A.
The purpose and objective of the provisions established under Article XIII of this chapter are to establish specific regulations and guidelines for the administration and enforcement of this chapter of the Code.
B.
Where a conflict
or discrepancy should arise concerning the procedural requirements
specified within this chapter of the Code and the Pennsylvania Municipalities
Planning Code, the Muhlenberg Township Solicitor shall review the
conflict or discrepancy and advise the Board of Commissioners, Planning
Commission, Zoning Officer, Engineer and/or Zoning Hearing Board of
the procedural requirements that should be followed.
C.
The provisions established for administration and enforcement, as established under Article XIII of this chapter, shall be subject to the interpretation of the Muhlenberg Township Zoning Officer or other qualified professional, as designated by the Board of Commissioners. Should a dispute arise concerning the interpretation of these regulations, the person aggrieved by the interpretation may file an appeal with the Zoning Hearing Board. In all cases, the burden of proof and submission of technical evidence shall be the responsibility of the person appealing the interpretation of the Zoning Officer or other qualified professional, as designated by the Board of Commissioners.
D.
Where Muhlenberg Township has been identified as the person authorized to review, issue and/or enforce the provisions of Article XIII of this chapter, such person may include the Muhlenberg Township Zoning Officer, Code Enforcement Officer, Manager, Secretary, Engineer, Planner, Solicitor and/or other person that has been designated and authorized to conduct such tasks by the Muhlenberg Township Board of Commissioners.
A.
The following
general requirements shall apply to zoning permits, building permits
and certificates of occupancy, as reviewed and issued by Muhlenberg
Township:
(1)
Persons
desiring to undertake any new construction, structural or site alteration,
or changes in the use of a building or lot shall apply to Muhlenberg
Township for a permit by filling out the appropriate application form
and by submitting the required fee.
(2)
Muhlenberg
Township shall either issue the appropriate permit or shall refuse
the permit, indicating in writing the reason for refusal. Certain
construction activities, alterations or land use activities may require
approval of the Board of Commissioners, Planning Commission and/or
Zoning Hearing Board.
(3)
If the permit
is refused by Muhlenberg Township, the applicant may appeal such action
in accordance with the provisions of the Muhlenberg Township Code.
(4)
After the
permit has been received by the applicant, he may undertake the action
that is specifically referenced on the approved permit application.
(5)
Upon completion
of such action, the applicant may apply to Muhlenberg Township for
an occupancy permit (where such a permit is required).
(6)
If Muhlenberg
Township finds that the action of the applicant is in accordance with
the zoning permit, building permit and any other required permits,
the Zoning Officer shall issue an occupancy permit allowing the premises
to be occupied.
B.
The following
specific provisions shall apply to an application for a zoning permit
and/or building permit within Muhlenberg Township:
(1)
No person
shall erect, alter, convert, move or add to any building, structure
or sign, or alter the use of any land or structure, until Muhlenberg
Township issues a zoning permit and/or building permit to the person
or applicant for said change or construction.
(2)
Unless otherwise
specified by the chapter, a zoning permit and/or building permit is
not required for normal maintenance and repairs.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(3)
The following
provisions shall apply to the types of procedural requirements for
a use permitted by right, special exception or conditional use:
(a)
A zoning
permit and/or building permit may be issued by Muhlenberg Township
for all uses permitted by right, subject to the provisions and requirements
of the chapter.
(b)
A zoning
permit and/or building permit may be issued by Muhlenberg Township
for all uses permitted as part of a zoning variance application which
has been approved by the Zoning Hearing Board and subject to the provisions
and requirements of the chapter.
(c)
A zoning
permit and/or building permit may be issued by Muhlenberg Township
for all uses permitted as part of a special exception application
which has been approved by the Zoning Hearing Board and subject to
the provisions and requirements of the chapter.
(d)
A zoning
permit and/or building permit may be issued by Muhlenberg Township
for all uses permitted as part of a conditional use application which
has been approved by the Board of Commissioners and subject to the
provisions and requirements of the chapter.
(4)
All applications
for a zoning permit and/or building permit shall be made in writing
to Muhlenberg Township and shall be accompanied by three complete
sets of plans accurately drawn to scale, indicating or illustrating
the following information, if applicable:
(a)
The actual
dimensions and shape of the lot to be built upon.
(b)
The exact
size and location on the lot of all buildings, structures or signs.
(c)
The number
of lots or dwelling units.
(d)
Off-street
parking spaces provided and/or loading facilities.
(e)
Statement
indicating the existing or proposed use.
(f)
The detailed
scale drawing of the structure, building, sign or other improvement,
including the precise dimensions.
(g)
A written
agreement or an attested statement that the applicant is the owner
of the premises on which the improvement will be conducted or that
the applicant has obtained the consent of the owner or lessee of such
premises to improve the property in accordance with the application.
(h)
All other
information necessary for such Zoning Officer to determine conformance
with and provide for enforcement of this chapter;
(5)
If requested
by Muhlenberg Township, the detailed information included with the
zoning permit or building permit shall be prepared by a professional
architect, engineer, planner, surveyor or contractor.
(6)
Upon approval
or disapproval of the zoning permit and/or building permit, Muhlenberg
Township shall return one copy of the permit application and plans
to the applicant. The Muhlenberg Township shall indicate that the
permit has been approved or disapproved by signing the application.
Where appropriate, condition of approval should be specified on the
zoning permit and/or building permit application. At least one copy
of such plans shall be retained by Muhlenberg Township.
(7)
Approval
or denial of the requested zoning permit application or building permit
application shall be made within 30 days from the date the application
was considered complete by Muhlenberg Township. In denying a zoning
permit application or building permit application, Muhlenberg Township
shall inform the applicant of the reasons for denial and specify the
provision(s) of the chapter which has not been satisfied. Applicants
shall be informed of their rights of appeal and provided with all
necessary information to pursue such appeals.
