Township of Middlesex, PA
Butler County
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Table of Contents
Table of Contents

§ 175-171
Organization; general powers and duties. 

§ 175-172
Membership; terms; vacancies; holding of additional offices. 

§ 175-173
Alternate members. 

§ 175-174
Jurisdiction of the board. 

§ 175-175
Variances. 

§ 175-176
Uses by special exception. 

§ 175-177
Conduct of hearings. 

§ 175-178
Failure to render decision or hold hearing in time. 

§ 175-179
Mediation option. 

§ 175-180
Fees and expenditures. 

§ 175-181
Time limitations. 

§ 175-182
Stay of proceedings. 

§ 175-171 Organization; general powers and duties.

In accordance with law, the Township Supervisors shall appoint and organize a Zoning Hearing Board, which Board may adopt rules to govern its procedure. The Board shall hold meetings, keep minutes and, pursuant to public notice, shall conduct hearings, compel the attendance of witnesses, take testimony under oath, and render decisions in writing within 45 days after hearing or continued hearing, in accordance with the requirements of Article IX of the Pennsylvania Municipalities Planning Code. A fee shall be charged in accordance with a schedule affixed by resolution for any appeal or proceeding filed with the Board.

§ 175-172 Membership; terms; vacancies; holding of additional offices.

A. 

The membership of the Zoning Hearing Board shall consist of three residents of the Township appointed by the Township Supervisors.

B. 

Their terms of office shall be three years and shall be so fixed that the term of office of one member shall expire each year.

C. 

The Board shall promptly notify the Township Supervisors when vacancies occur. Appointments to fill vacancies shall be only for the unexpired portion of the term.

D. 

Members of the Board shall hold no other office in the Township.

§ 175-173 Alternate members.

A. 

Appointment of alternate members.

(1) 

The Township Supervisors may appoint by resolution at least one, but no more than three, residents of the Township to serve as alternate members of the Board. The term of office of an alternate member shall be three years.

(2) 

When seated pursuant to the provisions of Subsection B, an alternate 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 power and duties set forth in this chapter and as otherwise provided by law. Alternates shall hold no other office in the Township, including membership on the Planning Commission and Zoning Officer. 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 unless designated as a voting alternate member pursuant to Subsection B of this section.

B. 

Participation by alternate members. 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. 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 subsection shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.

§ 175-174 Jurisdiction of the board.

The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudication in the following matters:

A. 

Substantive challenges to the validity of any land use ordinance, except curative amendments brought before the Township Supervisors.

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 taken with 30 days after the effective date of the ordinance.

C. 

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.

D. 

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 a land use ordinance.

E. 

Applications for variances from the terms of this chapter and flood hazard ordinance or such provisions within a land use ordinance pursuant to § 175-175.

F. 

Applications for uses by special exception under this chapter or floodplain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to Article XI and § 175-176.

G. 

Appeals from the Zoning Officer's determination under Section 916.2 of the Pennsylvania Municipalities Planning Code

Editor's Note: See 53 P.S. § 10916.2.
(Act 247, as amended).

H. 

Appeals from the determination of the Zoning Officer or Township Engineer in the administration of any land use ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development not involving subdivision and land development or planned residential development.

§ 175-175 Variances.

A. 

The Board, upon appeal, shall have the power to authorize variances from the requirements of this chapter, and to attach such conditions to the variance as it deems necessary to assure compliance with the purposes of this chapter. A variance may be granted if 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 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 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 necessary to 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 purposes of this chapter and protect the public health, safety and welfare.

§ 175-176 Uses by special exception.

The Board shall have the power to hear and decide on applications for uses by special exception subject to the application requirements of § 175-93 and the express standards and criteria for the use set forth in Article XI. The Board shall approve a use by special exception only if it meets all applicable requirements of this chapter and the express standards and criteria set forth in Article XI. In granting a use by special exception, the Board may attach such reasonable safeguards, in addition to those expressed in this chapter, as it may deem necessary to properly implement this chapter and protect the public health, safety and welfare.

§ 175-177 Conduct of hearings.

The Board shall conduct hearings and make decisions in accordance with the following requirements:

A. 

Scheduling of hearing. The hearing shall be held within 60 days from the date of filing of a complete and properly filed application, unless the applicant has agreed in writing to an extension of time.

B. 

Notice.

(1) 

Public notice shall be given, as defined herein, and, in addition, notice shall be given to the applicant, the Zoning Officer, the Township Supervisors and to any person who has made timely request for the same.

(2) 

Written notices shall be given by regular mail at least two weeks prior to the public hearing to all property owners of record within 450 feet of the exterior boundaries of the property for which the appeal is filed, including those located across a street right-of-way.

