[Amended 5-8-1990 by Ord. No. 3-1990]
A.
Membership.
(1)
The membership of the Zoning Hearing Board shall consist
of three residents of the Township appointed by resolution of the
Board of Supervisors. The terms of office of the individual Board
members shall be three years and shall be so fixed that the term of
office of one member shall expire each year. The Zoning Hearing Board
shall promptly notify the Board of Supervisors of any vacancies which
occur on the Zoning Hearing Board, and any such vacancy shall be filled
by the Board of Supervisors only for the unexpired portion of the
vacated member's term. Members of the Board shall hold no other office
in the Township.
(2)
The Board of Supervisors may appoint by resolution at least one but no more than three residents of the Township to serve as alternative members of the Zoning Hearing Board. The term of office of an alternate member shall be three years. Whenever seated as a Board member pursuant to Subsection B of this section, such alternate shall be entitled to participate in all proceedings and discussions of the Zoning Hearing Board to the same and full extent as provided by law for regular 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 of a Board member provided in this chapter and by law. Any alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote as a member of the Board nor be compensated unless designated as a voting alternate member, as aforesaid. Alternates shall hold no other office in the Township, including membership on the Planning Commission and Zoning Officer.
(3)
Any Board member, including an alternate member, may
be removed for malfeasances, misfeasances or nonfeasances 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.
B.
Organization.
(1)
The Zoning Hearing 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 all 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 MPC Section 908.[1]
[1]
Editor's Note: See 53 P.S. § 10908.
(2)
If, by reason of absence or disqualification of a
Board 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. 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.
(3)
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 Board may receive compensation for the performance of their duties, as may be fixed by the Board of Supervisors, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors. Alternate members of the Zoning 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(2), but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors.
(4)
The Board may make, alter and rescind rules and forms
for its procedure, consistent with the Township's ordinances and the
laws of the Commonwealth of Pennsylvania. The Board shall keep full
public records of its business, which records shall be property of
the Township, and shall submit a report of its activities to and as
requested by the Board of Supervisors.
A.
The Zoning Hearing Board shall have exclusive jurisdiction
to hear and render final adjudications in the following matters:
[Amended 5-8-1990 by Ord. No. 3-1990]:
(2)
(Reserved)[2]
[2]
Editor's Note: Former Subsection A(2), which
gave the Zoning Hearing Board exclusive jurisdiction to hear and render
final adjudications on challenges to the validity of a land use ordinance
raising procedural questions or alleged defects in the process of
enactment or adoption, was repealed 12-10-2008 by Ord. No. 10-2008.
(3)
Appeals from the determination of the Zoning Officer,
including but not limited to the granting or denial of any permit
or failure to act on the application therefor, the issuance of any
cease and desist order or enforcement notice or the registration or
refusal to register any nonconforming use, structure or lot.
(4)
Appeals from a determination by the Township Engineer
or the Zoning Officer with reference to the administration of any
floodplain or flood hazard ordinance or such provisions within this
chapter or any land use ordinance.
(8)
Appeals from the determination of the Zoning Officer or the Township Engineer in the administration of this chapter or any land use ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management, insofar as the same relates to development not involving subdivision and/or land development applications under Chapter 72 of the West Goshen Code.
(9)
Any other application authorized by law to be taken
to the Zoning Hearing Board.
B.
Zoning Hearing Board's functions; variances. Upon
denial of a permit by the Zoning Officer, the Board shall hear a request
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:
[Amended 5-8-1990 by Ord. No. 3-1990]
(1)
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 the necessary 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)
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 the authorization
of a variance is therefore necessary to enable the reasonable use
of the property.
(3)
Such unnecessary hardship has not been created by
the applicant.
(4)
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)
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.
C.
Zoning Hearing Board's functions.
[Amended 5-8-1990 by Ord. No. 3-1990]
(1)
Special exceptions. In those instances in which this
chapter provides for special exceptions to be granted or denied by
the Zoning Hearing Board pursuant to express standards and criteria
established in this chapter, 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 and the provisions of the MPC.[6]
[6]
Editor's Note: See 53 P.S. § 10101
et seq.
(2)
Substantive challenge.
