Upper Merion Township
City Zoning Code
City Zoning Code
ARTICLE XXXV
Zoning Hearing Board
§ 165-248 Establishment; membership.
[Amended 2-10-1969 by Ord. No. 69-230; 5-22-1989 by Ord. No. 89-558; 6-16-2005 by Ord. No. 2005-745]
There shall be a Zoning Hearing Board. The word “Board” when used in this article shall mean the Zoning Hearing Board.
A.
Membership of the Board shall consist of five residents of Upper Merion Township who shall be appointed by the Board of Supervisors. The terms of office of the Board shall be five years and shall be so fixed that the terms of office of one member shall expire each year. 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 term. Members of the Board shall not hold any other elected or appointed office in the Township and shall not be an employee of the Township.
[Amended 2-16-2012 by Ord. No. 2012-801]
B.
The Board of Supervisors may appoint by resolution one resident of the Township to serve as alternate member of the Board. The term of office for an alternate member shall be three years. When seated pursuant to the provisions of § 165-250 below, an alternate member shall be entitled to participate in all proceedings and discussions of the Board to the same and full extent as provided by law for the Board members, including specifically the right to cast a vote as a voting member during the proceedings. Alternate members shall have all the powers and duties set forth in this section and as otherwise provided by law. Alternate members shall hold no other elected or appointed office in the Township and shall not be an employee of the Township. 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 designated as a voting alternate member pursuant to § 165-249.
C.
Any Board member, or alternate member, may be removed by the Board of Supervisors for malfeasance, misfeasance and nonfeasance in office or for other just cause. Prior to the taking of any vote, the Board of Supervisors shall give 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 the same in writing at least seven days prior to the date designated for the taking of the vote.
§ 165-249 Expenditure for services.
[Added 6-16-2005 by Ord. No. 2005-745[1]]
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 § 165-250B, but in no case shall such compensation exceed the rate of compensation authorized to be paid to members of the governing body.
§ 165-250 Organization and meetings.
A.
The Board shall elect, from its own membership, its officers who shall serve annual terms and who 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. The Board may also appoint a hearing officer from its own membership to conduct any hearing on its behalf.
B.
The Chairman of the Board may designate an alternate member of the Board to replace any absent or disqualified members. 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 such time as 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.
Meetings of the Board for the purpose of conducting public hearings shall be held at the call of the Chairman and at such other times as the Board may determine. The Chairman, or acting Chairman of the Board, or the Hearing Officer presiding, shall have the power to administer oaths and to issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties. All hearings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question; or if a member is absent or fails to vote, indicating such fact. The Board shall keep full public records of its business, which records shall be the property of the Township. The Board shall annually submit a report of its activities to the Board of Supervisors.
§ 165-251 Powers.
[Amended 7-20-1966 by Ord. No. 66-188; 6-15-1987 by Ord. No. 87-516; 5-22-1989 by Ord. No. 89-558[1]]
A.
The Board shall have the power to hear and to render final adjudications in the following matters:
(1)
Challenges: substantive challenges to the validity of this chapter.
(2)
Challenges to the validity of this chapter raising procedural questions or defects in the process of enactment or adoption, which challenges shall be raised by an appeal within 30 days after the effective date of the amendment.
(3)
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 cease-and-desist order or any other decision or determination made in the enforcement or application of this chapter.
(4)
Appeals from the determination of the Township Engineer or the Zoning Officer with reference to the administration of the floodplain regulations or with reference to sedimentation and erosion control as well as stormwater management.
(5)
Applications for variances from the terms of this chapter.
(6)
Applications for special exceptions in such cases as are specifically provided in this chapter.
(7)
Appeals from the determination of any officer or agency charged with the administration of any transfer of development rights or performance density provisions of this chapter.
B.
Standards for Zoning Hearing Board actions. In any instance where the Board is required to consider any of those matters itemized in Subsection A, the Board shall act in accordance with the following:
(1)
Special exceptions. The Board may grant approval of a special exception, provided that the applicant complies with the following standards for the special exception. The burden of proof rests with the applicant.
(a)
The applicant shall establish, by credible evidence, that the special exception complies with the statement of community development objectives as stated in Article I of this chapter and with the declaration of legislative intent that may appear at the beginning of the applicable district under which approval is sought.
(b)
The applicant shall establish, by credible evidence, compliance with all conditions on the special exception enumerated in the section which gives the applicant the right to seek a special exception.
(c)
The applicant shall establish, by credible evidence, that the proposed special exception will not adversely affect neighboring land uses in any way and will not impose upon its neighbors in any way but rather shall blend with them in a harmonious manner.
(d)
The applicant shall establish, by credible evidence, that the proposed special exception shall be properly serviced by all existing public-service systems. The peak traffic generated by the subject of the approval shall be accommodated in a safe and efficient manner, or improvements shall be made in order to effect the same. Similar responsibility shall be assumed with respect to other public-service systems, including but not limited to police protection, fire protection, utilities, parks and recreation.
(e)
The applicant shall establish, by credible evidence, that the proposed special exception shall be in and of itself properly designed with regard to internal circulation, parking, buffering and all other elements of proper design.
(f)
The applicant shall provide the Board with sufficient plans, studies or other data to demonstrate compliance with all applicable regulations.
(g)
The Board shall impose such conditions as are necessary to ensure compliance with the purpose and intent of this chapter, which conditions may include plantings and buffers, harmonious design of buildings and the elimination of noxious, offensive or hazardous elements.
