[Ord. 1-71, 3/2/1971, § 1500; as amended by Ord.
1-93, 1/6/1993]
1. There is hereby created for the Township of Lower Oxford 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 three residents of the
Township of Lower Oxford 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 of Lower Oxford.
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 of Lower Oxford and laws
of the commonwealth. The Board shall keep full public records of its
business, which records shall be the property of the Township of Lower
Oxford 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. 1-71, 3/2/1971, § 1503; as amended by Ord.
1-93, 1/6/1993]
The Zoning Hearing Board shall conduct hearings and make decisions
in accordance with the following requirements:
1. Public notice shall be given and written notice shall be given to
the applicant, the Code Enforcement 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 hearings.
2. 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.
3. 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 of Lower Oxford, 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.
4. The parties to the hearing shall be the Township of Lower Oxford,
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.
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 argument and cross-examine adverse witnesses on all relevant issues.
7. Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
8. 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.
9. 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 their
solicitor, unless the parties are afforded an opportunity to contest
the material so noticed and shall not inspect the site or its surroundings
after the commencement of hearings with any party or his representative
unless all parties are given an opportunity to be present.
10. 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
1 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.
11. 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.
12. The Board of Supervisors shall establish, by resolution, fees with
respect to hearings before the Zoning Hearing Board.
[Ord. 1-71, 3/2/1971, § 1504; as amended by Ord.
1-93, 1/6/1993]
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 §§ 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 of Lower Oxford
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 Code Enforcement Officer, including,
but not limited to, the granting or denial of any permit, any failure
to act on the application, 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 Code
Enforcement Officer with reference to the administration of any flood
plain 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 § 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 § 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 Code Enforcement Officer's determination under
§ 916.2 of the MPC, 53 P.S. § 10916.2.
I. Appeals from the determination of the Code Enforcement Officer or
Township engineer in the administration of any land use ordinance
or provision thereof with reference to sedimentation and erosion control
and storm water 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 § 702
of the MPC, 53 P.S. § 10702.
B. All applications pursuant to § 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
§§ 609.1 and 916.1(a) of the MPC, 53 P.S. §§ 10609.1,
10916.1(a).
E. All petitions for amendments to land use ordinances, pursuant to
the procedures set forth in § 609 of the MPC, 53 P.S. § 10609.
F. Appeals from the determination of the Code Enforcement Officer or
the Township engineer in the administration of any land use ordinance
or provisions thereof with reference to sedimentation and erosion
control and storm water 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 Code Enforcement 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. 1-71, 3/2/1971, § 1507; as amended by Ord.
1-93, 1/6/1993]
1. The Zoning Hearing 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 and may require preliminary application to the Code
Enforcement Officer. The Board may grant a variance, provided that
all of 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 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
a 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.
2. In granting any variance, the Board may attach such reasonable conditions
and safeguards as it may deem necessary to implement the purposes
of this chapter and the Pennsylvania Municipalities Planning Code,
53 P.S. § 10101 et seq.
[Ord. 1-71, 3/2/1971, § 1508; as amended by Ord.
1-93, 1/6/1993]
Where the Board of Supervisors, in this chapter, has stated
special exceptions to be granted or denied by the Zoning Hearing 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 this chapter, as it may deem necessary to implement
the purposes of this chapter and the Pennsylvania Municipalities Planning
Code, 53 P.S. § 10101 et seq.
[Ord. 1-71, 3/2/1971; as added by Ord. 1-93, 1/6/1993]
Where the Board of Supervisors, in this chapter has stated conditional
uses to be granted or denied by the Board of Supervisors pursuant
to express standards and criteria, the Board of Supervisors shall
hold hearings on and decide requests for such conditional uses in
accordance with such standards and criteria. In granting a conditional
use, the Board of Supervisors may attach such reasonable conditions
and safeguards, in addition to those expressed in this chapter, as
it may deem necessary to implement the purposes of this chapter and
the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101
et seq.
[Ord. 1-71, 3/2/1971, § 1509; as amended by Ord.
1-93, 1/6/1993]
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 Code Enforcement 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 Code Enforcement 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 Code Enforcement Officer or Township engineer in the administration
of any land use ordinance or provision thereof with reference to sedimentation
and erosion control and storm water management insofar as the same
relate to development not involving subdivision and land development
may be filed with the Zoning Hearing Board in writing by the landowner
affected, any officer or agency of the Township of Lower Oxford, 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. 1-71, 3/2/1971, § 1510; as amended by Ord.
1-93, 1/6/1993]
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 of Lower Oxford
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 Code Enforcement 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. 1-71, 3/2/1971, § 1511; as amended by Ord.
1-93, 1/6/1993]
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 Code Enforcement
Officer or of any agency or body, and all official action thereunder,
shall be stayed unless the Code Enforcement 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 Code Enforcement 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 fees incurred by the petitioner.