(3) 

Written notice of said hearing shall be posted on the affected tract of land at least one week prior to the hearing.

C. 

Parties to hearing. 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 by the Board for that purpose.

D. 

Conduct of hearing.

(1) 

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; however, the parties may waive decision or findings by the Board and accept the decision or findings of the hearing officer as final.

(2) 

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.

(3) 

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.

(4) 

Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.

E. 

Stenographic record. The Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings. Fees for the stenographer and the transcript shall be in accordance with the provisions of § 175-180B.

F. 

Communications. 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 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.

G. 

Decision.

(1) 

The Board or 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.

(2) 

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 this chapter or any other ordinance, 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.

(3) 

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.

H. 

Notice of decision. A copy of the final decision or, where no decision is called for, or 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.

I. 

Rehearing. If any application for a variance, use by special exception or appeal from the Zoning Officer is denied, another identical application shall not be filed within a period of one year from the date of denial, except upon acceptance of the Board after the applicant demonstrates a change of circumstances which would warrant a hearing.

§ 175-178 Failure to render decision or hold hearing in time.

A. 

Where the Board fails to render a decision within the period required by § 175-177G or fails to hold the required hearing within 60 days 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 or on the record to an extension of time.

B. 

When a decision has been rendered in favor of the applicant because of failure of the Board to meet or render a decision, the Board shall give public notice of the decision within 10 days from the last day it could have met to render a decision. 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 the Court of Common Pleas.

§ 175-179 Mediation option.

A. 

Parties to proceedings authorized in this article may utilize mediation as an aid in completing such proceedings. In proceedings before the Zoning Hearing Board, in no case shall the Zoning Hearing Board initiate mediation or participate as a mediating party. Mediation shall supplement, not replace, those procedures in this article once they have been formally initiated. Nothing in this section shall be interpreted as expanding or limiting municipal police powers or as modifying any principles of substantive law.

B. 

Participation in mediation shall be wholly voluntary. The appropriateness of mediation shall be determined by the particulars of each case and the willingness of the parties to negotiate. Any municipality offering the mediation option shall assure that in each case, the mediating parties, assisted by the mediator as appropriate, develop terms and conditions for:

(1) 

Funding mediation.

(2) 

Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation.

(3) 

Completing mediation, including time limits for such completion.

(4) 

Suspending time limits otherwise authorized in this chapter or in the Pennsylvania Municipalities Planning Code (Act 247, as amended), provided there is written consent by the mediating parties, and by an applicant or Township decisionmaking body, if either is not a party to the mediation.

(5) 

Identifying all parties and affording them the opportunity to participate.

(6) 

Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public.

(7) 

Assuring that mediated solutions are in writing and signed by the parties, and become subject to review and approval by the appropriate decisionmaking body pursuant to the authorized procedures set forth in this chapter.

C. 

No offers or statements made in the mediation sessions, excluding the final written mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceedings.

§ 175-180 Fees and expenditures.

A. 

Fees. The Township Supervisors may prescribe reasonable fees with respect to hearings before the Zoning Hearing Board. Fees for said hearings may include compensation for the Secretary and members of the Zoning Hearing Board, notice and advertising costs and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses of the Zoning Hearing Board, expenses for engineering, architectural or other technical consultants or expert witness costs.

B. 

Stenographer's appearance fee and transcripts. The appearance fee for a stenographer shall be shared equally by the applicant and the Board. The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board or hearing officer 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 thereof.

C. 

Expenditures. Members of the Board may receive compensation for the performance of their duties as may be fixed by the Township Supervisors, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Township Supervisors. Within the limits of funds appropriated by the Township Supervisors, the Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services.

§ 175-181 Time limitations.

A. 

No person shall file any proceeding before the Zoning Hearing Board later than 30 days after a preliminary or final application for development 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.

B. 

The failure of anyone, other than the landowner, to appeal from an adverse decision on an application for tentative approval of a planned residential development or from an adverse decision by a Zoning Officer on a challenge to the validity of an ordinance or map filed pursuant to Section 916.2 of the Pennsylvania Municipalities Planning Code

Editor's Note: See 53 P.S. § 10916.2.
shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.

C. 

All appeals from determinations adverse to the landowner shall be filed by the landowner within 30 days after notice of the determination is issued.

§ 175-182 Stay of proceedings.

A. 

Upon filing of any proceeding 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 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. 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.

B. 

All appeals from decisions rendered by the Zoning Hearing Board shall be taken to the Butler County Court of Common Pleas and shall be filed within 30 days after the entry of the decision or, in the case of a deemed decision, within 30 days after the date upon which notice of said deemed decision is given as required by Subsection 908(9) of the Pennsylvania Municipalities Planning Code (Act 247, as amended).

Editor's Note: See 53 P.S. § 10908(9).