Upper Oxford Township
City Zoning Code
City Zoning Code
PART 19
ZONING HEARING BOARD
§ 27-1901 Creation and Membership.
[Ord. 593, 4/8/1986; as amended by Ord. 642, 12/19/1989]
1.
There is hereby created a Zoning Hearing Board. The following provisions shall apply to the Board:
A.
Members of the Board shall be appointed by the Borough Council. The Board shall consist of five members. The terms of office shall be five years and shall be so fixed that the term of office of no more than one member shall expire each year.
B.
Appointments to fill vacancies shall be only for the unexpired portion of the term.
C.
Members shall be residents of the Borough and shall hold no other office with the Borough.
D.
Members shall be removable for cause by the Borough Council upon the bringing of written charges and after public hearing in accordance with Act 247, Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq., as amended, 53 P.S. § 10101 et seq.
§ 27-1902 Organization.
[Ord. 593, 4/8/1986]
The Board shall elect from its own membership its Chairman and Vice Chairman, who shall serve the 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. Where two members are disqualified to act in a particular matter, the remaining members may act for the Board. 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 § 27-1904, Subsection 1D. The Board may make, alter, and rescind rules and forms for its procedure, consistent with the ordinances of the Borough and laws of the Commonwealth of Pennsylvania. Meetings shall be held at the call of the Chairman and at such other times as the Board may determine. All meetings of the Board shall be open to the public. The Board shall keep full public records of its business and shall submit a report of its activities to the Borough Council annually.
§ 27-1903 Expenditures.
[Ord. 593, 4/8/1986; as amended by Ord. 622, 12/29/1987]
Members of the Board may receive compensation for the performance of their duties, as may be fixed by the Borough Council, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Borough Council.
§ 27-1904 Hearing Procedures.
[Ord. 593, 4/8/1986; as amended by Ord. 642, 12/19/1989]
1.
The Board shall conduct hearings and make decisions in accordance with the following requirements:
A.
Notice of hearings shall be given in the following manner:
[Amended by Ord. No. 946-2021, 11/15/2021]
(1)
To the public, by providing public notice as defined by this chapter.
(2)
To the applicant, the Zoning Officer, the Borough Secretary, and the Secretary of the Planning Commission; to any property owner within 500 feet of any lot line of the subject property; and to any person who has made timely request for the same, or their legal counsel, if such counsel shall have filed an appearance with the Board, by mailing notice of the time, place, and purpose of the hearing at least 14 days in advance of the date fixed for the hearing, provided that failure to give notice as required by this subsection shall not invalidate any action taken by the Board.
B.
The notice of the hearing shall be conspicuously posted on the affected property.
C.
The Borough Council may establish reasonable fees, based on cost, to be paid by the applicant and by persons requesting any notice not required by ordinance. Fees shall be established by resolutions of Borough Council.
D.
The hearings shall be conducted by the Board or the Board may appoint any member as a hearing officer. The decision, or, where no decision is called for, the findings, shall be made by the Board, but the parties may waive decision or findings by the Board and accept the decision or findings of the hearing officer as final.
E.
The parties to the hearing shall be the municipality, 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.
F.
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.
G.
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.
H.
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded by the Chairman of the Board.
I.
The Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceeding, and a transcript of the proceedings and copies of graphic or written material received in evidence shall be made available to any party at cost.
J.
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. The Board shall not take notice of any communication, reports, staff memoranda, or other materials unless the parties are afforded an opportunity to contest the material so noticed. The Board 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.
K.
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. Each decision shall be accompanied by findings of fact and conclusions based thereon, together with the reasons therefor. Conclusions based on any provisions of Act 247, the Pennsylvania Municipalities Planning Code, as amended, 53 P.S. § 10101 et seq., 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 and the parties shall be entitled to make written representations thereon to the Board prior to the 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. Where the Board has power to render a decision and the Board or hearing officer, as the case may be, fails to render the same within 45 days of the period, the decision shall be deemed to have been rendered in favor of the applicant, unless the applicant has agreed in writing to an extension of time.
L.
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 within seven days, by mail or otherwise, brief notice of the decision or findings.
§ 27-1905 Functions of Board.
[Ord. 593, 4/8/1986]
1.
The Board shall perform the following functions:
A.
Appeals from the Zoning Officer. The Board shall hear and decide any appeal where it is alleged that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of this chapter or Zoning Map or rules or regulations governing the actions of the Zoning Officer.
