Upper Tulpehocken Township
City Zoning Code
City Zoning Code
ARTICLE XVII
Zoning Hearing Board
§ 460-119 Creation; appointment; organization.
A.
Creation of Board. The Township Supervisors hereby create a Zoning Hearing Board, herein referred to as the "Board," consisting of three residents of the Township appointed by the Township Supervisors pursuant to the Pennsylvania Municipalities Planning Code, as amended,[1] who shall be appointed by resolution and serve and shall perform all of the duties and have all of the powers as prescribed by said code and as herein provided.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
Organization. The Board may promulgate such rules and forms for its procedures, not inconsistent with this and other ordinances of the Township and laws of the Commonwealth of Pennsylvania, as it may deem necessary to the proper performance of its duties and to the proper exercise of its powers. Such rules shall be continued in force and effect until amended or repealed by the Board or by law. The Board shall elect from its own membership its officers who shall serve annual terms as such and may succeed themselves.
C.
Meetings. Meetings and hearings of the Board shall be held at the call of the Chairman and at such other times as the Board, by majority vote, may determine.
D.
Minutes and records. The Board shall keep full public records of its proceedings showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact. The Board shall also keep full public records of its business and other official action, copies of which shall be filed with the Secretary of the Township Supervisors and shall be the property of the Township. The Board shall submit a report of its activities as requested by the Township Supervisors.
§ 460-120 Hearings.
A.
For the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of all members of the Board, but where two members are disqualified to act in a particular matter, the remaining member 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 decisions or findings by the Board and accept the decision of the hearing officer as final as provided in the Pennsylvania Municipalities Planning Code, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
The Board shall conduct hearings and make decisions in accordance with the requirements of the Pennsylvania Municipalities Planning Code, as amended, and the rules of the Board.
C.
The Zoning Hearing Board shall fix a reasonable time for the hearing of the appeal. Public notice shall be given and reasonable written notice shall be given to the applicant, the Zoning Officer, such other persons as the Board of Supervisors shall designate by ordinance and any person who has made timely request for the same. Notice of all matters coming before the Zoning Hearing Board shall be sent by first class mail or as may be required by this Part 1 or the Pennsylvania Municipalities Planning Code, as amended from time to time.[2] Said notice shall be sent out by the Secretary of the Zoning Hearing Board or his designee. Written notice shall be given at such time and in such manner as shall be prescribed by rules of the Zoning Hearing Board. In addition to the written notice provided for herein, notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing. Hearings 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.
[2]
Editor's Note: See 53 P.S. § 10101 et seq.
§ 460-121 Functions of Zoning Hearing Board.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudication in the following matters:
A.
Appeals and challenges.
(2)
Challenges to the validity of a land use ordinance procedural question or alleged defect 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.
(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 thereof, the issuance of any cease-and-desist order.
(4)
Appeals from a determination by the Township Engineer or the Zoning Officer with reference to the administration of any floodplain or flood hazard ordinances or such provisions within a land use ordinance.
(6)
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 subdivision and land development.
B.
Variance. The Zoning Hearing Board shall hear requests for variances where it is alleged that the provisions of this Part 1 inflict unnecessary hardship upon the applicant. The Zoning Hearing Board may by rule prescribe the form of application and may require preliminary application to the Zoning Officer. The Zoning Hearing 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 condition, and not circumstances or conditions generally created by the provisions of this Part 1 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 this Part 1 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 represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue;
(5)
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;
C.
Special exceptions. To issue, upon application, only such special exceptions which the Board by the provisions of this Part 1 is specifically authorized to issue.
(1)
The granting of a special exception when specifically authorized by the terms of this Part 1 shall be subject to the following standards and criteria:
(a)
Such use shall be one which is specifically authorized as a special exception use in the zoning district wherein the applicant seeks a special exception.
(b)
Such special exception shall only be granted subject to any applicable condition and safeguards as required by this Part 1.
(c)
Such use shall not adversely affect the character of the zoning district, nor the conservation of property values, nor the health and safety of residents or workers on adjacent properties and in the general neighborhood.
(d)
Such use shall be of such size and so located and laid out in relation to its access streets that vehicular and pedestrian traffic to and from such use will not create undue congestion or hazards prejudicial to the general neighborhood.
(e)
Such use shall not conflict with the direction of building development in accordance with any Comprehensive Plan or portion thereof which has been adopted by the Township Supervisors.
(f)
Services and utilities are available to adequately service the proposed use.
(2)
In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in this Part 1, as it may deem necessary to implement the purposes of this Part 1 and the Pennsylvania Municipalities Planning Code, as amended.[3]
[3]
Editor's Note: See 53 P.S. § 10101 et seq.
§ 460-122 Procedures for application to Zoning Hearing Board.
A.
The Board shall act in strict accordance with the procedures specified by the Pennsylvania Municipalities Planning Code, as amended,[1] and by this Part 1. All appeals and applications made to the Board shall be in writing, on forms prescribed by the Board. Every appeal or application shall refer to the specific provision of this Part 1 involved and shall exactly set forth the interpretation that is claimed, the grounds for any challenges to the validity of this Part 1, the use for which a special exception is sought, or the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
B.
Applications and appeals, together with the required filing fee as established by the Township Supervisors, shall be submitted to the Secretary of the Zoning Hearing Board.
C.
Parties appellant before the Zoning Hearing Board. Appeals under § 460-121A(1), (2), (3), (4), (5) and (6) of this Part 1 may be filed with the Board in writing by the landowner affected, by any officer or agency of the Township, or any person aggrieved. Requests for a variance under § 460-121B and for a special exception under § 460-121C may be filed with the Board by any landowner or any tenant with the permission of such landowner.
D.
Time limitations.
(1)
No person shall be allowed to file any proceeding with the Board later than 30 days after any application for development, preliminary or final, has been approved by an appropriate officer of the Township, 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.
(2)
The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan pursuant to Section 709 of the Pennsylvania Municipalities Planning Code, as amended,[2] or from an adverse decision by the Zoning Officer on a challenge to the validity of an ordinance or map pursuant to Section 916.2 of the Pennsylvania Municipalities Planning Code, as amended,[3] shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.
(3)
All appeals from determinations adverse to the landowner shall be filed by the landowner within 30 days after notice of the determination is issued.
§ 460-123 Stay of proceedings.
A.
Upon filing of any proceeding referred to in § 460-122A 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 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.
B.
After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the applicant for a bond to prove that the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for a bond. The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him if an appeal is taken from a final decision of the court.
C.
The question whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court. An order denying a petition for bond shall be interlocutory. An order directing the responding party to post a bond shall be interlocutory.
D.
If an appeal is taken by a respondent to the petition for a bond from an order of the court dismissing a zoning appeal for refusal to post a bond and the appellate court sustains the order of the court below to post a bond, the respondent to the petition for a bond, upon motion of the petitioner and after a hearing in the court having jurisdiction of zoning appeals, shall be liable for all reasonable costs, expenses and attorney fees incurred by the petitioner.
§ 460-124 Expiration of special exceptions and variances.
Unless otherwise specified by the Board, a special exception or variance shall expire if the applicant fails to obtain a zoning permit where required, within 18 months from the date of authorization of the special exception or variance.