deemed to be issued.

Vested rights. Nothing in this chapter shall require any change in the development or use of a lot or structure for which a zoning permit was lawfully issued prior to the effective date of this chapter's enactment (or the effective date of an amendment to this chapter), provided that development (other than excavations) has begun or contracts have been let pursuant to the permit. However, any zoning permit which was issued after the first public hearing on this chapter (or an amendment to this chapter) but prior to the effective date of this chapter's enactment (or the amendment's enactment) shall be declared void if the involved development does not conform to the provisions of this chapter, development (other than excavations) has not begun, and contracts have not been let pursuant to the permit.

Development changes. If a zoning permit is issued, the involved development shall not deviate from the plans and other information submitted to the Zoning Officer without the written approval of the Zoning Officer, or the Township Board of Commissioners in the case of a conditional or temporary use and the Zoning Hearing Board in the case of a special exception. Requests for all such approvals shall be submitted in writing to the Zoning Officer.

The duration of zoning permits. A zoning permit shall expire within 12 months of the date of issuance if all required permits have not been approved, regardless of jurisdiction. If all required permits have not been approved in the specified time period, a permit extension may be requested through the issuing Authority.

Inspections. In order to determine if the information submitted on or with an application is true and is being adhered to, the Zoning Officer shall have the authority to enter any building, structure, premises, property, or development in the Township at any reasonable hour upon presentation of proper credentials. If the party seeking a zoning permit believes that the denial of a zoning permit was made in error, aggrieved persons may appeal the issuance of a zoning permit, as specified in § 430-34, Appealing the determination of the Zoning Officer.

Revocation of permits. If the Zoning Officer discovers that the development does not comply with the approved application or any applicable laws or ordinances, or if the permit fee required by this chapter has not been paid, or if the Zoning Officer determines that an applicant has made any false statements or misrepresentations regarding the development, the Zoning Officer shall revoke the zoning permit and proceed with whatever legal action is necessary to correct the violation (see § 430-31, Enforcement).

Permits issued in error. Any zoning permits issued in error shall be null and void.

Appeals. The applicant may appeal the denial of a zoning permit, and aggrieved persons may appeal the issuance of a zoning permit, as specified in § 430-34, Appealing the determination of a Zoning Officer.

§ 430-25 Supplemental zoning permit requirements for sexually oriented business.

In order that the Zoning Officer may have a reasonable basis upon which to approve a proposed sexually oriented business or an expansion of an sexually oriented business for conformity to the requirements of this chapter, the data required in Article IX, Sexually Oriented Business ("C-2," Commercial Zoning District), shall be submitted with an application for a permit; in addition to the requirements aforementioned for a zoning permit in § 430-24, Zoning permits.

§ 430-26 Supplemental zoning permit requirements for Industrial zones.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

So that the Zoning Officer may have a reasonable basis upon which to approve a proposed industrial operation or an expansion of an existing industrial operation for conformity to the requirements of this chapter, the applicant must prove conformity to this chapter and shall be submitted with an application for a permit; in addition to the requirements aforementioned for a zoning permit in § 430-24, Zoning permits.

§ 430-27 Variances.

The regulations of this chapter apply to and are designed to address the conditions of either the entire Township or an entire zone. Thus, they are not precisely geared to any one property. The regulations were designed in this manner to avoid unequal, unfair, or arbitrary treatment of different landowners. Because these generalized regulations were not designed with any one property in mind, however, it is possible, in a few situations, that they could prevent any use of a property. The function of a variance is to provide relief from such a situation. A variance gives a landowner or tenant permission to do something that violates a provision of this chapter in order to keep him or her from suffering an unnecessary hardship due to that provision. However, variances should not be given freely. If every landowner or tenant who suffered any kind of a hardship due to the regulations of this chapter were granted a variance, then this chapter would be unable to fulfill its purposes. Thus, Subsection C below specifies conditions that the Zoning Hearing Board (§ 430-38) uses to distinguish genuine unnecessary hardships from common inconveniences.

Who may apply. Any landowner or any tenant with the written permission of such landowner may apply for a variance.

Procedure. A party listed in Subsection A above who wishes to obtain a variance must submit a written application to the Zoning Officer on a form supplied by the Zoning Hearing Board. This application shall specifically cite the provisions of this chapter from which the applicant is seeking relief. After determining that the application is complete, the Zoning Officer shall forward the application to the members of the Zoning Hearing Board. At the involved hearing, the Zoning Hearing Board shall follow the procedure specified in § 430-38, Zoning Hearing Board. 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. Appeals to the Board's decision may be made to the Court of Common Pleas in the judicial district where the involved property is located.

Conditions. The Zoning Hearing Board may only grant a variance when it makes all of the following five findings where relevant in a given case:

(1)

That there are unique and peculiar physical conditions present on the involved property, such as the size, shape, or topography of the involved lot, that were not created by the provisions of this chapter;

(2)

That, because of these conditions, there is no possibility that the involved property can be developed in strict conformity with the provisions of this chapter; that if these provisions were rigidly implemented, the property would be virtually unusable and without any economic value;

(3)

That this unnecessary hardship was not created by the applicant property owner/tenant or any of his or her predecessors;

(4)

That the variance requested, if granted:

(a)

Will not alter the essential character of the involved neighborhood or zoning district;

(b)

Will not substantially or permanently impair the appropriate use or development of any adjacent properties, and

(c)

Will not be detrimental to the public welfare.

(5)

That the variance, if granted, will be the smallest possible modification of the involved regulation that will provide relief from this regulation.

§ 430-28 Special exceptions and conditional uses.

Within the Township generally, or within certain zoning districts, certain uses specified in this chapter are appropriate for certain zoning districts only if adequate precautions are taken to assure that they do not generate adverse impacts and to assure that they comply with the purpose of the zoning district and this chapter. These uses are of such a nature that the heightened scrutiny of special and intensive review is required to determine whether they should be permitted in specific locations, and if any special conditions and safeguards should be applied if a special exception or a conditional use permit is granted.

It is important to note that special exceptions and conditional uses are not deviations from this chapter or its purposes listed in § 430-23, Purpose. These uses are both envisioned by this chapter and, if the location and operation standards prescribed by this article are followed, permitted by this chapter.

Both a "special exception" and a "conditional use" are permissions granted to an applicant to use land in a zoning district for a purpose or land use that is not permitted outright (i.e., that is not a permitted principal or accessory use) in that district. Special exceptions and conditional uses are utilized by this chapter because merely allowing and not allowing land uses is too narrow for sound planning in some zones. Some land uses fall in between what is consistent and what is not consistent with a zone's planned way of life.

Furthermore, some uses should be located in a zone, but should be very carefully sited or controlled in order to protect the zone's overall quality of life. Establishing a special exception/conditional use system for the Township of Reserve that allows such land uses in appropriate zones, subject to location and operation standards that are to protect the quality of life in those zones, is the general purpose of this section.

Procedures for granting special exceptions or conditional use permits as provided herein are intended to assure that such review is made on the basis of findings of fact, that due process is assured, and appropriate conditions and safeguards are attached if warranted by the findings of facts. Such conditions shall be based upon the standards in this chapter. Special exception and conditional use permit procedures shall be applied, and such permits granted, only as specified in this chapter.

A major difference between special exceptions and conditional uses is that the former are granted or denied by the Zoning Hearing Board, while the latter are granted or denied by the Township Board of Commissioners.

Land uses that are allowed as special exceptions generally affect only their particular neighborhoods, while land uses that are allowed as conditional uses may affect the entire Township and thus, should be under the jurisdiction of the Township's primary elected officials.

Another major difference between a special exception and conditional use is that a conditional use must be referred to the planning agency for recommendation.

§ 430-29 Procedure for obtaining a special exception.

