South Whitehall Township
City Zoning Code
City Zoning Code
ARTICLE 1
Administration
§ 350-11 Zoning Officer.
This chapter shall be administered and enforced by an agent to be appointed by the Board of Township Commissioners, who shall be known as the Zoning Officer. The Zoning Officer shall meet qualifications established by the Township and shall be able to demonstrate to the satisfaction of the Township a working knowledge of municipal zoning. It shall be the duty of the Zoning Officer to receive and maintain a record of all applications for permits and a record of all permits issued, with notation of all special conditions involved. He shall file copies of all plans submitted and the same shall form a part of the records of his office and shall be available for the use of the Zoning Hearing Board, the Board of Commissioners, other Township officials and staff, and Township residents. Such records are and shall remain the property of the Township.
§ 350-12 Zoning Map.
The boundaries of the districts enumerated by § 350-21 are hereby established on the Zoning Map of South Whitehall Township. Such map accompanies and is hereby declared to be a part of this chapter. Where uncertainty exists as to the precise location of the boundaries shown on said Zoning Map, the following rules shall apply:
(a)
District boundary lines.
(1)
District boundary lines generally follow the centerline of streets and streams, and lot lines as they exist on plans of record at the time of the adoption of this chapter. Where a district boundary divides a lot, the location of said boundary, unless the same is indicated by dimensions, shall be determined by the use of the scale appearing on the Map.
(2)
Where a district boundary is not fixed by dimensions and where it approximately follows a lot line, and where it does not scale more than 20 feet therefrom, such lot lines shall be construed to be such boundaries.
(3)
In case any further uncertainty exists, the Zoning Officer shall interpret the intent of the map as to location of district boundaries within the Township.
§ 350-13 Zoning permit.
(a)
Zoning permits. Zoning permits shall be secured from the Zoning Officer as follows:
(1)
A zoning permit shall be secured prior to the creation of or change to any use of a structure, building or of land. A permit shall be denied if the information submitted is incomplete, erroneous or otherwise unsatisfactory.
(2)
A zoning permit shall be secured for each nonconforming use and each nonconforming structure including expansion of or change of use or addition to a structure or change of use of the land. In the event that such permit has not been applied for and the Zoning Officer becomes aware of the nonconforming condition, the Zoning Officer shall notify the owner of record of the provisions of this section in writing. Said owner shall have 30 days in which to apply for the proper permit.
(3)
A zoning permit shall be secured prior to any alteration of any building or structure or part of a building or structure.
(4)
A zoning permit shall be secured for impervious surface and signs, regardless of cost, or district in which located, in accordance with §§ 350-48(o)(2) and 350-48(s)(10).
(b)
Conditions for issuance of zoning permits. The Zoning Officer shall not issue a permit for the use of any building or land unless all of the following conditions have been satisfied:
(1)
All requests for permits shall be made in writing by the legal or equitable owner or his authorized agent, optionee, or an individual or entity with demonstrable authority to do the work proposed on a form to be supplied by the Zoning Officer. Requests for zoning permits shall be accompanied by a plan prepared in accordance with the standards established by the Township. Copies of these standards are available at the Township Municipal Building.
(2)
All fees for permits as established by the Board of Commissioners shall have been paid to the Township.
(3)
Approval, where required, of the Zoning Hearing Board has been obtained in writing and all conditions of said approval have been or will be complied with. All applications and/or supportive documents shall be revised in accordance with the conditions of said approval.
(4)
The building and/or use conforms to the provisions of this chapter, except for:
(5)
In the event that construction or use is commenced prior to the issuance of any required permit, upon discovery of such construction or use, all work shall be halted and a complete and thorough inspection of unpermitted construction and use shall be conducted by the Zoning Officer and appropriate Code Enforcement Officers before any permit is issued.
(c)
Issuance or denial of zoning permits. Zoning permits shall be issued or denied by the Zoning Officer within 30 days of application. All permits are subject to compliance with all other applicable ordinances, rules, and regulations of the Township.
(d)
Life of a zoning permit.
(1)
Except where the duration of the use or building is limited by action of the Zoning Hearing Board or provisions of this chapter or any amendment, zoning permits shall be valid until such time as there is a change in use or condition for which the permit was originally issued.
(2)
Where the duration of the use or building has been limited by action of the Zoning Hearing Board or provisions of this chapter or any amendment, the life of the zoning permit shall be equally limited.
