Washington Township
City Zoning Code
City Zoning Code
ARTICLE XVIII
Zoning Hearing Board
§ 131-103 Creation; appointments; terms of office; removal; vacancies; compensation; organization; meetings; records.
A.
Creation of the Zoning Hearing Board. The governing body hereby creates a Zoning Hearing Board, referred to within this article as the "Board," consisting of three residents of the municipality appointed by the governing body as set forth below, who shall perform all duties and have all the powers prescribed by said code and as herein provided.
B.
Term of office. Members of the Board shall be appointed by resolution of the governing body. The terms of office shall be three years and shall be so fixed that the term of office of one member shall expire each year, at the reorganization meeting of the governing body. Their successors shall be appointed on the expiration of their respective terms to serve for terms of three years. Members of the Board shall hold no other office in the municipality.
C.
Removal. Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the governing body 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 subject Board member makes such request in writing, the governing body shall hold a hearing prior to any vote.
D.
Vacancies. Vacancies shall be filled by appointment by the governing body for the unexpired portion of the vacated term.
E.
Compensation and expenditure for service.
(1)
The members of the Board shall receive such compensation as shall be fixed by the governing body by resolution, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the governing body.
(2)
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 an alternate member pursuant to the provisions of this article, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of the governing body.
(3)
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.
F.
Organization.
(1)
The Board may promulgate such rules and forms for its procedure, not inconsistent with this chapter and other ordinances of the municipality and the 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.
(2)
Alternate members.
(a)
The governing body may appoint by resolution at least one but no more than three residents of the Township to serve as alternate members of the Board.
(b)
The term of office of an alternate member shall be three years.
(c)
When seated pursuant to the provisions of § 131-104A of this chapter, an alternate shall be entitled to 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 by the Pennsylvania Municipalities Planning Code, as amended (53 P.S. § 10101 et seq.), and as may otherwise be provided for by law.
(d)
Alternate members shall hold no other municipal office.
G.
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.
H.
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 actions, copies of which shall be immediately filed with the Secretary of the governing body. The Board shall submit a report of its activities to the governing body as may be requested by the governing body.
§ 131-104 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. If, by reason of absence or disqualification of a member, a quorum is not attained, the Chairman of the Board shall designate as many duly appointed 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.
B.
The Board shall conduct hearings and make decisions in accordance with the following requirements:
(1)
Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer, such other persons as the governing body shall designate by ordinance and to any person who has made timely request for the same. Written notices shall be given at such time through electronic and/or mailed notice. Mailed notice shall be distributed by first-class mail to the addresses to which real estate tax bills are sent as evidenced by tax records in the possession of the municipality. In addition to the written notice provided herein, written notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.
[Amended 3-27-2003 by Ord. No. 2003-3; 11-19-2015 by Ord. No. 2015-07]
(a)
The governing body 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.
(b)
The first hearing before the Board or hearing officer shall be commenced within 60 days from the date of the receipt of the applicant's application unless the applicant has agreed in writing to an extension of time.
(c)
An applicant shall complete the presentation of his case in chief within 100 days of the first hearing. Upon request of the applicant, the board or hearing officer shall assure that the applicant receives at least seven hours of hearings within the 100 days, including the first hearing. Persons opposed to the application shall complete the presentation of their opposition to the application 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.
(2)
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.
(3)
The Chairman (or Acting Chairman) of the Board presiding shall have 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.
(4)
The parties shall have the right to be represented by legal counsel and shall be afforded the opportunity to respond, to present evidence and argument and to cross-examine adverse witnesses on all relevant issues.
(5)
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
(6)
The Board shall keep stenographic records 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 party requesting it, if a transcription of testimony is required for any purpose other than an appeal. However, if an appeal from the decision of the Board is filed, the appellant shall pay the cost of the original transcript. In any event, any party or persons requesting a copy of the transcript shall pay for the cost of such copy or copies.
(7)
No Board member shall communicate, directly or indirectly, with any party or representative thereof in connection with any issue involved except upon notice and opportunity for all parties to participate.
(8)
No Board member shall take notice of any communication, report, staff memoranda or other material (except advice from its solicitor) unless the parties are afforded an opportunity to contest the material so noticed.
(9)
The Board shall not inspect the site involved or its surroundings after the commencement of hearings with any party or representative thereof unless all parties are given an opportunity to be present.
