[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.
B. 
When used hereafter in Article XXI, the word "Board" shall mean the Zoning Hearing Board.
C. 
The Board of Supervisors may appoint alternate members of the Zoning Hearing Board who shall serve as authorized under the Pennsylvania Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
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.
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.
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.
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.