[Ord. 2002-06, 11/11/2002, § 2201]
1.
There shall be a Zoning Hearing Board in accordance with the provisions
of Article IX of the Municipalities Planning Code, Act 247, as amended,
53 P.S. § 10901 et seq.
A.
The Zoning Hearing Board shall consist of three members who shall
be appointed by resolution of the Board and who shall be residents
of the Township.
B.
The Zoning Hearing Board shall designate one such member to serve
until the first day of January following the effective date of this
chapter, one until the first day of the second January thereafter,
and one until the first day of the third January thereafter. Shall
appoint their successors on the expiration of their respective terms
to serve three years, and shall fill any vacancy for the unexpired
term of any member whose term becomes vacant.
C.
Any Board member may be removed for malfeasance, misfeasance, or
nonfeasance in office, or for other just cause by 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 will be held in connection with the vote
if the member shall request it in writing.
D.
The members of the Zoning Hearing Board shall hold no other office
in the Township.
[Ord. 2002-06, 11/11/2002, § 2202]
1.
The Zoning Hearing Board shall elect, from its members, its officers,
who shall serve annual terms as such and may succeed themselves.
2.
For the conduct of any public hearing and the taking of any action, quorum shall not be less than a majority of all the members of the Zoning Heating Board, but the Zoning Hearing 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 Zoning Hearing Board, as provided in § 27-2206 below.
3.
The Zoning Heating Board may make, alter, and rescind rules and forms
for its procedure consistent with the provisions of this chapter and
the laws of the commonwealth.
4.
The Zoning Hearing Board shall keep full public record of its business,
which records shall be property of the Township, and shall submit
a report of its activities to the Board of Supervisors; as requested.
[Ord. 2002-06, 11/11/2002, § 2203]
1.
Applications for hearings before the Zoning Hearing Board shall be
filed with the Zoning Hearing Board or their designee, together with
the proper fee.
2.
An application for a special exception or variance from the terms
of this chapter shall state:
A.
The name and address of the applicant.
B.
An application for a special exception or variance from the terms
of this chapter shall state:
(1)
A brief description and location of the real estate to be affected
by such proposed change.
(2)
A statement of the present zoning classification of the real
estate in question, the improvements thereon, and the present use
thereof.
(3)
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.
(4)
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 to scale 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.
(5)
Any additional information as may be otherwise required by this
chapter.
3.
Applications for other than special exception, or variance from terms
of this chapter shall contain sufficient written information to fully
describe the intended use. Where, in the sole discretion of the Zoning
Officer, it is inappropriate for the applicant to furnish plans and/or
specifications, or any other relevant information incident to intended
use, such information shall be required to be submitted with the application.
4.
In the event that any required information is not furnished, the
application shall be refused and the fee returned to the applicant.
5.
The hearing before the Zoning Hearing Board or Hearing Officer shall
be held within 60 days from the date of receipt of the applicant's
request, unless the applicant has agreed in writing to an extension
of time. Each subsequent hearing before the Zoning Hearing Board or
Hearing Officer shall be held within 45 days of the prior hearing,
unless otherwise agreed to in writing or on the record by the applicant.
Any party aggrieved by the schedule or progress of the hearings may
appeal to the Court of Common Pleas for judicial relief. The hearing
shall be completed no later than 100 days after the completion of
the applicant's case-in-chief, unless extended for good cause
upon application to the Court of Common Pleas. An applicant shall
complete the presentation of his case-in-chief within 100 days of
the first hearing. Upon the request of the applicant, the Zoning Hearing
Board or Hearing Officer shall assure that the applicant receives
at least seven hours of hearings within the 100 days, including the
first hearing. Persons opposed to the application shall complete the
presentation of their opposition to the application within 100 days
of the first hearing held after the completion of the applicant's
case-in-chief. An applicant may, upon request, be granted additional
hearings to complete his case-in-chief provided the persons opposed
to the application are granted an equal number of additional hearings.
Persons opposed to the application may, upon the written consent or
consent on the record by the applicant and Township, be granted additional
hearings to complete their opposition to the application provided
the applicant is granted an equal number of additional hearings for
rebuttal.
[Ord. 2002-06, 11/11/2002, § 2204]
1.
The Zoning Hearing Board shall give notice as follows:
A.
By publishing a notice thereof in a newspaper of general circulation
within the Township once a week for two successive weeks, not less
than seven, nor more than 30 days prior to the hearing.
B.
By mailing notice thereof to the applicant and to any person who
has made timely request for the same. In addition, said notice of
said hearing shall be conspicuously posted on the affected tract of
land at least one week prior to the hearing.