B.
Variances.
(1)
The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. In any instance where the Zoning Hearing Board is required to consider a variance, the Board shall not grant a variance unless it has determined that:
(a)
The proposed use does not conflict with the future land use element of the Comprehensive Plan for the Borough and the proposed use is not inconsistent with the goals and policies of the Comprehensive Plan.
(b)
The surrounding streets are sufficient to handle any expected increase in traffic generated or attracted by the proposed use.
(c)
The proposed use will not adversely affect the public health, safety, or general welfare of Borough residents.
(d)
The proposed variance is consistent with the spirit, intent, and purpose of this chapter.
(e)
The proposed change will not alter the essential character of the neighborhood or district in which the property is located and will not detract from the use of the surrounding property or from the character of the neighborhood, and the use of the neighboring property is adequately protected from adverse impacts.
(f)
The proposed change will not have an adverse effect upon the logical and economic extension of public services and facilities, such as public water, police and fire protection, open space, and recreation.
(g)
The special conditions or circumstances or the unnecessary hardship forming the basis for the application for the variance did not result from the action of the applicant.
(h)
There are physical circumstances or conditions unique to the property for which the variance is sought and the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of this chapter in the neighborhood or district in which the property is located.
(i)
The particular physical surroundings, shape, or topographical conditions of the specific structure or land involved cause the property to be difficult to develop or use in strict conformity with the provisions of this chapter, and the authorization of a variance is therefore necessary to enable the reasonable use of the property.
(j)
Conditions and safeguards, as identified by the Board, are necessary to assure that the intent of this chapter is complied with.
(k)
The applicant did not acquire the land or structure involved with a knowledge that he would subsequently require a variance.
(l)
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.
(2)
The person applying for a variance shall introduce evidence at the hearing which will allow the Zoning Hearing Board to make these determinations or to decide that it cannot make these determinations and thus cannot grant a variance.
C.
Special Exceptions.
(1)
The Board shall hear and decide requests for special exceptions to be granted or denied by the Board pursuant to expressed standards and criteria. In any instance where the Zoning Hearing Board is required to consider a special exception application, the following criteria shall be met:
(a)
The proposed use is consistent with the future land use element of the Comprehensive Plan for the Borough.
(b)
The surrounding streets are sufficient to handle any expected increase in traffic generated by the proposed use.
(c)
The proposed use will not adversely affect the public health, safety, or general welfare of Borough residents.
(d)
The required area, yard, and bulk requirements and all other requirements of the applicable zoning district are met.
(e)
All applicable requirements of Part 13, "Supplemental Land Use Regulations," of this chapter, shall be met.
(f)
Where the proposed use is incompatible with existing traffic conditions and the use of adjacent land, the Board shall have the authority to establish safeguards and conditions as it deems necessary regarding layouts, circulation, and performance.
(g)
The applicant has confirmed that services and utilities are available to adequately service the proposed use.
(h)
Conditions and safeguards, as identified by the Board, are necessary to assure that the intent of this chapter is complied with.
(2)
The Board may, through approval of a special exception, grant reasonable accommodations and/or reasonable modifications, as defined by this chapter, where requested by or on behalf of a person with a disability. Accommodations or modifications shall not be approved where to do so would fundamentally alter the programs or create an undue financial or administrative burden.
[Added by Ord. 895, 4/18/2016[1]]
[1]
Editor's Note: This ordinance also provided for the renumbering of former Subsection C(2) as Subsection C(3).
(3)
In order to assess compliance with the above-mentioned criteria, the Board may, at its discretion, require the applicant to prepare impact studies, including but not limited to site analysis, traffic analysis, utility analysis, and fiscal analysis of the proposed use.
D.
Validity of chapter. The Board shall hear challenges to the validity of this chapter or the Zoning Map, except as indicated in § 27-1908, Subsection 5, or when a landowner appeals a substantive question regarding the validity of this chapter to the Borough Council. In all such challenges, the Board shall take evidence and make a record thereon as provided in § 27-1904. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact, which shall become part of the record on appeal to court.
E.
Unified Appeals. Where the Board has jurisdiction over a zoning matter pursuant to this section, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any municipal ordinance or requirement pertaining to the same development plan or development. In any such case, the Board shall have no power to pass upon the issues not related to zoning, but shall take evidence and make a record thereon as provided in § 27-1904. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact, which shall become part of the record on appeal to court.