The procedure that an applicant is to use in obtaining a special exception is provided in this section. The standards that the Zoning Hearing Board is to use in determining whether or not a special exception should be granted to the applicant are provided in the sections of Article IV, Zoning Districts, that pertain to the applicant's property. This article and its regulations only apply to land uses that are proposed to be established in a zone where those uses are allowed only as special exceptions. All applications for special exceptions shall be made according to the following rules:

Who may apply. Any landowner, ownership interest, or tenant with the written permission of his or her landowner may apply for a special exception.

Permitted land uses. The only land uses that may be permitted through a special exception are those that are expressly permitted as special exceptions for the involved zone as listed within the sections of Article IV, Zoning Districts, that pertain to the applicants property or other parts of this chapter.

Applications.

(1)

Any one of the aforementioned parties who wishes to establish a land use that is permitted in the involved zoning district as a special exception shall file an application with the Zoning Officer on forms and with supporting material as required by the rules of the Zoning Hearing Board. The Zoning Officer or designee shall establish an agenda for hearing, cause notice of the time and place of the hearing to be published, and give notice to parties in interest as proscribed in § 430-38, Zoning Hearing Board. Within five days of receiving an application for a special exception, the Township Clerk shall forward a complete copy of the application to the applicant.

(2)

Zoning hearing board. An application for a special exception shall not be considered complete unless it provides all required information enabling the Zoning Hearing Board to determine if the proposed land use meets the standards given for that use under the Article IV, Zoning Districts, that pertain to the applicants property.

Procedure.

(1)

The procedure that the Zoning Hearing Board is to use in deciding whether or not to grant a special exception is given in § 430-38, Zoning Hearing Board, Subsection H.

(2)

In granting any special exceptions, the Zoning Hearing Board shall state in said approval any lighting requirements, sign restrictions, parking requirements, operating hours and any other reasonable conditions and safeguards it may deem necessary to implement the purposes of this chapter.

Burdens of proof. In special exception hearings, the burden of proof shall be on the applicant or objector to prove that his or her proposed use meets the standards prescribed for it by the sections of Article IV, Zoning Districts, that pertain to the applicant's property.

Conditions. In granting a special exception, the Zoning Hearing Board may attach reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter (see § 430-23, Purpose). Such conditions shall "run with the land," and shall not be tied solely to a particular landowner. If a condition is violated subsequent to the grant of a special exception, it shall be enforced according to the provisions of § 430-31, Enforcement.

§ 430-30 Procedure for obtaining a conditional use.

The procedure that an applicant is to use in obtaining a conditional use is provided in this section. The standards that the Township Board of Commissioners is to use in determining whether or not a conditional use should be granted to the applicant are provided in the sections of Article IV that pertain to the applicant's property. This article and its regulations only apply to land uses that are proposed to be established in a zone where those uses are allowed only as a conditional use. All applications for conditional uses shall be made according to the following rules.

Who may apply. Any landowner or any tenant with the written permission of such landowner may apply for a conditional use.

Permitted land uses. The only land uses that may be permitted through a conditional use are those that are expressly permitted as conditional uses for the involved zone as listed within the sections of Article IV, Zoning Districts, that pertain to the applicant's property or other parts of this chapter.

Applications. Any one of the aforementioned parties who wishes to establish a land use that is permitted in the involved zoning district as a conditional use shall file an application with the Zoning Officer on forms and with supporting material as required by the rules of the Township Board of Commissioners. The Zoning Officer shall forward the application to the Township Clerk who shall establish an agenda for public hearing, cause notice of the time and place of the hearing to be published, and give notice to parties in interest as proscribed in § 430-39, Township Board of Commissioners. Within five days of receiving an application for a conditional use permit, the Zoning Officer shall forward a complete copy of the application to the Planning Committee for its review and recommendation.

Recommendation by the Planning Committee. The Planning Committee shall review the conditional use application for a period not to exceed 45 days. Within that time period, the Planning Committee shall make a recommendation to the Township Board of Commissioners as to whether the application should be approved without conditions, approved with specific conditions, or denied. The Planning Committee's failure to make a recommendation within the forty-five-day review period automatically results in a Planning Committee recommendation of approval of the conditional use permit without conditions. Township Board of Commissioners shall not take action until after the forty-five-day review period has expired.

Procedure. The procedure that Township Board of Commissioners is to use in deciding whether or not to grant a conditional use is given in § 430-39, Township Board of Commissioners, Subsection B(1).

Burdens of proof. In conditional use hearings, the burden of proof shall be on the applicant to prove that his or her proposed use meets the standards prescribed for it by the sections of Article IV, Zoning Districts, that pertain to the applicant's property.

Conditions. In granting a conditional use, the Township Board of Commissioners may attach reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter (see § 430-23, Purpose). Such conditions shall "run with the land," and shall not be tied solely to a particular landowner. If a condition is violated subsequent to the grant of a conditional use, it shall be enforced according to the provisions of § 430-31, Enforcement.

(1)

The Township Board of Commissioners and Planning Committee shall review each application for a conditional use permit to determine whether each proposed use meets the following standards and, in addition, shall recommend approval of the application if the evidence presented at the hearing on the conditional use permit shows that the proposed use meets these standards:

(a)

The proposed use will be harmonious and in accordance with the statement of objectives of the municipality concerning its future development of the Township of Reserve.

(b)

The proposed use will be designed, constructed, operated, and maintained to be harmonious and appropriate in appearance and performance with the intended character of the general vicinity and the zoning district.

(c)

The proposed use will not substantially change the character of the surrounding neighborhood when its effect is considered in conjunction with the cumulative effect of existing conditional uses of all types in the surrounding neighborhood and the Township as a whole.

(d)

The proposed use will not be hazardous to existing or future uses and will not adversely affect property values in the general vicinity of the proposed use.

(e)

The proposed use will not create uses, activities, processes, materials and equipment, or property that will harm the general welfare by causing excessive pollution, noise, traffic, smoke, fumes, glare, or odors.

(f)

The proposed use will not unduly burden essential public services such as drainage facilities, public utilities, and those services pertaining to public health, safety, and welfare in general.

(2)

Use-specific standards. In addition to requirements set forth in this section, Subsection G(1), the following requirements and limitations shall apply to the uses or structures that follow in districts where such uses and structures require a conditional use permit:

(a)

For a community residence for which neither the State of Pennsylvania nor Township of Reserve requires a license, the Township Board of Commissioners may condition approval of the conditional use permit on the operator meeting criteria similar to state licensing standards, or certification standards of an appropriate national accreditation agency, for a comparable community residence that serves a similar population.

(b)

For a treatment center for which neither the State of Pennsylvania nor Township of Reserve requires a license, the Township Board of Commissioners may condition approval of the conditional use permit on the operator meeting criteria similar to state licensing standards, or certification standards of an appropriate national accreditation agency, for a comparable treatment center that serves a similar population.

(c)

For townhomes or a row house, parking shall be provided on the same lot upon which the dwelling unit is located and no habitable space of the dwelling shall be located on the ground floor if the dwelling is located in the floodplain. Nonhabitable space and interior parking garages are permitted on the ground floor if the dwelling is located in the floodplain.

[Amended 3-21-2022 by Ord. No. 688]

Appealing the decision of the Township Board of Commissioners. The decision of the Township Board of Commissioners regarding a conditional use application may be appealed to the relevant Court of Common Pleas.

§ 430-31 Enforcement.

The purpose of § 430-31 is to prescribe procedures that will effectively enforce the provisions of this chapter while:

(1)

Protecting the legal rights of landowners; and

(2)

Adhering to the rules for zoning ordinance enforcement that are established in the Pennsylvania Municipalities Planning Code, as amended.

These procedures apply to situations in which a person, partnership, or corporation reconstructs, repairs, alters, maintains, establishes, or uses a structure, sign, building, lot, or land use in a manner that violates one or more of the provisions of this chapter. In other words, these procedures apply to situations involving an illegal structure, sign, lot, or use. They do not apply to situations involving a structure, sign, lot, or use that is a nonconformity (as defined in Article I, § 430-17, Nonconformities) or that has a variance (as defined in § 430-27, Variances).