(2)
Variances.
(a)
The Board may grant variances, provided that it shall make the following findings where relevant:
[1]
That there are unique physical conditions or circumstances, 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 conditions or circumstances generally created by the provisions of this chapter or the district in which the property is located.
[2]
That, because of such physical conditions or circumstances, there is no possibility that the property can be developed in strict conformity with the provisions of this chapter and that the authorization of a variance is necessary to enable the reasonable use of the property.
[3]
That such unnecessary hardship has not been created by the applicant.
[4]
That the variance, if authorized, shall not alter the essential character of the district or neighborhood 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, shall represent the minimum variance that will afford relief and will represent the least modification possible of the regulation at issue.
(b)
In granting any variance, the Board shall attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the law and of this chapter.
C.
Orders. In exercising the above-mentioned powers, the Board may reverse or affirm, wholly or in part, or may modify the order, requirement, decision or determination appealed from and may make such additional order, requirement, decision or determination as ought to be made and as may be pertinent or germane and, to that end, shall have all the powers of the officer from whom the appeal is taken. Written notice of any such order, requirement, decision or determination shall be promptly given to all parties in interest.
§ 165-252 Rules of procedure. [1]
The Board shall adopt rules of procedure in accordance with the several provisions of this chapter as to the matter of filing appeals, applications for special exceptions and appeals for variances from the terms of this chapter and as to the conduct of the business of the Board.
[1]
Editor's Note: Former § 165-251, Meetings, was repealed 5-22-1989 by Ord. No. 89-558.
§ 165-253 Appeals to the Board.
An appeal to the Board may be taken by any person, including any officer of the Township in his official capacity, aggrieved or affected by any decision of the Building Official. Such appeal shall be taken within a reasonable time, as provided by the rules of procedure of the Board, by filing with the Building Official and with the Board a notice of appeal specifying the grounds thereof. The Building Official shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
§ 165-254 Application for special exception or appeal for variance.
An application for a special exception or an appeal for a variance from the terms of this chapter may be filed with the Board and shall state:
A.
The name and address of the applicant or appellant.
B.
The name and address of the owner of the real estate to be affected by the proposed exception or variance.
C.
A brief description and location of the real estate to be affected by such proposed change.
D.
A statement of the present zoning classification of the real estate in question, the improvements thereon and the present use thereof.
E.
A statement of the section of this chapter under or from which the exception or variance requested may be authorized, and reasons why it should be granted.
F.
A reasonably accurate description of the present improvements and the additions intended to be made under the application or appeal, if any, indicating the size of such proposed improvements, material and general construction thereof. In addition, there shall be attached a plot plan of the real estate to be affected, indicating the location and size of the lot and size of improvements now erected and proposed to be erected thereon.
§ 165-255 Public hearings.
[Amended 5-8-1978 by Ord. No. 78-383; 5-22-1989 by Ord. No. 89-558; 8-21-1989 by Ord. No. 89-561; 6-16-2005 by Ord. No. 2005-745]
Upon the filing with the Board of any proceeding described in § 165-251, the Board shall fix a date for a hearing within 60 days from the date of the request, unless the applicant has agreed in writing to an extension of time. The Board shall give notice thereof as follows:
A.
Public notice shall be given, as required by law, by publication in a newspaper of general circulation in the Township.
B.
Written notice shall be given to the applicant and to any other person who has made timely request for the same at least 10 days prior to the date fixed for the hearing. Such written notice may be hand-delivered or forwarded by regular mail.
C.
A copy of the advertisement of the public hearing shall be filed with the Township Manager at least 15 days prior to the date of the hearing.
D.
When the Board shall so order, by mailing or delivering a notice thereof to the owner if his residence is known or to the occupier of every lot on the same street within 500 feet of the lot or building in question and of every lot not on the same street within 150 feet of the said lot or building, provided that failure to give notice required by this subsection shall not invalidate any action taken by the Board.
E.
The notice herein required shall state the location of the lot or building and the general nature of the question involved.
F.
All properties which are to be the subject matter of Zoning Hearing Board applications all be conspicuously posted as follows:
(1)
Posting shall be done by Township personnel.
(2)
Property shall be posted by the placing of cardboard signs not less than nine by eleven (9 x 11) inches in size.
(3)
The signs shall bear the following legend: "NOTICE The Zoning Hearing Board of Upper Merion Township will hold a public hearing on (date) on the following application: (A copy of the advertisement shall be attached)."
G.
Posting of the properties affected shall take place at least seven days prior to the date of the scheduled hearing.
H.
The posting of the property shall be conspicuous and shall be accomplished by attaching the sign to the property or building in question or by permanently displaying the same in a window of the building on the property.
I.
The Zoning Officer shall certify to the Board that the posting has been accomplished in accordance with these rules, and such certification shall become a permanent part of the Board's records relating to the application.
§ 165-256 Board to issue certificate; cancellation or revocation.
It shall be the duty of the Board to issue a certificate in any case wherein a special exception or a variance is granted. The Board may cancel or revoke any such certificate for any violation of this chapter or of conditions imposed.
§ 165-257 Expiration of special exceptions or variances.
[Amended 6-13-1977 by Ord. No. 77-375]
A special exception or variance shall expire if the applicant fails to obtain a building permit or a use and occupancy permit, as the case may be, within one year from the date of authorization thereof.[1]
[1]
Editor's Note: Original Section 2009, Appeal to Court, which immediately followed this section, was repealed 6-15-1987 by Ord. No. 87-516.