Township of Lower Merion, PA Article XI Process and Procedures

§ 155-11.1 Zoning administration.

A. Hereafter, no land shall be used or occupied, and no building or structure shall be erected, altered, used, or occupied, except in conformity with the regulations established in this chapter.

B. Administrative processes and procedures for determining compliance with the provisions of this chapter are established in this article, except that it is not the intent of this article to amend any applicable standards or procedures established by the Pennsylvania Municipalities Planning Code which may be in conflict herewith.

[Amended 4-17-2024 by Ord. No. 4289]

C. Advertising requirements for zoning text or map amendments, adoption of comprehensive plans or official maps, notice of conditional use and other public hearings, and all other matters regulated by PA Act 247, the Municipalities Planning Code, shall be undertaken in conformance with said Act.

D. Staff administration. The provisions of this chapter shall be administered and enforced by the Zoning Officer, together with the aid of designated Code Enforcement Officials, the Director of Building and Planning, the Board of Commissioners, and other municipal agencies, as may be appropriate. It shall be the duty of the local Zoning Officer and he/she shall have the power to:

(1) Receive and examine all permit applications for the Township.

(2) Review applications for permits involving the erection or alteration of buildings or structures or changes of use in order to determine whether such construction or use is in accordance with the general requirements of this chapter; all other applicable chapters; and the laws and regulations of the commonwealth. Permits for construction of uses requiring a special exception or variance or appeals from the determination of the Zoning Officer shall be issued only upon order of the Zoning Hearing Board. Permits requiring conditional use approval by the governing body shall be issued only after receipt of approval from the Board of Commissioners.

(3) Conduct inspections and surveys of uses, structures, lots, and signs to determine compliance or noncompliance with the terms of this chapter. In carrying out such surveys, the Zoning Officer or his representative may enter upon any land, but shall in all cases notify the property owner or other party in possession in advance of his intention to enter any dwelling house, unless he/she shall first have secured a search warrant.

(4) Issue stop, cease, and desist orders, and identify in writing conditions found to be in violation of the provisions of this chapter. Such written orders shall be served personally or by certified mail upon persons, firms, or corporations deemed by the Zoning Officer to be violating the terms of this chapter. It shall be unlawful for any person to violate any such order issued lawfully by the Zoning Officer, and any person violating any such order shall be in violation of this chapter.

(5) May revoke any order or zoning permit issued under a mistake of fact or contrary to the law of the provisions of this chapter.

(6) Record and file in the municipal building all applications for zoning permits with accompanying plans and documents. All applications, plans, and documents shall be a public record.

(7) Maintain a map showing the current zoning classification of all land which shall be posted at the Township Administration building.

(8) Be available to testify before the Zoning Hearing Board if called to testify by any party or if presenting evidence on behalf of the Township in an appeal from an enforcement notice.

(9) Keep a record of all plans and applications for permits and all permits issued, with notations as to special conditions attached thereto. All such documents shall be a public record.

E. Zoning permits and preliminary opinions.

(1) A zoning permit shall be required as designated below. If any of the improvements listed below are located in the Floodplain District, they are also subject to compliance with the provisions of § 155-7.3, Floodplain Overlay District.

(2) No land use may be established or changed and no building or structure may be used or occupied or the use classification changed until a zoning permit has been obtained. (See Table 5.1, Uses, for a list of use classifications.)

(3) No zoning permit shall be required for municipal or municipal authority offices.

(4) A zoning permit shall also be required prior to performing any of the following improvements:

(a) Temporary uses of land or structures.

(b) Grading within the floodplain.

(c) Any fence or wall within the floodplain.

(d) The storage of any materials within the floodplain.

(e) Play structures or other recreational equipment located within the floodplain.

(f) Any change or increase in impervious surface on a lot.

(g) The installation of a shed or other accessory structures less than 200 square feet.

(h) A retaining wall not within the floodplain exceeding four feet above grade.

(i) Installation of frontage fencing, secondary frontage fencing, or frontage facade fencing.

[Amended 12-2-2020 by Ord. No. 4202; 7-21-2021 by Ord. No. 4221]

(j) Any repair or replacement of a nonconforming fence.

[Added 7-21-2021 by Ord. No. 4221]

(5) In the case of a conditional use or use by special exception, the Zoning Officer shall refer the application to the Planning Commission and Board of Commissioners or to the Zoning Hearing Board, whichever is applicable, prior to issuing a zoning permit. Whenever the approval of a conditional use or use by special exception includes conditions attached to the approval, said conditions shall be incorporated into the zoning permit.

(6) In the case of a permitted use, the Zoning Officer shall not issue the zoning permit unless and until all applicable regulations of this chapter have been met and, in the case of a use for which land development approval is required by the Lower Merion Township Subdivision and Land Development Code (Chapter 135), unless and until final approval of the land development has been granted. Whenever final approval of a land development is subject to conditions, those conditions shall be incorporated into the zoning permit.

(7) Application for zoning permit. Application for a zoning permit shall be made in writing to the Zoning Officer on forms furnished by the Township together with the payment of a fee. The Zoning Officer shall require that the application for a zoning permit and the accompanying plot plan, prepared by a registered engineer or land surveyor, shall contain all information necessary to enable him/her to ascertain whether the proposed building complies with the provisions of this chapter, any information required by conditions on land development approval, and conditions attached to any conditional use or Zoning Hearing Board approval.

(8) Application for preliminary opinion. Pursuant to § 10916.2 of the Municipalities Planning Code (53 P.S. § 10961.2), with respect to a challenge related to an application for land development, in order not to unreasonably delay the time when a landowner, who intends to build to secure assurance that the proposed development, relative to this chapter, is free from challenge, and recognizing that the procedure for preliminary approval of their development may be too cumbersome or may be unavailable, the landowner may advance the date from which time for any such challenge by adhering to the following procedure:

[Amended 4-17-2024 by Ord. No. 4289]

(a) A landowner may submit plans and other materials describing a proposed use or development to the Zoning Officer for a preliminary opinion as to their compliance with the provisions of this chapter. Such plans and other materials shall not be required to meet the standards prescribed for tentative, preliminary or final plan approval or for the issuance of a building permit, so long as they provide reasonable notice of the proposed use or development and a sufficient basis for a preliminary opinion as to its compliance.

(b) If the Zoning Officer's preliminary opinion is that the use or development complies with the provisions of this chapter, notice thereof shall be published each week for two successive weeks in a newspaper of general circulation in the Township, and the property shall be posted with the preliminary opinion. Such notice shall include a general description of the proposed use or development and its location, by some readily identifiable directive, and the place and times where the plans and other materials may be examined by the public. Appeal from a favorable preliminary approval shall be to the Zoning Hearing Board, the time therefor to run from the date when the second notice thereof has been published.

(c) The application for preliminary opinion shall be accompanied by such documentation as the Zoning Officer shall prescribe and by payment of an application fee.

(9) Permits issued in error.

(a) Permits issued in error shall convey no rights to any party. Permits issued in error shall not confer any rights to construction or occupancy, and upon a finding that a permit has been so issued, it shall be revoked.

