Willistown Township
City Zoning Code
City Zoning Code
ARTICLE XX
Zoning Hearing Board
§ 139-119 Establishment and membership; terms; removal.
A.
There shall be a Zoning Hearing Board which shall consist of three members, who shall be appointed by resolution of the Board of Supervisors. The membership of the Zoning Hearing Board shall consist of residents of the Township. Their terms of office shall be three years and shall be so fixed that the terms of office of one member shall expire each year. The Zoning Hearing Board shall promptly notify the Board of Supervisors of any vacancy which occurs. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Zoning Hearing Board shall hold no other office in the Township.
B.
The Board of Supervisors may, by resolution, appoint a resident of the Township to serve as an alternate member of the Zoning Hearing Board. The term of the alternate member shall be three years. The alternate member shall hold no other office in the Township. An alternate may participate in any proceeding or discussion of the Zoning Hearing Board, but shall not be entitled to vote as a member of the Zoning Hearing Board or be compensated as a member as provided in § 139-121, unless seated as a member in accordance with the provisions of § 139-120.
C.
Any member of the Zoning Hearing Board may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Board of Supervisors 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 member shall request it in writing. When used hereafter in this article, the term "Board" shall mean the Zoning Hearing Board.
§ 139-120 Organization; conduct of hearings; records.
A.
The Board shall elect from its own membership its officers, who shall serve annual terms of such and may succeed themselves. For the conduct of any hearing and the taking of any action, a quorum shall not be less than a majority of all the members of the Board, but 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 § 139-122.
B.
If, by reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Board shall designate the alternate member to sit on the Board. The alternate member 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.
C.
The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the Township and laws of the commonwealth. The Board shall keep full public records of its business and shall submit a report of its activities to the Board of Supervisors once a year.
§ 139-121 Expenditures for service; fees.
[Amended 9-9-2024 by Ord. No. 6-2024]
A.
Within the limits of funds appropriated by the Board of Supervisors, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services. Members of the Zoning Hearing Board, including the alternate member when designated in accordance with § 139-120B of this article, may receive compensation for the performance of their duties, as may be fixed by the Board of Supervisors annually by resolution. In no case, however, shall the amount of compensation exceed the rate authorized to be paid to the members of the Board of Supervisors.
B.
Any applicant before the Zoning Hearing Board shall complete and submit the Zoning Hearing Board application, available at the Township office and on the Township website, along with the appropriate filing fee, as established by resolution of the Board of Supervisors and in accordance with the terms of § 139-117. Fees for said hearings may include compensation for the secretary and members of the Zoning Hearing Board, public notice and advertising costs, and necessary administrative overhead connected with the hearing.
§ 139-122 Hearings.
[Amended 3-14-2016 by Ord. No. 5-2016; 9-9-2024 by Ord. No. 6-2024]
The Zoning Hearing Board shall conduct hearings and make decisions in accordance with the following requirements.
A.
Time and place.
(1)
The Zoning Hearing Board shall fix a reasonable time and place for public hearings and shall give notice thereof as follows:
(a)
By giving public notice thereof, as defined by this chapter.
(b)
By providing, by mail, a written notice thereof to the applicant at least seven days before the date fixed for the hearing.
(c)
By mailing written notice thereof to the Zoning Officer, the Township Secretary, each member of the Board of Supervisors, each member of the Planning Commission, the Secretary of the Chester County Planning Commission and to all persons or organizations who shall have registered their names and addresses for this purpose with the Board and paid the appropriate mailing fee, if any. The Board of Supervisors may fix an annual fee for provision of notices to such registered persons or organizations.
(d)
By posting the written notice of said hearing in the conspicuous location on the affected tract of land, at least one week prior to the hearing.
(e)
When the Zoning Hearing Board shall so order, by mailing a notice thereof to the owner, if his residence is known, or to the occupier of every lot within 300 feet of the lot or building in question, provided that failure to give the notice required by this subsection shall not invalidate any action taken by the Zoning Hearing Board.
(2)
The notice herein required shall state the location of the lot or building in question and the general nature of the question involved, as well as the date, time and place of the hearing.
B.
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 the decision or findings by the Board and accept the decision or findings of the hearing officer as final.
C.
The parties to the hearing shall be the appellant or applicant, 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, which the Board permits to appear as a party. 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.
D.
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 documents requested by the parties.
E.
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.
F.
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
G.
