[Amended 2-10-1969 by Ord. No. 69-230; 5-22-1989 by Ord. No.
89-558; 6-16-2005 by Ord. No. 2005-745]
There shall be a Zoning Hearing Board. The word
“Board” when used in this article shall mean the Zoning
Hearing Board.
A.
Membership of the Board shall consist of five residents
of Upper Merion Township who shall be appointed by the Board of Supervisors.
The terms of office of the Board shall be five years and shall be
so fixed that the terms of office of one member shall expire each
year. The Board shall promptly notify the Board of Supervisors of
any vacancies which occur. Appointments to fill vacancies shall be
only for the unexpired portion of the term. Members of the Board shall
not hold any other elected or appointed office in the Township and
shall not be an employee of the Township.
[Amended 2-16-2012 by Ord. No. 2012-801]
B.
The Board of Supervisors may appoint by resolution one resident of the Township to serve as alternate member of the Board. The term of office for an alternate member shall be three years. When seated pursuant to the provisions of § 165-250 below, an alternate member shall be entitled to participate in all proceedings and discussions of the Board to the same and full extent as provided by law for the Board members, including specifically the right to cast a vote as a voting member during the proceedings. Alternate members shall have all the powers and duties set forth in this section and as otherwise provided by law. Alternate members shall hold no other elected or appointed office in the Township and shall not be an employee of the Township. An 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 pursuant to § 165-249.
C.
Any Board member, or alternate member, may be removed
by the Board of Supervisors for malfeasance, misfeasance and nonfeasance
in office or for other just cause. Prior to the taking of any vote,
the Board of Supervisors shall give 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 the same in writing at least
seven days prior to the date designated for the taking of the vote.
[Added 6-16-2005 by Ord. No. 2005-745[1]]
Within the limits of funds appropriated by the governing body, the 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 governing body, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the governing body. Alternate members of the Board may receive compensation, as may be fixed by the governing body, for the performance of their duties when designated as alternate members pursuant to § 165-250B, but in no case shall such compensation exceed the rate of compensation authorized to be paid to members of the governing body.
A.
The Board shall elect, from its own membership, its
officers who shall serve annual terms and who 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.
The Board may also appoint a hearing officer from its own membership
to conduct any hearing on its behalf.
B.
The Chairman of the Board may designate an alternate
member of the Board to replace any absent or disqualified members.
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 such time as 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.
Meetings of the Board for the purpose of conducting
public hearings shall be held at the call of the Chairman and at such
other times as the Board may determine. The Chairman, or acting Chairman
of the Board, or the Hearing Officer presiding, shall have the power
to administer oaths and to issue subpoenas to compel the attendance
of witnesses and the production of relevant documents and papers,
including witnesses and documents requested by the parties. All hearings
of the Board shall be open to the public. The Board shall keep minutes
of its proceedings, showing the vote of each member upon each question;
or if a member is absent or fails to vote, indicating such fact. The
Board shall keep full public records of its business, which records
shall be the property of the Township. The Board shall annually submit
a report of its activities to the Board of Supervisors.
[Amended 7-20-1966 by Ord. No. 66-188; 6-15-1987 by Ord. No.
87-516; 5-22-1989 by Ord. No. 89-558[1]]
A.
The Board shall have the power to hear and to render
final adjudications in the following matters:
(1)
Challenges: substantive challenges to the validity
of this chapter.
(2)
Challenges to the validity of this chapter raising
procedural questions or defects in the process of enactment or adoption,
which challenges shall be raised by an appeal within 30 days after
the effective date of the amendment.
(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 any other decision or determination
made in the enforcement or application of this chapter.
(4)
Appeals from the determination of the Township
Engineer or the Zoning Officer with reference to the administration
of the floodplain regulations or with reference to sedimentation and
erosion control as well as stormwater management.
(5)
Applications for variances from the terms of
this chapter.
(6)
Applications for special exceptions in such
cases as are specifically provided in this chapter.
(7)
Appeals from the determination of any officer
or agency charged with the administration of any transfer of development
rights or performance density provisions of this chapter.
B.
Standards for Zoning Hearing Board actions. In any instance where the Board is required to consider any of those matters itemized in Subsection A, the Board shall act in accordance with the following:
(1)
Special exceptions. The Board may grant approval
of a special exception, provided that the applicant complies with
the following standards for the special exception. The burden of proof
rests with the applicant.
(a)
The applicant shall establish, by credible evidence, that the special exception complies with the statement of community development objectives as stated in Article I of this chapter and with the declaration of legislative intent that may appear at the beginning of the applicable district under which approval is sought.
(b)
The applicant shall establish, by credible evidence,
compliance with all conditions on the special exception enumerated
in the section which gives the applicant the right to seek a special
exception.
(c)
The applicant shall establish, by credible evidence,
that the proposed special exception will not adversely affect neighboring
land uses in any way and will not impose upon its neighbors in any
way but rather shall blend with them in a harmonious manner.
(d)
The applicant shall establish, by credible evidence,
that the proposed special exception shall be properly serviced by
all existing public-service systems. The peak traffic generated by
the subject of the approval shall be accommodated in a safe and efficient
manner, or improvements shall be made in order to effect the same.
Similar responsibility shall be assumed with respect to other public-service
systems, including but not limited to police protection, fire protection,
utilities, parks and recreation.
(e)
The applicant shall establish, by credible evidence,
that the proposed special exception shall be in and of itself properly
designed with regard to internal circulation, parking, buffering and
all other elements of proper design.
(f)
The applicant shall provide the Board with sufficient
plans, studies or other data to demonstrate compliance with all applicable
regulations.
