[Amended 2-9-1995 by Ord. No. 95-4]
The Board of Supervisors shall appoint a Zoning Hearing Board consisting of three members. The Board of Supervisors shall designate one such member to serve until the first day of January following the original effective date of this chapter, one until the first day of the second January thereafter, and one until the first day of the third January thereafter; shall reappoint or appoint three successors on the expiration of their respective terms to serve three years, and shall fill any vacancy for the unexpired term of any member whose term becomes vacant.
A. 
The members of the Zoning Hearing Board shall be removable for cause by the Board of Supervisors upon written charges and after a public hearing.
B. 
Zoning Hearing Board members shall be residents of the Township and may hold no other office in the Township.
C. 
The word "Board" when used in this article shall mean the Zoning Hearing Board.
D. 
Where legal counsel is desired, an attorney, other than the Solicitor of the Township, may be appointed to serve as counsel to the Zoning Hearing Board.
E. 
The compensation of the members and alternates to the Zoning Hearing Board shall be established by resolution of the Board of Supervisors, but, in no case, shall the compensation exceed the rate of compensation authorized to be paid to the Supervisors.
The Board of Supervisors may appoint by resolution no more than three residents of the Township to serve as alternate members of the Board. The term of office of an alternate shall be three years.
A. 
If, by reason of absence or disqualification of a member, a quorum is not reached, the chairman of the Board shall designate as many alternate members of the Board to sit on the Board as may be needed to provide a quorum. An alternate so designated 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 in this article and as otherwise provided by law.
B. 
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.
C. 
Designation of an alternate shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.
D. 
Alternate members may hold no other office in the Township.
E. 
Any alternate may participate in any proceeding or discussion of the Board but may not vote as a member nor be compensated unless designated as a voting alternate as provided above.
A. 
The Board shall annually elect officers from its membership.
B. 
For the conduct of any hearing and the taking of any action, a quorum shall be no less than two voting members.
C. 
The Board may make, alter and rescind rules and forms for its procedures, consistent with ordinances of the Township and the laws of the commonwealth.
D. 
The Board shall keep a public record of its business, which records shall be the property of the Township, and shall submit reports of its activities to the Township as requested by the Board of Supervisors.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
A. 
Substantive challenges to the validity of any land use ordinance, except those brought before the Board of Supervisors pursuant to the curative challenge and amendment process.
B. 
Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption which challenges shall be raised by an appeal filed within 30 days after the effective date of said ordinance.
C. 
Appeals from the determination of the Zoning Officer, including the grant or denial of any permit, or failure to act on the application therefor, the issuance of any enforcement notice or the registration or refusal to register any nonconforming use, structure or lot.
D. 
Appeals from a determination by the Township Engineer or the Zoning Officer with reference to the floodplain ordinance or such provisions within a land use ordinance.
E. 
Applications for variance from the terms of this chapter.
F. 
Applications for special exceptions under the zoning or floodplain ordinance.
G. 
Appeals from the determination of the Zoning Officer or Township Engineer in the administration of ordinance provisions for sedimentation and erosion control and stormwater management insofar as the determination does not involve an application pursuant to Chapter 240, Subdivision and Land Development.
H. 
Interpretation of the words, terms, rules, regulations, provisions and restrictions of this chapter where there is doubt as to the meaning thereof, including determination in specific instances whether questionable uses are permitted by virtue of being "similar to" or "customarily incidental to" permitted uses as provided by this chapter.
When the order, requirement, decision or determination of a Township officer is appealed to the Board, the Board shall have the power to reverse or affirm in whole or in part, and the decision of the Board shall be enforced as though it were the decision of the officer appealed from.
Challenges and appeals may be filed with the Board in writing by the landowner affected, any officer or agency of the Township, or any person aggrieved. Requests for variance or special exception may be filed by any landowner or any tenant with permission of the landowner. An appeal or application regarding a matter within the jurisdiction of the Board may be filed with the Township Secretary on forms provided by the Zoning Hearing Board. The applicant shall provide seven copies of the application and accompanying materials, which shall include:
A. 
The name and address of the applicant, and of the applicant's representative(s) or agent(s) where applicable.
B. 
The name and address of the record owner of the property that is the subject of the application or appeal. Where the applicant is no the record owner of the subject property, a signed and notarized statement from the record owner, authorizing the applicant to pursue the specific appeal or application.
C. 
A brief description and location of the subject property, along with a survey and/or sketch of the property boundaries.
D. 
A statement of the present zoning classification of the subject property with the improvements thereon, and the present use thereof.
E. 
A statement of the section of this chapter under which consideration by the Board is requested, along with a summary of reasons or arguments in support of request.
F. 
A reasonably accurate description of the improvements or changes intended to be made under the application. In addition, there shall be attached a plot plan of the property to be affected, indicating the location and size of the lot, and the size and location of the existing and proposed improvements or changes.