A stenographic record of the proceedings shall be made by a court reporter. The appearance fee for the court reporter shall be shared equally by the applicant and the Board. Any party requesting the original transcript or a copy of the transcript shall bear the cost of the same. Graphic or written material received in evidence shall be available for public inspection and copying.
H.
Once an application has been duly filed, 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 its solicitor, unless the parties are afforded an opportunity to contest the material so noticed; and shall not inspect the site or its surroundings with any party or his representative unless all parties are given an opportunity to be present.
I.
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. Where the application is contested or denied, the decision shall be accompanied by findings of fact and conclusions based thereon, together with the reasons therefor. Conclusions based on any provisions of this chapter or of any act, rule or regulation shall contain a reference to the provisions 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 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. Where the Board, or the hearing officer with power to render a decision, fails to render a decision within the period required by this subsection, 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.
J.
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 by certified mail not later than the day following its date. To all other persons who have filed their name and address with the Board no 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 at which the full decision or findings may be examined. Copies of the decision or findings provided the applicant shall also be filed with the Township Secretary, Planning Commission and Zoning Officer.
§ 139-123 Functions: appeals from Zoning Officer.
The Board shall hear and decide appeals where it is alleged by the appellant that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted any provisions of a valid ordinance or map or any valid rule or regulation governing the action of the Zoning Officer, as stipulated under the terms of Section 909.1(a) of the Municipalities Planning Code.[1] In addition, the Board shall hear all other matters authorized by Section 909.1 of the Municipalities Planning Code.[2]
§ 139-124 Functions: challenge to the validity of the Zoning Ordinance or Map.
The Board shall hear any substantive challenge to the validity of this chapter or the Zoning Map, except a challenge brought before the Board of Supervisors under the terms of Section 609.1 or Section 916.1(a)(2) of the Municipalities Planning Code.[1] The Board also shall hear any challenge to the validity of this chapter raising procedural questions or alleged defects in the process of enactment or adoption, where such challenge is raised by an appeal taken within 30 days after the effective date of this chapter. In all such challenges, the Board shall take evidence and make a record thereon as provided in § 139-122. At the conclusion of the hearing, the Board shall decide all contested questions of interpretation and shall make findings on all relevant issues of fact, which shall become part of the record on appeal to court.
[1]
Editor's Note: See 53 P.S. §§ 10609.1 and 10916.1(a)(2).
§ 139-125 Functions: variances.
The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. The Board may, by rule, prescribe the form of application. The procedure shall be as follows:
A.
A preliminary written application shall be filed with the Zoning Officer, who shall verify that the application is complete and includes the requisite fee and that it is properly filed for a variance.
B.
Upon acceptance by the Zoning Officer that the application is complete, correct and proper, a formal filing for consideration of the variance request shall be made by the Zoning Officer to the Zoning Hearing Board, together with the comments and recommendations of the Zoning Officer. Copies of the filing and comments shall be submitted to the Township Planning Commission and Board of Supervisors.
C.
A public hearing shall be properly advertised in accordance with the requirements established in § 139-122 of this chapter.
D.
Prior to the public hearing, the Planning Commission shall submit its written comments and recommendations on the application to the Zoning Hearing Board, or a written statement that it chooses to make no comments and recommendations. When the Planning Commission does submit written comments, a member of the Planning Commission shall attend the public hearing and be available for cross-examination. The comments of the Planning Commission shall be made a part of the hearing record and shall be considered by the Board, but shall not be binding.
E.
Upon completion of the public hearing, the Board may grant a variance, provided that the procedures specified above are met and 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 the circumstances or conditions generally created by the provisions of this chapter 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 chapter, 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 applicant;
(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, and will not be detrimental to the public welfare; and
(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 in issue.
§ 139-126 Functions: special exceptions.
Where this chapter has 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. The procedures for acting on a special exception request shall be the same as those specified for variances under § 139-125, except that the findings contained in Subsection E(1) through (5) thereof shall not be applicable.
A.
Application shall be made in writing, indicating the section of this chapter under which a special exception is sought. The application shall include a reasonably exact, dimensional sketch showing the placement and use of the proposed buildings and details of parking, loading, lighting, utility systems, sidewalks and other pedestrian areas. A description of the uses proposed shall be included in sufficient detail that any potentially adverse impacts can be determined.
B.