(g)
The Board shall impose such conditions as are
necessary to ensure compliance with the purpose and intent of this
chapter, which conditions may include plantings and buffers, harmonious
design of buildings and the elimination of noxious, offensive or hazardous
elements.
(2)
Variances.
(a)
The Board may grant variances, provided that
it shall make the following findings where relevant:
[1]
That there are unique physical conditions or
circumstances, 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 conditions or circumstances
generally created by the provisions of this chapter or the district
in which the property is located.
[2]
That, because of such physical conditions or
circumstances, 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 necessary to enable the reasonable
use of the property.
[3]
That such unnecessary hardship has not been
created by the applicant.
[4]
That the variance, if authorized, shall not
alter the essential character of the district or neighborhood 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, shall represent
the minimum variance that will afford relief and will represent the
least modification possible of the regulation at issue.
(b)
In granting any variance, the Board shall attach
such reasonable conditions and safeguards as it may deem necessary
to implement the purposes of the law and of this chapter.
C.
Orders. In exercising the above-mentioned powers,
the Board may reverse or affirm, wholly or in part, or may modify
the order, requirement, decision or determination appealed from and
may make such additional order, requirement, decision or determination
as ought to be made and as may be pertinent or germane and, to that
end, shall have all the powers of the officer from whom the appeal
is taken. Written notice of any such order, requirement, decision
or determination shall be promptly given to all parties in interest.
The Board shall adopt rules of procedure in
accordance with the several provisions of this chapter as to the matter
of filing appeals, applications for special exceptions and appeals
for variances from the terms of this chapter and as to the conduct
of the business of the Board.
[1]
Editor's Note: Former § 165-251, Meetings,
was repealed 5-22-1989 by Ord. No. 89-558.
An appeal to the Board may be taken by any person,
including any officer of the Township in his official capacity, aggrieved
or affected by any decision of the Building Official. Such appeal
shall be taken within a reasonable time, as provided by the rules
of procedure of the Board, by filing with the Building Official and
with the Board a notice of appeal specifying the grounds thereof.
The Building Official shall forthwith transmit to the Board all the
papers constituting the record upon which the action appealed from
was taken.
An application for a special exception or an
appeal for a variance from the terms of this chapter may be filed
with the Board and shall state:
A.
The name and address of the applicant or appellant.
B.
The name and address of the owner of the real estate
to be affected by the proposed exception or variance.
C.
A brief description and location of the real estate
to be affected by such proposed change.
D.
A statement of the present zoning classification of
the real estate in question, the improvements thereon and the present
use thereof.
E.
A statement of the section of this chapter under or
from which the exception or variance requested may be authorized,
and reasons why it should be granted.
F.
A reasonably accurate description of the present improvements
and the additions intended to be made under the application or appeal,
if any, indicating the size of such proposed improvements, material
and general construction thereof. In addition, there shall be attached
a plot plan of the real estate to be affected, indicating the location
and size of the lot and size of improvements now erected and proposed
to be erected thereon.
[Amended 5-8-1978 by Ord. No. 78-383; 5-22-1989 by Ord. No.
89-558; 8-21-1989 by Ord. No. 89-561; 6-16-2005 by Ord. No.
2005-745]
Upon the filing with the Board of any proceeding described in § 165-251, the Board shall fix a date for a hearing within 60 days from the date of the request, unless the applicant has agreed in writing to an extension of time. The Board shall give notice thereof as follows:
A.
Public notice shall be given, as required by law,
by publication in a newspaper of general circulation in the Township.
B.
Written notice shall be given to the applicant and
to any other person who has made timely request for the same at least
10 days prior to the date fixed for the hearing. Such written notice
may be hand-delivered or forwarded by regular mail.
C.
A copy of the advertisement of the public hearing
shall be filed with the Township Manager at least 15 days prior to
the date of the hearing.
D.
When the Board shall so order, by mailing or delivering
a notice thereof to the owner if his residence is known or to the
occupier of every lot on the same street within 500 feet of the lot
or building in question and of every lot not on the same street within
150 feet of the said lot or building, provided that failure to give
notice required by this subsection shall not invalidate any action
taken by the Board.
E.
The notice herein required shall state the location
of the lot or building and the general nature of the question involved.
F.
All properties which are to be the subject matter
of Zoning Hearing Board applications all be conspicuously posted as
follows:
(1)
Posting shall be done by Township personnel.
(2)
Property shall be posted by the placing of cardboard
signs not less than nine by eleven (9 x 11) inches in size.
(3)
The signs shall bear the following legend: "NOTICE
The Zoning Hearing Board of Upper Merion Township will hold a public
hearing on (date) on the following application: (A copy of the advertisement
shall be attached)."
G.
Posting of the properties affected shall take place
at least seven days prior to the date of the scheduled hearing.
H.
The posting of the property shall be conspicuous and
shall be accomplished by attaching the sign to the property or building
in question or by permanently displaying the same in a window of the
building on the property.
I.
The Zoning Officer shall certify to the Board that
the posting has been accomplished in accordance with these rules,
and such certification shall become a permanent part of the Board's
records relating to the application.
It shall be the duty of the Board to issue a
certificate in any case wherein a special exception or a variance
is granted. The Board may cancel or revoke any such certificate for
any violation of this chapter or of conditions imposed.
[Amended 6-13-1977 by Ord. No. 77-375]
A 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 one year from the date of authorization
thereof.[1]
[1]
Editor's Note: Original Section 2009, Appeal
to Court, which immediately followed this section, was repealed 6-15-1987
by Ord. No. 87-516.
