Towamencin Township
City Zoning Code
City Zoning Code
ARTICLE XI
Zoning Hearing Board
§ 153-1100 Purpose.
A Zoning Hearing Board is herein established in order that the objectives of this chapter may be more fully and equitably achieved and a means for appeals from the administrative determinations of the Township Zoning Officer or Township Engineer as the case may be shall be decided in accordance with this chapter and Article IX of the Municipalities Planning Code.[1] Any rights, duties or obligations of the Board not specified within this chapter shall be governed by the Pennsylvania Municipalities Planning Code, as amended.
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
§ 153-1101 Establishment of Board; terms of office.
The Board of Supervisors of Towamencin Township shall appoint, by resolution, a Zoning Hearing Board consisting of three members. The Board of Supervisors shall designate one such member to serve until the first day of January following the effective date of this chapter, one until the first day of the second January thereafter, and one until the first day of the third January thereafter. The Board of Supervisors shall thereinafter appoint three successors on the expiration of the respective terms of the original members to serve individual three-year terms, and shall fill any vacancy for the unexpired term of any member whose term becomes vacant. The word "Board" when used in this article shall mean the Zoning Hearing Board.
§ 153-1102 Membership; qualifications; vacancies.
Members of the Board shall be residents of the Township and shall hold no other governmental office in the Township. The Board shall promptly notify the Board of Supervisors of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the previous member's term.
§ 153-1103 Quorum.
A quorum shall be necessary for the conduct of any hearing and the taking of any action by the Board. A quorum shall be not less than two voting members of the Board. In the event that a quorum cannot be achieved, or in other instances when deemed appropriate by the Board, the Board may appoint a Hearing Officer from its own membership to conduct any hearing on its behalf, and the parties thereto may waive further action by the Board as provided by Section 908 of the Pennsylvania Municipalities Planning Code,[1] as amended.
[1]
Editor's Note: See 53 P.S. § 10908.
§ 153-1104 Alternate members.
A.
The Board of Supervisors may appoint by resolution at least one but no more than three residents of the Township to serve as alternate members of the Board. An alternate shall, when seated on the Board as provided herein to complete the quorum, participate in all proceedings and discussions of the 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 and this chapter. At any time, an alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote as a member of the Board nor be compensated unless seated as an alternate member needed to complete the quorum. Alternates shall hold no other office in the Township. The term of office of an alternate member shall be three years.
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 decision 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.
§ 153-1105 Removal of members.
Any Board member may be removed for malfeasance, misfeasance, or nonfeasance in the office or for other just cause by a majority vote of the Board of Supervisors. Action of the Board of Supervisors shall only be taken after the member has received a 15 days' advance notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member shall request such a hearing in writing to the Board of Supervisors.
§ 153-1106 Organization of Board.
A.
The Board shall elect from its own membership its officers, to include a Chairman and Vice Chairman, who shall serve annual terms as such and may succeed themselves.
B.
The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the Township and laws of the commonwealth.
C.
Within the limits of funds provided by the Township Supervisors, the Board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services.
D.
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 Township Board of Supervisors as requested by the Board of Supervisors. All action taken by the Board shall be fully set forth in the minutes of the Board which shall indicate the vote of each member of each question before same.
E.
Members of the Board may receive compensation for the performance of their duties, as may be fixed by the Board of Supervisors, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors. Alternate members of the Board may receive compensation, as may be fixed by the Board of Supervisors, for the performance of their duties when designated as alternate members, but in no case shall such compensation exceed the rate of compensation authorized to be paid to members of the Board.
§ 153-1107 Powers, duties and jurisdiction.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudication in the following land use matters:
A.
Appeals where it is alleged there is an error in any order, requirement, or determination made by an administrative official responsible for, and in the enforcement of, this chapter, to include but not be limited to the determination of the Zoning Officer regarding the applicability of the words, terms, rules, regulations, provisions and restrictions of this chapter including determinations in specific instances to whether questionable uses are permitted by virtue of being "similar to" or "customarily incidental to" permitted uses as provided by this chapter.