In Pennsylvania, zoning ordinances are enforced through legal proceedings. The following groups of people may institute these proceedings:

(1)

The Township Board of Commissioners;

(2)

The Zoning Officer of the Township with the approval of the governing body;

(3)

The Township Solicitor as deemed by the Township Board of Commissioners;

(4)

An aggrieved owner or tenant of real property who shows that his property or person will be substantially affected by the alleged violation. In addition to other remedies, may institute any appropriate action or proceeding to prevent, restrain, correct or abate such building, structure, landscaping or land, or to prevent, in or about such premises, any act, conduct, business or use constituting a violation. When any such action is instituted by a landowner or tenant, notice of that action shall be served upon the municipality at least 30 days prior to the time the action is begun by serving a copy of the complaint on the governing body of the municipality. No such action may be maintained until such notice has been given.

The procedure that is to be used by the first three of these groups is discussed under Subsection D(1) as deemed by the Township Board of Commissioners below. The procedure that is to be used by aggrieved parties is discussed under Subsection D(2) below.

(1)

Township enforcement procedure. If it appears to the Township that a violation of this chapter has occurred, then enforcement proceedings shall be instituted as described below.

(a)

Before any other enforcement actions begin, the Zoning Officer shall send enforcement notice to the following parties:

[1]

The owner of record of the parcel on which the violation has occurred;

[2]

Any person who has filed a written request to receive enforcement notices regarding the involved parcel; and

[3]

Any person that the owner requested, in writing, to receive a copy.

(b)

Each enforcement notice required by this section shall contain:

[1]

The name of the involved landowner and any other persons against whom the Township intends to take action;

[2]

The location of the property in violation;

[3]

A description of the specific violation involved;

[4]

Citations and descriptions of the specific provisions of this chapter which have been violated;

[5]

The date before which the steps for compliance must be commenced, as well as the date before which these steps must be completed; and

[6]

A statement noting that the recipient has the right to appeal the enforcement notice to the Zoning Hearing Board within 30 days, and that failure to comply with the notice within the time specified, unless it is extended by appeals, constitutes a violation of this chapter, with possible sanctions clearly described.

(c)

In a Zoning Hearing Board hearing where an enforcement notice is appealed, the Township shall present its evidence against the appellant first.

(d)

Any filing fees paid by a party to appeal an enforcement notice to the Zoning Hearing Board shall be returned to that party by the Township if the Board or any court in a subsequent appeal rules in the appellant's favor.

(e)

After all necessary enforcement notices are sent as required above, the Township Board of Commissioners, Township Manager or designee or, acting with Board of Commissioner's approval, officers of the Township, as well as certain aggrieved parties, may institute civil proceedings with the appropriate Magisterial District Judge to enforce the provisions of this chapter and to prevent, restrain, correct, or abate an illegal structure, sign, lot, or land use.

(f)

Any person, partnership, or corporation who has violated or permitted the violation of this chapter shall, upon being found liable in a civil enforcement proceeding, pay a judgment of not more than $500 plus all court costs, including all judgments and reasonable attorney fees incurred by the Township. No penalties shall be imposed on the liable party until the date of the determination of a violation by the involved Magisterial District Judge. If the liable party neither pays nor appeals the judgment in a timely manner, the Township shall enforce the judgment pursuant to the applicable rules of civil procedure.

(g)

Each day that a violation continues shall constitute a separate violation, unless the Magisterial District Judge finds that there was a good faith basis for the liable party to have believed that there was no such violation. In this situation, there shall be only one violation until the fifth day following the date of the determination of a violation by the Magisterial District Judge, after which each day that the violation continues shall constitute a separate violation.

(h)

The Court of Common Pleas, upon petition, may grant an order of stay, upon cause shown, tolling the per diem fine pending a final adjudication of the violation and judgment.

(2)

Aggrieved party enforcement procedure. Aggrieved parties may file an equity action in court (i.e., not with the Magisterial District Judge) to enforce the provisions of this chapter and prevent, restrain, correct, or abate an illegal structure, sign, lot, or land use. Such parties may file such an action only after serving notice on the Township of Reserve at least 30 days in advance. This notice is to allow the Township time to investigate the situation and to issue an enforcement notice, if warranted.

§ 430-32 Procedural challenges.

The Pennsylvania Municipalities Planning Code specifies procedures that are to be used to adopt and amend this chapter. These procedures are designed to offer ample opportunities for public participation and to make this chapter as fair as possible. It is feasible, however, that this chapter or any one of its amendments was not adopted according to these procedures, and thus, is procedurally flawed. The purpose of this section is to give landowners and other parties aggrieved by such a flaw, as well as officers and agencies of the Township itself, a process through which they may challenge the procedural validity of this chapter or amendment. This process may be used to guarantee adequate public participation and fairness in the adoption process, and to overturn any unfair ordinances or amendments.

Where procedural challenges may be heard. The parties named in § 430-31, Enforcement, may file a procedural challenge with either the relevant Court of Common Pleas or the Zoning Hearing Board. Procedural challenges taken to the Zoning Hearing Board may have to follow the rules established by § 430-34, Time limitations, and the Board shall hear all such challenges according to the procedure given in § 430-38, Zoning Hearing Board.[1]

[1]

Editor's Note: Note that the Zoning Hearing Board's decision may be appealed to the relevant Court of Common Pleas.

Time limitations. All such challenges shall be raised by an appeal taken within 30 days of the effective date of the involved ordinance or amendment.

§ 430-33 Substantive challenges.

The Constitution of the United States, the Constitution of the Commonwealth of Pennsylvania, and various federal and state laws limit what this chapter may regulate so that the rights and property of Reserve's citizens and neighbors are protected. It is feasible, however, that one or more of this chapter's provisions violate these laws and are thus substantively flawed.

The purpose of this section is to give landowners and other parties aggrieved by such a flaw, as well as officers and agencies of the Township itself, a process through which they may challenge the substantive validity of the involved provision.

This process may be used to insure that this chapter respects the laws of the United States and the Commonwealth, as well as to overturn any illegal or unconstitutional provisions.

A party named above who wishes to challenge the substantive validity of this chapter has the following two choices. A person or party who wishes to challenge the substantive validity of this chapter because he or she is aggrieved by a use or development permitted on another person's land must initially select Subsection D(2). However, all of the other named parties are free to choose from either option.

(1)

Applying to the Township Board of Commissioners for a landowner curative amendment; or

(2)

Requesting that the Zoning Hearing Board hear a substantive validity challenge.

Landowner curative amendments and substantive validity challenges are essentially the same type of appeal, with some minor procedural differences. A validity challenge must be in writing and contain reasons for the challenge, but unlike the curative amendment, does not have to contain materials describing the proposed development or amendments.

(1)

Landowner curative amendments. Applications for a landowner curative amendment shall be governed by the rules outlined below.

(a)

All such applications shall be made to the Zoning Officer, who shall forward them to the Township Board of Commissioners. These applications may be subject to the time limitations of § 430-35, Time limitations.

(b)

All such applications shall be made in writing, and shall contain the following:

[1]

The reasons why this chapter should be amended as proposed;

[2]

Plans and explanatory materials describing the use or development proposed by the landowner in lieu of the use or development allowed by this chapter (these plans must be of sufficient quality and detail to allow an evaluation of this chapter in light of the proposed use or development); and

[3]

The amendment or amendments that the landowner proposes to cure the alleged defects in this chapter.

[4]

The Township Board of Commissioners shall hear and decide on applications for landowner curative amendments as required in § 430-39, Township Board of Commissioners.

[5]

Appeals of the Township Board of Commissioners decision shall be taken to the Court of Common Pleas in the judicial district where the involved property is located.

(2)

Substantive validity challenges. All substantive validity challenges to the validity of this chapter shall be filed with the Zoning Hearing Board and shall be governed by the rules below.