(b) No approval shall be construed to authorize violation of any provisions of this Code, and such approval shall be valid only to the extent that the work authorized is lawful.

(c) Issuance of a building permit based upon a site plan shall not prevent the Zoning Officer from thereafter requiring correction of errors in the plan.

(10) No approval available if code enforcement violations. No permit approval may be issued if the business, enterprise, occupation, trade, profession, property or activity is the subject of an ongoing Township enforcement procedure, or is the subject of a notice of violation of a state law or county ordinance where the business enterprise is located or is to be located, unless the subject of the application would cure the outstanding violation.

(11) Expiration of zoning permits. A zoning permit shall expire if the use authorized by the permit has not commenced within 90 days of issuance. Commencement of the ninety-day deadline shall be automatically extended if the application requires land development approval and/or work pursuant to a construction or runoff and erosion control permit until completion thereof, provided that the work has been continuously pursued. Notice of the permit expiration shall be given by the Zoning Officer.

F. Conditional uses.

(1) The Board of Commissioners shall have the power to approve or disapprove conditional uses when this chapter specifically requires the obtaining of such approval.

(2) In granting a conditional use, the Board of Commissioners shall make findings of fact consistent with the provisions of this chapter. The Board shall not approve a conditional use except in conformance with the conditions and standards outlined in this chapter.

(3) Subject to § 155-11.1F(4) below, the applicant shall have the initial burden of persuasion that the application complies with the specific requirements for the proposed use set forth in Article V, Uses.

(4) Opponents shall have the initial duty of presenting substantial evidence that the application does not comply with the general criteria of this chapter, but the applicant shall retain the ultimate burden of persuasion concerning those criteria.

(5) Where an applicant requires subdivision or land development approval in addition to conditional use approval, the applicant has the option to file those applications simultaneously, or to file the application for conditional use first, and file more complete land development plans later. Should the applicant file the applications simultaneously, and request simultaneous review, the applicant assumes the risk of cost of preparation of plans for both applications, and the cost of any modifications the Township may require in the review process. Approval of both conditional use and subdivision and land development shall be required before the issuance of any zoning permit.

(6) Application requirements. Conditional use applications shall be governed by the following:

(a) The landowner shall make a written request to the Board of Commissioners. The request shall contain a statement reasonably informing the Township of the nature and conditions of the proposed use.

(b) Applications for conditional use approval shall contain all data, information, and reports necessary for the Board of Commissioners to evaluate the proposal. The application shall be accompanied by site plans, building plans, impact statements, and other materials describing the use or development proposed. All information required by this chapter shall accompany the application.

(7) For conditional uses concerning existing buildings, a site plan shall be submitted that includes the following:

(a) Name and address of establishment;

(b) Name and address of owner;

(c) North arrow;

(d) Date of plan;

(e) Roads and streets adjacent to property;

(f) Location of all structures on the property (existing and proposed);

(g) Zoning classification of the property;

(h) Proposed hours of operation;

(i) Number of visitors;

(j) Existing and proposed parking;

(k) Existing and proposed trash receptacles and shielding devices;

(l) Existing and proposed lighting, including proposed transformer and generators;

(m) Existing and proposed methods of ingress and egress; and

(n) Existing and proposed fencing, walls, retaining walls, buffering and landscaping.

(8) Fees. The applicant for any hearing on a conditional use request before the Board of Commissioners shall at the time of making application pay to the Township a fee, in accordance with a fee schedule adopted by the Township.

(9) Review procedures.

(a) The Board of Commissioners may attach such reasonable conditions and safeguards, other than those related to off-site transportation and road improvements, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of the Pennsylvania Municipalities Planning Code and the Zoning Ordinance.

(b) The Board of Commissioners shall request an advisory opinion from the Township Planning Commission on any application for a conditional use; the Planning Commission is to submit a report of such advisory opinion prior to the close of the public hearing held by the Board of Commissioners on the application.

(c) The Board of Commissioners may appoint one of its members or an independent attorney to be a hearing officer to conduct the public hearing and to recommend findings of fact and a decision to the Building and Planning Committee. If the parties and the Board of Commissioners agree prior to the presentation of any testimony, the decision of the hearing officer shall be final. Otherwise, the Building and Planning Committee, after consideration of the Planning Commission's recommendation, shall promptly recommend a final decision to the Board of Commissioners.

(d) The Board of Commissioners shall hold a hearing upon the request, commencing not later than 60 days after the request is filed, unless the applicant requests or consents in writing to an extension of time.

(e) Hearing. The Board of Commissioners shall conduct hearings pursuant to public notice and shall send notice of the proposed conditional use hearing to contiguous property owners, and make decisions in accordance with the following:

[1] The parties to the hearing shall be the Township, any person affected by the application who has made timely appearance of record, and any other person, including civic or community organizations permitted to appear by the Board of Commissioners. The Board may require that all persons who wish to be considered parties enter appearances in writing on forms provided for that purpose.

[2] The Chairman, Acting Chairman, or designee shall have the power to administer oaths to witnesses.

[3] 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 witnesses on all relevant issues.

[4] Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.

[5] The Township, at its discretion, may require a stenographic record of the proceedings, and such transcript of the proceedings and copies of graphic or written material received in evidence shall be made available to any party at cost.

[6] The Board of Commissioners shall render a written decision on the application, and communicate it to the applicant in accordance with the Pennsylvania Municipalities Planning Code.

(f) Criteria for conditional use approval. The Board of Commissioners shall grant a conditional use only if it finds substantial evidence that any proposed development plan submitted complies with all of the following:

[1] Meets all conditions of uses expressed in the use classification section of this chapter.

[2] Does not conflict with the Township and County Comprehensive Plans and other plans adopted by the Township.

[3] Is consistent with the spirit, purposes, and intent of the applicable zoning district.

[4] Is in conformance with all applicable requirements of this chapter and all municipal, state and federal codes applicable to the use or process in question.

[5] Is suitable for the property in question. This criterion shall consider issues such as traffic, vehicular and pedestrian circulation, location and design of parking areas, adjacent land use(s), and other impacts on the surrounding area. If the proposal is adjacent to a residential district, the scale of the use shall relate to and complement the surrounding area.

[6] Public utilities. All uses shall be capable of being served by public sewer. A use may be permitted to be served by an on-lot sanitary system only if deemed acceptable by the Board of Commissioners and the adopted 537 Plan of the Township, upon recommendation of the Township Engineer. Sufficient water supply must be available to accommodate all the needs of the proposed use.

(g) Conditions. The Board of Commissioners may require adjustments to the proposal as a condition of approval.

G. Additional requirements for conditional uses.

(1) This section shall not apply to the following uses:

(a) Uses regulated by § 155-7.1, HROD Historic Resources Overlay District; and

(b) Uses involving fewer than 24 residents/participants per day.

(2) General information. Applicants shall submit with their application data:

(a) Total number of participants, quantified by type (including but not limited to users/members, teachers, staff, volunteers, residents, students) and by their method and time of arrival and departure from the site.

(b) Age distribution of participants.