(8)
Zoning permits
and/or building permits shall expire within one year from date of
issuance if the work described in any permit has not begun. If the
work described in any zoning permit and/or building permit has begun,
said permit shall expire after one year, exclusive of any time required
for administration and permitting, from date of issuance thereof,
within which time said work shall be completed.
C.
The following
specific provisions shall apply to an application for a certificate
of use and occupancy within Muhlenberg Township:
(1)
A certificate
of use and occupancy shall be required upon the completion of the
work and improvements authorized as part of the zoning permit and/or
building permit. It shall be unlawful to use and/or occupy any structure,
building and/or portions thereof in any manner until a certificate
of use and occupancy has been issued by Muhlenberg Township.
(2)
The application
for certificate of use and occupancy shall be submitted on such form
as Muhlenberg Township may prescribe.
(3)
Muhlenberg
Township shall inspect any structure, building, sign, improvements
and/or land or portions thereof to determine compliance with the chapter
and permit requirements. If satisfied that the completed work is in
conformity with the chapter and permit requirements, a certificate
of use and occupancy shall be issued.
(4)
Upon inspection,
Muhlenberg Township shall either grant or deny the certificate of
use and occupancy, in writing, within 15 days from the date of application
or last inspection.
(5)
In situations
in which performance standards are imposed, no certificate of occupancy
shall become permanent until 30 days after the use or facility is
fully operating and only after, upon inspection by Muhlenberg Township,
it is determined that the facility is in compliance with the performance
standards. After said inspection, Muhlenberg Township shall notify
the applicant that the facility is in full compliance with all performance
standards and that the certificate of use and occupancy is permanent
or that the facility does not comply and that the certificate of use
and occupancy is still temporary. In no case shall a temporary certificate
of use and occupancy extend 90 days past the date of first inspection.
(6)
The certificate
of use and occupancy shall be kept on the premises and shall be publicly
displayed in a manner required by the Muhlenberg Township Code.
(7)
Upon a violation
of any terms specified by the Muhlenberg Township Code, the certificate
of use and occupancy shall be surrendered to Muhlenberg Township.
D.
The following
specific provisions shall apply to an application for a special use
permit, seasonal permit and/or temporary permit within Muhlenberg
Township:
(1)
Where a
special use, seasonal use or a temporary use are permitted by this
chapter, Muhlenberg Township may issue a special use permit or a temporary
use permit to the applicant.
(2)
A special
use permit may be issued for a use having a periodic, intermittent
or short duration of time not exceeding 30 consecutive or cumulative
days within a calendar year. Such special uses shall include the following:
carnivals; circuses; bazaars; fairs; municipal and civic events; the
sale of food, product and similar merchandise; and other similar activities
conducted by a nonprofit or charitable organization, provided that
activities are conducted on the same premises as the use and location
of the principal activity of the sponsor.
(3)
A seasonal
or temporary use permit may be issued for a use having a short time
period, which shall not exceeding 90 consecutive or cumulative days
within a calendar year. The seasonal or temporary use shall be a permitted
use specified by the chapter or within the zoning district in which
the use is located.
E.
The owner of
the premises occupied by a lawful nonconforming use or structure may
secure a certificate of nonconforming use or structure from Muhlenberg
Township. Such certificate shall be authorized by Muhlenberg Township
and shall certify to the owner his right to continue such nonconforming
use or structure.
F.
Pursuant to
the provisions of the Muhlenberg Township Code, additional permits
may be required by local, regional, county, state and federal agencies,
which shall be issued prior to the commencement of any improvement
or site activities.
A.
The provisions
of this chapter of the Code shall be enforced by an agent, to be appointed
by the Board of Commissioners, who shall be known as the "Zoning Officer."
The Zoning Officer shall not hold any elective office that conflicts
with his or her normal duties and shall continue to serve Muhlenberg
Township until such time as the Board of Commissioners declares otherwise.
B.
The Zoning Officer
is to enforce the provisions of this chapter of the Code and shall
have such duties and powers as are referenced by this chapter. The
Zoning Officer's duties shall include, but are not limited to, the
following:
(1)
Receive,
examine and process permit applications for zoning, land use, buildings
and signs.
(2)
To issue
permits for the construction, alteration, repair, extension, replacement,
occupancy, and uses of land which are in accordance with the regulations
of this chapter of the Code.
(3)
To record
and file all applications for permits and accompanying plans and documents
and keep them for public record.
(4)
To inspect
nonconforming uses, buildings and lots of records by examining them
periodically, with the view of eliminating the nonconforming uses
under the existing laws and regulations and to issue certificates
of occupancy for them.
(5)
Upon the
request of the Board of Commissioners, the Planning Commission or
the Zoning Hearing Board, present to such bodies facts, records and
any similar information on specific requests to assist such bodies
in reaching their decisions.
(6)
To be responsible
for the keeping up-to-date of this chapter and the Zoning Map, which
is filed with the Muhlenberg Township Manager or Secretary, and to
include any amendments thereto.
(7)
To keep
an official record of all business and activities, including complaints
of a violation of any of the provisions of this chapter and of the
action taken consequent to each such complaint.
(8)
Issue permits
for uses permitted by right, variance, special exception or conditional
use, as specified within this chapter of the Code.
C.
Any person,
partnership or corporation who or which shall violate the provisions
of this chapter shall be held accountable for his or its actions in
accordance with the provisions specified by the Muhlenberg Township
Code.
D.
Should a dispute
arise concerning the interpretation of this chapter by the Zoning
Officer, the person aggrieved by the interpretation may file an appeal
with the Zoning Hearing Board.
B.