(a)
A landowner who, on substantive grounds, desires
to challenge the validity of this chapter or the Zoning Map[7] or any provision thereof which prohibits or restricts the use or development of land in which he has an interest may submit the challenge to the Zoning Hearing Board in accordance with § 84-72A(1) hereof.
[7]
Editor's Note: The Zoning Map is on file in
the office of the Township Secretary.
(b)
Persons aggrieved by a use or development permitted on the land of an owner by this chapter or the Zoning Map or any provision hereof who desire to challenge its validity on substantive grounds shall first submit their challenge to the Hearing Board for a decision thereon pursuant to § 84-72A(1) hereof.
(c)
The submissions referred to in Subsection C(2)(a) and (b) of this section shall be governed by the provisions of and procedures established in MPC Section 916.1[8] and § 84-72L of this chapter; provided, however, that if, following hearing thereon, the Zoning Hearing Board fails to act on the landowner's request within 45 days after the conclusion of the last hearing, a denial of the request is deemed to have occurred on the 46th day after the close of the last hearing.
[8]
Editor's Note: See 53 P.S. § 10916.1.
D.
Parties appellant before the Board.
[Amended 5-8-1990 by Ord. No. 3-1990]
(1)
Appeals to the Zoning Hearing Board under § 84-72A(1), (2), (3), (4), (7), (8) and (9) 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 variances under § 84-72B and for special exception under § 84-72C(1) may be filed with the Board by any landowner or any tenant with the permission of such landowner.
(2)
Upon filing an appeal under 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 then by a restraining
order, which may be granted by the Board or by a court having jurisdiction
of zoning appeals, on petition, after notice to the Zoning Officer
or other appropriate agency or body. When an application for development,
preliminary or final, has been duly approved and proceedings designed
to reverse or limit the approval are filed with the Board by persons
other than the applicant, the applicant may petition the court having
jurisdiction of zoning appeals to order such persons to post bond
as a condition to continuing the proceedings before the Board.
E.
Appeals, applications or challenges shall be initiated
before this Board by filing with the Zoning Officer a petition which
shall state:
(1)
The name and address of the applicant.
(2)
The name and address of the owner of the real estate
to be affected by the proposed relief.
(3)
A brief description and location of the real estate
to be affected by such proposed relief.
(4)
A statement of the present zoning classification of
the real estate in question, the date of acquisition thereof and the
present use thereof.
(5)
A statement of the section of this chapter under which
an exception is requested or variance sought or to which challenge
as to the validity is made and a statement of the specific relief
sought and the provisions applicable thereto.
(6)
A reasonably accurate description of the present improvements
and the additions intended to be made shall accompany the application,
indicating the size of such proposed improvements, materials and general
construction thereof and sufficient information to display compliance
with the area, bulk and setback requirements and design standards
of this chapter, together with six copies of the plot plan of the
real estate to be affected, prepared by a registered engineer or registered
land surveyor, indicating the location and size of the lot and size
of the improvements now erected and proposed to be erected showing
all dimensions, computations, areas, percentages and measurements
necessary to demonstrate compliance with all the applicable zoning
regulations and six copies of the application for building permit,
showing the Zoning Officer's action with respect thereto.
[Amended 3-10-2004 by Ord. No. 3-2004]
F.
Time limitation.
[Amended 5-8-1990 by Ord. No. 3-1990]
(1)
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 an appropriate Township
officer, agency or body if such proceeding is designed to secure reversal
or to limit the approval in any manner unless such person alleges
and proves that he had no notice, knowledge or reason to believe that
such approval had been given. If such person has succeeded to his
interest after such approval, he shall be bound by the knowledge of
his predecessor in interest. The failure of anyone other than the
landowner to appeal from an adverse decision by the Zoning Officer
on a challenge to the validity of this chapter or the Zoning Map[9] pursuant to MPC Section 916.2[10] shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the approved preliminary approval.
(2)
All appeals from determinations adverse to the landowner
shall be filed by the landowner within 30 days after notice of the
determination is issued.
G.
Application deposits and charges against deposits.
[Amended 8-22-1989 by Ord. No. 8-1989]
(1)
Upon submission of any application to the Zoning Hearing
Board, the applicant shall deposit as part of the application with
the Township Zoning Officer or other administrative officer receiving
the application the filing fee designated by resolution of the Board
of Supervisors then in effect.