(c) Days and hours of operation, including normal periods of concentrated ingress and egress.

(d) Description and expected attendance at regularly scheduled events, including third-party and other uses of the property beyond those commonly associated with like uses of similar properties.

(3) Separation requirements. Separation requirements shall apply to the following residential uses: alternative housing options for the elderly; convent, monastery or similar institutional residential facility; student home. No more than one such use shall be permitted within 500 feet of another use regulated by this subsection and/or a nonconforming use, measured by the shortest distance between the lot on which the proposed use will be located and the lot or lots which contain the existing use.

(4) Traffic impact study (TIS). The Director of Building and Planning shall require a traffic impact study if needed to assure compliance with the following requirements. If required, the Township Engineer shall determine the scope of the study and the assumptions utilized.

(a) The traffic generated by the proposed use, when combined with the current use, shall not result in a level of service lower than C, or, if the level of service is already C or below, shall not alter such level of service for adjacent streets and/or the nearest intersections thereof.

(b) The proposed use shall demonstrate that it does not create an unsafe traffic condition due to site obstructions at the points of ingress and egress.

(c) The Board of Commissioners may impose additional conditions to mitigate the adverse impact of traffic generated by the proposed use, such as requiring staggered starting and ending times, site circulation or enrollment/public access limits.

(5) Loading/queuing requirements. Loading/queuing requirements shall be provided on site in compliance with the following standards, unless otherwise provided for with reference to specific uses:

(a) One loading/queuing space per 10 participants to be dropped off/picked up by automobile per hour at the maximum anticipated level of such activity.

(b) One oversized loading/queuing space per bus loading or discharging at the site at any one time.

(c) Only a new use or that portion of the property proposed for an expanded use shall be required to meet these loading/queuing standards.

(6) Lighting. Lighting shall be provided in compliance with Chapter 105, Noise and Exterior Lighting, and with § 155-3.11, Ambience standards.

(a) Lighting shall be provided along all interior walkways and parking areas to be used after dusk.

(b) Lighting for interior walkways shall be a maximum of 12 feet above finished grade.

(c) Lighting for parking areas shall be a maximum of 12 feet above finished grade unless the applicant can demonstrate that taller lights will not increase light spillage or glare on adjacent properties.

(d) The source of illumination for all light fixtures on the exterior of the building shall be screened from off-site view.

(7) Buffering. Landscaped buffer areas (including a wall, fence, suitable planting or combination if approved by the Township) incorporating a variety of deciduous and evergreen trees and shrubs shall be provided along all property lines in compliance with the following:

(a) Buffer areas and the following shall be in compliance with § 155-3.10, Landscape standards.

[1] A minimum of 20 feet in width along the side or rear property lines, but in no case, shall be less than the required setback.

[2] Any existing improvements that project into the required buffer area may remain, provided that they were lawful when built.

(b) Buffer area plantings shall comply with Chapter 101, Natural Features Conservation, § 101-9A through E, which may include existing, healthy trees and shrubs.

[Amended 5-18-2022 by Ord. No. 4244]

(c) The Board of Commissioners may modify the buffer requirements if the adjacent property is a nonresidential use.

H. Additional requirements for conditional use approval for historic resources regulated by § 155-7.1, HROD Historic Resource Overlay District.

(1) Where the historic resource is located in a local historic district, the work of the Historical Commission under this subsection shall be performed by the Board of Historical Architectural Review.

(2) An applicant seeking conditional use approval under the provisions of § 155-11.1H shall submit the appropriate application to the Director of Building and Planning in accordance with the provisions of § 155-11.1F, Conditional uses. The information to be provided shall include the following:

(a) Name and address of the record owner and applicant (if different).

(b) Site plan showing all buildings and structures on the property.

(c) Recent photographs of the historic resource.

(d) A detailed narrative description of the proposed use(s).

(e) Any physical changes proposed for the affected historic resource(s) and their surrounding landscape.

(f) Any proposed modifications to otherwise applicable form and parking regulations.

(3) The application shall be accompanied by an historic resource impact study, in accordance with § 155-7.1J, Historic resource impact study, where any land development or subdivision is proposed on:

(a) Any property that contains a Class 1 or Class 2 historic resource(s).

(b) Any contributing property within the boundaries of any National Register historic district, any local historic district or any historic neighborhood.

(4) The Director of Building and Planning shall forward the complete application to either the Board of Historical Architectural Review or the Historical Commission and the Planning Commission in accordance with § 155-11.1F. The Historical Commission (or the Board of Historical Architectural Review), at a regular or special meeting, shall review the application for conditional use and shall promptly forward its recommendations to the Director of Building and Planning for distribution to the Building and Planning Committee of the Board of Commissioners. In formulating its recommendations, the Historical Commission (or the Board of Historical Architectural Review) shall consider each of the criteria imposed by this section for the grant of conditional use approval.

(5) The Building and Planning Committee and the Board of Commissioners shall act upon the application in accordance with the provisions of § 155-11.1F. The Building and Planning Committee may refer the application to a hearing officer to conduct any hearings and make recommendations to the Committee.

(6) Any conditional use permit granted under this subsection shall expire within one year, unless one of the following conditions is met:

(a) A building permit to perform the work has been issued.

(b) An occupancy permit to allow such use has been issued.

(7) Criteria for the grant of conditional use approval. Where a use is permitted in an Historic Resource Overlay District by conditional use, that use shall not be granted unless the following requirements have been satisfied in addition to those set forth in § 155-11.1F.

(a) The applicant shall have the burden of demonstrating that approval of the application will not jeopardize the preservation of the historic resource(s) contained on the property subject to application. To sustain this burden the applicant shall present evidence demonstrating the following:

[1] The exact location of the area in which the work is to be done.

[2] The exterior changes to be made or the exterior character of the structure to be erected.

[3] A list of the surrounding structures with their general exterior characteristics.

[4] The effect of the proposed change upon the general historic and architectural nature of the property.

[5] The appropriateness of exterior architectural features of structures involved with the proposed work.

[6] The general design, arrangement, texture, material, scale, mass and color of any affected building, structure or site and the relation of such factors to similar features of other structures on the property.

[7] That rehabilitation work will not destroy the distinguishing qualities or character of the historic resource and its environment.

[8] In the event that replacement of contributing architectural features is necessary, the new material should, as closely as possible, match the material being replaced in kind. At a minimum, the composition, design, color, texture and other aesthetic qualities shall be sympathetic to and in character with the historic resource. In instances where original materials are either unavailable or their use economically infeasible, the Board may approve the use of materials which are aesthetically consistent with, even if not completely duplicative of, the character of the historic resource.

[9] Distinctive stylistic features or examples of skilled craftsmanship shall be preserved.

[10] Changes which may have taken place in the course of time are evidence of the history and development of the building, structure or site and its environment. These changes may have acquired significance in their own right, and this significance shall be recognized and respected.

[11] A property shall be used for its historic purpose or be placed in a new use that requires minimal change to the defining characteristics of the building and its site and environment.

(8) The most current version of the Secretary of the Interior's Standards for Rehabilitation of Historic Structures, as amended, shall be used as a guideline in carrying out any plans involving the rehabilitation, alteration or enlargement of historic resource(s).