(3)
In the event that a variance has been granted or other action has been authorized by the Zoning Hearing Board, the applicant shall secure the necessary permits and commence the authorized action, construction or alteration within one year of the final action by the Zoning Hearing Board. In the event construction has not commenced within the one-year period, the variances, authorizations and permits granted by the Zoning Hearing Board are automatically revoked. The applicant may request in writing extensions of the one-year period stating the reasons for delay. The Zoning Hearing Board may grant extensions of the one-year period if it finds that the reasons for such delay in construction are justifiable and reasonable. When it is expected that the construction or development authorized will commence in phases over an extended period of time, the Zoning Hearing Board may establish a schedule for the procurement of permits in lieu of the one-year period specified above.
(e)
Continuance of existing zoning permits. Nothing herein contained shall require any change in plans, construction or designated use of a building for which a zoning permit has been issued prior to advertisement of the enactment of this chapter and construction of which shall have been commenced within 30 days after advertisement of this chapter and shall have been diligently prosecuted and the entire building shall be completed within the life of zoning permit(s) or authorized renewals of said zoning permit(s).
(f)
Zoning certificate of use. The purpose of a zoning certificate of use ("certificate of use" or "CU") is to certify that the premises comply with all other applicable ordinances, rules, and regulations of the Township and may be used for the purpose set forth in the certificate of use. A certificate of use shall be secured from the Zoning Officer prior to the use or occupancy of any land, structure, or building for which a zoning permit is required. A zoning certificate of use shall be issued once the applicant demonstrates to the satisfaction of the Zoning Officer that the subject property is compliant with the Zoning Ordinance and all other applicable ordinances, rules, and regulations of the Township. A copy of the certificate of use shall be kept upon the premises and shall be displayed upon request made by any officer or employee or agent of South Whitehall Township. Issuance of a certificate of use is not, nor shall it be deemed to be, a warranty or guaranty by the Township that the lot is fit for the particular use set forth in the permit and the Township shall not be liable in any way to the owner or occupant for the issuance of the certificate of use.
[Added 9-6-2023 by Ord. No. 1078]
(1)
A zoning certificate of use shall be issued by the Zoning Officer after each of the following circumstances apply, unless otherwise permitted by this Chapter. In the event that multiple conditions below apply, the zoning certificate of use shall be issued after all of the applicable conditions have been satisfied.
(A)
After the Zoning Officer has determined that all conditions of approval of the associated zoning permit (if any) have been satisfied.
(B)
After the Zoning Officer has determined that all conditions of approval of any applicable zoning appeal or similar application have been satisfied.
(C)
After the Zoning Officer has determined that all applicable conditions of approval of any applicable land development or similar application have been satisfied.
(D)
After the Zoning Officer has determined that a certificate of occupancy with no conditions has been issued or all conditions of a conditional certificate of occupancy have been satisfied.
(2)
The Zoning Officer may attach any conditions as appropriate to the zoning certificate of use. Each condition shall include a specified timeframe within which the condition is to be addressed.
(3)
A zoning certificate of use may be issued prior to any or all of the conditions enumerated in Subsection (f)(1)(A) through (D) above if the applicable condition is made a condition of approval of the zoning certificate by the Zoning Officer.
(4)
Should a zoning certificate of use required by this section not be issued prior to the expiration of the underlying zoning permit, said property is considered to be in violation of the Zoning Ordinance and subject to all applicable enforcement actions.
§ 350-14 Zoning Officer preliminary opinion.
(a)
Procedure to obtain preliminary opinion. In order not to unreasonably delay the time when a landowner may secure assurance that the ordinance or map under which he proposed to build is free from challenge, and recognizing that the procedure for preliminary approval of the development may be too cumbersome or may be unavailable, the landowner may advance the date from which time for any challenge to the ordinance or map will run under Section 914.1 of the Municipalities Planning Code by the following procedure:
(1)
The landowner may submit plans and other materials describing the proposed use or development to the Zoning Officer for a preliminary opinion as to its compliance with the applicable ordinances and maps. Such plans and other materials shall not be required to meet the standards prescribed for preliminary, tentative, or final approval or for the issuance of a building permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis for a preliminary opinion as to its compliance.
(2)
If the Zoning Officer's preliminary opinion is that the use or development complies with the ordinance or map, notice thereof shall be published once each week for two consecutive weeks in a newspaper of general circulation in the Township. Such notice shall include a general description of the proposed use or development and its location, by some readily identifiable directive, and the place and times where the plans and other materials may be examined by the public. The favorable preliminary approval under Section 914.1 and the time therein specified for commencing a proceeding with the Board shall run from the time when the second notice thereof had been published.
§ 350-15 Enforcement of Zoning Ordinance.
(a)
Enforcement notice.