(2)
Additional deposits. If at any time the charges then
made against the applicant's deposit shall render the balance insufficient
to insure the payment of all costs, expenses, charges and fees that
may accrue in the disposition of the pending application, the Zoning
Hearing Board may require additional deposits to be made from time
to time to assure adequate funds to pay such charges, costs, expenses
and fees as they may accrue. The failure of the Zoning Hearing Board
to demand additional deposits from time to time shall not relieve
the applicant of liability for costs, charges, fees and expenses in
excess of deposits, hereinafter called deficiencies.
(3)
Upon failure of the applicant to pay the deposits,
additional deposits or deficiencies within 30 days or prior to the
next scheduled hearing (whichever be the earlier date), the Board
may:
(a)
Continue the matter generally until such deposits,
additional deposits or deficiencies are paid, in which case the record
shall remain open and the time within which a decision must be rendered
shall not commence to run;
(b)
Dismiss applicant's appeal in which case no new appeal may be filed if the time for filing an appeal as set forth in § 84-72F above has expired;
(c)
Determine the appeal upon the record as it then
stands; or
(d)
Take such other action as it deems proper under
the circumstances.
H.
Representation before the Board. Any applicant may
appear in propria persona or may be represented by an attorney at
law, duly admitted to practice in the Courts of the Commonwealth of
Pennsylvania. No persons not admitted to practice before the Courts
of the Commonwealth of Pennsylvania as an attorney at law shall represent
any other person, firm or corporation before the Board; provided,
however, that representation of a corporate applicant by its responsible
officers shall be deemed for the purpose of this provision representation
in propria persona. The Board shall have power in its discretion to
waive this rule.
I.
Notice of public hearing. The Board shall give public
notice of its hearing as follows:
[Amended 5-8-1990 by Ord. No. 3-1990]
(1)
By conspicuously posting written notice of the hearing
on the affected lot at least one week prior to the hearing.
(2)
Mailing of notice.
(a)
By mailing notice thereof to the following;
[1]
The applicant.
[2]
All property owners within 500 feet of the subject
property.
[3]
All persons or organizations who have filed
their names with the Township Zoning Officer within the last year
indicating their desire to receive such notices.
[4]
The Township Secretary.
[5]
The Township Engineer.
[6]
The Township Solicitor.
[7]
The Township Zoning Hearing Board Solicitor.
[8]
Each Township Supervisor.
[9]
Each member of the Zoning Hearing Board.
[10]
Each member of the Township Planning Commission.
[11]
The County Planning Commission.
[12]
The Township Zoning Officer.
(b)
The failure to send notice to any of the above-named
or designated persons shall not invalidate any action taken by the
Board.
J.
Notices of decisions of the Zoning Hearing Board shall be sent to all persons designated in Subsection I(2)(a)[2], [3], [4], [5], [8], [10] and [11]. The notices shall state the matter under consideration, the nature of the decision rendered and the place within the Township where a true and correct copy of the decision may be examined by any person interested.
K.
True and correct copies of the decision of the Zoning Hearing Board shall be sent to those persons designated in Subsection I(2)(a)[1], [6], [7], [9] and [12]. True and correct copies of the decision shall also be sent to any person who has formally appeared as a party to such proceedings and to the attorney of any such person who has appeared as a party to such proceedings. The decision shall be rendered and served upon the persons herein described and as required in accordance with the provisions of MPC Section 908(9) and (10).[11]
[Amended 5-8-1990 by Ord. No. 3-1990]
[11]
Editor's Note: See 53 P.S. § 10908(9)
and (10).
L.
Procedure before the Board. The Board shall conduct
hearings and make decisions in accordance with the provisions of MPC
Section 908[12] and in accordance with such rules of procedure as may
be adopted by the Zoning Hearing Board and in accordance with the
requirements of this chapter.
[Amended 5-8-1990 by Ord. No. 3-1990]
[12]
Editor's Note: See 53 P.S. § 10908.
M.
Expiration of special exceptions and variances. When
a special exception application involves land development and/or subdivision
approval, any special exception approval granted by the Zoning Hearing
Board shall be governed in a manner consistent with Section 917 of
the Pennsylvania Municipalities Planning Code, 53 P.S. § 10917,
which provides that the applicant shall be entitled to rely upon the
ordinances in effect at the time of special exception approval if
the applicant submits land development and/or subdivision plans within
a period of six months from the date of such special exception approval.