The following
provisions shall apply to the establishment of the Muhlenberg Township
Zoning Hearing Board:
(1)
The members
of the Zoning Hearing Board shall serve three-year terms that shall
be so fixed that the term of office of one member shall expire each
year.
(2)
The Zoning
Hearing Board shall promptly notify the Board of Commissioners of
any vacancies which may occur. Appointments to fill vacancies shall
be only for the unexpired portion of the term.
(3)
The members
of the Zoning Hearing Board shall hold no other offices within Muhlenberg
Township.
(4)
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 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 shall request
it in writing.
(5)
The Board
of Commissioners may appoint one resident to serve as an alternate
member of the Zoning Hearing Board.
C.
The following
provisions shall apply to the organization of the Muhlenberg Township
Zoning Hearing Board:
(1)
The Zoning
Hearing Board shall elect from its own membership its officers, who
shall serve annual terms as such and may succeed themselves.
(2)
For the
conduct of any hearing and the taking of any action, a quorum shall
be not less than a majority of all members of the Board, but where
two members are disqualified to act in a particular matter, the remaining
member may act for the Zoning Hearing Board.
(3)
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 within the Muhlenberg
Township Code.
(4)
The Zoning
Hearing Board may appoint a solicitor or attorney to oversee the procedures
of the hearing in accordance with the provisions of the Muhlenberg
Township Code.
(5)
The Zoning
Hearing Board may make, alter and rescind rules and forms for its
procedures consistent with the Muhlenberg Township Code and laws of
the Commonwealth of Pennsylvania.
(6)
If requested
by the Board of Commissioners, the Zoning Hearing Board shall submit
an annual report of its activities to the Board of Commissioners.
D.
The following
provisions shall apply to expenditures and fees for the Muhlenberg
Township Zoning Hearing Board:
(1)
The members
of the Zoning Hearing Board may receive compensation for the performance
of their duties and services, which shall be established by the Board
of Commissioners.
(2)
Within the
limits of funds appropriated by the Board of Commissioners, the Zoning
Hearing Board may employ or contract for secretaries, clerks, legal
counsel, consultants and other technical and clerical services.
(3)
The applicant
before the Zoning Hearing Board shall deposit with the designated
Secretary or Treasurer of Muhlenberg Township such a sum of money
as shall be deemed sufficient by the Zoning Hearing Board and established
in a resolution to pay the cost of the expenses for the hearing. These
costs may include compensation for the members of the Zoning Hearing
Board, the secretary, clerk, legal counsel, consultants, the notice
and advertising costs, and all other necessary administrative overhead
associated with conducting the hearing.
(4)
Funds deposited
in excess of the actual cost of the requested hearing shall be returned
to the applicant upon completion of the proceedings, and in the event
that the cost of the hearing exceeded the funds deposited, the applicant
shall pay to the designated Secretary or Treasurer of Muhlenberg Township
the appropriate funds equal to such excess cost.
E.
The following
provision shall apply to the general functions of the Muhlenberg Township
Zoning Hearing Board:
(1)
The Zoning
Hearing Board shall act in strict accordance with the procedures specified
within the Muhlenberg Township Code and the Pennsylvania Municipalities
Planning Code.
(2)
The Zoning
Hearing Board shall consider applications for variances, special exceptions,
appeals concerning the interpretation of this chapter by the Zoning
Officer, and other duties that are specified by the Muhlenberg Township
Code.
(3)
All appeals
and applications made to the Zoning Hearing Board shall be in writing
on forms prescribed by the Board of Commissioners or Zoning Hearing
Board.
(4)
Every appeal
or application shall refer to the specific provision of this chapter
involved and shall exactly set forth the interpretation that is claimed,
the grounds for any challenges to validity of this chapter, the use
for which a special use permit is sought, or the details of the variance
that is applied for and the grounds on which it is claimed that the
variance should be granted, as the case may be.
F.
In all cases
before the Zoning Hearing Board, the Board of Commissioners, Planning
Commission and Zoning Officer may review and comment on the application
prior to the rendering of a decision.
A.
The first hearing
shall be commenced within 60 days from the date 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 shall
be held within 45 days of the prior hearing unless otherwise agreed
to by the applicant in writing or on the record. An applicant shall
complete the presentation of his case in chief (the part of the hearing
in which the applicant presents evidence to support his or her claim
or defense) within 100 days of the first hearing. Upon the request
of the applicant, the Zoning Hearing Board 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 written consent, be granted
additional hearings to complete their opposition to the application,
provided the applicant is granted an equal number of hearings for
rebuttal.
B.
The Zoning Hearing
Board shall give notice of the public hearing in accordance with the
following:
(1)
By publishing
a notice once each week for two successive weeks in a newspaper of
general circulation within Muhlenberg Township. Such notice shall
state the time and place of the public hearing and the particular
nature of the matter to be considered at the hearing. The first publication
shall be not more than 30 days and the second publication shall be
not more than seven days from the date of the hearing.
(2)
By mailing
a notice thereof to the parties of interest at least 14 days prior
to the public hearing.
(3)
By mailing
or issuing a notice to the Muhlenberg Township Manager, Zoning Officer,
Secretary, Board of Commissioners, Planning Commission, Berks County
Planning Commission (if requested) and to every person or organization
who or which shall have registered with the Zoning Hearing Board for
the purpose of receiving such notices.
(4)
The Zoning
Hearing Board or Zoning Officer may mail notice of the hearing to
the owner of every lot within 500 feet of the lot or building in question,
provided that failure to give notice, either in part or in full, as
stated by this subsection, shall not invalidate any action by the
Zoning Hearing Board.
(5)
The required
notices by this section shall state the location of the lot or building
that is the subject of the application, as well as the general nature
of the request(s) being made by the applicant(s).
(6)
The Board
of Commissioners may establish reasonable fees to be paid by the applicant
in accordance with the provisions of the Muhlenberg Township Code.