(9) Where plans involving the rehabilitation, alteration or enlargement of historic resource(s) will result in all or portions of any such resource(s) remaining unoccupied, such unoccupied resources shall be securely sealed and barred off and the utilities turned off for safety, in a manner not jeopardizing historical integrity, as per the most current construction techniques for historic structures.

(10) A means to guarantee the permanent protection of the historical integrity of the subject resource(s), such as the establishment of conservation easement(s) or appropriate covenants in a form acceptable to the Township Solicitor, shall be provided.

(11) The applicant shall have the burden of proving that the historical integrity of the resource has been provided for through the design of the building improvements as well as through implementation of buffering, landscaping, lighting, storage, access and traffic management, interior circulation, loading, parking, fencing, signage and all other land development features.

(12) The applicant shall have the burden of proving that the grant of the application will not be destructive of the integrity of the historic resource or detrimentally affect the value of surrounding properties.

(13) The applicant must comply with the parking requirements for the proposed use as set forth in Article VIII, Parking Standards. The Board of Commissioners may prohibit any additional parking between the right-of-way and the facade of the building if the Board finds such parking would negatively impact the historical integrity of the resource.

[Amended 10-21-2020 by Ord. No. 4196]

(14) The applicant must comply with the requirements of this chapter with respect to signage. The Board of Commissioners may approve on reduction in the size of the signage if it finds that the permitted signage will obstruct views required to assure the safety of the public or to retain the historic nature of the property.

(15) The Board of Commissioners may attach conditions to achieve the objectives set forth in this section and to promote the public health, safety and welfare, which conditions may relate to any aspect of the proposed use of the property, including but not limited to buffering, parking, signage, traffic volume and flow, hours of operation, noise and odor emission.

(16) Where the Board of Commissioners waives any requirement which thereby increases the rate or volume of stormwater generated on the property, the additional rate and/or volume of runoff caused by such waiver shall be controlled for the 100-year storm.

I. Fees. The Board of Commissioners shall establish and revise, from time to time, by resolution or ordinance, a schedule of fees, as well as a collection procedure, for all applications submitted under the provisions of this chapter. The schedule of fees shall be available to the public from the Zoning Officer or Township Secretary.

J. Landowner curative amendments.

(1) A curative amendment may be filed by a landowner who desires to challenge, on substantive grounds, the validity of this chapter or the Zoning District Map or any provision thereof, which prohibits or restricts the use or development of land in which he/she has an interest.

(2) Procedure. The landowner may submit a curative amendment to the Board of Commissioners with a written request that his challenge and proposed amendment be heard and decided as provided in the Pennsylvania Municipalities Planning Code, Act 247, as amended. As with other proposed amendments, the curative amendment shall be referred to the Township Planning Commission and the Montgomery County Planning Commission at least 30 days before the hearing is conducted by the Board of Commissioners, pursuant to Pennsylvania Municipalities Planning Code, Section 908.[1] Public notice shall be given in accordance with the applicable provisions of the Pennsylvania Municipalities Planning Code.

[1] Editor's Note: See 53 P.S. § 10908.

(3) Evaluation of merits of curative amendment. If the Board of Commissioners determines that a validity challenge has merit, the Board of Commissioners may accept a landowner's curative amendment, with or without revision, or may adopt an alternative amendment which will cure the alleged defects. The Board of Commissioners shall consider the curative amendments, plans and explanatory material submitted by the landowner and shall also consider:

(a) The impact of the proposal upon roads, sewer facilities, water supplies, public schools and other public service facilities;

(b) If the proposal is for a residential use, the impact of the proposal upon regional housing needs and the effectiveness of the proposal in providing housing units of a type actually available to and affordable by classes of protected persons otherwise unlawfully excluded by the challenged provisions of this chapter or Zoning District Map;

(c) The suitability of the site for the intensity of the use proposed by the site's soils, slopes, woodlands, wetlands, floodplains, aquifers, natural resources and other natural features;

(d) The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, natural resources and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts; and

(e) The impact of the proposal on the preservation of open space and other land uses which are essential to public health and welfare.

(4) Declaration of invalidity by court. If the Township does not accept a landowner's curative amendment brought in accordance with this section and a court subsequently rules the challenge has merit, the court's decision shall not result in a declaration of invalidity for this entire chapter but only for those provisions which specifically relate to the landowner's curative amendment challenge.

K. Municipal curative amendments. If the Township determines that this chapter or any portion thereof is substantially invalid, it shall take the following actions:

(1) The Township shall declare, by formal action, its Zoning Code or portions thereof substantively invalid and propose to prepare a curative amendment to overcome such invalidity. Within 30 days following such declaration and proposal, the Board of Commissioners shall:

(a) By resolution, make specific findings setting forth the declared invalidity of the applicable sections of the Zoning Code, which may include:

[1] References to specific uses which are either not permitted or not permitted in sufficient quantity;

[2] Reference to a class of use or uses which require revision; or

[3] Reference to the entire chapter which requires revision.

(b) Begin to prepare and consider a curative amendment to the Zoning Code to correct the declared invalidity.

(2) Within 180 days from the date of the declaration and proposal, the Township shall enact a curative amendment to validate, or reaffirm the validity of, its Zoning Code pursuant to the provisions required by Section 609 of the MPC in order to cure the declared invalidity of the Zoning Code.

(3) Upon the initiation of the procedures, as set forth in Subsection K(1), the Board of Commissioners shall not be required to entertain or consider any landowner's curative amendment filed under Section 609.1 of the MPC,[2] nor shall the Zoning Hearing Board be required to give a report requested under Section 909.1 or 916.1 of the MPC.[3] Upon completion of the procedures as set forth in Subsection K(1) and (2), no rights to a cure pursuant to the provisions of Sections 609.1 and 916.1 of the MPC shall, from the date of the declaration and proposal, accrue to any landowner on the basis of the substantive invalidity of the unamended Zoning Code for which there has been a curative amendment pursuant to this section.

[2] Editor's Note: See 53 P.S. §§ 10609.1.

[3] Editor's Note: See 53 P.S. § 10909.1 and 10916.1, respectively.

§ 155-11.2 Zoning Hearing Board.

A. For rules and regulations of the Zoning Hearing Board, unless stated otherwise, the requirements of the PA Act 247, Municipalities Planning Code, Article IX, Zoning Hearing Board, shall apply.

B. Jurisdiction.

(1) Pursuant to § 10909.1 of the Municipalities Planning Code (53 P.S. § 10909.1), the Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications consistent herewith.

[Amended 4-17-2024 by Ord. No. 4289]

(a) The Zoning Hearing Board shall have exclusive jurisdiction in the following matters:

[1] Substantive challenges to the validity of any land use ordinance, except those brought before the Board of Commissioners pursuant to Sections 609.1 and 916.1(a)(2) of the Municipalities Planning Code, as amended [53 P.S. §§ 10609.1 and 10916.1(a)(2)].

[2] 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.