C.
By mailing notice thereof to the Township Zoning Officer, to the
Chairman of the Township Board of Supervisors and to the Chairman
of the Township Planning Commission.
D.
The Zoning Hearing Board may mail notice thereof to the owner of
every lot on the same street within 500 feet of the lot or building
in question on every lot not on the same street within 200 feet of
said lot building. But failure to give notice, either in part or in
full, as stated by this paragraph, shall not invalidate any action
taken by the Zoning Hearing Board.
E.
The notice herein required shall state the name of the applicant, the location of the lot or building and the general nature of the question involved, and the date, time, and location of the hearing. In addition thereto, when a hearing is required under § 27-2206, the notice shall state that the validity of the chapter or map is in question and shall note that copy of the landowner's request, including plans and proposed amendments may be examined by the public at the Township during regular business hours.
[Ord. 2002-06, 11/11/2002, § 2205]
1.
Within the limits of funds appropriated by the Board of Supervisors,
the Zoning Hearing Board may employ or contract for, secretaries,
clerks, legal counsel, consultants, and other technical and clerical
services. Members of the Zoning Hearing Board may receive compensation
for the performance of their duties, as may be fixed by the Board
of Supervisors.
2.
The applicant before the Zoning Hearing Board shall deposit with
the Treasurer of the Township, such a sum of money as set forth in
the fee schedule adopted by resolution of the Boards of Supervisors
to pay for the cost of the hearing.
3.
The following administrative costs incurred by the Township relative
to hearings before the Zoning Hearing Board shall be paid from the
application filing fee:
A.
Cost of preparation of required notices.
B.
Cost of mailing notices, including postage.
C.
Cost of advertising.
D.
Cost of posting notice or verification.
E.
Duplication or copying costs.
F.
An equal share of the court reporter's attendance fee.
G.
Cost of stenographic record, if such record is requested by the Zoning
Hearing Board or the applicant.
H.
Other costs related to the application.
4.
Continued Hearings and Collection of Fees.
A.
In the event more than one hearing is necessary on any application,
as promptly as may be possible following the initial hearing, the
Zoning Hearing Board shall determine the total amount of all costs
incurred, and shall deduct same from the application fee. In the event
the application is, at any time, insufficient to cover the costs incurred
or reasonably anticipated to be incurred, the Zoning Hearing Board
shall notify the applicant, provide the applicant with a written copy
of each item, and shall require the applicant to pay, within 10 days
of such notification, any balance then due; together with a further
minimum deposit of one-half of the initial filing fee. In the event
of multiple hearings, all costs shall be reported and collected in
accordance with this procedure.
B.
The failure of the Zoning Hearing Board to demand additional deposits
from time to time shall not relieve the applicant of liability for
costs, charges, expenses, and fees in excess of deposit; and in the
event of default, such shall be recovered by such action as is by
law provided.
C.
All fluids deposited by the application excess of the actual cost
of the hearing or hearings shall be returned to the applicant upon
completion of the proceeding.
[Ord. 2002-06, 11/11/2002, § 2206]
1.
The Zoning Hearing Board shall conduct hearings and make decisions
in accordance with the following requirements:
A.
Hearings of the Zoning Hearing Board shall be held at the call of the Chairman and at a reasonable time and place for public hearings notification of said hearing shall be provided as set forth in § 27-2204.
B.
The hearings shall be conducted by the Zoning Hearing Board or the
Zoning Hearing Board may appoint any member or an independent attorney
as the Hearing Officer. The decision, or where no decision is called
for, the findings, shall be made by the Zoning Hearing 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 Zoning Hearing Board and accept the decision or
findings of the Hearing Officer as final.
C.
The parties to the hearing shall be any person who is entitled to notice under § 27-2204 without special request therefor, who has made timely appearance of record before the Zoning Hearing Board and any other person permitted to appear by the Zoning Hearing Board.
D.
The Chairman or acting chairman of the Zoning Hearing 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.
E.
The parties shall have the right to be represented by counsel and
shall be afforded the opportunity to respond and present evidence,
to argue and to cross-examine adverse witnesses on all relevant issues.
F.
Formal rules of evidence shall not apply, but irrelevant, immaterial,
unduly repetitious and hearsay evidence shall be excluded and other
inadmissible evidence may be excluded at the discretion of the Zoning
Hearing Board.
G.
The Zoning Hearing Board or the Hearing Officer, as the case may
be, shall keep a stenographic record of the proceedings and a transcript
of the proceedings and copies of graphic or written material received
in evidence shall be made available to any party at cost.
