[Amended 3-3-2003 by Ord. No. 2003-2]
A.
There shall be a Zoning Hearing Board which shall
consist of three members, who shall be appointed by resolution of
the Board of Supervisors. The membership of the Zoning Hearing Board
shall consist of residents of the Township. 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. The Zoning Hearing 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 Zoning Hearing Board shall hold no other
office in the Township. Any member of the Zoning Hearing Board may
be removed for malfeasance, misfeasance, or nonfeasance 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.
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 not be 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 § 170-2103. The Board may make, alter, and rescind rules and forms for its procedure, consistent with ordinances of the Township 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 Board of Supervisors once a year.
A.
Within the limits of funds appropriated by the Board
of Supervisors, 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 Board of Supervisors.
B.
The applicant before the Board shall deposit with
the Treasurer of the Township the appropriate filing fee. Fees shall
be established, by resolution of the Board of Supervisors, for purposes
as prescribed in Section 908(1.1) of the Municipalities Planning Code
[53 P.S. § 10908(1.1)]. Funds deposited in excess of the
actual cost of the requested hearing shall be returned to the applicant
upon completion of the proceedings. In the event that the costs of
the hearing exceed the funds deposited, the applicant shall pay to
the Treasurer of the Township funds equal to such excess costs within
30 days of the Board's request.
The Board shall conduct hearings and make decisions
in accordance with the following requirements:
A.
The Board shall fix a reasonable time and place for
public hearings and shall give notice thereof as follows:
(1)
By giving public notice thereof, as defined
by this chapter.
(2)
By providing, by first class mail, a written
notice thereof to the applicant at least 14 days before the date fixed
for the hearing.
[Amended 10-4-2021 by Ord. No. 2021-08]
(3)
By giving written notice thereof to the Zoning
Officer, the Township Secretary, each member of the Board of Supervisors,
the Chester County Planning Commission, and to every person or organization
who shall have registered with the Board for the purpose of receiving
such notices. The Board of Supervisors may fix an annual fee for provision
of notices to such registered persons or organizations.
[Amended 10-4-2021 by Ord. No. 2021-08]
(4)
By posting the written notice of said hearing
in a conspicuous location on the affected tract of land, at least
one week prior to the hearing.
(5)
By mailing or delivering a notice thereof to
the owner of every lot on the same street within 500 feet (measured
along the street frontage) of the lot or building in question, and
of every lot not on the same street but within a radius of 500 feet
of the said lot or building, provided that failure to give notice
as required by this subsection shall not invalidate any action taken
by the Board.
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The notice herein required shall state the location
of the lot or building and the general nature of the question involved,
as well as the date, time, and place of the hearing.
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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,
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 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 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.
A stenographic record of the proceedings shall be
made by a court reporter. The appearance fee for the court reporter
shall be shared equally by the applicant and the Board. Any party
requesting the original transcript or a copy of the transcript shall
bear the cost of same. Copies of graphic or written material received
in evidence shall be made available to any party at cost.
H.
Once an application has been duly filed, 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.
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 this chapter or of any act, 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 report of the hearing officer. Where the Board, or the hearing
officer with power to render a decision, fails to render a decision
within the period required by this subsection, 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.
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 them by first class mail not later than the
day following its date. To all other persons who have filed their
name and address with the Board no 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.
[Amended 10-4-2021 by Ord. No. 2021-08]
The Board shall hear and decide appeals where
it is alleged by the appellant that the Zoning Officer has failed
to follow prescribed procedures or has misinterpreted or misapplied
any provisions of a valid ordinance or map or any valid rule or regulation
governing the action of the Zoning Officer, as stipulated under the
terms of Section 909.1(a) of the Municipalities Planning Code [53
P.S. 10909.1(a)].