[3] Appeals from a determination related to the administration of any floodplain or flood hazard ordinance or such provisions within a land use ordinance.

[4] Applications for variances under this Code or floodplain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to § 10910.2 of the Municipalities Planning Code (53 P.S. § 10910.2).

[5] Applications for special exceptions under this Code or floodplain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to § 10912.1 of the Municipalities Planning Code (53 P.S. § 10912.1).

[6] 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 Code.

[7] Appeals from the determination of the Zoning Officer with respect to a preliminary opinion issued pursuant to § 155-11.1E(8).

[8] Appeals from the determination of the Zoning Officer or the Township Engineer in the administration of any land use ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development not involving Article V or VII applications pursuant to the Municipalities Planning Code (53 P.S. § 10501 et seq., and 53 P.S. § 10701 et seq., respectively).

(b) Rules of procedure. The Board may adopt rules of procedure in accordance with the several provisions of this chapter as to the manner of filing appeals or applications for special exceptions or variances from the terms of this chapter.

(2) In exercising the above-mentioned powers, the Board may:

(a) Reverse or affirm, wholly or in part, or modify the order, requirement, decision or determination appealed from.

(b) Make such order, requirement, decision or determination as ought to be made.

(c) Impose appropriate conditions and safeguards.

(3) Applications, hearings and decisions regarding variances and special exceptions in the Floodplain District shall be governed by the provisions of § 155-7.3, Floodplain Overlay District, of this chapter as well as the provisions of this article. In the event that there is a conflict between the provisions of this article and § 155-7.3, Floodplain Overlay District, the provisions of § 155-7.3, Floodplain Overlay District, shall take precedence and be controlling over the provisions of this article.

C. Membership.

(1) The Zoning Hearing Board shall consist of three members appointed by the Board of Commissioners as provided by law. The word "Board," when used in this article, shall mean the Zoning Hearing Board. The Board of Commissioners may also appoint up to two residents of the Township to serve as alternate members of the Board. Regular and alternate members shall each serve a three-year term of office, and none shall hold any other elective or appointive office in the Township, nor be a Township employee.

(2) The Chairman of the Board may designate alternate members of the Board to replace any absent or disqualified member, and if, by reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Board shall designate as many alternate members of the Board to sit on the Board as may be needed to reach a quorum. Any alternate member of the Board shall continue to serve on the Board in all proceedings involving the matter or case for which the alternate was initially appointed until the Board has made a final decision on the matter or case. Designation of an alternate pursuant to this section shall be made on a case-by-case basis in rotation according to declining seniority among the alternates.

(3) When seated, an alternate shall be entitled to participate in all proceedings and discussions of the Board to the same and full extent as provided by law for regular Board members, including specifically the right to cast a vote as a voting member during the proceedings, and shall have all the powers and duties of a regular Board member. Any alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote as a regular member of the Board nor be compensated unless designated as a voting alternate member.

(4) Removal of members. Any Zoning Hearing Board member may be removed for malfeasance, misfeasance or nonfeasance in the 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 vote. A hearing may be held in connection with the vote if the member shall request it in writing.

(5) Organization of the Board.

(a) Officers. The Zoning Hearing Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves.

(b) Quorum. 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 Zoning Hearing Board, except when member(s) of the Zoning Hearing Board are disqualified to act in a particular matter, alternate members shall be appointed to provide a quorum.

(c) Hearing officer. 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 and accept the findings or decision of the hearing officer as final.

(d) Procedures. The Zoning Hearing Board may make, alter and rescind rules and forms for its procedure, consistent with the Code of the Township and laws of the Commonwealth of Pennsylvania.

(e) Files and annual report. The Zoning Hearing Board shall keep full public records of its business and shall submit a report of its activities to the Board of Commissioners once a year.

D. Variances.

(1) The Board, upon application, shall have the power to authorize variances from the requirements of this chapter and to attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter. A variance may be granted if 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 appellant.

(d) That the variance, if authorized, will represent the minimum variance necessary to afford relief and will represent the least modification possible of the regulation in issue.

(e) 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 interest.

(2) In determining whether the allowance of a variance is contrary to the public interest, the Board shall consider whether the application, if granted, will:

(a) Adversely affect the public health, safety and welfare due to changes in traffic conditions drainage, air quality, noise levels, natural features of the land, neighborhood property values and neighborhood aesthetic characteristics.

(b) Conflict with the Lower Merion Township Comprehensive Plan.

(c) Provide the required parking required under Article VIII, Parking Standards, of this chapter.

(d) Adversely affect the logical, efficient and economical extension or provision of public services and facilities, such as public water, sewers, refuse collection, police and fire protection and public schools.

(e) Otherwise adversely affect the public health, safety, or welfare.

E. Uses by special exception.

(1) The Board shall have the power to hear and decide applications for uses by special exception as authorized by this chapter, in harmony with its general purpose and intent, and in accordance with the standards set forth in Article V, Uses. The Board shall approve a use by special exception only if it meets all applicable requirements of this chapter. In granting a use by special exception, the Board may attach such reasonable safeguards or conditions, in addition to those expressed in this chapter, as it may deem necessary to properly implement this chapter and protect the public health, safety and welfare.

(2) An applicant for a special exception shall have the burden of establishing both:

(a) That his application falls within the provision of this chapter which accords to the applicant the right to seek a special exception; and

(b) That allowance of the special exception will not be contrary to the public interest.

(3) In determining whether the allowance of a special exception is contrary to the public interest, the Board shall consider whether the application, if granted, will:

(a) Adversely affect the public health, safety and welfare due to changes in traffic conditions, drainage, air quality, noise levels, natural features of the land, neighborhood property values and neighborhood aesthetic characteristics.

(b) Conflict with the Lower Merion Township Comprehensive Plan.

(c) Provide the required parking required under Article VIII, Parking Standards, of this chapter.

(d) Adversely affect the logical, efficient and economical extension or provision of public services and facilities, such as public water, sewers, refuse collection, police and fire protection and public schools.

(e) Otherwise adversely affect the public health, safety, or welfare.

(4) The use by special exception must meet the performance standards of the zoning district in which the use is permitted if provided in Article V, Uses. When distance separation requirements are established, measurement shall be measured from property line to property line, except if noted otherwise.

(5) In addition to any applicable requirements contained in Article V, Uses, the following additional standards shall be met by any applicant for a special exception in any residential district:

(a) The applicant shall demonstrate that all of the required parking shall be installed outside of the front yard. In no case shall the front yard be paved for parking or circulation purposes with the exception of one driveway penetrating it to reach a required parking area. Any additional driveway(s) to reach a required parking area shall be permitted only if authorized by the Board as a part of the order granting the special exception.

(6) Additional regulations for all special exceptions.

(a) This section shall not apply to the following: uses involving fewer than 24 residents/participants per day.

(b) General information. Applicants shall submit with their application data quantifying the anticipated intensity of the proposed use in terms measuring the amount and frequency of public access. Such data shall include, without limitation, the following:

[1] Total number of participants, quantified by type (including but not limited to users/members, teachers, staff, volunteers, residents, students) and by their method and time of arrival and departure from the site.