(1)
If it appears to the Township that a violation of the South Whitehall Township Ordinance has occurred, the Township shall initiate enforcement proceedings by sending an enforcement notice as provided in this Subsection (a).
(2)
The enforcement notice shall be sent to the owner of record of the parcel on which the violation has occurred, to any person who has filed a written request to receive enforcement notices regarding the parcel, and to any other person requested in writing by the owner of record.
(3)
An enforcement notice shall state at least the following:
(A)
The name of the owner of record and any other person against whom the Township intends to take action.
(B)
The location of the property in violation.
(C)
The specific violation with a description of the requirements which have not been met, citing in each instance the applicable provisions of this chapter.
(D)
The date before which the steps for compliance must be commenced and the date before which the steps must be completed.
(E)
That the recipient of the notice has the right to appeal to the Zoning Hearing Board within a prescribed period of time in accordance with procedures set forth in this chapter.
(F)
That failure to comply with the notice within the time specified, unless extended by appeal to the Zoning Hearing Board, constitutes a violation, with possible sanctions clearly described.
(b)
Civil enforcement proceeding; penalties.
(1)
Any person, partnership or corporation who or which has violated or permitted the violation of the provisions of this chapter shall, upon being found liable therefor in a civil enforcement proceeding commenced by the Township, before a district justice, pay a judgment of not more than $500 per day plus all court costs, including reasonable attorney fees incurred by the Township as a result thereof. No judgment shall commence or be imposed, levied or payable until the date of the determination of a violation by the district justice. If the defendant neither pays nor timely appeals the judgment, the Township may enforce the judgment pursuant to the applicable rules of civil procedure. Each day that a violation continues shall constitute a separate violation, unless the district justice determining that there has been a violation further determines that there was a good-faith basis for the person, partnership or corporation violating the ordinance to have believed that there was no such violation, in which event there shall be deemed to have been only one such violation until the fifth day following the date of the determination of a violation by the district justice and thereafter each day that a violation continues shall constitute a separate violation. All judgments, costs and reasonable attorney fees collected for the violation of zoning ordinances shall be paid over to the Township.
(2)
Nothing contained in this section shall be construed or interpreted to grant to any person or entity other than the Township the right to commence any action for enforcement pursuant to this Subsection (b).
(c)
Equitable remedies. In case any building, structure, landscaping, or land is, or is proposed to be, erected, constructed, reconstructed, altered, converted, maintained or used in violation of this chapter or any amendments, the Township Manager, his designee, or any Code Enforcement Officer, or any 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 Township at least 30 days prior to the time the action is begun by serving a copy of the complaint on the Board of Commissioners of the Township. No such action may be maintained until such notice has been given.
§ 350-16 Zoning Hearing Board.
(a)
Composition and organization.
(1)
Present Zoning Hearing Board to continue. The Zoning Hearing Board created and existing under the "South Whitehall Township Zoning Ordinance" of 1961, as amended, shall continue under and in accordance with the provisions of this article. Matters pending before the Zoning Hearing Board at the time this chapter becomes effective shall continue and be completed under the Zoning Ordinance in effect at the time the Zoning Hearing Board took jurisdiction of said matters.
(2)
Membership. The membership of the Zoning Hearing Board shall consist of five members who are residents of the Township, appointed by resolution of the Board of Commissioners. Their terms of office shall be five years in duration, staggered so that no two members of the Zoning Hearing Board are eligible for reappointment in any given year. The terms of office for members of the Zoning Hearing Board hereafter appointed shall commence on the first day of March, and conclude on the last day of February, or until their successors are elected and qualified. The Zoning Hearing Board shall promptly notify the Board of Commissioners of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Zoning Hearing Board shall hold no other office in the Township.
(3)
Alternate members. The Board of Commissioners may appoint by resolution at least one but no more than three residents of the Township to serve as alternate members of the Zoning Hearing Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of § 350-16(a)(5), an alternate shall be entitled to participate in all proceedings and discussions of the Zoning Hearing Board to the same and full extent as provided by law for Board members, including specifically the right to cast a vote as a voting member during the proceedings, and shall have all the powers and duties set forth in this act and as otherwise provided by law. Alternates shall hold no other office in the Township including membership on the Planning Commission and Zoning Officer. Any alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote as a member of the Board unless designated as a voting alternate member pursuant to § 350-16(a)(5).
(4)
Removal of members. Any member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Board of Commissioners taken after the member has received 15 days' advance notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member shall make a request in writing.
(5)
Organization.
(A)
The Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves. For the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of all the members of the Board, but the Board may appoint a Hearing Officer from its own membership to conduct any hearing on its behalf and the parties may waive further action by the Board as provided in § 350-16(e)(1).
