[Ord. 558, 9/4/2012]
1.
There is hereby created for the Township a Zoning Hearing Board in
accordance with the provisions of Article IX of the Pennsylvania Municipalities
Planning Code, 53 P.S. § 10901 et seq.
2.
The membership of the Board shall consist of five residents of the
Township appointed by resolution by the Board of Supervisors. The
terms of office shall be for three years and shall be so fixed that
the term 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 hold no other office
in the Township.
3.
Any Board member may be removed for malfeasance, misfeasance or nonfeasance
in office or for other just cause by a majority vote of the Board
of Supervisors which appointed the member, 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.
4.
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 this chapter.
5.
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, which records
shall be the property of the Township, and shall submit a report of
its activities to the Board of Supervisors as requested by the Board
of Supervisors.
6.
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, but in no case shall
it exceed the rate of compensation authorized to be paid to the members
of the Board of Supervisors.
[Ord. 558, 9/4/2012]
The Zoning Hearing Board shall conduct hearings and make decisions
in accordance with the following requirements:
A.
Public notice shall be given and written notice shall be given to
the applicant, the Zoning Officer and to any person who has made timely
request for the same. Written notices shall be given at such time
and in such manner as shall be prescribed by rules of the Board. In
addition to the written notice provided herein, written notice of
said hearing shall be conspicuously posted on the affected tract of
land at least one week prior to the hearing.
B.
The hearing shall be held within 60 days from the date of the applicant's
request, unless the applicant has agreed in writing to an extension
of time.
C.
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
appellant or the applicant, as the case may be, in addition to the
Township, may, prior to the decision of the hearing, waive decision
or findings by the Board and accept the decision or findings of the
hearing officer as final.
D.
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.
E.
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.
F.
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 to cross-examine adverse witnesses on all relevant
issues.
G.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
H.
The Board or the hearing officer, as the case may be, shall keep
a stenographic record of the proceedings. 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.
I.
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 its
solicitor, unless the parties are afforded an opportunity to contest
the material so noticed; and shall not inspect the lot or its surroundings
after the commencement of hearings with any party or his representative
unless all parties are given an opportunity to be present.
J.
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. 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 of any law, 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 report of the hearing officer. Where the Board fails to render the 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 or on the record to an extension of time. 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 hereinabove provided, the Board shall give public notice of the said decision within 10 days from the last day it could have met to render a decision in the same manner as provided in Subsection A of this section. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
K.
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.
L.
The Board of Supervisors shall establish, by resolution, fees with
respect to hearings before the Zoning Hearing Board.
[Ord. 558, 9/4/2012]
1.
The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
A.
Substantive challenges to the validity of any land use ordinance,
except those brought before the Board of Supervisors pursuant to Sections
609.1 and 916.1(a)(2) of the Pennsylvania Municipalities Planning
Code (hereinafter "MPC"), 53 P.S. §§ 10609.1, 10916.1.
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 within 30 days
after the effective date of said ordinance. Where the ordinance appealed
from is the initial zoning ordinance of the Township and a Zoning
Hearing Board has not been previously established, the appeal raising
procedural questions shall be taken directly to court.
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 Section 910.2 of the MPC, 53 P.S. § 10910.2.
F.
Applications for special exceptions under this chapter or floodplain
or flood hazard ordinance or such provisions within a land use ordinance,
pursuant to Section 912.1 of the MPC, 53 P.S. § 10912.1.
G.
Appeals from the determination of any officer or agency charged with
the administration of any transfers of development rights or performance
density provisions of this chapter.
H.
Appeals from the Zoning Officer's determination under Section 916.2
of the MPC, 53 P.S. § 10916.2.
I.
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
applications under Article V or VII of the MPC, 53 P.S. §§ 10501
et seq., 10701 et seq.
2.
The Board of Supervisors shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
A.
All applications for approvals of planned residential developments
under Article VII of the MPC, pursuant to the provisions of Section
702 of the MPC, 53 P.S. § 10702.
B.
All applications pursuant to Section 508 of the MPC, 53 P.S. § 10508,
for approval of subdivisions or land developments under Article V
of the MPC, 53 P.S. § 10501 et seq.
C.
Applications for conditional use under the express provisions of
this chapter.
D.
Applications for curative amendment to this chapter or pursuant to
Sections 609.1 and 916.1(a) of the MPC, 53 P.S. §§ 10609.1
and 10916.1(a).