(a)

All such requests shall be made to the Zoning Officer, who shall forward them to the Zoning Hearing Board. These applications may be subject to the time limitations of § 430-35, Time limitations.

(b)

All such requests shall be made in writing, and shall contain the reasons for the involved challenge.

(3)

Appeals from the Zoning Hearing Board or the governing body. Appeals from the Zoning Hearing Board's or from the governing body decision shall be taken to the Court of Common Pleas in the judicial district where the involved property is located.

(4)

A landowner who has challenged on substantive grounds the validity of this chapter or map either by submission of a curative amendment to the governing body under 53 P.S. § 10909.1(a)(2) or to the zoning hearing board under Section 909.1(a)(1) of the Pennsylvania MPC shall not submit any additional substantive challenges involving the same parcel, group of parcels or part thereof until such time as the status of the landowners original challenge has been finally determined or withdrawn; provided, however, that if after the date of the landowners original challenge the Township adopts a substantially new or different zoning ordinance or zoning map, the landowner may file a second substantive challenge to the new or different zoning ordinance or zoning map. When a landowner curative amendment proposal is approved by Township Board of Commissioners, a substantive validity challenge is sustained by the Zoning Hearing Board, or the relevant court sustains either of these actions in a final appeal, the involved developer may:

(a)

File a subdivision application within two years; and

(b)

Apply for a zoning permit within one year without losing the rights granted to him in the relevant validity challenge to a subsequent change or amendment in any land use ordinance.

§ 430-34 Appealing the determination of the Zoning Officer.

Any landowner or party who is affected by a zoning-related determination of the Zoning Officer may appeal this determination to the Zoning Hearing Board. Such appeals may concern (but are not limited to):

(1)

The granting or denial of any permit, including a failure to act on the application;

(2)

The issuance of any enforcement notice via § 430-31, Enforcement; or,

(3)

The registration or refusal to register any nonconforming use, structure, or lot.

Section 430-35, Time limitations, may place time limitations on such appeals. The Zoning Hearing Board shall hear all such appeals according to the provisions of § 430-38, Zoning Hearing Board.

§ 430-35 Time limitations.

The purpose of this section is to avoid both of these situations by limiting the amount of time that both landowners and aggrieved parties have to file for a hearing before the Zoning Hearing Board or (where applicable) the Township Board of Commissioners when a proposed use or development is involved.

The rules of this section, which are listed in Subsection C, Time limitation rules, only apply to:

(1)

A landowner who wishes to appeal a determination by the Zoning Officer not to grant a zoning permit for his or her proposed construction, reconstruction, alteration, or other physical development (see § 430-16, Occupancy permits, and § 430-24, Zoning permits);

(2)

An aggrieved party who wishes to appeal a determination by the Zoning Officer to grant a zoning permit to another party's proposed construction, reconstruction, alteration, or other physical development (see § 430-16, Occupancy permits, and § 430-24, Zoning permits);

(3)

A landowner or an aggrieved party who wishes to appeal a determination by the Zoning Officer concerning the nonconforming status of a structure, land use, or lot (see Article I, § 430-17, Nonconformities;

(4)

A landowner who wishes to contest the Zoning Officer's issuance of a enforcement notice for his or her property (see § 430-31, Enforcement);

(5)

A landowner who wishes to reverse or limit a determination that:

(a)

Was made by the Zoning Officer according to the provisions of this chapter; and

(b)

Opposes the landowner's proposed use or development[1], by challenging the procedural or substantive validity of this chapter before either the Zoning Hearing Board or (where applicable) Township Board of Commissioners (see § 430-32, Procedural challenges, or § 430-33, Substantive challenges); and

[1]

Editor's Note: Such a determination might involve the refusal of a zoning permit or a grant of nonconformity status.

(6)

An aggrieved party who wishes to reverse or limit a determination that:

(a)

Was made by the Zoning Officer according to the provisions of this chapter; and

(b)

Approves a proposed use or development on another party's land by challenging the procedural or substantive validity of this chapter before either the Zoning Hearing Board or (where applicable) Township Board of Commissioners (see § 430-32, Procedural challenges, or § 430-33, Substantive challenges).

Time limitation rules.

(1)

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 municipal officer, agency or body if such proceeding is designed to secure reversal or to limit the approval in any manner unless such person alleges and proves that he had no notice, knowledge, or reason to believe that such approval had been given. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan pursuant to Section 709 of the MPC or from an adverse decision by a Zoning Officer on a challenge to the validity of an ordinance or map pursuant to Section 916.2 of the MPC shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.

(2)

All appeals from determinations adverse to the landowners shall be filed by the landowner within 30 days after notice of the determination is issued.

§ 430-36 Appeals to court.

The final adjudication of any Township officer or body is appealable to the Court of Common Pleas of the involved property's county and judicial district. Nothing in this chapter shall be construed to deny an appellant the right to bypass either the Zoning Hearing Board or Township Board of Commissioners, and proceed directly to court, where authorized by law.

Furthermore, nothing in this chapter shall be construed to deny the right to bypass the procedures for challenging the procedural or substantive validity of this chapter that are given in this article.

§ 430-37 Zoning Officer.

A Zoning Officer shall be appointed in accordance with the Pennsylvania MPC. As such; he or she is a nonelected member of the Township's executive branch. The Zoning Officer is hereby given the duty, power, and authority to enforce the provisions of this chapter as provided for in this§ 430-37, Zoning Officer, in accordance with requirements of this chapter, record and file all applications for permits with accompanying plans and documents, identify and register all nonconforming uses and nonconforming structures, and make such reports as may be required. All documents, applications, permits and certificates required by and issued during the enforcement of this chapter shall be permanently maintained by the Zoning Officer. The provisions of this section only apply to the Zoning Officer and the parties with which he or she comes into contact.

Appointment. A Zoning Officer shall be appointed by the Board of Commissioners to administer this chapter. This officer shall:

(1)

Not hold any elected offices within the Township;

(2)

Meet qualifications established by the Township;

(3)

Be able to demonstrate to the satisfaction of the Board of Commissioners a working knowledge of municipal zoning; and

(4)

Be familiar with both this chapter and the Comprehensive Plan.

Powers. The Zoning Officer shall enforce this chapter in accordance with its literal terms. He or she shall not have the power to permit any construction, use, or change of use, which does not conform to the provisions of this chapter.

Duties of the Zoning Officer.

(1)

The Zoning Officer shall receive, process, file copies of, and make decisions on all applications for zoning permits as required by § 430-24, Zoning permits. Where such a permit is denied, the Zoning Officer shall inform the applicant, in writing, of the basis for this denial, including a reference to the specific chapter section.

(2)

The Zoning Officer shall receive, process, file copies of, forward, and schedule hearings for all applications for hearings before the Zoning Hearing Board.

(3)

The Zoning Officer shall inform the Township Board of Commissioners and the Planning Committee concerning applications for conditional uses;

(4)

The Zoning Officer shall send enforcement notices to alleged violators of this chapter as specified in § 430-31, Enforcement. Such notices shall be sent via certified mail, return receipt requested, or personally served to provide proof that the notice was received.

(5)

The Zoning Officer, in accordance with requirements of this chapter, shall record and file all applications for permits with accompanying plans and documents, identify and register all nonconforming uses and nonconforming structures, and make such reports as may be required.

§ 430-38 Zoning Hearing Board.

Purpose and contents.

(1)

The Zoning Hearing Board of the Township of Reserve is a quasi-judicial body within the municipal government. It has no legislative power, has no enforcement power, and cannot make or modify zoning policy. It is instead a judicial-like body that helps to assure fair and equitable application and administration of this chapter. The purposes of this section are to establish the Board, outline its duties, and prescribe procedures that it is to use in fulfilling its duties.