The Board shall hear any substantive challenge to the validity of this chapter or the Zoning Map, except a challenge brought before the Board of Supervisors under the terms of Section 609.1 or 916.1(a)(2) of the Municipalities Planning Code [53 P.S. § 10609.1 or 10916.1(a)(2)]. The Board also shall hear any challenge to the validity of this chapter raising procedural questions or alleged defects in the process of enactment or adoption, where such challenge is raised by an appeal taken within 30 days after the effective date of the ordinance. In all such challenges, the Board shall take evidence and make a record thereon as provided in § 170-2102. At the conclusion of the hearing, the Board shall decide all contested questions of interpretation and shall make findings on all relevant issues of fact, which shall become part of the record on appeal to court.
Challenges to the validity of the flexible development provisions of Article IX of this chapter, and appeals from any action of the Zoning Officer thereunder, shall be governed by § 170-2104 of this article. When the Board of Supervisors, however, has held a hearing upon an application for development under Article IX of this chapter, such hearing shall be deemed in lieu of a hearing by the Board provided for under § 170-2104, and appeal from any decision or determination of the Board of Supervisors (including a challenge to the validity of any provision of such ordinance) shall lie directly to the court.
A.
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, by rule, prescribe the
form of application. The procedure shall be as follows:
(1)
A preliminary written application shall be filed
with the Zoning Officer, who shall verify that the application is
complete, and that the application is properly filed for a variance
and not for a change to the Zoning Ordinance or Map concerning a use
or district. If the latter is the case, the applicant shall be advised
of the proper procedures, as stipulated by this chapter.
(2)
Upon acceptance by the Zoning Officer that the
application is complete, correct, and proper, a formal filing for
consideration of the variance request shall be made by the Zoning
Officer to the Zoning Hearing Board, together with the comments and
recommendations of the Zoning Officer. Copies of the filing and comments
shall be submitted to the Township Planning Commission and Board of
Supervisors.
(3)
A public hearing shall be properly advertised in accordance with the requirements established in § 170-2103 of this chapter.
(4)
Prior to the public hearing, the Planning Commission
shall submit its written comments and recommendations on the application
to the Zoning Hearing Board, or a written statement that it chooses
to make no comments and recommendations. When submitted, the comments
of the Planning Commission shall be considered by the Board but shall
not be binding.
[Amended 10-4-2021 by Ord. No. 2021-08]
(5)
Upon completion of the public hearing, the Board
may grant a variance, provided that the procedures specified above
are met and the following findings are made where relevant in a given
case:
(a)
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 the Zoning Ordinance in the
neighborhood or district in which the property is located;
(b)
That because of such physical circumstances
or conditions, there is no possibility that the property can be developed
in strict conformity with the area and bulk regulations or design
standards of the Zoning Ordinance, and that the authorization of a
variance is therefore necessary to enable the reasonable use of the
property, but shall not allow a change in use to one not permitted
by right in that district;
(c)
That such unnecessary hardship has not been
created by the applicant;
(d)
That the variance, if authorized, will not alter
the essential character of the neighborhood or district in which the
property is located, not substantially or permanently impair the appropriate
use or development of adjacent property, and not be detrimental to
the public welfare; and
(e)
That 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.
B.
In granting any variance, the Board may attach such
reasonable conditions and safeguards as it may deem necessary to implement
the purpose of this chapter. The Board shall require that all other
applicable land development regulations apply.
[Amended 3-3-2003 by Ord. No. 2003-2]
Where this chapter 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 the chapter, as it may deem necessary to implement the purposes of this chapter. The procedures for acting on a special exception request shall be the same as those specified for variances under § 170-2107, except that the findings contained in Subsections A(5)(a) through (e) of § 170-2107 shall not be applicable. Where any use or any applicable design criteria subject to conditional use approval also is a part of an overall land development plan subject to application for approval of a special exception, such use or design criteria may be considered for approval by the Zoning Hearing Board as part of the applicable special exception application in lieu of separate submission of an application for conditional use approval. Similarly, where any use or any applicable design criteria subject to special exception approval also is a part of an overall land development plan subject to application for conditional use approval, such use or design criteria may be considered for approval by the Board of Supervisors as part of the applicable conditional use application in lieu of separate submission of an application for approval of a special exception.
