[Amended 5-8-1989 by Ord. No. 17-054]
A.
There shall be a Zoning Hearing Board which shall
consist of three residents of Montgomery Township who shall be appointed
by resolution of the Supervisors of Montgomery Township. In addition
to the three member appointments, the Zoning Hearing Board shall consist
also of two alternate members who shall also be appointed by the Supervisors
of Montgomery Township. As used in this article, the term "Board"
shall mean the Zoning Hearing Board. The terms of office shall be
three years for Board members and three years for alternates and shall
be so fixed that a member term shall expire each year. The terms of
the alternates shall be so fixed that the terms shall expire in separate
years, i.e., in the original appointment, one alternate shall be appointed
for a two-year term and the other alternate shall be appointed for
a three-year term. Members may succeed themselves. The Board shall
promptly notify the Board of Supervisors wherever any vacancies occur,
and the Board of Supervisors shall thereupon appoint a resident of
the Township to serve for the unexpired portion of the term. Members
of the Board and alternates shall hold no other office in the Township,
and no member of the Board or alternate may also be a member of the
Planning Commission.
B.
When by reason of absence or disqualification one
or more members is unavailable for a hearing, the Chairman of the
Board shall designate one or both 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.
C.
Members of the Board shall receive such compensation as may be fixed by the Board of Supervisors for the performance of their duties as members of the Zoning Hearing Board. Alternate members of the Board may receive compensation, as may be fixed by the Board of Supervisors, for the performance of their duties when designated as alternate members pursuant to Subsection B above. Both with respect to members and alternate members, the compensation paid to members or alternate members shall not exceed the rate of compensation authorized to be paid to members of the Board of Supervisors.
E.
Any member of the Board or alternate 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 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 or alternate shall request it in writing.
[Amended 5-8-1989 by Ord. No. 17-054; 6-22-1992 by Ord. No. 92-1]
The Board shall elect from its own membership
its officers, who shall serve 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 the three-member Board,
which may include a designated alternate member or members. The Board
may appoint a hearing officer from its own membership to conduct any
hearing on its behalf. The decision or, where no decision is called
for, the findings shall be made by the Board; however, the appellant
or the applicant, as the case may be, in addition to the Township,
may, prior to the decision of the hearing, waive decision or findings
by the Board and accept the decision or findings of the hearing officer
as final. 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.
The Board shall meet monthly to hear and consider
all such matters which shall properly come before it. All such meetings
shall be open to the public.
Appeals from the Zoning Officer pursuant to § 230-182 hereof and proceedings to challenge an ordinance under § 230-183 hereof may be filed by an officer or agency of the Township or by any person aggrieved. Requests for a variance under § 230-184 and for a special exception under § 230-185 hereof may be filed by any landowner or tenant with the permission of such landowner.
All action before the Board shall be initiated
by a written application for hearing which shall be filed with the
Zoning Officer at least three weeks prior to the meeting at which
the particular matter is to be heard. All applications shall be made
on forms specified by the Board, and no application form shall be
accepted unless the same shall be fully and legibly completed and
unless all exhibits and supplemental material required by the application
shall be attached and until all fees required under this chapter shall
have been paid.
All appeals from the Zoning Officer shall be
filed within 30 days following the refusal of the Zoning Officer to
grant a building permit or zoning permit.
[Amended 5-8-1989 by Ord. No. 17-054]
A.
Notice of the time and place of all hearings shall
be given by the Secretary of the Zoning Hearing Board as follows:
(1)
By publishing a notice thereof once a week for
two successive weeks before the date fixed for the hearing in a newspaper
of general circulation in the Township. The first publication shall
not be more than 30 days and the second publication shall not be fewer
than seven days from the date of the hearing.
(2)
By mailing a notice thereof to the parties in
interest.
(3)
By mailing a notice to the Township Secretary
and to each member of the Board of Supervisors.