(2)

Subsection B of this section explains how the Board is to be established, while Subsection C details how its members may be removed. Subsection D explains how the Board is to be organized and provides some guidance concerning how it is to operate. Subsection E discusses how the Board may spend money. Subsection F lists the duties of the Board, and provides some rules on how these duties are to be carried out. Subsection G notes that the Board's decisions may be appealed to the relevant Court of Common Pleas.

(3)

The Zoning Hearing Board must use the same procedure in each of its hearings, regardless of which one of its duties from Subsection F that hearing falls under. In this chapter, provisions that concern the Zoning Hearing Board indicate that it is to hear the involved case "via the procedure outlined in § 430-38." This procedure is provided under Subsection H.

(4)

The provisions of § 430-38 only apply to the Zoning Hearing Board and the parties with which it comes into contact.

The formation of the zoning hearing board:

(1)

The Zoning Hearing Board of the Township of Reserve shall consist of three residents of the Township, appointed by Township Board of Commissioners via a resolution. Each member's term of office shall be three years, and shall be so fixed that the term of office of one member of a three-member board shall expire each year. Members of the Zoning Hearing Board shall hold no other office in the Township government.

(2)

The Township Board of Commissioners may also appoint by resolution from one to three residents of the Township to serve as alternate members of the Board. The term of office of an alternative member shall also be three years. When an alternate is seated on the Board (see Subsection D below), he or she shall be entitled to participate in all proceedings to the same extent as any other member of the Board. However, alternates shall not be entitled to vote as a member of the Board or be compensated unless they have been designated as a voting alternate member as required by Subsection D below. Alternates shall also hold no other office in the Township government.

The removal of zoning hearing board members. Any board member may be removed for malfeasance, misfeasance, or nonfeasance in office or for other just cause by a majority vote of the Township Board of Commissioners. However, the member must receive written notice of the intent to take such a vote at least 15 days before the actual vote is taken, and he or she may request that a hearing be held in connection with the vote.

The organization of the Board.

(1)

The Zoning Hearing Board shall elect officers from its own membership. Such officers shall serve annual terms and may succeed themselves.

(2)

For the conduct of any hearing and the taking of any action or votes, a quorum shall be no less than a majority of all of the members of the Board.

(3)

If, for reasons of absence or disqualification, a quorum is not reached, the Chairman of the Zoning Hearing Board shall designate enough alternates as voting alternative members to reach the quorum. Any alternate so designated shall continue to serve on the Board in all proceedings involving the matter or case for which he or she was designated until the Board has made a final determination on that matter or case. Such designations shall be made on a rotating basis among all alternates on the order of declining seniority.

(4)

Tie votes shall be interpreted as maintaining the status quo in the matter at hand. For instance, special exceptions are denied when the Board is tied.

(5)

The Board may make, alter, and rescind rules and forms for its procedure, consistent with the requirements of this chapter and the laws of the Commonwealth of Pennsylvania. The Board shall keep full public records of its business[1]and shall submit a report of its activities to Township Board of Commissioners if requested.

[1]

Editor's Note: Such records shall be the property of the Township.

Hearing Board expenditures of services. Within the limits of funds appropriated by the governing body, the Board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services. Members of the Board may receive compensation for the performance of their duties, as may be fixed by the governing body, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the governing body. Alternate members of the Board may receive compensation, as may be fixed by the governing body, for the performance of their duties when designated as alternate members pursuant to § 430-38, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of the governing body.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

The duties of the zoning hearing board. The Board's duties shall be as follows. All hearings conducted in pursuit of these duties shall be held according to the rules of Subsection H below.

(1)

The Board shall hear substantive challenges to the validity of this chapter and its amendments in accordance with § 430-33, Substantive challenges.

(a)

Based on the testimony presented at the hearing or hearings, the Board shall determine whether the challenged ordinance, ordinance provision, or map is defective as alleged by the applicant. If the challenge is found to have merit, then the final decision of the Board shall include recommended amendments to the challenged ordinance, which will cure the involved defects.

(b)

In reaching its decision on a substantive challenge to validity of this chapter or its amendments, the Board shall consider:

[1]

The impact of the proposal on roads, sewer facilities, water supplies, schools, and other public service facilities;

[2]

If the proposal is for a residential use, the impact of the proposal on regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to and affordable by classes of persons otherwise unlawfully excluded by the challenged provisions of this chapter or map;

[3]

The suitability of the site for the intensity of use proposed, considering the site's soils, slopes, woodlands, wetlands, floodplains, aquifers, natural resources, and other natural features;

[4]

The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, natural resources, and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development, and any adverse environmental impacts; and

[5]

The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.

(c)

The challenge shall be deemed to be denied if the Board fails to commence the hearing within 60 days, or fails to act on the application within 45 days of the close of the last involved hearing. In the latter two of these cases, the involved time limit may be extended by mutual consent of the applicant and the municipality or if the landowner requests or consents to do so. If no such consent is reached, the challenge shall be denied on the day after the last day that the Board could have taken the involved action.

(2)

The Board shall hear procedural challenges to the validity of this chapter or one of its amendments in accordance with § 430-32, Procedural challenges.

(3)

The Board shall hear appeals from the zoning-related determinations of any municipal officer, including the Zoning Officer, in accordance with § 430-34, Appealing the determination of the Zoning Officer.

(4)

The Board shall hear appeals from the determinations of the municipal engineer with reference to any floodplain provisions of any land use ordinance.

(5)

The Board shall hear applications for variances in accordance with § 430-27, Variances.

(6)

The Board shall hear applications for special exceptions in accordance with § 430-28, Special exceptions and conditional uses. In granting a special exception, the Board may attach any reasonable conditions and safeguards, as it may deem necessary to implement the purposes of this chapter.

(7)

The Board shall hear applications to expand a nonconforming land use or to change one nonconforming land use to another in accordance with Article I, § 430-17, Nonconformities.

(8)

For land uses not listed under any "permitted use," "special exception," or "conditional use" in sections of Article IV, Zoning Districts, the Board shall determine:

(a)

In which zoning districts the land use shall be allowed in;

(b)

How the land use shall be allowed in those districts (i.e., as permitted principal uses, permitted accessory uses, conditional uses, etc.); and

(c)

Which sections of the remainder of this chapter apply to the land use. The Board may ask the Planning Committee for a recommendation on these matters.

(9)

The Board shall hear all other applications and appeals that are assigned to it by this chapter or the laws of the Commonwealth of Pennsylvania.

Appeals. All decisions rendered by the Zoning Hearing Board may be appealed to the Court of Common Pleas of the judicial district where the involved land is located; so long as these appeals are filed no more than 30 days after the Board renders its decision.

Procedure. In fulfilling its duties listed under Subsection F above, the Board shall follow the rules and procedures specified below.

(1)

Time limitations.

(a)

The hearings shall be conducted by the Board or the Board may appoint any member or an independent attorney as a hearing officer. The decision, or, where no decision is called for, the findings shall be made by the Board; however, the appellant or the applicant, as the case may be, in addition to the municipality, may, prior to the decision of the hearing, waive decision or findings by the Board and accept the decision or findings of the hearing officer as final.

(b)

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 of the end of the hearing.

(c)

If the hearing is conducted by a hearing officer (see Subsection D above), and there has been no stipulation that his or her decision or findings are final, the Zoning Hearing Board shall make his or her report and recommendations available to all of the involved parties within 45 days of the end of the hearing. The parties are then entitled to make written responses to this report. The Zoning Hearing Board shall make a final decision after reading these responses, but no later than 30 days after the hearing officer's report is issued.

(d)

Where the Zoning Hearing Board fails to render this decision within the required period, or where the Board fails to hold the hearing within the required period, the decision shall be deemed to have been rendered in favor of the applicant or appellant (as the case may be), unless either 1) the applicant/appellant has agreed in writing or on the record to an extension of time; or 2) the hearing concerns a challenge to the substantive validity of this chapter[2] (see § 430-33, Substantive challenges. When a deemed decision is rendered, the Board shall give notice of this, within 10 days of the last day that it could have met to render a decision, to the parties and at the locations listed under Subsection H(2), Required public notice, below. If the Board fails to provide such notice, the applicant/appellant may do so. Protesting or aggrieved parties cannot obtain a deemed decision.