B.
Substantive challenges to the validity of any land use ordinance, except those brought before the Board of Supervisors pursuant to the landowner curative amendment sections, Sections 609.1 and 916.1(a)(2), of the Municipalities Planning Code,[1] as amended.
[1]
Editor's Note: See 53 P.S. §§ 10609.1 and 10916.1.
C.
Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption which challenges shall be raised by an appeal taken within 30 days after the effective date of said ordinance.
D.
Appeals from the determination of the Zoning Officer, including, but not limited to, the granting or denial of any permit, or failure to act on the application therefor, the issuance of any enforcement order or the registration or refusal to register any nonconforming use, structure or lot.
E.
Appeals from a determination by a municipal 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.
F.
Applications for variances from the terms of this chapter.
G.
Applications for special exceptions under this chapter.
I.
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 related to developments not involving applications for subdivisions or land developments, as defined by the Pennsylvania Municipalities Planning Code, as amended.
§ 153-1108 Persons entitled to initiate action before Board.
Appeals under this section may be filed with the Board in writing by the landowner affected, any officer or agency of the Township, or any person aggrieved. Requests for a variance and for a special exception may be filed with the Board by any landowner or his duly authorized agent.
§ 153-1109 Manner of initiating action before Board.
All action before the Board shall be initiated by a written application for hearing which shall be filed with the Zoning Officer. All applications shall be made on forms specified by the Board, and no applications shall be accepted unless the same shall be fully and legibly completed and unless all exhibits, fees, and supplemental material required by the application shall be attached. Final administrative action by way of a zoning determination shall be rendered by the Zoning Officer as a prerequisite for appeal to the Zoning Hearing Board as provided herein and by the Municipalities Planning Code, as amended. Every appeal or application shall refer to the specific provision of the chapter involved, and shall exactly set forth the position claimed and/or sought, the use for which the special exception is sought, the details of the variance that is applied for, and the grounds on which it is claimed that a variance should be granted, as the case may be.
§ 153-1110 Function of Board: variances and special exceptions.
A.
Variances. The Board shall hear requests for variances where it is alleged that the provisions of the Zoning Ordinance inflict unnecessary hardship on 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 purpose of this chapter. The Board may grant a variance provided that all of the following findings are made where relevant in a given case:
(1)
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 to the circumstances or conditions generally created by the provisions of the Zoning Ordinance in the neighborhood or district in which the property is located.
(2)
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.
(3)
That such unnecessary hardship has not been created by the appellant.
(4)
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.
(5)
That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation at issue.
B.
Special exceptions. Where this chapter has provided for stated special exceptions to be granted or denied by the Board pursuant to express standards and criteria, the Board shall hear and decide requests for such special exceptions in accordance with such standards and criteria. In granting a special exception, the Board 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.
§ 153-1111 Hearings.
The Board shall conduct open public hearings and make Zoning Ordinance decisions in accordance with the following requirements:
A.
Public notice. Public notice as a prerequisite to the holding of a hearing by the Board shall be made in accordance with the provisions of the Pennsylvania Municipalities Planning Code, as amended.
[Amended 12-17-2003 by Ord. No. 03-09]
B.
Fees. The Board of Supervisors may prescribe reasonable fees with respect to hearings before the Zoning Hearing Board. Fees for said hearings may include compensation for the members of the Zoning Hearing Board, notice and advertising costs and necessary administrative overhead connected with the hearing.
C.
Timing. The hearing shall be held within 60 days from the date of the applicant's request, unless the applicant has agreed in writing to an extension of time. The Board shall render a written decision or written findings on the application within 45 days after the last hearing or, if such hearing is continued, within 45 days after said continued hearing. If the Board does not make a decision within 45 days after the hearing or continued hearing, it shall be deemed that such Board has decided in favor of the applicant affected who is seeking relief, unless the applicant has agreed in writing to an extension of time.
D.