C.
The Zoning Hearing
Board shall conduct the hearings or the Zoning Hearing 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 of findings by the Board and accept the decision
or findings of the hearing officer as final.
D.
The parties
to the hearing shall be Muhlenberg Township, any person affected by
the application who has made timely appearance or record before the
Zoning Hearing Board and any other person, including civic or community
organizations, permitted to appear by the Zoning Hearing Board. The
Zoning Hearing 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 Zoning Hearing 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.
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 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 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.
I.
The Zoning Hearing
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 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.
J.
The Zoning Hearing
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
Zoning Hearing 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 Zoning Hearing Board shall make his report
and recommendations available to the parties, and the parties shall
be entitled to make written representations thereon to the Zoning
Hearing Board prior to final decision or entry of findings, and the
Zoning Hearing Board's decision shall be entered no later than 45
days after the decision of the hearing officer. Where the Zoning Hearing
Board has power to render a decision and the Zoning Hearing Board
or the hearing officer, as the case may be, fails to commence, conduct
or complete the required hearing as required by this chapter of the
Code, 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. Nothing in this subsection shall
prejudice the right of any party opposing the application to urge
that such decision is erroneous.
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 by
certified mail not later than the day following its date. To all other
persons who have filed their names and addresses with the Board no
later than the last day of the hearing, the Zoning Hearing 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.
A.
The Zoning Hearing
Board shall hear requests for zoning variance applications where it
is alleged that the provisions of this chapter inflict unnecessary
hardship upon the applicant. The zoning variance application shall
be considered by the Zoning Hearing Board in accordance with the provisions
specified by this chapter of the Code.
B.
In granting
any variance, the Zoning Hearing 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.[1] The Zoning Hearing Board may, by rule, prescribe the form
of application and may require a preliminary application to be issued
and reviewed by the Zoning Officer.
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
C.
In all cases
before the Zoning Hearing Board, the Board of Commissioners, Planning
Commission and Zoning Officer may review and comment on the zoning
variance application prior to rendering a decision.
D.
The Zoning Hearing
Board may grant a variance, provided that all 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 condition, and not
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 of a variance is, therefore,
necessary to enable the reasonable use of the property.
(3)
That such
unnecessary hardship has not been created by the appellant.
(4)
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.
(5)
That the
variance as granted by the Zoning Hearing Board is the minimum variance
that will afford relief and will represent the least modification
possible of the regulation in issue.
E.
Where the Zoning
Hearing Board has jurisdiction over other zoning matters described
under this chapter of the Code, the Zoning Hearing Board shall also
hear all appeals which an applicant may elect to bring before it with
respect to any municipal ordinance or requirement pertaining to the
same lot, parcel, property or development. In any such case, the Zoning
Hearing Board shall have no power to pass upon the non-zoning-related
issues but shall take evidence and make a record in accordance with
the procedures established by this chapter of the Code. At the conclusion
of the hearing, the Zoning Hearing Board shall make findings on all
relevant issues of fact, which shall become part of the record on
appeal to the court.
F.
The approval
of a variance, if authorized by the Zoning Hearing Board, which anticipates
construction or modification of a structure, creation of new or revised
lot lines or dimensional standards for a property or structure situated
thereon, shall be valid and remain in effect for a term of one year
from the date of said approval and shall thereafter expire and be
void unless said construction, modification, new or revised lot lines
or dimensional standards or change of use or occupancy be initiated
within said one-year term or said term is expressly extended as part
of the initial approval. In the event that the activity anticipated
by the variance should not be initiated within one year of the approval
or such additional term as may be expressed in the approval, or should
the activity which is the subject of the variance be discontinued,
the premises or structure situated thereon shall not thereafter be
used except in conformity with the regulations of the district in
which it is located.
G.
For zoning variance
applications, where compliance with the minimum dimensional requirements
and/or maximum coverage requirements of this chapter of the Code are
considered to be "de minimis" in terms of their impact, the Zoning
Hearing Board may consider the following provisions:
(1)
A de minimis
zoning variance application shall only apply to the following conditions:
where the minimum dimensional or setback requirement for the principal
building or accessory structure cannot be achieved but is within 5%
of complying with the requirement specified by this chapter; where
the minimum dimensional or setback requirement for the principal or
accessory use cannot be achieved but is within 5% of complying with
the requirement specified by this chapter; and where the maximum building
or lot coverage requirement cannot be achieved but is within 5% of
complying with the requirement specified by this chapter of the Code.
(2)
The applicant
shall submit a completed zoning variance application to the Zoning
Officer, who shall determine if the de minimis provisions of this
chapter of the Code apply.
(3)
If the Zoning
Officer determines that a de minimis zoning variance applies as defined
by this chapter of the Code, the application shall be forwarded to
the Zoning Hearing Board for consideration.
(4)
The Zoning
Hearing Board shall schedule and conduct an informal hearing to consider
the de minimis zoning variance application. All adjacent property
owners and residents shall be notified of the application and the
date of the informal hearing.
(5)
If required
by the Zoning Hearing Board or if requested by the applicant or other
parties of interest, a stenographic record of the informal hearing
shall be made by a certified court reporter, whose appearance fee
shall be reimbursed by the applicant. The cost of the original transcript
shall be paid by Muhlenberg Township or by any party requesting an
original transcript.
(6)
The Zoning
Hearing Board shall consider the de minimis zoning variance application
and all other informal testimony before rendering a decision. If approved,
the legal counsel for the Zoning Hearing Board shall issue a letter
to the applicant and Zoning Officer outlining the terms of the decision
with any specific conditions. If disapproved, the legal counsel for
the Zoning Hearing Board shall issue a letter to the applicant and
Zoning Officer outlining the decision with any specific reasons for
denial. The written decision shall be issued to the applicant and
Zoning Officer within 15 days of the decision.
