A.
Creation of the Zoning Hearing Board. A Zoning Hearing Board for the Township of Upper Chichester shall be appointed by the Board of Commissioners and shall be authorized to administer all procedures charged to such Boards, in accordance with the provisions of Article IX of the Pennsylvania Municipalities Planning Code, as amended.[1] Hereinafter, as used in this article, the term "Board"
shall refer to the Zoning Hearing Board, and the term "Planning Code"
shall refer to the Pennsylvania Municipalities Planning Code, Act
247, as amended by Act 170.[2]
B.
Membership of the Board. The Board shall consist of three or five
residents as shall be established by the Township Board of Commissioners.
If three, terms shall be for three years, and, if five, terms shall
be for five years with one term expiring each year.
C.
Removal of members. Any member may be removed for malfeasance, misfeasance,
or nonfeasance in office or for other just cause by a majority rule
of Township Commissioners 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 requests it in writing.
D.
Organization of the Board.
(1)
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 the majority of all members of the Board, but
where a majority of members are disqualified to act in a particular
matter, the remaining members may act for the Board. As provided for
in the Planning Code, 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 Section 908
of the Planning Code.[3]
[3]
Editor's Note: See 53 P.S. § 10908.
(2)
The Board shall adopt rules and forms for its procedure in accordance
with the provisions of this chapter. Meetings of the Board shall be
held at the call of the Chairman and at such other times as the Board
may determine. Such Chairman or, in his absence, the acting Chairman,
may administer oaths and compel the attendance of witnesses. All meetings
of the Board shall be open to the public.
(3)
The Board shall keep minutes of its proceedings, showing the
vote of each member upon each question, or if absent or failing to
vote indicate such fact, and shall keep records of its examination
and other official actions, all of which shall be immediately filed
in the Office of the Township Secretary and shall be a public record.
(4)
The Board shall submit a report of its activities to the Township
Commissioners as requested.
E.
Expenditures for services. Within the limits of funds appropriated
by the Township Commissioners, 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 Township
Commissioners, but in no case shall it exceed the rate of compensation
authorized to be paid to members of the Board of Commissioners.
A.
Appeals from the Zoning Hearing Officer. The Board shall hear and
decide appeals where it is alleged that the Township Zoning Officer
has failed to follow prescribed procedures or has misinterpreted or
misapplied any provision of this chapter or the Zoning Map, or any
valid rule or regulation governing the action of the Zoning Officer.
B.
Applications. Applications for variances or special exceptions shall
include as a minimum the following information:
C.
Variances. The Board shall hear requests for variances where it is
alleged that the provisions of this chapter inflict unnecessary hardship
on the applicant. In granting a variance, the Board may attach such
reasonable conditions and safeguards as it may deem necessary to implement
the purpose of the Planning Code and this chapter.
D.
Special exceptions. The Board shall hear and decide requests for special exceptions authorized by this chapter in accordance with the standards and criteria set forth in § 600-213 below. The Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the Planning Code and this chapter.
A.
Requirements and procedures. The Board shall conduct hearings and
make decisions in accordance with the following requirements.
(1)
Upon filing with the Board of an appeal, an application for a special exception, a variance from the terms of this chapter or a challenge, the Board shall fix a time and place for a public hearing thereon, subject to the provisions of the Planning Code, and shall give notice thereof in accordance with § 600-211 of this chapter.
(2)
The Commissioners may establish reasonable fees, based on cost,
to be paid by the applicant with respect to hearing before the Board.
However, such fees shall not include legal expenses of the Board,
engineering, architectural or other technical consultant or expert
witness costs.
(3)
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.
(4)
The parties to the hearing shall be the Township and person
affected by the application that has made timely appearance of record
before the Board, and any other person including civic or community
organizations permitted to appear by the Board.
(5)
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.
(6)
The parties shall have the right to be represented by counsel
and shall be afforded the opportunity to respond and present evidence
and to cross-examine adverse witnesses on all relevant issues. At
the hearings, any party may appear in person, or by agent, or by attorney.
(7)
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 representatives
unless all parties are given an opportunity to be present.
Notice of hearing. In any case where the Board shall hold a
public hearing, the Board shall, at a minimum, give notice of such
hearing as follows, which notice shall state the time and the place
of the hearing and the particular nature of the matter to be considered
at the hearing:
A.
By publishing a notice thereof once each week for two successive
weeks in a newspaper of general circulation in the Township, provided
that the first publication shall be not more than 30 or less than
seven days from the date of the hearing.
C.
By mailing or delivering notice thereof to Township Commissioners,
the Municipal Secretary, and the Zoning Officer.
D.
By conspicuously posting notice of said hearing on the affected tract
of land at least one week prior to the hearing.
[Added 9-13-2018 by Ord.
No. 726]
The applicant shall, by certified mail return receipt requested
or hand delivery, provide written notice of the date, time, and place
of the hearing, including the nature of the matter to be considered,
to those persons whose properties adjoin the property in question,
and to any other person or party who has made a timely request for
the same, and to those persons whose properties are otherwise within
a five-hundred-foot radius of the property in question.
A.
The following requirements shall be observed in the reporting of
decisions of the Board:
(1)
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, subject to the requirements
of the Planning Code. Where the Board has power to render a decision
and the Board or the hearing officer, as the case may be, fails to
render the same within the period required by the Planning Code 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 to an extension of time.
(2)
A copy of the final decision, where such decision is called
for, shall be delivered to the applicant personally or mailed to him
not later than the day following its decision 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,
a brief notice of the decision or findings and a statement of the
place at which the full decision or findings may be examined.
B.
Decision of the Board shall include the following elements:
(1)
Findings of fact, including a brief summary of relevant testimony
and information entered during the proceedings of the Board.