[2] Age distribution of participants.

[3] Days and hours of operation, including normal periods of concentrated ingress and egress.

[4] Description and expected attendance at regularly scheduled events, including third-party and other uses of the property beyond those commonly associated with like uses of similar properties.

(c) Separation requirements. Separation requirements shall apply to the following residential uses: alternative housing options for the elderly; convent, monastery or similar institutional residential facility; student home, and shared residences for the elderly or disabled. No more than one such use shall be permitted:

[1] Within 500 feet of another use regulated by this subsection and/or a nonconforming use, measured by the shortest distance between the lot on which the proposed use will be located and the lot or lots which contain the existing use.

(d) Traffic impact study (TIS). The Director of Building and Planning shall require a traffic impact study if needed to assure compliance with the following requirements. If required, the Township Engineer shall determine the scope of the study and the assumptions utilized.

[1] The traffic generated by the proposed use, when combined with the current use, shall not result in a level of service lower than C, or, if the level of service is already C or below, shall not alter such level of service for adjacent streets and/or the nearest intersections thereof.

[2] The proposed use shall demonstrate that it does not create an unsafe traffic condition due to site obstructions at the points of ingress and egress.

[3] The Zoning Hearing Board may impose additional conditions to mitigate the adverse impact of traffic generated by the proposed use, such as requiring staggered starting and ending times, site circulation or enrollment/public access limits.

(e) Loading/queuing requirements. Loading/queuing requirements shall be provided on site in compliance with the following standards, unless otherwise provided for with reference to specific uses:

[1] One loading/queuing space per 10 participants to be dropped off/picked up by automobile per hour at the maximum anticipated level of such activity.

[2] One oversized loading/queuing space per bus loading or discharging at the site at any one time.

[3] Only a new use or that portion of the property proposed for an expanded use shall be required to meet these loading/queuing standards.

(f) Lighting. Lighting shall be provided in compliance with Chapter 105, Noise and Exterior Lighting, and with § 155-3.11, Ambience standards.

[1] Lighting shall be provided along all interior walkways and parking areas to be used after dusk.

[2] Lighting for interior walkways shall be a maximum of 12 feet above finished grade.

[3] Lighting for parking areas shall be a maximum of 12 feet above finished grade unless the applicant can demonstrate that taller lights are necessary for safety purposes.

[4] The source of illumination for all light fixtures on the exterior of the building shall be screened from off-site view.

(g) Buffering. Landscaped buffer areas (including a wall, fence, suitable planting or combination if approved by the Township), incorporating a variety of deciduous and evergreen trees and shrubs shall be provided along all property lines and shall be in compliance with the following:

[1] Buffer areas are as follows and shall be in compliance with § 155-3.10, Landscape standards.

[a] A minimum of 20 feet in width along the side or rear property lines, but in no case, shall be less than the required setback.

[b] Any existing improvements that project into the required buffer area may remain, provided that they were lawful when built.

[2] Buffer area plantings shall comply with Chapter 101, Natural Features Conservation, § 101-9A through E, which may include existing, healthy trees and shrubs.

[Amended 5-18-2022 by Ord. No. 4244]

[3] The Zoning Hearing Board may modify the buffer requirements if the adjacent property is a nonresidential use.

F. Additional requirements for special exceptions or variances in the Floodplain District.

(1) Applicants shall provide the Zoning Hearing Board with a site plan at a scale of one inch equals 40 feet and a sectional profile at a scale of one inch equals four feet, showing present site conditions, proposed improvements, and the following information:

(a) The proposed lowest floor elevation of any proposed building based upon North American Vertical Datum of 1988;

(b) The elevation of the base flood; and

(c) Detailed information concerning any proposed floodproofing measures and corresponding elevations.

(2) Prior to the public hearing by the Zoning Hearing Board of an application for a variance or a special exception, the Secretary of the Zoning Hearing Board shall, over his signature, notify the applicant in writing that the issuance of a variance or special exception to construct a structure below the base flood level will result in increased premium rates for flood insurance and such construction below the base flood level increases risks to life and property. Such notification shall be maintained with a record of all variance and special exception actions as required in this section.

(3) The Secretary of the Zoning Hearing Board shall maintain a record of all variance and special exception actions, including justification for their issuance, and the Township shall report any such variances and special exceptions issued in its annual report to the Federal Insurance Administrator.

(4) All permits and plans shall be approved only after it has been determined that the proposed work to be undertaken will be in conformance with the requirements of the state and all other applicable codes and ordinances. The Zoning Officer shall require copies of all necessary permits from those governmental agencies from which approval is required by federal or state law.

(5) The prohibitions, requirements and considerations in this subsection shall be applied by the Zoning Hearing Board in reviewing and adjudicating applications for variances in the Floodplain District.

(6) Variances shall not be issued within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result.

(7) Variances shall only be issued upon compliance with the requirements of § 155-11.2D and the following:

(a) A showing of good and sufficient cause.

(b) A determination that failure to grant the variance would result in exceptional hardship.

(c) A determination that grant of the variance will not result in increased flood heights, additional threats to public safety or extraordinary public expense or create nuisances or cause fraud on or victimization of the public or conflict with any laws or statutes of the Commonwealth of Pennsylvania or the Code of the Township of Lower Merion or regulations of the Township of Lower Merion.

(d) Adherence to the anchoring and floodproofing requirements of § 155-7.3 Floodplain Overlay District.

(8) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

G. Comparable uses not specifically listed.

(1) Uses of the same general character as any of the uses authorized as permitted uses by right, conditional uses, or uses by special exception in the zoning district in which the property is located may be allowed by the Zoning Officer if it can be determined that the impact of the proposed use on the environment and adjacent streets and properties is equal to or less than any use specifically listed in the zoning district and if the use meets those characteristics set forth below.

(2) Determination shall consider the following characteristics of the proposed use:

(a) The number of employees.

(b) The floor area of the building and the gross area of the lot devoted to the proposed use.

(c) The type of products, materials and equipment and/or processes involved in the proposed use.

(d) The traffic and environmental impacts and the ability of the proposed use to comply with the performance standards of this chapter.

(e) For those uses included in the most-recent edition of the Standard Industrial Classification Manual published by the Office of Management and Budget, whether the proposed use shares the same SIC code or major group number as one or more uses that are specifically listed in the zoning district.

(f) The proposed use shall comply with all applicable area and bulk regulations of the zoning district in which it is located.

(g) The proposed use shall comply with any applicable standards and criteria specified in this article for the most nearly comparable use by special exception or condition use listed in the zoning district in which the comparable use is proposed.

(h) The proposed use shall be consistent with the purpose statement for the zoning district in which it is proposed and shall be consistent with the community development objectives of this chapter.

H. Burden of proof; Zoning Hearing Board.

(1) Special exception applications. The burden of persuasion and the duty of presenting evidence before the Zoning Hearing Board with respect to applications for special exceptions shall be the same as for conditional use applications before the Board of Commissioners set forth at § 155-11.1F(3) and (4) above.