A.
The Zoning Hearing
Board shall hear requests for special exception applications, as permitted
under the provisions of this chapter of the Code. By so providing,
the Zoning Hearing Board recognizes that certain uses may or may not
be appropriate at every location within any specific district and,
where it appears that a use permitted by special exception fails to
comply with all of the definitional aspects thereof or would be contrary
to the public health, safety, morals and/or welfare of the community
at specific locations within a district, that the use would not be
permitted.
B.
In granting
any special exception, the Zoning Hearing 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, as amended. The Zoning Hearing Board may, by rule, prescribe
the form of application and may require a preliminary application
to be issued and reviewed by the Zoning Officer.
C.
The Zoning Hearing
Board shall consider the comments issued by the Muhlenberg Township
Board of Commissioners, Planning Commission, Engineer, Zoning Officer
and/or other agencies that could assist the Zoning Hearing Board with
the special exception use application. All such comments shall be
made either in writing and presented as evidence during the hearing
or as part of sworn testimony at the public hearing.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
D.
The Zoning Hearing
Board shall consider the following issues prior to rendering its decision
on a special exception application:
(1)
That such
use is consistent with the Muhlenberg Township Comprehensive Plan.
(2)
That such
use shall be one which is specifically authorized as a special exception
use within the zoning district wherein the applicant seeks a special
exception.
(3)
That the
property is suitable for the use desired and that the proposed request
is consistent with the goals, objectives and policies established
within this chapter of the Code.
(4)
That such
special exception shall only be granted subject to any applicable
condition and safeguards as required by this chapter of the Code.
(5)
That such
use shall not adversely affect the general character of the neighborhood
and/or property values of the adjacent uses.
(6)
That such
use shall not adversely affect the health, safety and/or welfare of
residents or property owners within the general neighborhood.
(7)
That there
will be no adverse effect of the proposed special exception upon the
logical, efficient and economical extension of public facilities and
services, including public water, sanitary sewers, streets, police
and fire protection, public schools, and all other similar facilities
and services that are considered appropriate by the Zoning Hearing
Board.
(8)
That any
unique circumstances for which the special exception is sought were
neither created by the owner of the property nor were due to, or the
result of, general conditions within the zoning district in which
the property is located.
(9)
That the
proposed location of any residential or nonresidential use is suitable
with respect to probable effects upon highway traffic and assures
adequate access arrangements in order to protect major streets and
highways from undue congestion and hazard.
(10)
The adequacy
of sanitation and public safety provisions, where applicable; a certificate
of adequacy of sewage and water facilities shall be provided from
a governmental health agency in such case required herein or deemed
advisable.
(11)
The Board
may impose such conditions in addition to those required as are necessary
to assure that the intent of this Zoning Ordinance is complied with,
which conditions may include but are not limited to harmonious design
of buildings; planting and its maintenance as a sight or sound screen;
the minimizing of noxious, offensive or hazardous elements; and adequate
standards of parking and sanitation.
E.
Where the Zoning
Hearing Board has jurisdiction over other zoning matters described
under this chapter of the Code, the Zoning Hearing Board shall also
hear all appeals which an applicant may elect to bring before it with
respect to any municipal ordinance or requirement pertaining to the
same lot, parcel, property or development. In any such case, the Zoning
Hearing Board shall have no power to pass upon the non-zoning-related
issues but shall take evidence and make a record in accordance with
the procedures established by this chapter of the Code. At the conclusion
of the hearing, the Zoning Hearing Board shall make findings on all
relevant issues of fact, which shall become part of the record on
appeal to the court.
F.
The approval
of a special exception, if authorized by the Zoning Hearing Board,
which anticipates construction or modification of a structure, creation
of new or revised lot lines or dimensional standards for a property
or structure situated thereon, shall be valid and remain in effect
for a term of one year from the date of said approval and shall thereafter
expire and be void unless said construction, modification, new or
revised lot lines or dimensional standards or change of use or occupancy
be initiated within said one-year term or said term is expressly extended
as part of the initial approval. In the event that the activity anticipated
by the special exception should not be initiated within one year of
the approval or such additional term as may be expressed in the approval,
or should the activity which is the subject of the special exception
be discontinued, the premises or structure situated thereon shall
not thereafter be used except in conformity with the regulations of
the district in which it is located.
G.
As part of the
special exception application, the Zoning Hearing Board may consider
certain background studies, plans and/or reports that may be required
as supplemental documentation to support the special exception application.
The Zoning Hearing Board shall reserve the right to either require,
not require or defer the submittal of certain background studies,
plans and/or reports as part of the special exception application.
If not required or deferred as part of the special exception application,
the required background studies, plans and/or reports shall be appropriately
considered by Muhlenberg Township as part of the application for a
subdivision plan, land development plan and/or permit.
A.
The Board of
Commissioners shall hear requests for conditional use applications,
as permitted under the provisions of this chapter of the Code. By
so providing, the Board of Commissioners recognizes that certain uses
may or may not be appropriate at every location within any specific
district and, where it appears that a conditional use fails to comply
with all of the definitional aspects thereof or would be contrary
to the public health, safety, morals and/or welfare of the community
at specific locations within a district, that the use would not be
permitted there.
C.
Prior to the
commencement of the conditional use hearing or during the proceedings
of the conditional use hearing, the Board of Commissioners shall consider
the comments of the Muhlenberg Township Planning Commission, Zoning
Officer, Engineer, the appointed professional consultants and/or other
agencies that could assist the Board of Commissioners with the merits
of the conditional use application. All such comments shall be made
either in writing and presented as evidence during the hearing or
as part of sworn testimony at the conditional use hearing.
D.