(B)
If, by reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Board shall designate as many alternate members of the Board to sit on the Board as may be needed to provide a quorum. Any alternate member of the Board shall continue to serve on the Board in all proceedings involving the matter or case for which the alternate was initially appointed until the Board has made a final determination of the matter or case. Designation of an alternate pursuant to this section shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.
(C)
The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the Township and laws of the commonwealth. The Board shall keep full public records of its business, which records shall be the property of the Township, and shall submit a report of its activities to the Board of Commissioners as requested by the Board of Commissioners.
(6)
Expenditures for service. Within the limits of funds appropriated by the Board of Commissioners, 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 Board of Commissioners, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Board of Commissioners. Alternate members of the Board may receive compensation, as may be fixed by the Board of Commissioners, for the performance of their duties when designated as alternate members pursuant to § 350-16(a)(5), but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of the Board of Commissioners.
(b)
Jurisdiction.
(1)
Zoning Hearing Board jurisdiction and functions.
(A)
Jurisdiction. The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(i)
Substantive challenges to the validity of any land Use ordinance, except those brought before the Board of Commissioners pursuant to Section 609.1 and 916.1(a)(2) of the Pennsylvania Municipalities Planning Code.
(ii)
Appeals from the determination of the Zoning Officer, including, but not limited to, the granting or denial of any zoning permit, or failure to act on the application therefor, the issuance of any cease and desist order or the registration or refusal to register any nonconforming use, structure or lot.
(iii)
Appeals from a determination by a Township Engineer or the Zoning Officer with reference to the administration of any floodplain or flood hazard ordinance or such provisions within a land use ordinance.
(iv)
Application for variances from the terms of the zoning ordinance and flood hazard ordinance or provisions within the ordinances.
(v)
Applications for special exceptions under the zoning ordinance or floodplain or flood hazard ordinance or provisions within the ordinances.
(vi)
Appeals from the Zoning Officer's determination under Section 916.2 of the Pennsylvania Municipalities Planning Code.
(vii)
Appeals from the determination of the Zoning Officer or Township Engineer in the administration of any land use ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development not involving planned residential development or subdivision and land development applications.
(c)
Variances.
(1)
Variances. The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. The Board may, by rule, prescribe the form of application and may require preliminary application to the Zoning Officer. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter and the laws of the commonwealth. The Board may grant a variance provided 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 conditions and not the circumstances or conditions generally created by the provisions of the Zoning Ordinance 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 the Zoning Ordinance 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, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue;
(F)
The variance shall not authorize a use that is not permitted in the Zoning Ordinance and which could more properly be considered a rezoning to be heard by the South Whitehall Township Board of Commissioners.
(d)
Special exceptions.
(1)
Special exceptions. It is hereby recognized that certain uses may be necessary to serve the needs and convenience of the Township, but which uses may be adverse to the public health, safety and general welfare by reason of their inherent nature and/or operation and therefore require special and proper consideration of existing and probable future conditions and characteristics of the surrounding area. Such uses are hereby declared to be "special exception uses" and may be permitted upon application to and approval by the Zoning Hearing Board provided said use is shown as a special exception use in the Zoning District Schedule for the district in which the use is located. Where this chapter has stated special exceptions to be granted or denied by the Zoning Hearing Board, the Board shall hear and decide requests for such special exceptions in accordance with applicable standards and criteria contained herein. In granting a special exception, the Board may attach such reasonable conditions and safeguards in addition to those expressed by this Ordinance, as it may deem necessary to implement the purposes of this Zoning chapter and the laws of the commonwealth. Standards and criteria for special exception uses are as follows. Such use shall be:
[Amended 3-20-2019 by Ord. No. 1044]
(A)
Consistent with the community development objectives articulated in the Zoning Ordinance (pursuant to Section 606 of the Municipalities Planning Code);
(B)
Consistent with the statement of purpose articulated for the district in which the use is proposed and promote the harmonious and orderly development of such zoning district;
(C)
Consistent with the South Whitehall Township Comprehensive Plan;
(E)
The design, characteristics and operation of the use is such that the public health, safety and general welfare will be protected and reasonable consideration is given to, but not limited to, the character of the neighborhood and zoning district, conservation of property values, and traffic safety and road capacities;
(F)
Compatible with the character and type of development existing in the area that surrounds the site and permitted in the underlying zoning district, in terms of the size, scale, height and bulk of the proposed uses and the size, shape and placement of buildings and other structures;
(G)
Compatible with the uses permitted in the surrounding area and permitted in the underlying zoning district, in terms of the density and/or intensity of land use;
(H)
Reflective of sound engineering and land development design and construction principles, practices and techniques;
(I)
Provide safe and efficient access to roads and will not create traffic congestion, hazardous traffic conditions or excessive traffic volumes;
(J)
Provide continuity of existing circulation systems, including roads, sidewalks, and trails;
(K)
Provide for adequate environmental controls and performance standards to minimize noise, vibration, glare, heat, odor, smoke, dust, fumes, vapors, gases, air emissions, water emissions and outdoor storage;
(L)
Each special exception use shall adhere to the minimum standards specified for the particular use by the applicable regulations of this chapter.