G. 
Any and all additional information that may be required by the Zoning Hearing Board.
H. 
Payment to the Township in accordance with a fee schedule recommended by the Board and adopted by the Township Board of Supervisors, as amended.
(1) 
Such fees may include compensation for the secretary and members of the Board, notice and advertising costs, stenographic costs in accordance with § 285-33F herein, and necessary administrative overhead connected with the hearing.
(2) 
The fees may not include compensation for the legal expenses of the Board, or expenses for engineering, architectural or other technical consultant or expert witness fees.
(3) 
All permissible costs shall be borne by the applicant, based on an itemized list of expenses.
A. 
Immediately upon receipt of an application, the Township Secretary shall promptly forward the application to the Zoning Hearing Board Chairperson along with all of the above information.
B. 
The Chairperson, in consultation with the Zoning Hearing Board Solicitor, shall fix a reasonable time and place for a public hearing on the application. Said hearing shall occur no more than 60 days after the application is made to the Secretary, unless the applicant has agreed in writing to an extension of time.
C. 
A true and correct copy of the application and all related information shall be forwarded to the Township Secretary, the Chairperson of the Planning Commission, each Township Supervisor, each Zoning Hearing Board member and the Zoning Hearing Board Solicitor.
D. 
Upon receipt of a Zoning Hearing Board application, the Planning Commission as its next regularly scheduled meeting may consider the application and may, at its sole discretion, resolve to comment thereon.
The Board shall give public notice and written notice as follows:
A. 
By publishing a notice once a week for two successive weeks in a newspaper of general circulation in the Township. Such notice shall state the time and place of the hearing, the particular nature of the matter to be considered at the hearing and the specific ordinance provisions that permit consideration by the Zoning Hearing Board. The first publication shall not be more than 30 days and the second not less than seven days from the date of the hearing.
B. 
By mailing or serving written notice to the record owner, applicant and applicant's representative.
C. 
By conspicuously posting written notice of hearing on the affected tract of land at least one week prior to the meeting.
D. 
By mailing or serving notice thereof to the Township Supervisors, Planning Commission Chairperson, Zoning Hearing Board members and Zoning Officer.
E. 
By mailing or giving written notice to any and all parties in interest who have made a timely request for the notice.
F. 
By mailing a written notice to any and all parties registered for that purpose.
G. 
By mailing a written notice to all landowners within 500 feet of the applicant's land in Upper Frederick Township and adjacent municipalities, where appropriate, by certified mail with return receipts requested.
H. 
By providing a list of names and addresses of all parties who have been mailed or served notice, to the applicant, the Township Supervisors, Planning Commission Chairperson, all Zoning Hearing Board members and the Zoning Officer.
I. 
Costs of mailing, posting and serving notices shall be paid by the applicant as part of the fees charged for the hearings, in accordance with § 285-30H, herein.
[Amended 6-13-2002 by Ord. No. 02-09]
A. 
Hearing shall be held at the call of the Chairperson and at such times as the Board may determine. The first hearing shall be commenced within 60 days from the date of the applicant's request, unless the applicant has agreed, in writing, 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 in writing or on the record. An applicant shall complete the presentation of his case-in-chief within 100 days of the first hearing. Upon the 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 within 100 days of the first hearing held after the completion 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.
B. 
The parties to the hearing shall be 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 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 for that purpose.
C. 
The Chairperson or acting Chairperson may administer oaths and issue subpoenas to compel the attendance of witnesses and productions of relevant documents and appears, including witnesses and documents requested by the parties.
D. 
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.
E. 
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
F. 
The Board shall keep a stenographic record of the proceedings.
(1) 
The appearance fee for a stenographer shall be shared equally by the applicant of the applicant and the Board.
(2) 
The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board, or shall be paid by the person appealing from the decision of the Board if such appeal is made, and in either event the cost of additional copies shall be paid by the person requesting such copy or copies. In other cases, the party requesting the original transcript shall bear the cost.
G. 
Except upon notice and opportunity for all parties to be present, to participate, and to inspect and contest materials, the Board shall not:
(1) 
Communicate, directly or indirectly, with any party or his representative in connection with any issue involved.
(2) 
Take notice of any communication, reports, staff memoranda or other materials, except advice from their Solicitor.
(3) 
Or inspect the subject site or its surroundings after commencement of hearings with any party or his representatives.
[Amended 6-13-2003 by Ord. No. 02-09]
A. 
The Board shall render a written decision or making written findings on the application within 45 days of the last hearing. Each decision shall be accompanied by findings of fact and conclusions based upon findings. Conclusions based on any provision of a Township ordinance shall contain a reference to the provision.
B. 