(10)
The Board shall render a written decision or, when no decision is called for, shall make written findings on the application within 45 days after the hearing or, if said hearing is continued, within 45 days after said continued hearing. Each decision shall be accompanied by findings of fact and conclusions based thereon, together with the reasons therefor. Conclusions based upon any provision of the Pennsylvania Municipalities Planning Code, as amended (53 P.S. § 10101 et seq.), or upon any ordinance, rule or regulation of the Township shall contain a reference to the provision(s) relied upon and the reason(s) 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[1] where the Board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided in Subsection B(1)(b) and (c), 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 hereinabove provided, the Board shall give public notice of said decision within 10 days from the last day or could have met to render a decision in the same manner as provided in Subsection B(1) of this section. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
[Amended 3-27-2003 by Ord. No. 2003-3]
[1]
Editor's Note: 53 P.S. § 10916.1.
(11)
Where the Board has power to render a decision and fails to render such within the period required by this subsection or where the Board fails to commence or complete the required hearing within 60 days from the date of the applicant's request for a hearing, as provided herein, then 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. Each subsequent hearing shall be held within 45 days of the prior hearing unless otherwise agreed to by the applicant. 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 hereinabove 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 manner as provided in Subsection C(10) of this section. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this section shall prejudice the right of any party opposing the application or aggrieved by the progress or schedule of the hearings from applying to the Court of Common Pleas for judicial relief. The hearing shall be completed no later than 100 days after the completion of the applicant's case in chief unless extended for good cause upon application to the Court of Common Pleas.
[Amended 12-12-2002 by Ord. No. 2002-6]
(12)
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 working day next following the date of the decision or findings. 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 where the full decision or findings may be examined.
§ 131-105 Powers and duties.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudication in the following matters:
A.
Applications for variance from the terms of this chapter (including flood hazard provisions contained herein), pursuant to the following provisions:
(1)
The Board shall bear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. The Board may grant a variance, provided that all of the following findings are made where relevant in a given case:
(a)
That there are unique physical circumstances or conditions (such as 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 this chapter 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 this chapter 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 thereof of the regulation in issue.
(2)
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the stated purposes of this chapter and the Pennsylvania Municipalities Planning Code (53 P.S. § 10101 et seq.).
B.
Applications for special exceptions under this chapter pursuant to the following provisions:
(1)
The Board may grant only such special exceptions to the terms of this chapter upon which the Board, by the provisions of this chapter, is specifically authorized to act. The granting of a special exception when specifically authorized by the terms of this chapter 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 permit shall only be granted subject to any applicable conditions and safeguards as required by this chapter.
(c)
Such permit may be granted subject to additional reasonable conditions and safeguards as may be deemed by the Board to be advisable and appropriate.
(d)
Such use shall be found by the Board to be in harmony with the general purposes and intent of this chapter.
(e)
Such use shall not adversely affect the character of the zoning district nor the health or safety of residents or workers on adjacent properties and in the general neighborhood.
(f)
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.
(g)
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 governing body.
(2)
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 and the Pennsylvania Municipalities Planning Code (53 P.S. § 10101 et seq.).
C.
Appeals from the determination of the Zoning Officer, including but not limited to the granting or denial of any permit, the failure to act on the application for any permit or the issuance of any cease-and-desist order.
D.
An appeal from an enforcement notice issued pursuant to Section 616.1 of the Pennsylvania Municipalities Planning Code (53 P.S. § 10616.1).
(1)
Hearings on such appeals shall follow, as closely as possible, the usual practice and procedure before the Board, subject to the following provisions:
(a)
The official issuing the enforcement notice shall have the burden of proof with respect to the violations alleged and shall have the initial duty to go forward with the evidence.
(b)
Once a violation has been shown prima facie, the appellant shall have the duty to rebut the showing of a violation.
(c)
The appellant shall have the burden of proof with respect to any defenses to the violation asserted by the appellant.
(d)
For purposes of an appeal of an enforcement notice, if the appellant asserts that no violation exists because the use, structure, etc., is nonconforming, nonconformity shall be considered a defense and not part of the Zoning Officer's burden of proof.
E.
A substantive challenge to the validity of any land use ordinance or map or provision thereof, pursuant to the following provisions:
(1)
The challenging party shall submit a written request for a hearing on challenge to the Board, together with the application/appeal form and fees specified by the Township. The challenge shall set forth all reasons asserted for the invalidity claimed.