(e)
Hearings and decisions.
(1)
Hearings and decisions. The Board shall conduct hearings and make decisions in accordance with the following requirements:
(A)
Public notification.
(i)
Public notice of the hearing, pursuant to the Municipalities Planning Code, shall be given. A written copy of this notice shall be provided to the applicant, the owner of record, the Zoning Officer and any other person making timely request for same, by first class mail addressed to the last known address of the said parties not less than 10 calendar days prior to the hearing. For purposes of this section, said request shall be received no sooner than 90 days prior to the date of the hearing for which notice is requested.
(ii)
In addition to the written notice provided under Subsection (e)(1), written notice of said hearing shall be conspicuously posted on the affected lot at least one week prior to the hearing.
(iii)
Not less than 10 days prior to the scheduled Zoning Hearing Board meeting, the Township shall give notice by first class mail to all property owners as shown on the most recent tax records to be holding title to property within 300 feet of any boundary of the subject property. The notice shall include the information required by the "Public Notice" section of the Municipalities Planning Code (Act 247 as amended).
(B)
Fees. The Board of Commissioners may prescribe reasonable fees with respect to hearings before the Zoning Hearing Board. Fees for said hearings may include compensation for the secretary and members of the Zoning Hearing Board, notice and advertising costs and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses of the Zoning Hearing Board, expenses for engineering, architectural or other technical consultants or expert witness costs.
(C)
Hearings.
(i)
The first hearing before the Board or Hearing Officer shall be commenced within 60 days from the date of receipt of the applicant's application, unless the applicant has agreed in writing to an extension of time. Each subsequent hearing before the Board or Hearing Officer 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 within 100 days of the first hearing. Upon the request of the applicant, the Board or Hearing Officer shall assure that the applicant receives at least seven hours of hearing 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 or consent on the record by the applicant and municipality, be granted additional hearings to complete their opposition to the application provided the applicant is granted an equal number of additional hearings for rebuttal.
(ii)
The hearings shall be conducted by the Board, or the Board may appoint any member or an independent attorney as a Hearing Officer.
(iii)
The parties to the hearing may be the municipality and any person affected by the application who has made timely appearance of record before the Board, and any other person including civic or community organizations permitted to appear by the Board. The 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.
(iv)
The Chairman or Acting Chairman of the Board or the Hearing Officer presiding shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.
(v)
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.
(vi)
Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.
(vii)
The Board or the Hearing Officer, as the case may be, shall keep a stenographic record of the proceedings. The appearance fee for a stenographer shall be shared equally by the applicant and the Board. The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board or Hearing Officer or shall be paid by the person appealing from the decision of the Board if such appeal is made and in either event the cost of additional copies shall be paid by the person requesting such copy or copies. In other cases the party requesting the original transcript shall bear the cost thereof.
(D)
The Board or the Hearing Officer shall not communicate directly or indirectly, with any party or his representative in connection with any issue involved except upon notice and opportunity for all parties to participate, shall not take notice of any communication, reports, staff memoranda, or other materials except advise from the Board's solicitor unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surroundings with any party or his representative unless all parties are given an opportunity to be present.
(E)
Decisions.
(i)
The 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 Board or Hearing Officer. Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Conclusions based on any provisions of the Pennsylvania Municipalities Planning Code 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. If the hearing is conducted by a Hearing Officer, and there has been no stipulation that his decision or findings are final, the Board shall make his report and recommendations available to the parties within 45 days and the parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings, and the Board's decision shall be entered no later than 30 days after the report of the Hearing Officer. Except for challenges filed under Section 916.1 of the Pennsylvania Municipalities Planning Code where the Board fails to render the decision within the period required by this section or fails to commence, conduct or complete the required hearing, as provided in § 350-16(e)(1), 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 for an extension of time. When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a decision as herein above provided, the Board shall give public notice of said decision within 10 days from the last day it could have met to render a decision in the same manner as provided in Subsection (e)(1)(A) of this subsection. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this paragraph shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
(ii)
A copy of the final decision or, where no decision is called for, of the findings, shall be delivered to the applicant personally or mailed to him not later than the day following its date. To all other persons who have filed their name and address with the Board not later than the last day of the hearing, the 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.