All of the standards
for conditional uses hereinafter set forth shall, where relevant,
apply to all conditional uses within Muhlenberg Township and are deemed
definitional in character so that the failure to comply with any standards
shall be deemed a failure to bring the applicant within that definitional
aspect for which a conditional use may be granted, or in the discretion
of the Board of Commissioners, such failure to comply with the standards
may be deemed a basis for the imposition of appropriate conditions
to such grant. It is further the intention of the Board of Commissioners
that the standards hereinafter described shall be deemed additional
standards and shall in no way impair any other applicable standard
described elsewhere in this chapter. Where there is a conflict between
the standards set forth in this article and other standards elsewhere
established by this chapter or other applicable ordinances, it is
intended that the more stringent thereof shall apply, and it is not
the intent of this article to abrogate or impair any other such standards
or requirements.
E.
The Board of
Commissioners shall consider the following general issues and site
requirements prior to rendering its decision on a conditional use
application:
(1)
That such
use is consistent with the Muhlenberg Township Comprehensive Plan.
(2)
That the
property is suitable for the use desired and that the proposed request
is consistent with the goals, objectives and policies established
within this chapter of the Code.
(3)
That the
minimum and maximum dimensional requirements for the proposed use
within the appropriate zoning district shall be held in compliance
by the applicant.
(4)
The applicant
shall establish by a fair preponderance of credible evidence that
the use intended at the location intended shall not be contrary to
the public health, safety, morals and/or public welfare.
(5)
The applicant
shall provide evidence with supporting documentation that the capacity
of the road system providing access to the property or lot in question
has sufficient capacity to accommodate the use and that when the incremental
increase in traffic attributable to the proposed use is superimposed
upon the existing use of the road it shall not lower the level of
service of the roads or any portions thereof or any street intersections
below a level of service C.
(6)
The applicant
shall provide evidence with supporting documentation that the interior
traffic circulation for the proposed use at the proposed location,
including but not limited to acceleration and deceleration lanes where
required at the proposed entrances to the location, shall be adequate
to provide safe and convenient circulation for users of the facility,
visitors to the facility, employees of the facility and all emergency
vehicles that may require entrance thereon.
(7)
The applicant
shall provide evidence with supporting documentation that the facility
or use provides safe and convenient pedestrian access and internal
circulation within the grounds of the facility and particularly for
points of access from the facility to the parking areas.
(8)
The applicant
shall provide evidence with supporting documentation that adequate
screening and buffering is provided between the lands in question
and surrounding residential uses and residentially zoned districts
to screen the facility from view and preclude any glare from lighting
or noise being ascertainable beyond the boundaries of the property.
(9)
The applicant
shall provide evidence with supporting documentation that the local
fire departments have the abilities to provide adequate fire protection
and emergency management services for the use.
(10)
The applicant
shall provide evidence with supporting documentation that adequate
water storage is available within the region for firefighting purposes,
which shall include but not be limited to pumping at all hours at
a minimum of 25 pounds per square inch (psi) pressure without impairing
the uses of the water supply for ordinary purposes on the premises,
and shall be in compliance with all applicable governmental regulations.
(11)
Where
in the opinion of the Board of Commissioners the use or facility may
require supervision and protection, the applicant shall provide evidence
with supporting documentation that additional security measures will
be accounted for by the owner or site manager so the facility or use
does not create a continuous burden on the emergency management services
and providers.
(12)
The applicant
shall provide evidence with supporting documentation that the existing
or proposed sanitary sewage disposal facilities have sufficient capacity
for the proposed use. Where on-lot sewage disposal methods are permitted,
the applicant shall consult with the Muhlenberg Township Sewage Enforcement
Officer to determine if on-lot sewage disposal is a viable option
considering the proposed use, wastewater flow and site characteristics.
(13)
The applicant
shall provide evidence with supporting documentation that the existing
or proposed municipal water supply facilities have sufficient capacity
for the proposed use. Where water supply methods are permitted, the
applicant shall consult with a qualified hydrogeologist to determine
if on-lot water supply is a viable option considering the proposed
use, groundwater supply and site characteristics.
(14)
The applicant shall provide evidence with supporting documentation that there will be no increase in surface water runoff and erosion within the property or at the boundaries of the facility as a result of the site improvements, as specified under Chapter 310, Subdivision and Land Development, of the Code.
F.
The general
standards required in this section or elsewhere within this chapter
shall be deemed a part of the definitional aspect under which a conditional
use may be granted, and the failure of the applicant to establish
his compliance with all of the standards shall, in the discretion
of the Board of Commissioners, be deemed either a basis for the establishing
of conditions or limitations on an approval or the basis for a determination
that the applicant has not brought himself within the definitional
use for which a conditional use may be granted.
G.
The following
provisions shall apply for the public hearing procedures and administrative
requirements for all conditional use applications within Muhlenberg
Township:
(1)
The Board
of Commissioners shall schedule and hold a public hearing on the application
pursuant to public notice within 60 days from the date of the applicant's
request for a hearing. The request for a hearing shall be accompanied
by a completed application on required form. The date for the scheduling
of the first hearing may be extended by the applicant on the record
or in writing addressed to the Board of Commissioners, in which event
the date agreed upon by the applicant shall be considered timely for
purposes of this subsection.
(2)
As part
of the conditional use hearing, the Board of Commissioners shall consider
those comments issued by the Muhlenberg Township Planning Commission,
Zoning Officer, Engineer, the appointed professional consultants and
all other agencies providing comments, as may be authorized by the
Muhlenberg Township Code and the Pennsylvania Municipalities Planning
Code.
(3)
The Board
of Commissioners shall conduct the hearing or the Board of Commissioners
may appoint any member or an independent attorney as a hearing officer.