[2]

Editor's Note: Where the Zoning Hearing Board fails to commence a hearing on the substantive validity of this chapter within 60 days of the involved request, or where the Board fails to act on such a hearing within 45 days of its closure, the challenge shall be deemed to be denied.

(2)

Required public notice.

(a)

The Secretary shall publish a notice containing the information listed below under Subsection H(3), Contents of required public notice, and such notice shall be published once each week for two successive weeks in a newspaper of general circulation in the Township. The first of these publications shall be published not more than 30 days before the date of the hearing, and the second shall published not less than seven days before the date of the hearing.

(b)

Written notice shall be provided by the Zoning Officer;

(c)

Mailed to 1) the applicant, 2) the Planning Committee, 3) all residents and owners of contiguous properties to the subject site, 4) any party that has requested such notice and 5) conspicuously posted on the involved tract of land at least one week prior to the hearing. The timing and manner of this notice shall follow the rules adopted by the Zoning Hearing Board.

(3)

Contents of the required public notice.

(a)

The required notice shall be written by the Zoning Officer in plain language and shall state that the Zoning Hearing Board of the Township of Reserve will hold a public hearing on the appropriate date, at the proper timing, and pertinent location.

(b)

The name of the applicant or appellant (as the case may be) shall be given, as well as the nature of the hearing for which a permit is sought, and where and when written comments will be received concerning the request. The notice shall also state that the Township of Reserve shall promptly make a copy of the application and supporting documentation available for inspection by an interested person at the Reserve Township Municipal Building.

(c)

The location or locations of the involved property or properties shall be provided.

(d)

All applicable sections of this chapter shall be cited.

(e)

If the involved hearing involves a substantive challenge to the validity of this chapter or one of its amendments, then the notice shall state that the validity of this chapter is being questioned.

(f)

The following statement shall be included: "All persons having an interest in these matters are encouraged to attend this meeting. Persons with a disability who wish to attend this hearing and require an auxiliary aid, service, or other disability accommodation to participate in the proceedings can be accommodated by contacting the Township Clerk's Office."

(g)

The date of the publication shall be given.

(4)

Stays of proceedings:

(a)

An appeal to the Zoning Hearing Board automatically stops all affected land development. However, if the Zoning Officer certifies that such a halt would cause an imminent danger to life or property, then the development may be stopped only with a restraining order granted by the Zoning Hearing Board or by any court with competent jurisdiction, following notice to the Zoning Officer.

(b)

An applicant or appellant may petition a court of competent jurisdiction to force those contesting an authorized permit or approval to either post bond or drop their appeal. The burden of proof shall be on the applicant/appellant to prove that the appeal is frivolous. If the party contesting an authorized permit or approval refuses to post bond as ordered by the involved court, appeals to an appellate court, and loses, then that party is liable for all reasonable costs, expenses, and attorney fees incurred by the applicant/appellant.

(5)

Fees.

(a)

Through a separate resolution, the Township Board of Commissioners may prescribe reasonable fees for a Zoning Hearing Board hearing which may include:

[1]

Compensation for the secretary and members of the Board;

[2]

Public notice and advertising costs;

[3]

Necessary administrative overhead connected with the hearing; and

[4]

One half the cost of a stenographer.

(b)

The cost of the original transcript shall be paid by the Board if the original is ordered by the Board or the Hearing Officer, and shall be paid by the applicant/appellant if he or she orders it.

(c)

Additional copies shall be paid for by the parties requesting them. Fees may not compensate for the legal expenses of the Board. Furthermore, fees may not be used to compensate engineering, architectural, planning, or other technical consultants or expert witnesses.

(6)

The Zoning Hearing Board's Solicitor:

(a)

The Zoning Hearing Board may hire its own solicitor.

(b)

The Zoning Hearing Board's solicitor shall be a different person, and shall be from a different law firm, than the Township's Solicitor.

(7)

Conducting the hearing.

(a)

Either the Zoning Hearing Board or a hearing officer (see Subsection D above) shall conduct all hearings.

(b)

A stenographic record that conforms to civil trial transcripts must be taken in all hearings. Furthermore, written minutes shall be taken of all Board meetings. The substance of all official actions, the names of people who appear officially, and the subject of their testimony must be recorded.

(c)

Each party has the right to be represented by counsel, to present and respond to evidence, and to cross-examine adverse witnesses on all relevant issues.

(d)

The parties to the hearing shall be 1) the Township, 2) any person affected by the application or appeal who has made timely appearance of record before the Board, and 3) any other person, including civic or community organizations, permitted to appear by the Board. The Board may require that everyone who wishes to be considered a party to a hearing fill out a form that asks 1) the person's name and address, 2) who he or she is representing, and 3) whether or not he or she desires a copy of any final decision in the case.

(e)

The Chairman of the Zoning Hearing Board (if a hearing officer has not been appointed) or the hearing officer (if one has been appointed, see Subsection D above) has the power to administer oaths and issue subpoenas to compel both the attendance of relevant witnesses and the production of relevant papers. All testimony should be affirmed, as unaffirmed statements do not constitute legal evidence to make a record.

(f)

Formal rules of evidence do not apply to hearings. However, the Zoning Hearing Board may exclude any irrelevant, immaterial, or unduly repetitious evidence. Hearsay evidence, if not objected to, may be given its natural probative value. Yet, the Board has the power to reject even uncontradicted testimony if it finds this testimony to be lacking in credibility.

(g)

In the time following the beginning of a hearing and prior to a rendering of the decision or findings, the Board shall not communicate with any party or party representatives unless all parties are given an opportunity to participate. No communication, reports, staff memoranda, or other materials, except advice from the Board's own solicitor, may be accepted or noticed by the Board unless all parties are given an opportunity to contest that information. The Board shall not inspect the involved site or its surroundings during the hearings unless all parties are given an opportunity to be present. Any reports by the Zoning Officer shall be filed with all involved parties.

(h)

A case should not be postponed to a later date without substantial or compelling reasons, especially if the issue is of great concern and has attracted an audience. However, where a new issue is raised for the first time at a hearing, and the applicant/appellant had no notice of this issue, the hearing should be continued at a later date to give the applicant/appellant an opportunity to react properly. When a case is continued at a second hearing, a notice shall be prominently posted at the hearing site, and all involved parties must be notified.

(8)

Mediation.

(a)

Mediation is "a voluntary negotiating process in which parties in a dispute mutually select a neutral mediator to assist them in jointly exploring and settling their differences, culminating in a written agreement which the parties themselves create and consider acceptable." Mediation is intended to supplement, but not replace, the procedures for Zoning Hearing Board hearings specified here. It can provide a potentially less costly mechanism for resolving land use disputes, as well as a less polarized process.

(b)

In no case may the Zoning Hearing Board initiate mediation or participate as a mediating party.

(c)

Participation in mediation must be voluntary, and the involved parties must agree to:

[1]

Funding;

[2]

The selection of a mediator;

[3]

The completion of mediation (including the time limits for such a completion);

[4]

The suspension of the time limits authorized by this chapter and the Pennsylvania Municipalities Planning Code, provided there is written consent by the mediating parties and by an applicant or municipal decision making body if either is not a party to the mediation;[3]

[3]

Editor's Note: The suspension of these time limits must be agreed to in writing by the involved parties, and by both the applicant/appellant and the municipality (not the Zoning Hearing Board) even if neither one of these two is a party to the mediation.

[5]

The identification of all parties;

[6]

The determination of whether some or all sessions shall be open or closed; and

[7]

The issuance of mediation solutions in writing, subject to review and approval by the decision making body.

(d)

No offers or statements made in the mediation sessions, excluding the final written mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceedings.

(9)

Making a decision.