(F)
Parties Appellant Before the Zoning Hearing Board. Appeals under § 350-16(b)(1) may be filed with the Board in writing by any officer or agency of the Township, or any person aggrieved or his agent. Requests for a variance under § 350-16(c)(1) and for special exception under § 350-16(d) may be filed with the Board by any landowner or any tenant with the permission of such landowner.
(G)
Time limitation. 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. All appeals from determinations adverse to the landowners shall be filed by the landowner within 30 days after notice of the determination is issued.
(H)
Stay of proceedings. Upon filing of any proceeding referred to in § 350-16(b)(1) and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or of any agency or body, and all official action thereunder shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies to the Board facts indicating that such stay would cause imminent peril to life or property, in which case, the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the Board or by the court having jurisdiction of zoning appeals on petition after notice to the Zoning Officer or other appropriate agency or body. When an application for development, preliminary or final, has been duly approved and proceedings designed to reserve or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board. The question whether or not such petition shall be granted and the amount of the bond shall be within the sound discretion of the court.
(f)
Optional: mediation.
(1)
Mediation option.
(A)
Parties to proceedings before the Zoning Hearing Board, Board of Commissioners, or the courts in connection with this chapter may utilize mediation as an aid in completing such proceedings. In proceedings before the Zoning Hearing Board, in no case shall the Zoning Hearing Board initiate mediation or participate as a mediating party. Mediation shall supplement, not replace, those procedures in this chapter and the Municipalities Planning Code once they have been formally initiated. Nothing in this section shall be interpreted as expanding or limiting the Township Police powers or as modifying any principles of substantive law.
(B)
Participation in mediation shall be wholly voluntary. The appropriateness of mediation shall be determined by the particulars of each case and the willingness of the parties to negotiate. The Township shall assure that, in each case, the mediating parties, assisted by the mediator as appropriate, develop terms and conditions for:
(i)
Funding mediation.
(ii)
Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation.
(iii)
Completing mediation, including time limits for such completion.
(iv)
Suspending time limits otherwise authorized in this chapter and the Municipalities Planning Code, provided there is written consent by the mediating parties, and by an applicant or the Board of Commissioners if either is not a party to the mediation.
(v)
Identifying all parties and affording them the opportunity to participate.
(vi)
Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public.
(vii)
Assuring that mediated solutions are in writing and signed by the parties, and become subject to review and approval by the appropriate decision-making body pursuant to the authorized procedures set forth in the other sections of this chapter and in the Municipalities Planning Code.
(C)
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.
(g)
Appeals to courts.
(1)
Appeals to courts.
(A)
Zoning appeals. Zoning appeals shall include appeals from decisions of the Zoning Hearing Board and appeals upon reports of the Board in proceedings to challenge the validity of any ordinance or map.
(B)
Who may appeal. Zoning appeals shall be taken to the Common Pleas Court of the County of Lehigh, Pennsylvania, by any party before the Zoning Hearing Board, or any officer or agency of the Township of South Whitehall, or any other aggrieved party.
(C)
Time limitation. All zoning appeals shall be filed no later than 30 days after the issuance of notice of the decision or report of the Zoning Hearing Board.
(D)
Procedures for appeals and challenges. Procedures for appeals and challenges shall be those prescribed by Article X-A of the Pennsylvania Municipalities Planning Code.
§ 350-17 Process to amend Zoning Ordinance.
(a)
Amendments by the Board of Commissioners. The Board of Commissioners of South Whitehall Township may, from time to time, supplement, change, modify, or otherwise amend or repeal this chapter, or portions thereof, including the Zoning Map, in accordance with the following procedures:
(1)
The Board of Commissioners shall fix the time and place of a public hearing on the proposed amendment pursuant to public notice. Such notice shall include the full text of the proposed amendment, or a brief summary setting forth the principal provisions in reasonable detail, and a reference to a place in the municipality where copies of the proposed amendment may be examined, in addition to the time and place of the hearing. Such notice shall be published pursuant to the requirements of the Pennsylvania Municipalities Planning Code.
(A)
Before voting on the enactment of a proposed amendment, the Board of Commissioners shall hold a public hearing thereon, pursuant to public notice. In addition, if the proposed amendment involves a Zoning Map change, notice of said public hearing shall be conspicuously posted by the Township at points deemed sufficient by the Township along the perimeter of the lot(s) to notify potentially interested citizens. The affected lot(s) shall be posted at least one week prior to the date of the hearing.