Conduct of hearing. All hearings shall be held at the call of the Chairman and at such times as the Board may determine. The Chairman or, in his absence, the Acting Chairman or, as necessary, a Hearing Officer selected from the Board's membership, may administer oaths and compel the attendance of witnesses. All hearings of the Board shall be open to the public. The Board shall keep a stenographic record of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record.
E.
Standing. The parties to the hearing shall be the Township, 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 the 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.
F.
Oaths and subpoenas. The Chairman or Acting Chairman shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties with standing before the Board.
G.
Representation. All parties with standing before the Board 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.
H.
Evidence. Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded at the discretion of the Board upon advice from the Board's solicitor.
I.
Conduct. The Board or the Hearing Officer shall not communicate, directly or indirectly, with any party or his representatives in connection with any issue involved except upon notice and opportunity for all parties to participate, shall not take notice of any communication, reports, staff memoranda, or other materials, except advice from their solicitor, unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surroundings after the commencement of hearings with any party or his representative unless all parties are given an opportunity to be present.
J.
Orders. In exercising their statutory powers, the Board may reverse or affirm, wholly or in part, or may modify the order and/or requirement from the administrative determination appealed from and, in so doing, may make such additional order and/or requirement as part of the Boards' decision as may be pertinent or germane.
K.
Decisions.
(1)
The Board or 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, this chapter, or other rule or regulation shall contain a reference to the provisions relied on and the reasons why the conclusions are deemed appropriate in the light of the facts found. Where the Board fails to render the decisions within the period required or fails to hold the required hearing within 60 days from the date of the applicant's request for a hearing, 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 Board to meet or render a decision as hereinafter 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 herein. If the Board shall fail to provide such notice, the appellant may do so. Nothing in this section shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
(2)
A copy of the final decisions, or where no decision is called for, the findings shall be delivered to the applicant personally or mailed to him not later than five days following the date of the decision. 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 decisions or findings and a statement of the place at which the full decisions or findings may be examined.
L.
Appeals. Any person aggrieved by any decision of the Board may, within 30 days after such decision of the Board, file an appeal to the Court of Common Pleas of Montgomery County. Such appeal shall be made in accordance with the Pennsylvania Municipalities Planning Code, as amended, and in such form as may be prescribed or otherwise authorized by law.
§ 153-1112 Board procedure and considerations.
In passing upon applications for special exceptions and variances the Board shall consider the following factors as well as all relevant factors and procedures specified in this chapter:
A.
Technical assistance. The Zoning Hearing Board in considering any matter within its jurisdiction may consult with the Towamencin Planning Commission, the Montgomery County Planning Commission, or any other specialist or groups of specialists having expert knowledge of the matter under consideration, but need not be bound thereby.
B.
Burden of proof. The applicant for a special exception or variance shall have the burden of proving that his application falls within the provision of the chapter and shall have the further burden of proving:
(1)
That the special exception or variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located.
(2)
That the variance or special exception, if authorized, will not substantially or permanently impair the appropriate use or development of adjacent property.
(3)
That the special exception or variance, if authorized, will not be detrimental to the health, safety, morals, or the general welfare of the Township or the community.
(4)
That the special exception or variance, if authorized, will not result in or aggravate existing, adverse or abnormal patterns of traffic flow, nor cause an unwarranted impact on traffic at or near the particular location involved in the application.
C.
Standards for Board actions. In any instance where the Zoning Hearing Board is required to render a land use decision, the Board shall, among other things, give consideration to the following:
(1)
Consider the suitability of the property for the use desired. Assure itself that the proposed change is consistent with the spirit, purpose and intent of the Zoning Ordinance.
(2)
Determine that the proposed change will not substantially injure or detract from the use of neighboring property or from the character of the neighborhood and that the use of the property adjacent to the area included in the proposed change or plan is adequately safeguarded.
(3)
Determine that the proposed change will serve the best interests of the Township, the convenience of the community (where applicable) and the public welfare.
(4)
Consider the effect of the proposed change upon the logical, efficient, and economical extension of public services and facilities such as public water, sewers, police and fire protection and public schools.