(a)

The decision or, where no decision is called for, the findings shall be made by the Zoning Hearing Board. However, the applicant/appellant and the Township may agree before this decision to waive this and instead accept the decision or findings of the hearing officer as final (if a hearing officer has been appointed).

(b)

In voting on a final decision, the vote cast by each member of the Board (or the hearing officer, where appropriate) shall be made publicly.

(c)

Where an application or appeal is contested or denied, the resulting decision must be accompanied by a finding of fact, the conclusions based on these facts, and the reason that such conclusions were drawn.

(d)

Detailed findings and conclusions will show that the decision was reasoned and not arbitrary. References to any provisions of any ordinance, rule, or regulation relied on for any conclusion must be made, along with the reason that the conclusion is appropriate for the particular case at hand.

(e)

Even where an application or appeal is not contested, the resulting decision should be accompanied by a statement of findings or an opinion that is detailed enough to substantiate the Zoning Hearing Board's decision.

(f)

A copy of the final decision, or where no decision is called for, the findings must be delivered or mailed to the applicant/appellant no later than the day after the date of the report.

(g)

All other parties to the hearing, as well as all of the parties that are listed under "Required public notice" above, shall be sent a brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.

§ 430-39 Township Board of Commissioners.

Purpose and contents.

(1)

The Township Board of Commissioners of Reserve is the chief governing body of the Township, and is the only body that can set the Township's zoning policy. The Board of Commissioners, of course, has many duties. The purpose of this section is to address only Board of Commissioners zoning-related duties, outlining these duties and prescribing the procedures that Board of Commissioners is to use in fulfilling them.

(2)

Subsection B of this section lists Board of Commissioners major duties under this chapter and specifies some rules that apply to each. Subsection B(1) discusses the granting of temporary uses (see Article V's applicable sections), and Subsection B(2) deals with the granting of conditional uses (see § 430-28, Special exceptions and conditional uses). Subsection B(3) specifies the process by which Board of Commissioners may amend this chapter, while Subsection B(4) explains how the Board of Commissioners is to hear and decide landowner curative amendments to this chapter (see § 430-33, Substantive challenges). Subsection B(5) discusses the setting of off-street parking space and loading berth requirements.

(3)

Subsection B(6) explains the procedure for municipal curative amendments. A municipal curative amendment can be used to fix a portion of this chapter that is substantially invalid. It has a major advantage over fixing invalid provisions via a plain amendment [i.e., the procedure described in Subsection B(3)] in that the Township need not entertain any substantive challenges to these provisions (see § 430-33, Substantive challenges) during the municipal curative amendment process, which can save the Township a significant amount of time and money.

(4)

The provisions of this section only apply to the Township Board of Commissioners and the parties with which it comes into contact on zoning-related issues.

Zoning-related duties. The Township Board of Commissioners major duties under this chapter, as well as some rules that apply to these duties, are provided below.

(1)

Conditional uses. The Township Board of Commissioners shall hear all applications for conditional uses according to both the following rules and the express provisions of § 430-28, Special exceptions and conditional uses.

(a)

The Board of Commissioners, pursuant to the express standards and criteria of this chapter, shall hold hearings on and decide requests for such conditional uses in accordance with such standards and criteria. The hearing shall be conducted by the Board or the Board may appoint any member or an independent attorney as a hearing officer. The decision or, where no decision is called for, the findings shall be made by the Board. However, the appellant or the applicant, as the case may be, in addition to the municipality, may, prior to the decision of the hearing, waive decision or findings by the Board and accept the decision or findings of the hearing officer as final. In granting a conditional use, the governing body may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of this chapter.

(b)

Decisions and appeals.

[1]

The Board of Commissioners body shall render a written decision or, when no decision is called for, make written findings on the conditional use application within 45 days after the last hearing before the governing body. Where the application is contested or denied, each decision shall be accompanied by findings of fact or conclusions based thereon, together with any reasons therefor. Conclusions based on any provisions of this act or of any ordinance, 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.

[2]

Where the governing body fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing, within 60 days from the date of the applicants request for a hearing or fails to complete the hearing no later than 100 days after the completion of the applicants 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 of the failure of the governing body to meet or render a decision as hereinabove provided, the governing body 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 act. If the governing body shall fail to provide such notice, the applicant may do so.

[3]

Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction. 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 no later than the day following its date.

(c)

An application for a conditional use permit may be withdrawn at any time, but if withdrawn after the Township Board of Commissioners has convened the public hearing at which it was considered, or if denied by the Township Board of Commissioners, a substantially similar application shall not be considered within 365 days from the date of withdrawal.

(d)

No application for a conditional use permit that has been denied wholly or in part by the Reserve Township Board of Commissioners shall be resubmitted within 365 days of the date on which the permit was denied, except on the grounds of newly discovered evidence or proof of changed conditions. A reapplication shall require a new fee and the process will have to begin anew.

(e)

A copy of the final decision shall be hand delivered or mailed to the applicant no later than seven days after the Board of Commissioners renders such decision.

(f)

When granted, a conditional use permit, together with any conditions or safeguards attached, shall apply to the land, structure, or use for which it was issued, and not to a particular person or property owner.

(g)

The Township Board of Commissioners shall have the authority to revoke any conditional use permit following a hearing conducted by the Township Board of Commissioners, after it has been proven that the holder of the permit has failed to comply with any of the applicable conditions specified in the permit. After a revocation notice has been issued, the use for which the permit was granted must be terminated within 30 days. Failure to discontinue the use for which the permit was revoked within 60 days is declared a nuisance per se and a violation of this chapter.

(h)

Decisions on applications for conditional uses may be appealed to any court of competent jurisdiction.

(2)

Enacting amendments. The Township Board of Commissioners shall enact all amendments to this chapter that are not landowner curative amendments, at the Board of Commissioners discretion, according to the rules below.

(a)

Before voting on the enactment of such an amendment, the Township Board of Commissioners shall hold a public hearing.

(b)

Public notice of this hearing shall be provided according to the rules below.

[1]

The public notice shall include the time and place of the hearing, the purpose of the hearing, the full text or a brief summary of the proposed amendment prepared by the Planning Committee, the date of the publication, and a statement that reads "All persons having an interest in these matters are encouraged to attend this meeting. Persons with a disability who wish to attend this hearing and require an auxiliary aid, service, or other disability accommodation to participate in the proceedings can be accommodated by contacting the Township Clerk's Office."

[2]

If a summary of the proposed amendment is included in the public notice instead of its full text, then:

[a]

The notice shall include a place within the municipality where copies of the full text may be examined without charge or copied at cost;

[b]

A copy of the full text shall be supplied to a newspaper of general circulation in the Township at the time the public notice is published in that paper; and

[c]

An attested copy of the full text shall be filed in the Allegheny County law library.

[3]

The public notice shall be published in a newspaper of general circulation once each week for two consecutive weeks. The first of these publications shall not be more than 60 days before the hearing. The second of these shall not be less than seven days before either the hearing or passage.

[4]

If substantial changes are made in the proposed amendment before passage but after the involved public hearing, then a notice shall be published in a newspaper of general circulation within Reserve at least 10 days prior to enactment that sets forth the provisions in reasonable detail together with a summary of the changes made. If these changes involve land that was previously not affected by the proposed amendment, then this requirement does not apply, and the public hearing process shall begin again pursuant to the public notice requirements of this chapter. If substantial amendments are proposed then the amended ordinance must be readvertised at least 10 days prior to enactment.

[5]

Where the proposed amendment involves a Zoning Map change, notice of the public hearing shall be mailed by the municipality at least 30 days prior to the date of the hearing by first class mail to the addresses to which real estate tax bills are sent for all real property located within the area being rezoned, as evidenced by tax records within the possession of the municipality. The notice shall include the location, date and time of the public hearing. A good faith effort and substantial compliance shall satisfy the requirements of this subsection.