(2)
Based upon the testimony presented to it, the Board shall determine whether the challenged ordinance or map is defective as alleged. If the challenge is found to have merit, the Board shall include in its decision recommended amendments to the challenged ordinance to cure the defect(s).
(3)
In reaching its decision, the Board shall consider the amendments, plans and explanatory material submitted by the landowner and shall also consider:
(a)
The impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities.
(b)
If the proposal is for a residential use, the impact of the proposal upon regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to and affordable by classes of persons otherwise unlawfully excluded by the challenged provisions of the ordinance or map.
(c)
The suitability of the site for the intensity of use proposed in consideration of the soils, slopes, woodlands, wetlands, floodplains, aquifers, natural resources and other natural features found on the site.
(d)
The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, natural resources and natural features; the degree to which these are protected or destroyed; the tolerance of the resources to development; and any adverse environmental impacts.
(4)
The Board shall commence hearings within 60 days after the challenge is filed, unless the landowner requests or consents to an extension of time. Failure to so commence hearings shall be a deemed denial of the challenge.
(5)
The Board shall render its decision within 45 days after the conclusion of the last hearing, which may be a hearing scheduled solely to announce a decision, whether or not evidence is received in said hearing. Failure to so render a decision shall be deemed a denial of the challenge.
(6)
Public notice of the hearing shall include notice that the validity of the ordinance or map is in question and shall give the place and times where a copy of the request, including any attached materials, may be examined by the public.
F.
Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption.
G.
Any other appeals from a determination of any officer, body or agency of the Township charged with the administration of any land use ordinance or application thereunder, provided that the same is appealable to this Board under the provisions of the Pennsylvania Municipalities Planning Code (53 P.S. § 10101 et seq.). Such appeals shall proceed as nearly as possible in accordance with Subsection D.
§ 131-106 Applications and appeals.
A.
The Board shall act in strict accordance with the procedure specified by Article IX of the Pennsylvania Municipalities Planning Code[1] and by this chapter. 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 chapter involved and shall exactly set forth the interpretation that is claimed, the grounds for any challenges to the validity of this chapter, 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. In the event that the procedure set forth by this chapter is in conflict with or contrary to the procedure set forth in the Pennsylvania Municipalities Planning Code, as amended (53 P.S. § 10101 et seq.), then and in such event the procedure set forth in the latter shall prevail.
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
B.
Applications and appeals, together with the required filing fee as established by the governing body, shall be submitted to the Secretary of the Zoning Hearing Board.
(2)
Time limitations. 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 the appropriate officer of the municipality, 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 has 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.
C.
Upon filing of any proceeding referred to in this section 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 court having jurisdiction. Such restraining order shall be granted only upon petition and after notice of such petition has been given to the Zoning Officer or other appropriate agency or body. When an application for development, whether preliminary or final, has been duly approved and proceedings designed to reverse or limit such approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction to order such persons to post bond as a condition of continuing the proceedings before the Board pursuant to Section 915.1 of the Pennsylvania Municipalities Planning Code (53 P.S. § 10915.1).
§ 131-107 Mediation option.
A.
Parties to proceedings authorized in this chapter may utilize mediation as an aid in completing such proceedings. In proceedings before the Board, in no case shall the Board initiate mediation or participate as a mediating party. Mediation shall supplement, not replace, those procedures provided for in this article and the Pennsylvania Municipalities Planning Code (53 P.S. § 10101 et seq.) once they have been formally initiated. Nothing in this section shall be interpreted as expanding or limiting municipal 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 mediating parties, assisted by the mediator as appropriate, shall develop terms and conditions for:
(1)
Funding mediation.
(2)
Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation.
(3)
Completing mediation, including time limits for such completion.
(4)
Suspending time limits otherwise authorized in this chapter and the Pennsylvania Municipalities Planning Code (53 P.S. § 10101 et seq.), provided that there is written consent by the mediating parties and by an applicant or municipal decision-making body if either is not a party to the mediation.
(5)
Identifying all parties and affording them the opportunity to participate.
(6)
Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public.
(7)
Assuring that mediated solutions are in writing and signed by the parties and become subject to review and approval of the appropriate decision-making body.
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.