(2) Variance applications. The burden of persuasion and the duty of presenting evidence before the Zoning Hearing Board with respect to applications for a variance lies with the applicant as to all criteria set forth in this article.

I. Public hearings.

(1) Notice. Upon the filing with the Board of an appeal or an application for a special exception or a variance, the Board shall fix a reasonable time and place for a public hearing thereon and shall give notice thereof as follows:

(a) By publishing a notice thereof once a week for two successive weeks in a newspaper of general circulation in the Township.

(b) By mailing due notice thereof to the parties in interest.

(c) By mailing notice thereof to the Township Commissioner representing the ward in which the lot or building is located.

(d) By mailing notice thereof to every resident or association of residents of the Township who shall have registered their names and addresses for this purpose with the Board.

(e) When the Board shall so order, by mailing notice thereof to the owner or owners, if their residence is known, or to the occupier or occupiers, of every lot on the same street within 500 feet of the lot or building in question, and of every lot not on the same street within 150 feet of the lot or building, provided that failure to give notice required by this subsection shall not invalidate any action taken by the Board.

(2) The notices herein required shall state the location of the building or the lot and the general nature of the question involved.

(3) Conduct of hearing. The Board shall conduct hearings in accordance with the requirements of the PA Act 247, Municipalities Planning Code, Article IX, Zoning Hearing Board.

J. Appeals and applications.

(1) Appeals to the Board may be taken by any person aggrieved or by any officer of the Township affected by any decision of the Zoning Officer or the Township Engineer. Such appeal shall be taken by filing with the officer from whom the appeal is taken and with the Board a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

(2) Procedure. An appeal or an application for a special exception or variance from the terms of this chapter shall be filed with the Secretary of the Zoning Hearing Board and shall state:

(a) The name and address of the applicant.

(b) The name and address of the owner of the real estate to be affected by the proposed exception or variance.

(c) A brief description and location of the real estate to be affected by such proposed change.

(d) A statement of the present zoning classification of the real estate in question, the improvements thereon and the present use thereof.

(e) A statement of the section of this chapter under which the variance or exception requested may be allowed, and reasons why it should be granted.

(f) A reasonably accurate description of the present improvements and the additions intended to be made under this application, indicating the size of such proposed improvements, material and general construction thereof. In addition, there shall be attached a plot plan of the real estate to be affected, prepared by a registered engineer or land surveyor, indicating the location and size of the lot and the size of improvements now erected and proposed to be erected thereon.

K. Expiration of special exceptions and variances.

(1) Unless otherwise specified by the Board, a special exception or variance shall expire if the applicant fails to obtain a building permit within six months from the date of authorization thereof. If subdivision or land development approval is required to implement the special exception or variance, the six-month period shall begin to run on the date of the Board's approval or on the date final subdivision or land development approval is granted, whichever shall last occur, provided that the subdivision or land development application is submitted within six months of the Zoning Hearing Board decision.

(2) A use permitted by special exception or variance shall expire if the use authorized is abandoned. If such use permitted by special exception or variance is discontinued by nonuse, unlawful use or a change of use to one not authorized by the previously obtained special exception or variance or by this chapter as of right for a continuous period of six months or more, the abandonment of such use shall be presumed, and any subsequent use of such building or land shall be in conformity with the provisions of this chapter.

L. Decisions.

(1) The Board 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 on the application before the Board. Such decision shall be noted in the minutes of the next meeting of the Zoning Hearing Board. For the purposes of this section, parties in interest shall be limited to the applicant and any person who shall indicate by completing an appropriate form provided by the Board his/her desire to receive notice of the Board's decision.

(2) Failure to render a decision. Where the Board fails to render a decision within the required forty-five-day period or fails to hold the required hearing within 60 days 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.

(3) When a decision has been rendered in favor of the applicant because of failure of the Board to meet or render a decision, the Board shall give public notice of the decision within 10 days from the last day it could have met to render a decision. If the Board 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 the Court of Common Pleas.

M. Mediation.

(1) Parties to proceedings authorized in this chapter may utilize mediation as an aid in completing such proceedings. In proceedings before the Zoning Hearing Board, in no case shall the Zoning Hearing Board initiate mediation or participate as a mediating party. Mediation shall supplement, not replace, those procedures in this chapter once they have been formally initiated. Nothing in this subsection shall be interpreted as expanding or limiting municipal police powers or as modifying any principles of substantive law.

(2) Participation in mediation shall be wholly voluntary. The appropriateness of mediation shall be determined by the particulars of each case and the willingness of the parties to negotiate. The municipality, in offering the mediation option, shall assure that in each case, the mediating parties, assisted by the mediator as appropriate, develop terms and conditions for:

(a) Funding mediation, as authorized in the Pennsylvania Municipalities Planning Code and agreed to by the parties in mediation.

(b) Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation.

(c) Completing mediation, including time limits for such completion.

(d) Suspending time limits otherwise authorized in this chapter or in the Pennsylvania Municipalities Planning Code (Act 247, as amended), provided that there is written consent by the mediating parties, and by an applicant or Township decisionmaking body, if either is not a party to the mediation.

(e) Identifying all parties and affording them the opportunity to participate.

(f) Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public.

(g) Assuring that mediated solutions are in writing and signed by the parties and become subject to review and approval by the appropriate decisionmaking body pursuant to the authorized procedures set forth in this chapter.

(3) No offers or statements made in the mediation sessions, excluding the final written mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceedings.

N. Appeals to court. Any person aggrieved by any decision of the Board or any officer of the Township may, within 30 days after any decision of the Board, appeal to the Court of Common Pleas of Montgomery County by petition, duly verified, setting forth that such decision is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, specifying the grounds upon which he/she relies.

§ 155-11.3 Zoning amendments.

A. Power of amendment. The Board of Commissioners may from time to time amend, supplement, change, modify or repeal this chapter, or any part thereof, including the Zoning Maps, by proceeding in the manner prescribed in this article. No regulation, restriction or district boundary shall become effective, however, until after a public hearing in relation thereto at which parties in interest and citizens shall have an opportunity to be heard. The provisions of this article requiring public hearings and notice thereof shall apply to all changes and amendments of this chapter.

B. Petition of citizens for zoning change.

(1) Whenever the owners of 50% or more of any area wherein a change of zoning regulations is sought shall present to the Board of Commissioners a petition in the form prescribed by the Township, duly signed and acknowledged, requesting an amendment, supplement, change, modification or repeal of the regulations prescribed for, or of the Zoning Maps including such area, the Board shall, except as hereinafter provided, hold a public hearing thereon and cause notice to be given in the manner set forth below. Whenever a petition to change the zoning classification of a property is filed and at the time of filing the property is under agreement of sale, both the seller and the purchaser must sign and acknowledge the petition. In addition, three certified copies of the agreement of sale shall be filed with the petition.

(2) Three duly executed copies of the petition, together with copies of a map of the area in question attached thereto, shall be filed with the Director of Planning of the Township of Lower Merion, and at that time the filing fee hereinafter specified shall be paid by the petitioner. Any additional data in support of the petition which the petitioner desires to make available for the technical review of the Township Solicitor and the Planning Commission shall be filed in triplicate with the petition at the time it is filed.