The decision or, where no decision is called for, the findings shall
be made by the Board of Commissioners. However, the appellant or the
applicant, as the case may be, in addition to Muhlenberg Township,
may, prior to the decision of the hearing, waive decision or findings
by the Board of Commissioners and accept the decision or findings
of the hearing officer as final. All hearings must 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.
(4)
Any substantial
revisions to the application or plan made by the applicant subsequent
to filing of the application or plan or its review by the Planning
Commission shall be subject to review and recommendation by the Planning
Commission as specified within this chapter of the Code. In such event,
the Zoning Officer shall secure from the applicant a written extension
of the date within which the Board of Commissioners must hold a public
hearing pursuant to the provisions of this chapter of the Code. If
the applicant fails to execute the extension, the Board of Commissioners
shall decide the conditional use application on the basis of the plan
and application as originally filed.
(5)
A stenographic
record of the hearing shall be made by a certified court reporter,
whose appearance fee shall be reimbursed through the application fee
paid to Muhlenberg Township as part of the initial application. The
cost of the original transcript shall be paid by Muhlenberg Township
or by any party requesting an original transcript. In either case,
the cost of additional copies shall be paid by the party or person
requesting such copies.
(6)
The Board
of Commissioners shall render a written decision or, when no decision
is called for, make written findings on the conditional use application
within 45 days after the last hearing before the Board of Commissioners.
The date of the decision may be extended by the applicant either on
the record or in writing addressed to the Board of Commissioners.
Where the application is contested or denied, each decision shall
be accompanied by findings of fact, reasons or conclusions based thereon.
Any conclusions based upon this chapter of the Code, the Pennsylvania
Municipalities Planning Code, or any 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. A copy of the
decision or, where no decision is called for, of the findings shall
be delivered to the applicant personally or mailed to him no later
than the day following its date.
(7)
If after
the conclusion of the public hearing(s) the application is amended
or revised, the Board of Commissioners shall hold one or more public
hearings thereon as may be necessary and shall issue a new decision
thereon in conformance with the procedure established in this section.
In the event that the Board of Commissioners fails to commence the
public hearing within 60 days from the date of the applicant's request
for a hearing or fails to complete the hearing 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, 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 the Board of Commissioners failed to commence the
hearings, complete the hearings, or render a decision as required
by this section, the Board of Commissioners shall give public notice
of the decision within 10 days from the last day it could have met
to render a decision in the same manner as required by the public
notice requirements of this section. If the Board of Commissioners
shall fail to provide such notice, the applicant may do so. Nothing
in this section shall prejudice the right of any party opposing the
application to appeal the decision to a court of competent jurisdiction.
H.
Unless otherwise
permitted by the Board of Commissioners, the approval of an approved
conditional use which anticipates construction or modification of
a structure, creation of new or revised lot lines or dimensional standards
for a property or structure situated thereon shall be valid and remain
in effect for a term of one year from the date of said approval and
shall thereafter expire and be void unless said construction, modification,
new or revised lot lines or dimensional standards or change of use
or occupancy be initiated within said one-year term or said term is
expressly extended as part of the initial approval. In the event that
the activity anticipated by the special exception should not be initiated
within one year of the approval or such additional term as may be
expressed in the approval or should the activity which is the subject
of the special exception be discontinued, the premises or structure
situated thereon shall not thereafter be used except in conformity
with the regulations of the district in which it is located.
I.
Nothing in this
section shall be construed to relieve the applicant for a conditional
use approval from obtaining all other required approvals mandated
by the Muhlenberg Township Code as well as other pertinent laws, ordinances
and regulations that have been adopted by local, state and federal
agencies. This may include the submission of a subdivision plan and/or
land development plan to be prepared by the applicant and submitted
to Muhlenberg Township for further review and consideration.
J.
Upon obtaining
all necessary approvals from Muhlenberg Township, the applicant may
be eligible for an occupancy permit for the conditional use, as permitted
under the provisions of the Muhlenberg Township Code.
K.
As part of the
conditional use application, the Board of Commissioners may consider
certain background studies, plans and/or reports that may be required
as supplemental documentation to support the conditional use application.
The Board of Commissioners shall reserve the right to either require,
not require or defer the submittal of certain background studies,
plans and/or reports as part of the conditional use application. If
not required or deferred as part of the conditional use application,
the required background studies, plans and/or reports shall be appropriately
considered by Muhlenberg Township as part of the application for a
subdivision plan, land development plan and/or permit.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The Board of Commissioners may from time to time amend, supplement,
change, modify or repeal the contents of this chapter of the Code,
including the Zoning Map. Any amendment, supplement, reclassification
or change may be initiated by the Board of Commissioners, Planning
Commission, or by a petition to the Board of Commissioners from a
property owner within Muhlenberg Township.
A.
Public hearing
and notice requirements.
(1)
Before voting
on the enactment of an amendment, the Board of Commissioners shall
hold a public hearing thereon, pursuant to public notice, and pursuant
to mailed notice and electronic notice if applicable per 53 P.S. §
10109. Such notice shall state the time and place of the hearing and
the particular nature of the matter to be considered at the hearing.
The first publication shall not be more than 30 days and the second
publication shall not be less than seven days from the date of the
hearing.
(2)
In addition,
if the proposed amendment involves a Zoning Map change, notice of
said public hearing shall be conspicuously posted by the Township
at points deemed sufficient by the Township along the tract to notify
potentially interested citizens. The affected tract or area shall
be posted at least one week prior to the date of the hearing.
(3)
Further,
at least 30 days prior to the hearing date, notice of the public hearing
shall be mailed to property owners within the area being rezoned.
(4)
If after any public hearing
held upon an amendment the proposed amendment is changed substantially
or is revised to include land previously not affected by it, the Board
of Commissioners shall hold another public hearing, pursuant to public
notice, and mailed notice and electronic notice, if applicable, before
proceeding to vote on the amendment.