(i)
In addition to the requirement that notice be posted under § 350-17(a)(1)(A), where the proposed amendment involves a Zoning Map change notice of the public hearing shall be mailed by the Township 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 with the area(s) being rezoned, as evidenced by tax records within the possession of the Township. 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.
(ii)
This clause shall not apply when the rezoning constitutes a comprehensive rezoning.
(2)
In the case of an amendment other than that prepared by the Planning Commission, the Board of Commissioners shall submit each such amendment to the Planning Commission at least 30 days prior to the public hearing on the proposed amendment to provide the Planning Commission an opportunity to submit recommendations.
(3)
The proposed amendment shall also be forwarded to the Lehigh Valley Planning Commission at least 30 days prior to the public hearing on the amendment by the Board of Commissioners.
(4)
If, after any public hearing held upon a proposed amendment, changed substantially, or is revised, to include land not originally affected by it, the Board of Commissioners shall hold another public hearing, pursuant to public notice, as set forth above, before proceeding to vote on the amendment.
(b)
Publication after enactment. After enactment, the advertisement of a zoning amendment may consist solely of a reference to the place or places within the municipality where copies of such amendment shall be obtainable for a charge not greater than the cost thereof and available for examination without charge.
(c)
Recording. Zoning amendments may be incorporated into official ordinance books by reference with the same force and effect as if duly recorded therein.
(d)
Filing with Lehigh Valley Planning Commission. Within 30 days after enactment, copy of the amendment shall be forwarded to the Lehigh Valley Planning Commission.
§ 350-18 Granting of conditional uses.
(a)
Purpose. It is hereby recognized that the establishment, maintenance and operation of certain uses may be necessary to serve the needs and convenience of the public and the Township, but that such uses may be adverse to the public health, safety and general welfare by reason of their inherent nature and/or operation and maintenance and, therefore, require special and proper consideration of, inter alia, the proposed use, and characteristics of the surrounding area. Such uses are hereby declared to be conditional uses and may be permitted upon application to and approval by the Board of Commissioners provided said use is shown as a conditional use in the Zoning District Schedule for the district in which the use is located, in accordance with the requirements below. Before zoning approval is granted for any use listed as a conditional use in this chapter, a site plan shall be reviewed by the Township Planning Commission and approved by the Township Board of Commissioners.
[Amended 3-20-2019 by Ord. No. 1044]
(b)
Approval of conditional uses.
(1)
The Board of Commissioners shall approve any proposed conditional use only if they find sufficient evidence that any proposed use will meet:
[Amended 3-20-2019 by Ord. No. 1044]
(A)
The design, characteristics, maintenance and operation of the use are such that the public health, safety and general welfare will be protected and reasonable consideration is given to, among other things, the character and suitability of the location in question and the zoning district, traffic safety and road capacities, conservation of property values, preservation of the nature and quality of the environment;
(B)
Consistent with the community development objectives articulated in this chapter (pursuant to Section 606 of the Municipalities Planning Code);
(C)
Consistent with the statement of purpose articulated for the district in which the use is proposed and promotes the harmonious and orderly development of such zoning district;
(D)
Consistent with the South Whitehall Township Comprehensive Plan and Official Map;
(E)
Compatible with the character and type of development existing in the area that surrounds the site and permitted in the underlying zoning district, in terms of the size, scale, height and bulk of the proposed uses and the size, shape and placement of buildings and other structures;
(F)
Compatible with the uses permitted in the surrounding area and permitted in the underlying zoning district, in terms of the density and/or intensity of land use;
(G)
Reflective of sound engineering and land development design and construction principles, practices and techniques;
(H)
Provide safe and efficient access to roads and will not create traffic congestion, hazardous traffic conditions or excessive traffic volumes;
(I)
Provide continuity of existing circulation systems, including roads, sidewalks, and trails;
(J)
Provide for adequate environmental controls and performance standards to minimize noise, vibration, glare, heat, odor, smoke, dust, fumes, vapors, gases, air emissions, water emissions and outdoor storage;
(K)
Each conditional use shall adhere to the minimum standards specified for the particular use by the applicable regulations of this chapter.
(2)
The Board of Commissioners shall hold hearings on and decide requests for such conditional uses in accordance with such general standards and specific standards in § 350-30 herein or in § 350-48, as applicable. The hearing shall be conducted by the Board of Commissioners or the Board of Commissioners 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 of Commissioners. However, the appellant or the applicant, as the case may be, in addition to the Township, may, prior to the decision of the hearing, waive decision or findings by the Board of Commissioners and accept the decision or findings of the Hearing Officer as final.