E.
All petitions for amendments to land use ordinances, pursuant to
the procedures set forth in Section 609 of the MPC, 53 P.S. § 10609.
F.
Appeals from the determination of the Zoning Officer or the Township
Engineer in the administration of any land use ordinance or provisions
thereof with reference to sedimentation and erosion control and stormwater
management insofar as the same relate to applications for land development
under Articles V and VII of the MPC, 53 P.S. §§ 10501
et seq., 10701 et seq. Where such determination relates only to development
not involving an Article V or VII application, the appeal from such
determination of the Zoning Officer or the Township Engineer shall
be to the Zoning Hearing Board pursuant to this section. Where the
applicable land use ordinance vests jurisdiction for final administration
of subdivision and land development applications in the Planning Commission,
all appeals from determinations under this subsection shall be to
the Planning Commission, and all appeals from the decision of the
Planning Commission shall be to court.
[Ord. 558, 9/4/2012]
Upon appeal from a decision by the Zoning Officer, the Zoning
Hearing Board shall decide any questions:
1.
Involving the interpretation of any provisions of this chapter, including
determination of the exact location of any district boundary if there
is uncertainty with respect thereto.
2.
Where it is alleged there is error in any order, requirements, decision
or determination, including any order requiring an alleged violation
to stop, cease and desist made by the Zoning Officer in the enforcement
of this chapter.
[Ord. 558, 9/4/2012]
1.
Applicability. Upon appeal from a decision by the Zoning Officer,
the Zoning Hearing Board shall have the power to vary or adapt the
strict application of any of the dimensional requirements of this
chapter, where, by reason of exceptional narrowness, shallowness or
shape of a specific piece of property at the time of the enactment
of this chapter or by reason of exceptional topographic conditions
or other extraordinary and exceptional situation or condition on such
piece of property, the strict application of any regulations enacted
under this chapter would result in peculiar and exceptional and undue
hardship upon the owner of such property, but in no other case.
2.
Condition. In general, the power to authorize a variance from the
terms of this chapter shall be sparingly exercised and only under
peculiar and exceptional circumstances.
3.
Requirements and standards. No variance in the strict application
of the provisions of this chapter shall be granted by the Board unless
the Board finds that the requirements and standards are satisfied.
The applicant must prove that the variance will not be contrary to
the public interest and that practical difficulty and unnecessary
hardship will result if it is not granted; in particular, the applicant
shall establish and substantiate that the appeal for the variance
is in conformance with all the requirements and standards listed below:
A.
That the granting of the variance shall be in harmony with the general
purpose and intent of this chapter and shall not be injurious to the
neighborhood or otherwise detrimental to the public welfare.
B.
That the granting of the variance will not permit the establishment
within a district of any use which is not permitted in that district.
C.
There must be proof of unique circumstances. There are special circumstances
or conditions, fully described in the findings, applying to the land
or buildings for which the variance is sought, which circumstances
or conditions are peculiar to such land or buildings and do not apply
generally to land or buildings in the neighborhood, and that said
circumstances or conditions are such that the strict application of
the provisions of this chapter would deprive the applicant of the
reasonable use of such land or buildings.
D.
There must be proof of unnecessary hardship. If the hardship is general,
that is, shared by neighboring property, relief can be properly obtained
only by legislative action or by court review of an attack on the
validity of this chapter.
E.
That the granting of the variance is necessary for the reasonable
use of the land or building and that the variance as granted by the
Board is the minimum variance that will accomplish this purpose. It
is not sufficient proof of hardship to show that greater profit would
result if the variance were awarded. Furthermore, hardship complained
of cannot be self-created; it cannot be claimed by one who purchases
with or without knowledge of restrictions, it must result from the
application of the Chapter; it must be suffered directly by the property
in question; and evidence of variance granted under similar circumstances
shall not be considered.
F.
The Board may prescribe any safeguard that it deems necessary to
secure substantially the objectives of the regulation or provision
to which the variance applies.
[Ord. 558, 9/4/2012]
1.
Applicability. The Zoning Hearing Board shall have the power to approve
special exceptions when this chapter specifically requires the obtaining
of such approval, and for no other use or purpose.
2.