(2)
Citation by quotation or by reference to the specific sections
of the local ordinances and/or the Planning Code, which are relevant
to the case in question.
(3)
Conclusions of the Board, enumerating the reasons why such conclusions
are deemed appropriate in light of the facts found.
(4)
Ruling of the Board, indicating in writing any stipulations
or conditions attached to the ruling.
In any instance where the Zoning Hearing Board is required to
consider a variance or special exception, the Board shall, among other
things, consider the following standards:
A.
Planning Code criteria for variances.
(1)
The Board shall hear requests for variances where it is alleged
that the provisions of the ordinance inflict unnecessary hardship
on the applicant.
(2)
A variance from the terms of this chapter shall not be granted
by the Board unless and until a written application for a variance
is submitted by the applicant who shall have the burden of establishing:
(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 this chapter 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 provisions of this chapter and that the authorization of
the variance is therefore necessary to enable the reasonable use of
the property.
(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, nor substantially or permanently impair the appropriate use
or development of adjacent property, nor be detrimental to the public
welfare.
(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.
(3)
In granting any variance, the Board may attach such reasonable
conditions and safeguards as it may deem necessary to implement the
purposes of the Planning Code and this chapter.
B.
Standards for review of special exceptions. In any instance where
the Board is required to consider a request for a special exception,
the Board shall consider the factors listed below:
(1)
That the proposed use is consistent with the statement of community development objectives of § 600-3 and the statement of purpose for the district in which the use is proposed.
(2)
That the proposed use is appropriate for the site in question
in terms of size, topography, natural features, drainage, sewage and
solid waste disposal, water supply, stormwater management, accessibility
and availability of public services, and that adequate provisions
will be made to protect sensitive environmental features such as streams,
lakes, wetlands, slopes and mature trees.
(3)
That the proposed use is compatible with the character of the
surrounding neighborhood, will not interfere with or detract from
legitimate uses and adjacent properties, and that adequate measures
will be provided through building design, site layout, landscaping,
planting and operational controls to minimize any adverse impacts
caused by noise, lights, glare, odors, smoke, fumes, traffic, parking,
loading and signage.
(4)
That the proposed use will serve the best interest of the Township,
convenience of the community and the public health, safety and welfare.
(5)
That the proposed use is consistent with the most recent adopted
Township Comprehensive Plan.
(6)
That the proposed use promotes orderly development, proper population
density and the provision of adequate community facilities and services,
including police and fire protection.
(7)
That the proposed use will provide for adequate off-street parking, as required in Article XVIII.
(8)
That the proposed use will reflect effective site planning and
design in terms of energy efficiency, environmental protection and
aesthetic composition.
(9)
Financial hardship shall not be construed as a basis for granting
a special exception.
(10)
In granting any special exception, the Board may attach reasonable
conditions and safeguards in addition to those expressed in this chapter
as it may deem necessary to implement the purposes of the Planning
Code and this chapter, which conditions and safeguards may relate
to, but not be limited to, screening, lighting, noise, safety, aesthetics
and the minimization of noxious, offensive or hazardous elements.
Such special exception shall be clearly authorized by a provision
in this chapter and shall comply with the more specific standards
relating to such special exception contained in sections of this chapter
relating to uses by special exception.
A.
An applicant for a variance shall have the burden of establishing
both:
B.
An applicant for a special exception shall have the burden of establishing
both:
C.
Evaluation of the impact of an application on the public interest.
In determining whether the allowance of a special exception or variance
is contrary to the public interest, the Board shall consider whether
the application, if granted, will:
(1)
Adversely affect the public health, safety and welfare due to
changes in traffic conditions, drainage, air quality, noise levels,
neighborhood property values, natural features and neighborhood aesthetic
characteristics.
(2)
Be in accordance with the Multi-Municipal Comprehensive Plan
for Aston, Lower Chichester and Upper Chichester Townships, 2005.
(4)
Adversely affect the logical, efficient and economical extension
or provision of public services and facilities such as public water,
sewers, refuse collection, police, fire protection and public schools.
(5)
Otherwise adversely affect the public health, safety or welfare.
A.
All appeals, applications, or challenges, which properly come before
the Board in accordance with the requirements of the Planning Code,
and all appeals to court shall be subject to the time limitations
and requirements of Article X-A[1] and any other applicable provision of said Code. The proceedings
set forth in Article X-A of the Planning Code shall constitute the
exclusive mode for securing review of any ordinance, decision, determination
or order of the Township Commissioners, its agencies or officers.
Appeals to court shall be taken to the Court of Common Pleas of Delaware
County.
[1]
Editor's Note: See 53 P.S. § 11001-A et seq.
B.
Parties appellant before Zoning Hearing Board. Appeals under Section
909.1 of the Planning Code[2] and proceedings to challenge an ordinance under Section
909.1 may be filed with the Board in writing by the landowner affected,
any office or agency of the Township or person aggrieved. Requests
for a variance under Section 910.2 and for a special exception under
Section 912.1[3] may be filed with the Board by any such landowner or any
tenant with the permission of such landowner.
C.
Time limitations. No persons shall be allowed to file any proceedings
with the Board later than 30 days after any 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 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.
D.
Stay or proceedings. Upon filing of any proceeding referred to in
Section 913.3 of the Planning Code[4] and during its tendency 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 there under
shall be stayed unless the Zoning Officer or any other appropriate
agency or body certified 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 buy the Board or by the
court having jurisdiction of zoning appeals on petition after notice
of 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 persons other than the
applicant, the applicant may petition the court having jurisdiction
over zoning appeals to order such persons to post bond as a condition
to continuing the proceedings before the Board. The question of whether
or not such petition should be granted and the amount of the bond
shall be within the sound discretion of the court, as prescribed in
Section 915.1 of the Planning Code.[5]
