[Amended 1-5-1998 by Ord. No. 221; 2-2-1999 by Ord. No.
237; 12-5-2000 by Ord. No. 253]
The Board of Supervisors shall appoint a Zoning
Hearing Board consisting of five residents of the Township. The terms
of office of the five-member Board shall be five years and shall be
so fixed that the term of office of one member shall expire each year,
beginning the first Monday of January 2000. The Board shall promptly
notify the governing body of any vacancies which occur. Appointments
to fill vacancies shall be only for the unexpired portion of the term.
Members of the Board shall hold no other office in the municipality.
The word "Board," when used in this section, shall mean the Zoning
Hearing Board, and the term "Planning Code" shall refer to the Pennsylvania
Municipalities Planning Code.[1] Members of the Board shall receive compensation for attending
hearings and for the performance of their duties at a rate not to
exceed $900.00 per annum, payable quarterly at the rate of $225 or
at such compensation rate as may be established from time to time
by the Concord Township Board of Supervisors by resolution.
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
[Amended 12-5-2000 by Ord. No. 253]
Any Board member may be removed for failure
to attend hearings and meetings of the Board by a majority vote of
the Board of Township 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.
[Amended 3-5-1991 by Ord. No. 177]
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 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 § 210-243. The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the municipality 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 governing body once a year.
The Zoning Hearing Board shall have the following
powers:
A.
Appeals from the Zoning Officer. The Board shall hear
and decide appeals where it is alleged by the appellant that the Zoning
Officer or the person who administers the Concord Township Zoning
Ordinance had failed to follow prescribed procedures or had misinterpreted
or misapplied any provision of a valid ordinance or map or any valid
rule or regulation governing the action of the Zoning Officer or the
person who administers the Concord Township Zoning Ordinance.
B.
Challenge to the validity of any ordinance or map. The Board shall hear challenges to the validity of this chapter or to the Zoning Map which properly comes before the Board in accordance with the code and shall take evidence, decide contested questions, make findings on all relevant issues of fact and make a record thereof, as prescribed by said code and by this chapter.
C.
Variances.
(1)
The Board shall hear requests for variances
where it is alleged that the provisions of the Zoning Ordinance inflict
unnecessary hardship upon the applicant.
(2)
A variance from the terms of this chapter shall
not be granted by the Board unless and until a written application
for a variance is submitted by the applicant who shall have the burden
of establishing that:
(a)
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 the Zoning Ordinance in the neighborhood
or district in which the property is located.
(b)
Because of such physical circumstances or conditions
there is no possibility that the property can be developed in strict
conformity with the provisions of the Zoning Ordinance and that the
authorization of the variance is therefore necessary to enable the
reasonable use of the property.
(c)
Such unnecessary hardship has not been created
by the appellant.
(d)
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)
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.
D.
Special exceptions.
(1)
Where the Board of Supervisors in the Zoning
Ordinance 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 the Zoning Ordinance and the Municipalities
Planning Code.[2]
[2]
Editor's Note: See 53 P.S. § 10101
et seq.
(2)
An applicant for a special exception shall have
the burden of establishing both:
(3)
In determining whether the allowance of a special
exception or a variance is contrary to the standards of law, the Board
shall consider whether the application, if granted, will:
(a)
Substantially increase traffic congestion in
the streets.
(b)
Increase the danger of fire or panic or otherwise
endanger the public safety.
(c)
Overcrowd the land or create an undue concentration
of population.
(d)
Impair an adequate supply of light and air to
adjacent property.
(e)
Be consistent with the surrounding zoning and
uses.
(f)
Adversely affect the Comprehensive Plan of the
Township.
(g)
Unduly burden water, sewer, school, park or
other public facilities.
(h)
Otherwise adversely affect the public health,
safety, morals or general welfare.
E.
General requirements; variances and special exceptions.
(1)
In all cases, the applicant's burden of proof shall include the duty of presenting credible evidence sufficient to persuade the Board that applicant has satisfied the criteria set forth in Subsections C(2) and D(2). In any case where the Board requests that the applicant produce evidence relating to the criteria set forth in Subsection D(3) of this section or any other party opposing the application shall have established by evidence the possibility that an allowance of the application will have any of the effects listed in Subsection D(3) of this section, the applicant's burden of proof shall include the burden presenting credible evidence sufficient to persuade the Board that allowance of a special exception or variance will not violate the Zoning Ordinance with respect to the criteria so placed in issue.
[Amended 3-5-1991 by Ord. No. 177]
(2)
Standards for specific uses. In addition to the general requirements and standards set forth in § 210-242A through E, the Supervisors of Concord Township may from time to time create additional conditions, requirements and standards for specific uses which may be allowed by the Zoning Hearing Board.