H.
The Zoning Hearing Board or the Zoning Hearing Officer shall not
communicate, directly or indirectly, with any party or his representatives
in connection with any issued involved, except upon notice of any
communication, reports, staff memoranda, or other materials, except
advice from their Solicitor, 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 after the
commencement of the heating, unless all parties are given an opportunity
to be present.
I.
The Zoning Hearing Board or the Hearing Officer, as the case may
be, shall render a written decision, or, when no decisions called
for, make written findings on the application within 45 days after
the last hearing before the Zoning Hearing Board or Hearing Officer.
(1)
Each decision shall be accompanied by findings 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 relief was granted upon
and the reasons why the conclusion is deemed appropriate in light
of the facts found.
(2)
If the hearing is conducted by the Hearing Officer and there
has been no stipulation that this decision or findings are final,
the Zoning Hearing Board shall make its 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 its findings, and the decision of the
Zoning Hearing Board shall be entered no later than 30 days after
the report of the Hearing Officer.
(3)
Except for substantive challenges filed under § 916.1 of the Municipalities Planning Code, 53 P.S. § 10916.1, where the Zoning Hearing Board fails to render a decision within the forty-five-day period required by this clause; fails to hold a hearing within 60 days from the applicant's request, unless the applicant has agreed or shall agree in writing to an extension of time; or fails to complete the required hearing as provided in § 27-2203, Subsection 5, the decision shall be deemed to have been rendered in favor of the applicant.
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 him not later than the day following its date. To all other
persons who have filed their name and address with the Zoning Hearing
Board not later than the last day of the hearing, the Zoning Hearing
Board shall provide, by mail or otherwise, brief notice of the decisions
or findings and a statement of the place at which the full decision
or findings maybe examined.
[Ord. 2002-06, 11/11/2002, § 2207]
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 this chapter, except those
brought before the Board of Supervisors pursuant to § 609.1.
"Procedure for Landowner Curative Amendments," and § 916.1(a)(2),
"Challenge to Validity of Ordinance," of the Municipalities Planning
Code, Act 247, as amended, 53 P.S. §§ 10609.1, 10916.1(a)Q).
B.
Challenges to the validity of this chapter 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 this chapter. 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 Part 15, "Flood Hazard District," of this chapter.
E.
Applications for variances from the terms of this chapter pursuant
to § 910.2 of the Municipalities Planning Code, Act 247,
as amended, 53 P.S. § 10910.2.
F.
Applications for special exceptions under this chapter pursuant to
§ 912.1 of the Municipalities Planning Code, Act 247, as
amended, 53 P.S. § 10912.1.
G.
Appeals from the Zoning Officer's determination, under § 916.2,
"Procedure to Obtain Preliminary Opinion," of the Municipalities Planning
Code, Act 247, as amended, 53 P.S. § 10916.2.
H.
Appeals from the determination of the Zoning Officer or Township
Engineer in the administration of this chapter, or provision thereof,
with reference to sedimentation and erosion control and stormwater
management, insofar as the same relates to development.
2.
Variances.
A.
The Zoning Hearing Board shall hear and decide requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship on the applicant. The Zoning Hearing Board may by rule prescribe the form of application, as provided by § 27-2102, "General Permit Regulations." The Zoning Hearing Board may grant a variance, provided the following findings are made, where relevant, in a given case:
(1)
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.
(2)
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 a variance
is therefore 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, will neither 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.
(5)
That authorization of variances in the Flood Hazard District shall be consistent with the requirements of § 27-1508 of this chapter.
(6)
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 Hearing Board may attach such reasonable
conditions and safeguards as it may deem necessary to implement the
purposes of this chapter.
3.
Special Exceptions. The Zoning Hearing Board shall hear and decide
requests for special exceptions where this chapter has stated special
exceptions are to be granted pursuant to the following express standards
and criteria, in addition to such other considerations and determinations
as may be required by the Municipalities Planning Code, Act 247, as
amended, 53 P.S. § 10101 et seq., and other provisions of
this chapter. The Zoning Hearing Board shall:
A.
Give full consideration to the size, scope, extent, and character
of the exception desired and assure itself that such request is consistent
with the plan for future land use in East Fallowfield Township and
with the spirit, purpose, and intent of this chapter.
B.
Take into consideration the character and type of development in
the area surrounding the location for which the request is made and
determine that the proposed change or modification, if permitted,
will constitute an appropriate use in the area and will not substantially
injure or detract from the use of surrounding property or from the
character of the neighborhood.