(3) Referral. Any proposed amendment presented to the Board of Commissioners without written findings and recommendations from the Township Planning Commission and the Montgomery County Planning Commission shall be referred to these agencies for review at least 30 days prior to the public hearing of the Board of Commissioners. The Board of Commissioners shall not hold a public hearing upon such amendments until the required reviews are received or the expiration of 30 days from the date of referral, whichever comes first.

C. Times for public hearings; notice.

(1) No public hearings on proposed amendments will be held during the month of August.

(2) The time and place of public hearings on proposed amendments will be fixed by the Board by vote at a regular or special meeting.

(3) Notice. The Board will cause prompt notice of such public hearings to be given as follows:

(a) By publishing notice of the time and place of the public hearing once a week for two successive weeks in an official paper or a paper of general circulation in the Township.

(b) By mailing a notice thereof to every resident or association of residents of the Township who shall have registered their names and addresses for this purpose with the Township Secretary.

(c) By posting a notice thereof on the property for which the change is sought.

(d) By mailing a notice thereof to every owner of property within 500 feet of the property(ies) involved.

(4) Such notice shall state the general nature of the proposed amendment as well as the time and place of the public hearing.

D. Procedure at public hearing.

(1) At the time scheduled for the public hearing, the following procedure will be followed:

(a) Petitions will be heard in the order of their filing.

(b) The presiding officer will announce the hearing.

(c) The Director of Building and Planning will describe the location and boundaries of the area included in the petition or the area the classification of which is proposed to be changed by the Board of Commissioners. He/she will explain the differences between the district regulations existing and the district regulations as requested or proposed to be changed and will answer questions regarding the foregoing matters.

(d) The petitioner or the attorney or representative may submit evidence in support of the petition. He/she may produce such testimony as he/she chooses but the presentation of the case must be completed within 30 minutes, except by special permission of the Board.

(e) Evidence in opposition to the petition will be received from any citizen or party in interest or his attorney or representative. Opposition testimony must be completed within 45 minutes, except by special permission of the Board.

(f) In rebuttal, the petitioner or the attorney or representative may answer points raised by opponents of the requested amendment, but no new subject matter may be introduced and such rebuttal must be completed within 15 minutes, except by special permission of the Board.

(g) Questions and comments by any citizen present or any civic association or other organization will be permitted at the conclusion of the foregoing testimony, when special permission is granted by the Board.

(h) The Board will take the matter under advisement.

(2) After the conclusion of a pubic hearing on a requested amendment, no additional evidence will be received by the Board nor will any further communication, either written or oral, be considered by the Board, unless a further public hearing is scheduled.

E. Decision of Board of Commissioners.

(1) The Board of Commissioners will, after considering the testimony and argument presented, either approve the granting of the petition, modify it or reject it completely. An ordinance approved and adopted by the Board shall take effect and be in force from and after its approval as required by law. If a petition for an amendment is declined, the Board will not entertain another petition covering the same or substantially the same area and requesting the same change in zoning classification for a period of one year, unless the Board concludes that there has been such a material change in the character and circumstances of the neighborhood that an earlier consideration is warranted.

(2) Standards for text or rezoning amendments. In deciding whether to adopt or deny any proposed amendment, or to adopt some modification of the Planning Commission's recommendation, the Board of Commissioners shall consider, among other factors, the following:

(a) Whether the proposed amendment is consistent with the goals, objectives, and policies of the Comprehensive Plan, as adopted and amended from time to time;

(b) Whether the proposed amendment is compatible with current and projected conditions and the overall character of development in the immediate vicinity of the subject property;

(c) Whether the proposed amendment is the most desirable use for which the land in the subject property is adapted; and

(d) Whether the proposed amendment will have an adverse effect on the value of properties throughout the jurisdiction.

§ 155-11.4 Zoning enforcement; penalties; remedies; charges.

[Amended 4-17-2024 by Ord. No. 4289]

A. A failure to secure a building permit, zoning permit or Zoning Hearing Board certificate prior to the erection, construction, extension or addition to a building, when required, or a failure to secure a use registration permit prior to the initiation of that use shall be a violation of this chapter.

B. The Zoning Officer shall issue an enforcement notice to any person, firm, partnership, corporation, or other entity responsible for violating any of the provisions of this chapter, or any amendment thereto, or any detailed statement or a plan approved thereunder. If the enforcement notice is not complied within the time period set forth in said notice, unless extended by appeal to the Zoning Hearing Board, the Zoning Officer shall order the discontinuance of such unlawful use of structure, building, sign, and/or land involved in said violation or impose such other sanctions described in the enforcement notice.

(1) The enforcement notice shall be sent to the owner of record of the parcel on which the violation has occurred, to any person who has filed a written request to receive enforcement notices regarding that parcel, and to any other person requested in writing by the owner of record.

(2) An enforcement notice shall state at least the following:

(a) The name of the owner of record and any other person against whom the Township intends to take action.

(b) The location of the property in violation.

(c) The specific violation with a description of the requirements which have not been met, citing in each instance the applicable provisions of this chapter.

(d) The date before which the steps for compliance must be commenced and the date before which the steps must be completed.

(e) That the recipient of the notice has the right to appeal to the Zoning Hearing Board within a prescribed period of time in accordance with procedures set forth in the ordinance.

(f) That failure to comply with the notice within the time specified, unless extended by appeal to the Zoning Hearing Board, constitutes a violation, with possible sanctions clearly described.

C. In any appeal of an enforcement notice to the Zoning Hearing Board, the municipality shall have the responsibility of presenting its evidence first.

D. Any person, partnership or corporation who or which has violated or permitted the violation of the provisions of this chapter, upon being found liable therefor in a civil enforcement proceeding commenced by the Township, shall pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by the Township 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, the 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 determining that there has been a violation further determines that there was a good faith basis for the person, partnership or corporation violating the ordinance to have believed that there was no such violation, in which event, there shall be deemed to have been only one such violation until the fifth day following the date of the determination of a violation by the Magisterial District Judge, and thereafter each day that a violation continues shall constitute a separate violation. All judgments, costs and reasonable attorney fees collected for the violation of this chapter shall be paid over to the Township.

E. In case any building is erected, constructed, reconstructed, altered, repaired, converted or maintained or any building or land is used or any hedge, tree, shrub or other growth is maintained in violation of this chapter or of any regulations made pursuant hereto, the proper officer of the Township, in addition to other remedies, may institute in the name of the Township any appropriate action or proceeding, whether by legal process or otherwise, to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, to restrain, correct or abate such violation, to prevent the occupancy of said building or land or to prevent any illegal act, conduct, business or use in or about such premises.

F. Charges and fees for appeals, applications, petitions and certifications shall be paid as set forth in the Township Schedule of Fees, as adopted and amended from time to time by the Board of Commissioners; provided, however, that any filing fee paid by a party to appeal an enforcement notice to the Zoning Hearing Board shall be returned to the appealing party by the Township if the Zoning Hearing Board or any court in a subsequent appeal rules in the appealing party's favor.