The Board shall review the application materials and the hearing testimony to determine whether the proposed special exception will impose adverse impacts upon the public interest which are greater than those that might be expected in normal circumstances from such a use or activity on the site in question.
C.
In presenting an application for special exception, the applicant shall demonstrate that the proposal, if approved, will comply with all applicable ordinances and regulations. Where any waiver from or modification of the terms of such ordinances or regulations would be necessary, the Board may consider this an indication of the proposal's greater than normal adverse impact, and may, as it deems appropriate, either deny the application accordingly or impose conditions on any grant of approval to address such impacts.
(1)
In authorizing any modifications or waivers to otherwise applicable requirements through the imposition of reasonable conditions, the Board shall relate such conditions specifically to the site in question and to the hearing testimony offered in support of the modification or waiver.
(2)
Any subsequent request by the applicant for further modification or waiver not presented in testimony at the public hearing may be authorized by the Board only through the procedures of this section for approval of a special exception.
D.
In requesting approval for any special exception, as identified within this chapter, the applicant shall, in relation to the following standards and criteria, have the burden of demonstrating that the proposed special exception will not impose adverse impacts upon the public interest which are greater than those that might be expected in normal circumstances from such a use or activity on the site in question:
(1)
Suitability of the tract. The tract of land in question must be suitable for the use proposed, in terms of the following criteria, as applicable:
(2)
Impact on existing neighborhood character. The proposed special exception:
(a)
Should not alter unduly the character of the existing neighborhood and adjacent tracts and/or should be susceptible to proposed or potential mitigation measures.
(b)
Should, in terms of the character and type of development in the area surrounding the location of the proposed special exception, constitute an appropriate use in the area.
(3)
Impact on circulation. The proposed special exception's deleterious impacts on traffic patterns and volumes, access and parking will be no greater than those normally associated with such a use or activity on the site in question.
(4)
Economic impact. The character and type of development that would result from approval of the proposed special exception should have no greater adverse impacts on the generation of revenue for the Township and on the imposition of demands on municipal services than those normally associated with such a use on the site in question. In addition, the Board shall give general consideration to the size, scope, extent and character of the proposed special exception and to its consistency with the purposes and objectives of the Willistown Township Comprehensive Plan, including protection and promotion of the public health, safety and welfare.
E.
Extension or change. A use of a building or lot authorized as a special exception, either by decision of the Zoning Hearing Board or by the enactment of or amendment to the Zoning Chapter or the Environmental Protection Chapter,[1] may be extended or changed within the building or upon the lot only when authorized as a special exception following application to and approval by the Zoning Hearing Board in accordance with procedures, standards and criteria set forth in the Zoning Chapter or the Environmental Protection Chapter.
[Added 6-20-2005 by Ord. No. 1-2005]
§ 139-126.1 Recording of terms of approval.
Where the Zoning Hearing Board grants approval of a special exception or variance, it shall provide a memorandum to the applicant, stipulating the terms and conditions of such approval. Such memorandum shall contain a metes and bounds description of the property in question. The applicant shall execute and provide to the Township a recordable, notarized copy of the memorandum and shall consent to recording by the Township in the office of the Recorder of Deeds of Chester County within 30 days following expiration of the appeal period.
§ 139-126.2 Expiration of approval for special exception or variance.
Any approval of a special exception or variance request shall be deemed null and void 18 months from the date of such approval if, within that period, no application is made for a building permit, certificate of occupancy, sedimentation and erosion control permit, subdivision or land development approval or any other approval or permit required by the Township to proceed with construction, occupancy or use pursuant to the special exception or variance, unless, prior to the expiration of the eighteen-month period, the Board shall grant an extension.
§ 139-126.3 Parties appellant before Board.
Appeals and proceedings under §§ 139-123 and 139-124 may be filed with the Board, in writing, by any officer or agency of the Township, or by any person aggrieved. Request for a variance under the terms of § 139-125 or for a special exception under the terms of § 139-126 may be filed by any landowner or any tenant with the permission of such landowner, or by any equitable owner of the subject land in the Township.
§ 139-126.4 Time limitations.
No person shall be allowed to file any proceeding with the Board later than 30 days after an application for development, preliminary or final, has been approved by the appropriate Township officer, agency or body, if such proceeding is designed to secure reversal or to limit 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. All appeals from determinations adverse to landowners shall be filed by the landowner within 30 days after receipt of the written decision of the Board rendered under the terms of § 139-122I of this article.