C.
Consider the public interest in, or the need for the proposed use
or change that determines that the proposal will serve the best interest
of the Township, the convenience of the community (where applicable)
and the public health, safety, and general welfare.
D.
Make certain that the proposed change is reasonable in terms of the
logical, efficient, and economical extension of public services and
facilities including, but not limited to, public water and sewer,
police and fire protection, transportation, and public schools.
E.
Be guided in its study, review, and recommendations by sound standards
or subdivision practice, where applicable.
F.
Review the recommendations of the Planning Commission on the proposed
development plan, where such plan is required. The Zoning Hearing
Board shall not be bound by such recommendations, nor shall the Zoning
Hearing Board be bound by the action of the Board of Supervisors in
relation to the development plan.
G.
Guide the development of highway frontage insofar as possible so
as to limit the total number of access points, reduce the need for
on-street parking and encourage the frontage of buildings on parallel
marginal roads or on roads perpendicular to the highways.
H.
Consider, where pertinent, the effects of the proposal, with respect
to congestion on the roads or highway, the most appropriate use of
land, conserving the value of buildings, safety from fire, panic,
and other dangers, adequacy of light and air; the prevention of overcrowding
of land; congestion of population and adequacy of public and community
services and determine that approval of the application will not have
a substantially adverse effect thereon.
I.
Be assured that the natural features and processes characterizing
the proposed site and its surroundings shall not suffer unmitigated
degradation, that the management of stormwater, the provisions of
water or sewer service, and any other alterations to the site's
pre-development conditions shall be consistent with Township goals,
practices, and plans in these regards, and that demand for water and
energy by the proposed, use shall be minimized to the optimal extent.
J.
Impose such conditions, in addition to those required as are necessary to assure that the intent of this chapter is complied with, and which are reasonably necessary to safeguard the health, safety, morals, and general welfare of the residents of the Township at large, and the residents and owners of the property adjacent to the area in which the proposed use is to be conducted. Conditions may include, but are not limited to, harmonious design of buildings, aesthetics, hours of operation, lighting, in accordance with § 27-1809, "Lighting," of this chapter, numbers of persons involved, and performance standards, in accordance with § 27-1810, "Performance Standards."
[Ord. 2002-06, 11/11/2002, § 2208]
Unless otherwise specified by the Zoning Hearing Board, 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 six months from the date of authorization thereof.
[Ord. 2002-06, 11/11/2002, § 2209]
An appeal to the Zoning Hearing Board under §§ 27-2207, Subsection 1A, B, C, .D, G, and H, 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 under § 27-2207, Subsection 2, and for a special exception under § 27-2207, Subsection 3, may be filed with the Zoning Hearing Board by any landowner or any tenant with the permission of such landowner.
[Ord. 2002-06, 11/11/2002, § 2210]
1.
No person shall be allowed to file any proceeding to the Zoning Hearing
Board later than 30 days after an application for development, preliminary
or final; has been approved by an 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:
A.
If such person has succeeded to his interest after such approval,
he 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 § 709 of
the Municipalities Planning Code (MPC), Act 247, as amended, 53 P.S.
§ 10709, or from an adverse decision by the Zoning Officer
on a challenge to the validity of this chapter or Zoning Map pursuant
to § 916.2 of the MPC, 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
approval.
2.
All appeals from determinations adverse to the landowners shall be
filed by the landowner within 30 days after notice of the determination
is issued.
[Ord. 2002-06, 11/11/2002, § 2211]
1.
Upon filing of any proceeding referred to in § 27-2209, and during its pendency before the Zoning Hearing 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 Zoning Hearing Board facts indicating that such stay would cause imminent peril to life or property. In such case, the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the Zoning Hearing Board or by the court having jurisdiction of zoning appeals on petition after notice to the Zoning Officer or other appropriate agency or body.
2.
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 Zoning Hearing Board by persons other than the
applicant, the applicant may petition the court have jurisdiction
of zoning appeals to order such persons to post bond as a condition
to continuing the proceedings before the Zoning Hearing Board. Where
such a petition is presented, the procedures outlined in § 915.1(b),
(c) and (d) of the Municipalities Planning Code, 53 P.S. § 10915.1(b),
(c) and (d) shall apply.
[Ord. 2002-06, 11/11/2002, § 2213]
Any person aggrieved by any decision of the Zoning Hearing Board,
or any taxpayer or any officer of the Township may, within 30 days
after any decision of the Zoning Hearing Board, appeal to the Court
of Common Pleas of Chester County.