(4)
By mailing a notice thereof to every resident
or association of residents of the Township who shall have registered
their names and addresses, in writing, for this purpose, provided
that each registrant requesting such notice agrees to pay a fee in
the sum of $1 for each notice mailed, due and payable upon mailing.
(5)
By mailing or delivering a notice thereof to the owner, if his residence is known, or to the occupier of every abutting lot on the same street and every lot directly across the street from the lot or building in question, provided that failure to give notice required by this Subsection A(5) shall not invalidate any action taken by the Board.
(6)
By conspicuously posting written notice of the
hearing on the affected tract of land at least one week prior to the
hearing. The applicant shall submit a photograph at the hearing of
said posting.
B.
The notice herein required shall state the location
of the lot or building and the general nature of the question involved.
The parties to the hearings 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 the 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.
The Chairman of the Board, the hearing officer,
if one is designated, or, in the absence of both, the member of the
Board presiding at the hearing shall have the 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.
The parties shall have the right to be represented
by counsel and shall be afforded the opportunity to respond and present
evidence and cross-examine adverse witnesses on all relevant issues.
Formal rules of evidence shall not apply, but
irrelevant, immaterial or unduly repetitious evidence may be excluded.
The Board shall keep a stenographic record of
the proceedings, 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.
[Amended 5-8-1989 by Ord. No. 17-054]
The Board shall not communicate, directly or
indirectly, with any party or his representative in connection with
any issue involved except upon notice and opportunity for all parties
to participate. In addition, the Board shall not take notice of any
communication, reports, staff memoranda or other materials except
advice from their solicitor, unless the parties are afforded an opportunity
to contest the material so noticed, and 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. The term "Board," as used herein, shall include not
only the members but also any secretary, clerk, legal counsel or consultant
to the Board.
[Amended 5-8-1989 by Ord. No. 17-054]
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, each decision shall be accompanied by findings
of fact and conclusions based thereon, together with the reasons therefor.
Conclusions based on any provisions of the Pennsylvania Municipalities
Planning Code,[1] other statutes 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 light of the facts found. Where the Board has power to render a decision and the Board or the hearing officer, as the case may be, fails to render the same within the period required by this clause, the decision shall be deemed to have been rendered in favor of the applicant, unless the applicant has agreed, in writing or on 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, 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 same manner as provided in § 230-171. 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 to appeal the decision to a court of competent jurisdiction.
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
A copy of the final decision or, when 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 names and addresses 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 at which the full decision or findings
may be examined.
Appeals may be taken to the court by any party
aggrieved, filed not later than 30 days after notice of report or
decision of the Board is issued.
[Amended 10-17-1994 by Ord. No. 94-40]
Unless otherwise specified by the Board, a permit,
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 18 months from the date of granting thereof. Further,
within 18 months from the date of issuance of a building permit or
a use and occupancy permit by the Zoning Officer or the granting of
a permit, special exception or variance by the Board, substantial
construction of the proposed building, addition or alteration or such
other activity as was contemplated or appropriate under the permit
or order of the Board must be completed or taken; otherwise, said
permit, special exception or variance shall expire and the land or
building which was the subject of the permit issued by the Zoning
Officer by the order of the Board shall revert to its former status.
[Amended 5-8-1989 by Ord. No. 17-054]
The Board shall hear and decide 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 the registration
or refusal to register any nonconforming use, structure or lot. These
appeals must be filed within 30 days of the date the decision is rendered
by the Zoning Officer, and all appeals shall be on forms prescribed
by the Zoning Hearing Board, accompanied by the requisite fees. All
appeals shall refer to the specific provisions of this chapter involved.
[Amended 5-8-1989 by Ord. No. 17-054; 6-22-1992 by Ord. No. 92-1]
The Board may hear:
A.
Substantive challenges to the validity of any land
use ordinance, except those brought before the Board of Supervisors
as curative amendments.
B.