A.
Application shall be made in writing, indicating the
section of this chapter under which an exception is sought. The application
shall include a reasonably exact, dimensional sketch showing the placement
and use of the proposed buildings and details of parking, loading,
lighting, utility systems, sidewalks, and other pedestrian areas,
including those within 250 feet of adjoining properties or structures.
B.
Further, a description of the uses proposed shall
be included in sufficient detail so that potentially detrimental impacts,
if any, can be determined.
C.
The Board shall hear and decide all requests for special
exceptions, as identified within this chapter, in accordance with
the following standards and criteria:
(1)
Relationship to the Comprehensive Plan. Consideration
of the size, scope, extent, and character of the proposed special
exception and assurance that such proposal is consistent with the
purposes and objectives of the Westtown Township Comprehensive Plan,
including protection and promotion of the public health, safety, and
welfare.
(2)
Suitability of the tract. Consideration of the
suitability of the proposed tract including, as applicable, environmental
conditions, highway access, and availability of sewer and water service,
and of the extent to which the proposed use is susceptible to regulatory
restriction through the imposition of appropriate conditions.
(3)
Impact on existing neighborhood character. Consideration
of the extent to which the proposed special exception will alter unduly
the character of the existing neighborhood and adjacent tracts, and
the effectiveness of proposed or potential mitigation measures; consideration
of the character and type of development in the area surrounding the
location of the proposed special exception, and a determination that
the proposal, if approved, will constitute an appropriate use in the
area.
(4)
Impact on circulation. Consideration of the
effects the proposed special exception may have on traffic patterns
and volumes, access, and parking.
(5)
Economic impact. Consideration of the character
and type of development proposed in terms of generating revenue for
the Township and imposing demands on municipal services.
D.
Persons with disabilities. After the Zoning Officer
receives a complete written application, the Zoning Hearing Board
shall grant a special exception allowing modifications to specific
requirements of this chapter that the applicant proves to the satisfaction
of the Zoning Hearing Board are required under applicable federal
law to provide a reasonable accommodation to serve persons who the
applicant proves have disabilities as defined in and protected by
such laws.
(1)
Such reasonable accommodations shall be requested
in accordance with the U.S. Fair Housing Act Amendments and/or the
Americans with Disabilities Act, as amended.
(2)
If the applicant is requesting a reasonable
accommodation under the United States Fair Housing Amendments Act
of 1988 or the Americans with Disabilities Act, the applicant shall
identify the disability which is protected by such statutes, the extent
of the modification of the provisions of this chapter necessary for
a reasonable accommodation, and the manner by which the reasonable
accommodation requested may be removed when such person(s) with a
protected disability no longer will be present on the property.
(3)
Any modification approved under this section
may be limited to the time period during which the persons with disabilities
occupy or utilize the premises.
Any approval of a special exception or variance
request shall be deemed null and void six months from the date of
such approval if, within that period, no application is made for a
building permit, a use and occupancy permit, or subdivision or land
development approval, as appropriate, unless the Zoning Officer shall
grant a six-month extension.
Appeals and proceedings under §§ 170-2104, 170-2105, and 170-2106 may be filed with the Board in writing by any officer or agency of the Township, or by any person aggrieved. Request for a variance under the terms of § 170-2107, or for a special exception under the terms of § 170-2108, may be filed by any landowner or any tenant with the permission of such landowner.
A.
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 the 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/she 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/she 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 a tentative plan pursuant to § 170-911
of this chapter, or from an adverse decision by the Zoning Officer
on a challenge to the validity of the Zoning Ordinance or Map, pursuant
to Section 916.2 of the Municipalities Planning Code (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 submission.