(c)

A proposed amendment shall be submitted to the county planning agency at least 30 days prior to the hearing so that the planning agency may submit its recommendations.

(d)

A proposed amendment shall be submitted to the county planning agency within 30 days after the enactment.

(e)

If the amendment was prepared by a group other than the Planning Committee, then Township Board of Commissioners shall submit it to the Planning Committee at least 30 days prior to that amendment's hearing so that the Planning Committee may submit its recommendations.

(f)

The Township may offer a mediation option as an aid in completing this section's proceedings. Mediation is described in § 430-38, Zoning Hearing Board, Subsection H.[1]

[1]

Editor's Note: The Township Board of Commissioners shall be substituted for the Zoning Hearing Board as it applies to this section.

(3)

Curative amendments. The Township Board of Commissioners shall hear all applications for landowner curative amendments according to both the following rules and the provisions of § 430-33, Substantive challenges.

(a)

The Board of Commissioners shall commence a hearing on a proposed landowner curative amendment within 60 days of the filing of a complete application for that amendment.

(b)

Public notice of this hearing shall be given according to the requirements for enacting amendments described above. This notice shall include:

[1]

Notice that the validity of this chapter or map is in question; and

[2]

The place and times where a copy of the proposed amendment, including any plans or explanatory materials, may be examined by the public.

(c)

The Township Board of Commissioners shall submit the proposed amendment to the Planning Committee at least 30 days prior to the hearing so that the Planning Committee may submit its recommendations.

(d)

A proposed amendment shall be submitted to the county planning agency at least 30 days prior to the hearing so that the planning agency may submit its recommendations.

(e)

A proposed amendment shall be submitted to the county planning agency within 30 days after that amendment's enactment.

(f)

The Township Board of Commissioners shall render a written decision within 45 days of the end of the hearing.

(g)

The Township Board of Commissioners may prescribe reasonable fees for such a hearing which may include compensation for the Clerk, public notice and advertising costs, necessary administrative overhead connected with the hearing, enacting amendments as described above, and 1/2 of the stenographer's fee. The Township shall pay the cost of the original transcript if the original is ordered by the Township, and shall be paid by the applicant if he or she orders it. The parties requesting the transcript shall pay for additional copies. Fees may not be used to pay the legal expenses of the Board of Commissioners. Furthermore, fees may not be used to compensate engineering, architectural, planning, or other technical consultants or expert witnesses.

(h)

Conducting the hearing.

[1]

A stenographic record that conforms to civil trial transcripts must be taken in all hearings. The substance of all official actions, the names of people who appear officially, and the subject of their testimony must be recorded.

[2]

Each party has the right to be represented by legal counsel before the Board of Commissioners, to present and respond to evidence, and to cross-examine adverse witnesses on all relevant issues.

[3]

The Township Solicitor shall represent the Township Board of Commissioners, if requested. However, the Board of Commissioners may retain an independent attorney to present the defense of the challenged ordinance.

[4]

The Board of Commissioners has the power to administer oaths and issue subpoenas to compel both the attendance of relevant witnesses and the production of relevant papers. All testimony should be affirmed, as unaffirmed statements do not constitute legal evidence to make a record.

[5]

Formal rules of evidence do not apply to these hearings. However, the Board of Commissioners may exclude any irrelevant, immaterial, or unduly repetitious evidence. Hearsay evidence, if not objected to, may be given its natural probative value.

[6]

The Board of Commissioners has the power to reject even uncontradicted testimony if it finds this testimony to be lacking in credibility.

[7]

In the time following the beginning of a hearing and prior to a rendering of the decision or findings, the Board of Commissioners shall not communicate with any party or party representatives unless all parties are given an opportunity to participate. No communication, reports, staff memoranda, or other materials may be accepted or noticed by the Board of Commissioners unless all parties are given an opportunity to contest that information. The Board of Commissioners should not inspect the involved site or its surroundings during the hearings unless all parties are given an opportunity to be present. Any reports by the Board of Commissioners shall be filed with all involved parties.

[8]

A case should not be postponed to a later date without substantial or compelling reasons, especially if the issue is of great concern and has attracted an audience. However, where a new issue is raised for the first time at a hearing, and the applicant had no notice of this issue, the hearing should be continued at a later date to give the applicant an opportunity to react properly. When a case is continued at a second hearing, a notice shall be prominently posted at the hearing site, and all involved parties must be notified.

(i)

Making a decision.

[1]

In voting on a final decision, the vote cast by each Board of Commissioner member shall be made publicly.

[2]

In making its decision, Board of Commissioners shall consider:

[a]

The proposed amendments, plans, and explanatory materials submitted by the applicant;

[b]

The impact of the proposal on roads, sewer facilities, water supplies, schools, and other public service facilities;

[c]

The impact of the proposal on regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to and affordable by classes of persons otherwise unlawfully excluded by the challenged provisions;

[d]

The suitability of the site for the intensity of use proposed (considering the site's soils, slopes, woodlands, wetlands, floodplains, aquifers, natural resources, and other natural features);

[3]

The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, natural resources; and

[4]

The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.

[5]

Where Board of Commissioners fails to render this decision within the required period, or fails to hold the hearing within the required period, the decision shall be deemed to have been rendered against the amendment. When a deemed decision is rendered in favor of the amendment, the Board of Commissioners shall give notice of this within 10 days of the last day that it could have met to render a favorable decision.

[6]

If the Board of Commissioners determines that a validity challenge has merit, then it may either accept the applicant's landowner curative amendment, with or without revision, or adopt an alternative amendment that will cure the alleged defects in this chapter.

[7]

Where an application is denied, the resulting decision must be accompanied by a finding of fact, the conclusions based on these facts, and the reason that such conclusions were drawn. This will show that the decision was reasoned, and not arbitrary. References to any provisions of any ordinance, rule, or regulation relied on for any conclusion must be made, along with the reason that the conclusion is appropriate for the particular case at hand.

[8]

Even where an application is not denied, the resulting decision should be accompanied by a statement of findings or an opinion that is detailed enough to substantiate the involved decision.

[9]

A copy of the final decision must be delivered or mailed to the applicant no later than the day after the date of the report.

(j)

The decision of the Board of Commissioners may be appealed to the Court of Common Pleas in the judicial district where the subject property is located.

(4)

Municipal curative amendments. If the Township Board of Commissioners determines that this chapter or a portion thereof is substantially invalid or defected, then the Board of Commissioners may initiate a municipal curative amendment as follows.

(a)

The Board of Commissioners shall first:

[1]

Declare this chapter or the substantially invalid portion or portions thereof to be invalid by formal action; and

[2]

Propose to prepare a municipal curative amendment to overcome these invalidities.

(b)

Within 30 days of the declaration and proposal, the Board of Commissioners shall:

[1]

Make findings by resolution that set forth the declared invalidity or invalidities (this may include references to specific uses which are either not permitted or not permitted in sufficient quantity, to a class or use or uses which require revision, or to the entire chapter); and

[2]

Begin to prepare and consider a curative amendment to this chapter that will correct these invalidities.

(c)

Within 180 days of the declaration and proposal, the Board of Commissioners shall either:

[1]

Enact this curative amendment according to the provisions of Subsection B(4) of this section; or

[2]

Reaffirm the validity of this chapter.

(d)

During this 180-day period, the Township of Reserve, its Board of Commissioners, and its Zoning Hearing Board shall not be required to entertain or consider any substantive challenges to the validity of this chapter (as laid out in § 430-33, Substantive challenges) that are based on the same invalidities declared under Subsection B(4)(b) above.

(e)

The Township may not initiate another municipal curative amendment for 36 months after the date that either the curative amendment is enacted or the validity of this chapter is reaffirmed. However, if a new duty or obligation is imposed on the Township by a statute or a Pennsylvania Appellate Court decision, then the Township may ignore this rule in order to amend this chapter to fulfill said duty or obligation.

Reserve Township City Zoning Code

ARTICLE III