A special exception approval that does not involve or require land
development and/or subdivision approval and variance approval shall
expire if the applicant fails to obtain a building permit or a use
and occupancy permit, as the case may be, within one year from the
date of the Zoning Hearing Board's decision.
[Amended 11-13-1979 by Ord. No. 5-79; 3-10-2004 by Ord. No.
3-2004; 6-15-2021 by Ord. No. 7-2021]
O.
Standards for review of proposed exception or variance.
(1)
In any instance where the Board is required to consider
a request for a special exception or variance in accordance with the
provisions of this chapter, the Board shall, to the full extent permitted
by law, consider the following factors where appropriate:
(a)
The statement of community objectives of the
Zoning Ordinance.
(b)
The size, scope, extent and character of the
exception or variance desired and assure itself that such requests
are consistent with the spirit, purpose and intent of the Zoning Ordinance.
(c)
The suitability of the property for the use
desired and the extent to which the new or expanded use is susceptible
to regulation by appropriate conditions and safeguards.
(d)
The effect of the proposed use upon the public
health, safety, morals and general welfare of the community.
(e)
Where pertinent, the effects of the proposed
change with respect to conserving the value of buildings; safety from
fire, panic and other dangers; adequacy of light and air; the overcrowding
of land; and the congestion of population.
(f)
The character and type of development in the
area surrounding the location for which the request is made and determine
that the proposed change or modification as permitted will constitute
an appropriate use in the area and will not substantially injure or
detract from the use of surrounding property or from the character
of the neighborhood.
(g)
Guide the development of highway frontage insofar
as possible so as to limit the total number of access points, reduce
the need for on-street parking and encourage the frontage of buildings
on parallel marginal roads perpendicular to the highway.
(h)
Consider the probable effects of proposed development
on highway congestion and ensure that adequate access arrangements
are provided in order to protect major highways from undue congestion
and hazard.
(2)
In the case of a variance in addition to any applicable
standards of the subsections above, the more specific requirements
or criteria contained in the Pennsylvania Municipalities Planning
Code shall apply.
(3)
In granting any variance or 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 the Planning Code and Zoning Ordinance, which conditions
and safeguards may relate to but not be limited to aesthetics, screening,
lighting, noise, safety and the minimization of noxious, offensive
or hazardous elements. Each special exception shall be clearly authorized
by a provision of this chapter and shall comply with any more specific
standards relating to such exception contained in this chapter.
(4)
In the case of a request for a special exception or
variance, it shall be the responsibility of the applicant to present
such evidence as is necessary to demonstrate that the proposed use
or modification complies with the pertinent criteria or standards
set forth in this section or adoption by reference to the Municipalities
Planning Code. The applicant for a special exception shall have the
burden of proof that his application falls within the provisions of
this chapter and that granting his application will not be contrary
to the public interest.
[Added 5-8-1990 by Ord. No. 3-1990]
In order not to unreasonably delay the time
when a landowner may secure assurance that this chapter or the Zoning
Map[1] under which he proposes to build is free from challenge, such landowner may advance the date from which time any challenge to this chapter or the Zoning Map will run under § 84-72F(1) (MPC Section 914.1[2]) by the following procedure:
A.
The landowner may submit plans and other materials
describing his proposed use or development to the Zoning Officer for
a preliminary opinion as to their compliance with this chapter. Such
plans and other materials shall not be required to meet the standards
prescribed for preliminary or final approval or for the issuance of
a building permit so long as the Zoning Officer is satisfied that
they provide reasonable notice of the proposed use or development
and a sufficient basis for a preliminary opinion as to its compliance.
B.
If the Zoning Officer determines that the use or development complies with this chapter, notice thereof shall be published once each week for two successive weeks in a newspaper of general circulation in the Township. The notice shall include a general description of the proposed use or development and its location and the place and times where the plans and other materials may be examined by the public. The favorable preliminary approval under § 84-72F(1) and the time therein specified for commencing a proceeding with the Zoning Hearing Board shall run from the time when the second notice thereof has been published.