B.
The Board of
Commissioners shall refer each petition or proposal for change or
amendment, whether under this article or under another article, to
the Planning Commission, which shall consider whether or not such
proposed change or amendment would be, in the view of the Planning
Commission, consistent with and desirable in furtherance of the Comprehensive
Plan upon which this chapter is based, as the same may be modified
from time to time. The Planning Commission shall transmit its recommendations
and conclusions to the Board of Commissioners within 30 days. The
Board of Commissioners shall take such recommendations and conclusions
into consideration in reaching its decision, but shall not be bound
thereby.
C.
The Board of
Commissioners shall submit the proposed zoning amendment to the Berks
County Planning Commission at least 30 days prior to the hearing for
its review and comments. The Board of Commissioners shall take such
comments into consideration in reaching its decision, but shall not
be bound thereby.
D.
The public hearing
shall be conducted in accordance with the appropriate provisions that
are established within the Muhlenberg Township Code and the Pennsylvania
Municipalities Planning Code.
E.
If the zoning
amendment is enacted by the Board of Commissioners, an endorsed copy
of the zoning amendment shall be forwarded to the Berks County Planning
Commission within 30 days of enactment.
A.
A landowner
who desires to challenge on substantive grounds the validity of this
chapter of the Code which prohibits or restricts the use or development
of land in which he has an interest may submit a curative amendment
to the Board of Commissioners with a written request that his challenge
and proposed amendment be heard. All such landowner curative amendments
shall be decided as provided in accordance with the appropriate provisions
that are established within the Muhlenberg Township Code and the Pennsylvania
Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
B.
Muhlenberg Township
by formal action may declare this chapter of the Code or portions
thereof substantively invalid and propose the preparation of a municipal
curative amendment to overcome such invalidity. All such municipal
curative amendments shall be decided as provided in accordance with
the appropriate provisions that are established within the Muhlenberg
Township Code and the Pennsylvania Municipalities Planning Code.
C.
All landowner
curative amendments and/or municipal curative amendments shall be
referred to the Muhlenberg Township Planning Commission and the Berks
County Planning Commission at least 30 days prior to the initial hearing
date to provide both agencies with an opportunity to submit recommendations.
D.
The advertisement,
posting and scheduling of the public hearing shall be conducted in
accordance with the appropriate provisions that are established within
the Muhlenberg Township Code and the Pennsylvania Municipalities Planning
Code.
E.
If the landowner
curative amendment and/or the municipal curative amendment is enacted
by the Board of Commissioners, an endorsed copy of the amendment shall
be forwarded to the Berks County Planning Commission within 30 days
of enactment.
A.
All appeals
concerning the review, application, interpretation and decisions authorized
by this chapter of the Code shall be in accordance with the appropriate
provisions that are established within the Muhlenberg Township Code
and the Pennsylvania Municipalities Planning Code.[1]
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
B.
All appeals
concerning an alleged error in the processing or enactment of any
components of this chapter of the Code shall be raised by appeal taken
directly from the action of the Board of Commissioners to the appropriate
court, which shall not be filed later than 30 days from the effective
date of this chapter of the Code.
A.
The Board of
Commissioners shall establish by resolution a schedule of fees, charges
and expenses, as well as the collection procedures, for zoning permits,
certificates of occupancy, special exceptions, variances and appeals
and other matters pertaining to this chapter of the Code. The resolution
or schedule of the fees shall be available for inspection in the office
of the Muhlenberg Township Zoning Officer.
B.
The Board of
Commissioners may alter or change the schedule of the fees by resolution
in accordance with the appropriate provisions established within the
Muhlenberg Township Code and the Pennsylvania Municipalities Planning
Code.
C.
Until all application
fees, charges and expenses have been paid in full, Muhlenberg Township
does not have the obligation to take action on any application or
appeal.
A.
Any person,
partnership or corporation who or which has violated or permitted
the violation of the provisions of this chapter of the Code shall,
upon being found liable in a civil enforcement proceeding commenced
by Muhlenberg Township, pay a judgment of not more than $500 plus
all court costs, including reasonable attorneys' fees incurred by
a municipality as a result thereof. No judgment shall commence or
be imposed, levied or payable until the date of the determination
of a violation by the Magisterial District Judge. If the defendant
neither pays nor timely appeals the judgment, Muhlenberg Township
may enforce the judgment pursuant to the applicable Rules of Civil
Procedure. Each day that a violation continues shall constitute a
separate violation, unless the Magisterial District Judge determines
otherwise as prescribed by the Pennsylvania Municipalities Planning
Code.[1]
[1]
Editor's Note: See 53 P.S. § 10101
et seq.
B.
The Court of
Common Pleas, upon petition, may grant an order of stay, upon cause
shown, tolling the per-diem fine pending a final adjudication of the
violation and judgment.
C.
Nothing contained
in this chapter of the Code shall be construed or interpreted to grant
to any person or entity other than Muhlenberg Township the right to
commence any action for enforcement pursuant to this chapter of the
Code.
D.
In the event
any building, structure or land is or is proposed to be erected, constructed,
reconstructed, altered, converted, maintained or used in violation
of this chapter of the Code, or in case any land, building or structure
for which a use and occupancy permit is required is conveyed or possession
otherwise transferred to a bona fide purchaser or lessee without obtaining
such certificate of occupancy and delivering the same to such bona
fide purchaser or lessee at or prior to conveyance or transfer of
possession, whichever first occurs, the Board of Commissioners, in
addition to other remedies, may institute in the name of Muhlenberg
Township any appropriate action or proceeding to prevent, restrain,
correct or abate such building, structure or land or the conveyance
thereof, or to prevent in or about such premises any act, conduct,
business or use constituting a violation.