Except for challenges filed under § 285-37C, where the Board fails to render the decision within the required period required by this section, or fails to commence, conduct or complete the required hearing as provided by § 285-33A, 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.
C. 
When a decision has been deemed to have been rendered in favor of the applicant because of the failure of the Board to hold a hearing or render a decision as provided, the Board shall give public notice of said deemed decision within 10 days from the last day it could have met to render a decision. Such notice shall be given in the manner prescribed by § 285-31, herein. 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.
D. 
A copy of the final decision or 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 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.
In the consideration of an application for variance or special exception, the Board shall:
A. 
Consider the suitability of the property for the use desired. Assure itself that the proposed change is consistent with the spirit, purpose and intent of this chapter.
B. 
Determine that the proposed change will not substantially injure of detract from the use of neighboring property or from the character of the neighborhood and that the use of the adjacent property is adequately safeguarded.
C. 
Determine that the proposed change will serve the best interest of the Township, the convenience of the community (where applicable) and the public welfare.
D. 
Determine that the proposed change will serve the best interests of the Township, the convenience of services and facilities such as water, sewer, police and fire protection and schools.
E. 
Consider the suitability of the proposed location of use with respect to probable effects upon traffic and assure adequate access arrangements in order to protect roads from undue congestion and hazard.
F. 
Be guided in its study, review and recommendation by sound standards of subdivision practice where applicable.
G. 
The Board shall be limited to consideration of applications as they relate to ordinance provisions in effect at the time of the application. The Township Board of Supervisors shall retain the exclusive right to enact and amend ordinances.
A. 
Variance. 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 require preliminary application to the Zoning Officer. The 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 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 therefor necessary to enable the reasonable use of the property.
(3) 
That the unnecessary hardship has not been created by the applicant. Monetary hardship cannot be considered by the Board.
(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.
B. 
Special exception. The Board shall hear and decide requests for special exceptions in accordance with the standards and criteria found in the particular section of this chapter that permits application for said special exception, and with the general standards in § 285-35. In granting any special exception, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.
C. 
Burden of proof. For variances, the burden of proof shall be on the applicant. For special exceptions, the applicant shall be entitled to the special exception unless others can prove that it would adversely affect the public health, safety, morals or welfare.
Decisions on appeals and applications to the Board, other than variances and special exceptions, shall be considered in accordance with the following:
A. 
Time limitations on appeals.
(1) 
All appeals from determination adverse to a landowner shall be filed by the landowner within 30 days after notice of the determination is issued.
(2) 
Appeals designed to secure reversal or limit the approval of any application for development, preliminary or final, shall be filed with the Board no later than 30 days after the application is approved by an appropriate Township officer or agency, unless the person filing proves that he had no notice, knowledge or reason to believe that such approval had been given. If such person succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest.
B. 
Effect of filing. Upon filing of any proceeding before the Board, and during its pendency, 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, agency or body certifies to the Board facts indicating imminent peril to life or property, in which case the development or official action shall not be stayed other than by a restraining order granted by the Board or by the court having jurisdiction of zoning appeals.
C. 
Substantive validity challenge. A landowner who desires to challenge, on substantive grounds, the validity of a map or ordinance provision which prohibits or restricts the use or development of land in which he has an interest, may submit the challenge either to the Zoning Hearing Board or, with a request for curative amendment, to the Township Board of Supervisors.
(1) 
The written application to the Zoning Hearing Board shall contain the reasons for the challenge.
(2) 
Public notice of the hearing shall include notice that the validity of the ordinance or map is in question, and shall specify the place and time where a copy of the request and its accompanying materials may be examined by the public.
(3) 
Based upon the testimony at the hearing(s), the Board shall determine whether the challenged ordinance or map is defective, as alleged. If the challenge is found to have merit, the decision of the Board shall include recommended amendments to the challenged ordinance which will cure the defects found.
(4) 
In reaching its decision, the Board shall consider the 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 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 by the site's soils, slopes, woodland, wetlands, floodplains, aquifers, natural resources and other natural features.
(d) 
The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, aquifers, natural resources and other natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts.
(e) 
The impact of the proposal on the preservation of agricultural and other land uses which are essential to public health and welfare.
(5) 
If the Board fails to act on the request within 45 days of the last hearing, a denial of the request is deemed to have occurred.
Unless otherwise specified by the Board, a special exception or variance shall expire if the applicant fails to obtain any and all permits within one year of the date of the decision. The applicant may apply to the Board for postponement of the expiration, providing in writing an explanation of the reasons why permits were not obtained and a request for a postponement to a specific date. All parties who originally received notification of the Board's decision in the matter shall be notified of the postponement of expiration, at the applicant's expense.
Any persons aggrieved by the decision of the Board may within 30 days thereafter appeal to the Court of Common Pleas of Montgomery County by petition duly verified setting forth the grounds upon which said appeal is taken.