(3)
Expiration of special exceptions and variances.
Unless otherwise specified by the Zoning Hearing Board, a special
exception or variance shall expire if the applicant fails to obtain
a building permit within six months from the date of authorization
thereof.
The Board shall conduct hearings and make decisions
in accordance with the following requirements:
A.
Notice shall be given to the public, the applicant,
the Delaware County Planning Commission, the Zoning Officer or the
person who administers the Concord Township Zoning Ordinance and to
any person who made timely request for the same. Notices shall be
given at such time in such manner as shall be prescribed by rules
of the Board. Reasonable fees, based on cost, are to be paid by the
applicant and by persons requesting any notice not required by ordinance
established by the Board of Supervisors. In addition to the notice
provided herein, notice of said hearing shall be conspicuously posted
on the affected tract of land at least one week prior to the hearing.[1]
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 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 Township of
Concord, any person affected by the application who has made timely
appearance of record before the Board and any other person, including
civic and community organizations, permitted to appear before 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.
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 the production
of relevant documents and papers, including 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.
The Board or the hearing officer, as the case may
be, 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.
H.
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 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.
Decision.
(1)
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. 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 state code or of any Township ordinance, rule or regulation
shall contain a reference to the provision 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 decision of the hearing officer. Where the Board fails to render
a decision within the period required by this subsection or fails
to hold the required hearing within 60 days from the date of the applicant's
request for a hearing, the decision shall be deemed to have been rendered
in favor of the applicant, unless the applicant has agreed, in writing,
to an extension of time.[2]
(2)
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 herein provided, the Township shall give public notice of said decision within 10 days in the same manner as provided in Subsection A of this section. Nothing in this subsection shall prejudice the right of any party opposing the application to urge that such decision is erroneous.
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 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.[3]
A.
Appeals before the Zoning Board and to court. All appeals, applications or challenges which properly come before the Board in accordance with the requirements of the Planning Code and all appeals to court shall be subject to the time limitations and requirements of Article X [1]and any other applicable provision of said Code. The proceedings set forth in said Article X shall constitute the exclusive mode for securing review of any ordinance, decision, determination or order of the Board of Township Supervisors, its agencies or officers adopted or issued pursuant to the Planning Code. Appeals to court shall be taken to the Court of Common Pleas of Delaware County.
[1]
Editor's Note: See 53 P.S. § 11001
et seq.
B.
Unified appeals. Where the Board has jurisdiction over a zoning matter pursuant to § 210-242A through D, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any municipal ordinance or requirement pertaining to the same development plan or development. In any such cases, the Board shall have no power to pass upon the nonzoning issues, but shall take evidence and make a record thereon as provided in § 210-243. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
C.
Parties appellant before Zoning Board. Appeals under § 210-242A and proceedings to challenge an ordinance under § 210-242B may be filed with the Board, in writing, by any officer or agency of the Township or any person aggrieved. Requests for a variance under § 210-242C and for special exception under § 210-242D may be filed with the Board by any landowner or any tenant with the permission of such landowner.
D.
Time limitations. The time limitations for raising
certain issues and filing certain proceedings with the Board shall
be the following:
(1)
No person shall be allowed to file any proceeding
with the Board later than 30 days after any application for building
permit or any other application has been approved or rejected 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 not 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.
(2)
The failure of anyone other than the landowner
to appeal from an adverse decision on a tentative or preliminary plan
pursuant to Section 709 of the Pennsylvania Municipalities Planning
Code[2] or from an adverse decision by a zoning officer on a challenge
to the validity of an ordinance or map pursuant to Section 916.2 of
the Pennsylvania Municipalities Planning Code[3] shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the approved tentative or preliminary approval.
[Amended 1-5-1998 by Ord. No. 221]
E.
Stay of proceedings. Upon filing of any proceeding referred to § 210-244C of this chapter and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or the person who administers the Concord Township Zoning Ordinance or of any agency or body and all official action there under 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 Board or by the 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. After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. After consideration of all evidence presented, if the court determines that the appeal is frivolous and is for the purpose of delay, it shall grant the petition. The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him if an appeal is taken from a final decision of the court. The question whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court.
[Amended 1-5-1998 by Ord. No. 221]
It is the intent of the Supervisors of Concord Township that the provisions of this Article XXVIII comply with the requirements of the Pennsylvania Municipalities Planning Code as the same exists from time to time.[1] Therefore, any amendment to the provisions of the Planning Code or any inconsistency between the provisions of the Planning Code and the provisions of this Article XXVIII shall be resolved by applying the provisions of the Pennsylvania Municipalities Planning Code as the same may then exist, and such provisions shall be deemed to supersede any inconsistent or contrary provision of this Article XXVIII.
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