(3)
In granting a conditional use, the Board of Commissioners 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.
(c)
Administration.
(1)
The Zoning Officer shall deny a zoning permit for the proposed development until written approval of the Township Board of Commissioners is obtained.
(2)
All applicants for conditional use shall submit 10 sets of site plans sealed by a Pennsylvania-licensed design professional.
(3)
All site plans shall contain information otherwise required by the Township Subdivision and Land Development Regulations[1] for a sketch plan. In addition, site plans for incinerators, sanitary landfills, waste-to-energy facilities, and waste treatment facilities shall contain the following information as it pertains to the subject lot(s) (and to the area within one mile if the proposed facility is a sanitary landfill):
(A)
The location of public and private water lines, supplies, wells, springs, streams, swamps, rivers and other bodies of water, and public and private sewer lines and septic systems;
(B)
The location of underground and surface mines showing the extent of deep mine workings, elevation of the mine pool, and location of mine pool discharges;
(C)
The location of gas and oil wells;
(D)
The location of high-tension power line rights-of-way;
(E)
The location of pipeline rights-of-way;
(F)
The location of geologic and hydrologic features;
(G)
The floodplain and location of the site or facility within that floodplain, and stormwater runoffs;
(H)
The location of public and private recreational areas;
(I)
A soils, geologic and groundwater report of the characteristics of the area where the proposed site or facility will be located;
(J)
The location of significant historical and architectural sites; and
(4)
The Board of Commissioners, within 10 days of receipt of a completed submission, shall forward one copy of the site plan to the Zoning Officer, one copy to the Township Engineer, one copy to the South Whitehall Township Environmental Advisory Council and one copy to the Department of Community Development for review by the Township Planning Commission. Owners of real property situated within 300 feet of the proposed site or facility shall be sent a notice of the Planning Commission's review meeting not less than 10 days prior to the date fixed for review.
(5)
The Zoning Officer shall, within 30 days of receipt of a completed submission by the Township, review the plan and submission to determine compliance with this chapter, and submit a written recommendation to the Board of Commissioners.
(6)
The Planning Commission shall, within 30 days of receipt of a completed submission by the Township, review the plan and submission to determine compliance with this chapter, and submit a written recommendation to the Board of Commissioners.
(7)
Failure of the Zoning Officer or the Planning Commission to submit a written report in a timely fashion shall not prevent the Board of Commissioners from hearing and deciding the request.
(8)
Referral to the Planning Commission.
(A)
The Board of Commissioners shall refer to the Township Planning Commission all applications for conditional uses.
(B)
In its review of the conditional use, the Township Planning Commission shall determine compliance with the standards and criteria set forth in this chapter.
(C)
In all cases the Township Planning Commission shall report in writing its findings and recommendations to the Board of Commissioners within 30 days of receipt of a completed submission by the Township.
(D)
The Board of Commissioners and Planning Commission shall establish mutually acceptable procedures to assure that the review is accomplished in time to permit the Board of Commissioners to make its required decision.
(E)
Public notification shall be required prior to the hearing before the Board of Commissioners in accordance with § 350-16(j)(1).
[Added 3-20-2019 by Ord. No. 1044]
(9)
Decision findings.
(A)
The Board of Commissioners shall render a written decision or make written findings (when no decision is called for) on the application within 45 days after the last hearing before the Board of Commissioners. Where the application is contested or denied, the decision shall be accompanied by findings of fact and conclusions based thereon, together with the reasons therefor. Any conclusion based on any provision of Act 170, as amended, or of this chapter, or of any other ordinance, rule or regulation, shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in light of the facts found.
(B)
Where the Board of Commissioners fails to render the decision within the period required in Subsection (c)(9)(A) of this section or fails to commence, conduct, or complete the required hearing as provided in Section 908(1.2) of the Pennsylvania Municipalities Planning Code (MPC), 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 Board of Commissioners 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 the MPC. If the Board of Commissioners shall fail to provide such notice, the applicant may do so.
(C)
A copy of the final decision or a copy of the finding (when no decision is called for) shall be delivered to the applicant. The Board of Commissioners shall provide (by mail or otherwise) a brief notice of the decision or findings and the statement of the place where the full decision findings may examined to all other persons who have filed their names and addresses with the Board of Commissioners.
(10)
Appeals. In general, all appeals for securing a review of this chapter or any decision, determination, order of the Board of Commissioners, its agencies or officers issued pursuant to this chapter, shall be in conformance with Article X-A of the Municipalities Planning Code as amended.