§ 27-1906 Special Exception and Applications.
[Ord. 593, 4/8/1986]
1.
Applications for those uses permitted as special exceptions in a particular zoning district shall be made in writing to the Board on a form specified for such purpose and shall contain the following information:
A.
The name and address of the applicant, and the name and address of the landowner should the applicant not be the owner, and a description of the property in question.
B.
A description of the proposed use which requires the granting of a special exception.
C.
A site layout plan showing the location, dimensions, and heights of all proposed and existing buildings and structures and, where applicable, the location of outdoor activities and improvements, including storage, off-street parking, paved areas, and screening.
D.
A narrative and/or graphic description depicting what measures are to be taken to ensure compatibility between the proposed use and surrounding properties.
§ 27-1907 Variance Applications.
[Ord. 593, 4/8/1986]
1.
Applications for variances from particular provisions of this chapter shall be made in writing to the Board on a form specified for such purpose and shall contain the following information:
A.
The name and address of the applicant, and the name and address of the landowner should the applicant not be the owner, and a description of the property in question.
B.
A listing of each ordinance provision for which a variance is being requested.
C.
A narrative describing why said provisions cannot be complied with and what would be the minimum variance which would afford relief.
D.
A description of the proposed use, building, or structure for which the variance will apply.
2.
An approved variance shall have the effect of replacing the otherwise applicable zoning provision. The approved variance with any conditions imposed by the Board shall be attached to any building permit that has been requested. Where the variance is approved prior to the application for building permit, the approved variance with any conditions imposed by the Board shall be forwarded to the Zoning Officer.
§ 27-1908 Appeals.
[Ord. 593, 4/8/1986]
1.
Parties Appellant Before the Board. Appeals from an action of the Zoning Officer or challenges to this chapter and the Zoning Map may be filed with the Board in writing by the landowner affected, any officer or agency of the Borough or any person aggrieved.
2.
Persons Aggrieved by Adverse Decision. No person shall be allowed to file an appeal with the Board later than 30 days after action has been taken on any application for development by an appropriate Borough officer when such appeal is designed to secure reversal or to limit the approval in any manner unless such person alleges and proves that he had no notice, knowledge, or reason to believe that such approval had been given. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision by the Zoning Officer on a challenge to the validity of this chapter or the Zoning Map shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative or preliminary approval.
3.
Stay of Proceedings. Upon the filing of any proceeding referred to in Subsection 1 and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or Borough Council and all official action thereunder shall be stayed unless the Zoning Officer or Borough Council certifies to the Board facts indicating that such stay would cause imminent peril to life or property. In such cases, 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 has been duly approved and proceedings designed to reverse 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 of whether or not such petition should be granted and the amount of the bond shall be within the discretion of the court.
4.
Appeals to Court. Appeals to court shall be in accordance with the procedures established in § 1008 of the Pennsylvania Municipalities Planning Code, 53 P.S. § 11008. Appeals to court shall be taken to the Court of Common Pleas of Chester County.
5.
Validity of Chapter; Procedural Questions. Questions of an alleged defect in the process of enactment or adoption of this chapter or the Zoning Map shall be raised by an appeal taken directly from the action of the Borough Council to the Common Pleas Court of Chester County, filed not later than 30 days from the effective date of the chapter or map.
6.
Validity of Chapter; Substantive Questions.
A.
Landowner Appeals.
(1)
A landowner who, on substantive grounds, desires to challenge the validity of this chapter or the Zoning Map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge either to the Zoning Hearing Board for a report thereon or to the Borough Council, together with a request for a curative amendment.
(2)
Submissions referred to in Subsection 6A(1) above shall be governed by the procedures listed in § 1004 of the Municipalities Planning Code, 53 P.S. § 11004.
(3)
After submitting his challenge to the Board or the Borough Council, the landowner may appeal to court by filing the challenge within 30 days either after notice of the report of the Board is issued or after the Borough Council has denied the landowner's request for a curative amendment.
B.
Appeals by Persons Aggrieved.
(1)
Persons aggrieved by a use or development permitted on the land of another by this chapter or the Zoning Map or any provision thereof who desire to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a report thereon.
(2)
Submission to the Board shall be governed by § 1005 of the Municipalities Planning Code, 53 P.S. § 11005.
(3)
After submitting his challenge to the Board, any party aggrieved may take the same to court by appeal filed not later than 30 days after notice of the report of the Board is issued.