(5)
Consider the suitability of the proposed location of the use with respect to probable effects upon highway traffic, and assure adequate access arrangements in order to protect major streets from undue congestion and hazard.
(6)
Be guided in its study, review, and recommendation by sound standards of land development practice where applicable.
(7)
Impose such conditions, in addition to those required, as are necessary to assure that the intent of the Zoning Ordinance is complied with, which conditions may include, but are not limited to harmonious design of buildings, planting and its maintenance as a sight or sound screen, the minimizing of noxious, offensive or hazardous elements, and the provision for adequate parking and sanitation.
(8)
Determine whether there are special circumstances or conditions fully described in the findings applying to the land or buildings for which the variance is sought, which justify that the application of the provisions of this chapter would deprive the applicant of the reasonable use of such land or building.
(9)
Determine whether the unique circumstances for which the variance is sought were either created by the owner of the property, or were due to, or the result of, general conditions in the district in which the property is located.
(10)
Consider the effects of the proposed change with respect to the most appropriate use of land; conserving the value of land and buildings; safety from fire, panic and other dangers; the overcrowding of land; congestion of population; and the adequacy of public and community services.
(11)
Consider the compatibility of the proposed use with existing development and development anticipated in the foreseeable future.
(12)
Give full consideration to the size, scope, intent, and character of the exception requested and assure the compatibility of the proposed use with the spirit, purpose and intent of the Comprehensive Plan, the Subdivision and Land Development Ordinance,[1] as last amended and the provisions of this chapter.
(13)
Such other factors as may be relevant to achieving the purpose of this chapter.
§ 153-1113 Time limitations.
All appeals from administrative determinations adverse to any landowner or affected party shall be filed by the landowner or affected party with the Zoning Hearing Board within 30 days after official notice of the determination has been issued.
§ 153-1114 Mediation option.
A.
Parties to proceedings authorized in this article 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 article once they have been formally initiated. Nothing in this section shall be interpreted as expanding or limiting Township police powers or as modifying any principles of substantive law. Applications for special exceptions and variances are not appropriate for the mediation option and, therefore, may not utilize this section.
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 terms and conditions of mediation are hereby set forth as follows:
(1)
The cost of mediation shall be borne by the applicant.
(2)
The parties shall agree on a mediator who shall have a working knowledge of municipal land use and zoning and land development procedures and demonstrated skills in mediation.
(3)
Parties to proceedings under this application may select the mediation option by sending written notice to the Zoning Hearing Board of their intention to do so. Mediation shall be completed within 90 days of the date of notification to the Board.
(4)
The written notice to the Zoning Hearing Board indicating the party's intent to mediate shall include a written consent signed by all parties agreeing to the suspension of time limits otherwise required by this chapter and the Municipalities Planning Code, as amended, and by an applicant or Township decision-making body if either is not a party to the mediation.
(5)
All parties to the proceedings shall be identified in the notice to the Board and shall be served notice of the party's intent to mediate. All parties shall be afforded the opportunity to participate in any mediation proceeding.
(6)
Any mediation to which a Township entity is party shall be open to the public.
(7)
All mediated solutions must be 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 this chapter and the Municipalities Planning Code, as amended.
(8)
No offers or statements made in the mediated sessions, excluding the final written mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceeding.
§ 153-1115 Expiration.
[Amended 12-19-2001 by Ord. No. 01-10]
Unless otherwise specified by the Zoning Hearing Board, a special exception or variance, or specified by the Board of Supervisors for a conditional use, such zoning relief shall expire if the applicant fails to obtain a building permit in connection therewith within one year of the date of the order of the Zoning Hearing Board, Board of Supervisors or court granting such special exception, variance or conditional use. In those instances where land development/subdivision approval is a necessary prerequisite prior to obtaining a building permit, the special exception, variance, or conditional use shall expire if the applicant fails to make a diligent effort to obtain such land development/subdivision approval within six months following the date of zoning approval. Upon receipt of land development approval, the special exception, variance, or conditional use shall expire if a building permit is not obtained within six months of the date of land development approval.