Conditions and standards. In granting a special exception, the Zoning
Hearing Board shall make findings of fact consistent with the provisions
of this chapter. The Board shall not approve a special exception except
in conformance with the conditions and standards outlined in this
chapter.
3.
General requirements and standards applicable to all special exceptions.
The Board shall grant a special exception only if it finds adequate
evidence that any proposed development submitted will meet all of
the following general requirements as well as any specific requirements
and standards listed herein for the proposed use. The Board shall,
among other things, require that any proposed use and location be:
A.
In accordance with the Lower Southampton Township Comprehensive Plan
and consistent with the spirit, purposes and the intent of this chapter.
B.
In the best interest of the Township, the convenience of the community,
the public welfare, and be a substantial improvement to the property
in the immediate vicinity.
C.
Suitable for the property in question and designed, constructed,
operated and maintained so as to be in harmony with and appropriate
in appearance to the existing or intended character of the general
vicinity.
D.
In conformance with all applicable requirements of this chapter.
E.
Suitable in terms of effects on highway traffic and safety with adequate
access arrangements to protect streets from undue congestion and hazard.
F.
In accordance with sound standards of subdivision practice where
applicable.
4.
The Zoning Hearing Board may impose whatever conditions regarding
layout, circulation and performance it deems necessary to ensure that
any proposed development will secure substantially the objectives
of this chapter.
[Ord. 558, 9/4/2012]
1.
A special exception or variance shall expire if the applicant fails
to obtain a zoning permit within six months of the date of the granting
of the special exception or variance.
2.
No person shall refile an application for a special exception or
variance for one year after an application for substantially the same
relief has been denied by the Zoning Hearing Board.
[Ord. 558, 9/4/2012]
The Board shall hear challenges to the validity of this chapter or the Zoning Map, except as indicated in the Pennsylvania Municipalities Planning Code, Act 247, Sections 1003 and 1004(1)(b). In all such challenges, the Board shall take evidence and make a record thereon as provided in § 27-2302. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact, which shall become part of the record to the court.
[Ord. 558, 9/4/2012]
Appeals raising the substantive validity of any land use ordinance
(except those to be brought before the Board of Supervisors pursuant
to the Pennsylvania Municipalities Code), procedural questions or
alleged defects in the process of enactment or adoption of a land
use ordinance; or 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; 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; from the determination of any officer or agency charged
with the administration of any transfers of development rights or
performance density provisions of this chapter; 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 may be filed with the Zoning Hearing
Board in writing by the landowner affected, any officer or agency
of the Township, or any person aggrieved. Requests for a variance
and for special exception may be filed with the Board by any landowner
or any tenant with the permission of such landowner.
[Ord. 558, 9/4/2012]
1.
No person shall be allowed to file any proceeding with the Zoning
Hearing Board later than 30 days after an application for development,
preliminary or final, has been approved by the Township 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. The failure of anyone
other than the landowner to appeal from an adverse decision on a tentative
plan or from an adverse decision by the Zoning Officer on a challenge
to the validity of this chapter or an amendment hereto or map or an
amendment thereto shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the approved tentative approval.
2.
All appeals from determinations adverse to the landowner shall be
filed by the landowner within 30 days after notice of the determination
is issued.
[Ord. 558, 9/4/2012]
1.
Upon filing of any appeal proceeding before the Zoning Hearing Board
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.
2.
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. It shall be the
burden of the applicant for a bond to prove the appeal is frivolous.
After consideration of all evidence presented, if the court determines
that the appeal is frivolous, it shall grant the petition for a bond.
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.
3.
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.
An order denying a petition for bond shall be interlocutory. An order
directing the responding party to post a bond shall be interlocutory.
4.
If an appeal is taken by a respondent to the petition for a bond
from an order of the court dismissing a zoning appeal for refusal
to post a bond, and the appellate court sustains the order of the
court below to post a bond, the respondent to the petition for a bond,
upon motion of the petitioner and after hearing in the court having
jurisdiction of zoning appeals, shall be liable for all reasonable
costs, expenses and attorney's fees incurred by the petitioner.
[Ord. 558, 9/4/2012]
The applicant for any hearing before the Zoning Hearing Board
shall, at the time of making application, pay to the Zoning Officer,
for the use of the Township, a fee in accordance with a fee schedule
adopted by resolution of the Township Supervisors upon enactment of
this chapter or as such schedule may be amended from time to time.