Challenges to the validity of a land use ordinance
raising procedural questions or alleged defects in the progress of
enactment or adoption, which challenges shall be raised by an appeal
taken within 30 days after the effective date of said ordinance.
A.
The Board shall hear requests for variances where
it is alleged that the provisions of the Zoning Ordinance inflict
unnecessary hardship upon the appellant. The Board may grant a variance,
provided that 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 Zoning Ordinance 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 Zoning Ordinance
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 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.
(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.
B.
In granting any variance, the Board may attach such
reasonable conditions and safeguards as it may deem necessary to implement
the purpose of this chapter.
[Amended 3-17-1986 by Ord. No. 17-032]
The Board shall hear and decide requests for
special exceptions to the terms of this chapter in such cases as are
expressly provided for in this chapter. 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 purpose of this section and this Zoning Ordinance.
Where, in this chapter, additional standards are set forth for a particular
use that may be requested for a special exception, then the Board
shall consider whether the request meets those standards in addition
to the standards set forth in this section. In deciding all applications
for special exceptions, the Board shall be guided by the following
criteria and standards:
A.
The proposed use is one permitted by special exception.
B.
The proposed use is permitted, and it will conform
to the applicable regulations of the district in which it is located
or any district regulations which may relate to or apply to the use,
including but not limited to setbacks, building coverage, open space
and buffering.
C.
The proposed use will conform to the regulations applicable according to use and/or district, including but not limited to regulations contained in Article XIX, Off-Street Parking and Loading; Article XX, Nonconforming Uses; and Article XXI, Miscellaneous Provisions.
[Amended 4-27-2009 by Ord. No. 09-236Z]
D.
Points of vehicular access to the lot are provided
at a distance from the intersections and other points of access and
in number sufficient to prevent undue traffic hazards and obstruction
to the movement of traffic.
E.
The location of the site with respect to the existing
public roads giving access to it is such that the safe capacity of
the public roads is not exceeded by the estimated traffic attracted
or generated by the proposed use, and the traffic generated or attracted
is not out of character with the normal traffic using said public
roads.
F.
A determination that the proposed use will not have
an unwarranted impact on traffic in the area, either creating significant
additional congestion in an area of existing congestion or posing
a threat of significant additional congestion where there is a high
probability of future congestion. In addition, the Board shall consider
whether the proposed use will create any traffic hazard dangerous
to the public safety.
G.
Screening of the proposed use from adjacent uses is
sufficient to prevent the deleterious impact of the uses upon each
other, considering the type, dimension and character of the screening.
H.
The suitability of the property for the proposed use.
I.
The proposed use not adversely affect or contradict
the Comprehensive Plan of the municipality.
J.
The general purpose and intent of this chapter.
K.
The Board will be guided by sound subdivision practice,
sound land use planning and the preservation and conservation of natural
resources.
L.
The suitability of the proposed use to the character
of the neighborhood and the uses of the surrounding properties.
M.
The proposed use will not impair an adequate supply
of light and air to adjacent property.
N.
The proposed use will not adversely affect the public
health, safety or general welfare.
O.
The proposed use will not adversely affect transportation
or unduly burden water, sewer, school, park or other public facilities.
P.
The presence or absence of protestants against the
proposed use shall not be dispositive, but the Board may weigh such
presence or absence of protestants as evidence of the effect that
the proposed use may be deemed to have.
Q.
The proposed use shall not overcrowd land or create
undue concentration of population or undue intensity of use.
[Added 5-8-1989 by Ord. No. 17-054]
The Zoning Hearing Board shall hear and determine
the following:
A.
Appeals from a decision by a Municipal Engineer or
Zoning Officer regarding floodplains.
B.
Appeals from the decision of any agency or officers
regarding transfer of development rights or performance density provisions.
C.
Appeals from the decision of a Municipal Engineer
or Zoning Officer regarding sedimentation and erosion control and
stormwater management, insofar as the same relate to development not
involving subdivision, land development or cluster development applications.
