[Ord. 5/9/1972, § 1100; as amended by Ord. 5/13/1982, § 5; by Ord. 12/15/1987; and
by Ord. 12/12/1991B, § 26]
1.
Establishment of Board. A Zoning Hearing Board is established in
order that the objectives of this chapter may be fully and equitably
achieved and a means for competent interpretation of this chapter
provided.
2.
Membership of Board and Election of Officers.
A.
The Montour Township Zoning Hearing Board shall consist of five members,
appointed by the Township Supervisors. The terms of office for the
members shall be five years, so fixed that the term of office of one
member shall expire each year. Members of the Board shall hold no
other office in the Township.
B.
The Board shall elect a Chairman, Vice Chairman and Secretary from
its membership who shall serve annual terms and may succeed themselves.
The Board shall promptly notify the Township Supervisors of any vacancies
which occur and of the repeated absence, possible malfeasance, misfeasance,
or nonfeasance of any Zoning Hearing Board member. Appointments to
fill vacancies shall be only for the unexpired portion of the term.
3.
Removal of Members.
A.
Any Board member may be removed for malfeasance, misfeasance or nonfeasance
in office or for other just cause by a majority vote of the Township
Supervisors, taken after the member has received 15 days' advance
notice of the intent to take such a vote. A public hearing shall be
held in connection with the vote if the member shall request it in
writing.
B.
Failure to attend three Zoning Hearing Board meetings in one year
by any Zoning Hearing Board member will constitute nonfeasance.
4.
Meetings. The Zoning Hearing Board will hold a re-organizational
meeting on the first Wednesday following the re-organizational meeting
of the Board of Supervisors.
[Ord. 5/9/1972, § 1110; as amended by Ord. 7/6/1979A; by Ord. 12/12/1991B, § 26; by Ord. 7/10/1997, § 11;
and by Ord. 9/9/2004, § 25]
1.
The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
A.
Interpretation and Enforcement Notice Appeals. Any person aggrieved by any determination of the Zoning Officer in the administration of this chapter with respect to the granting or denial of a permit, failure to act on an application, issuance of a cease-and-desist order, enforcement notice or other order under this chapter, refusal to register or the registration of any nonconforming use, lot or structure shall have the right of appeal to the Zoning Hearing Board. Any person aggrieved by any determination of the Zoning Officer or any determination of the Township Engineer with reference to the administration of any provision regarding the floodplain or flood hazards, sedimentation or erosion control or stormwater management insofar as the same relate to development not under application to the Township Planning Commission within this chapter, Chapter 22 or any other land use ordinance, shall have the right of appeal to the Zoning Hearing Board. Interpretation appeals shall be made within 30 days of the receipt of such determination by filing such appeal with the Zoning Officer, specifying the grounds thereof and including the following:
(1)
The name and address of the applicant or appellant;
(2)
The name and address of the owner of the lot or parcel to be
affected by such proposed change or appeal;
(3)
A brief description and location of the lot or parcel to be
affected by such proposed change or appeal;
(4)
A statement of the present zoning classification of the lot
or parcel in question, the improvements thereon and the present use
thereof;
(5)
A statement of the section of this chapter under which the appeal
is made and reasons why it should be granted or a statement of the
section of this chapter governing the situation in which the alleged
erroneous ruling is being appealed and the reasons for this appeal;
and
(6)
A reasonably accurate description of the present improvements
and the additions or changes intended to be made under this application,
indicating the size, material and general construction thereof. In
addition, there shall be attached a plot plan of the real property
to be affected, indicating the location and size of the lot and size
of improvements existing thereon and proposed to be erected thereon.
(7)
The Township shall have the responsibility of presenting its
evidence first.
(8)
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.
B.
Variance Appeals. Upon appeal from a decision by the Zoning Officer,
the Board shall hear requests for variances where it is alleged that
the provisions of this chapter, or any floodplain and flood hazard
regulations inflict unnecessary hardship upon the applicant. The Board
shall prescribe the form of application and require preliminary application
to the Zoning Officer. The Board may grant a variance, provided the
following findings are made where relevant in a given case.
(1)
That there are unique physical circumstances or conditions,
including irregularity, narrowness or shallowness of lot size or shape
or exceptional topographical or other physical conditions peculiar
to the particular property and that the unnecessary hardship is due
to such conditions and not the circumstances or conditions generally
created by the provisions of this chapter in the neighborhood or district
in which the property is located.
(2)
That, because of such physical circumstances or conditions,
there is no possibility that the property can be developed in strict
conformity with the provisions of this chapter and the authorization
of a variance is therefore necessary to enable the reasonable use
of the property.
(3)
That such unnecessary hardship had 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 and not be detrimental to the
public welfare.
(5)
That the variance, if authorized, will represent the minimum
variance which will afford relief and the least modification possible
of the regulation in issue.
(6)
That the variance for any construction, development, use or
activity within any floodway area would not, if granted, cause any
increase in the one-hundred-year flood elevation.
(7)
That the granting of the variance will not result in an unacceptable
or prohibited increase in flood heights, additional threats to public
safety, extraordinary public expense, create nuisances, cause fraud
on, or victimization of the public, or conflict with any other applicable
local or State ordinance and regulations. In granting any variance,
the Board may attach such reasonable conditions and safeguards as
it may deem necessary to implement the purposes of this chapter. Whenever
a variance is granted, within a floodplain area, the Township shall
notify the applicant, in writing, that:
C.
Special Exception Applications.
(1)
In this chapter, or with respect to floodplain or flood hazard
provisions of any Township land use ordinance, special exceptions
may be granted or denied by the Board pursuant to express standards
and criteria. The Board shall hear and decide requests for such special
exceptions in accordance with such standards and criteria. In granting
a special exception, the Board may attach such reasonable conditions
and safeguards, in addition to those expressed in the chapter, as
it may deem necessary to implement the purposes of this chapter. The
Board shall pursue the following procedure.
(a)
The Board's decision to grant a permit for special exception
use shall be made only after public notice and hearing. Such permit
shall apply specifically to the application and plans submitted and
presented at said public hearing. Any subsequent amendments or additions
shall be subject to review and public hearing by the Zoning Hearing
Board as a special exception use.
(b)
No application for a permit shall be granted by the Zoning Hearing
Board for any special exception use until said Board has first received
and considered an advisory report thereon from the Planning Commission
with respect to the location of such use in relation to the needs
and growth pattern of the area and, where appropriate, with reference
to the adequacy of the site area and arrangement of buildings, driveways,
parking areas, off-street truck loading spaces and other pertinent
features of the site plan. The Planning Commission shall have 30 days
from the date of its receipt of the application within which to file
its report thereon. In the event that said Commission shall fail to
file its report within such 30 days, such application shall be deemed
to have been approved by said Planning Commission.
(2)
The Commission may have representation at the public hearing
held by the Zoning Hearing Board on such application. After receipt
of the report, the Zoning Hearing Board shall hear the application
in the same manner and under the same procedure as it is empowered
by law and ordinance to hear cases and make exceptions to the provisions
of this chapter. The Zoning Hearing Board may thereafter direct the
Zoning Officer to issue such permit if, in its judgment, the use meets
all specific provisions and criteria contained in this chapter and
the following general provisions.
(a)
In accordance with the Comprehensive Plan and consistent with
the spirit, purposes and intent of this chapter;
(b)
In the best interest of the community, the public welfare and
a substantial improvement to the property in the immediate vicinity;
(c)
Suitable for the property in question and designed, constructed,
operated and maintained so as to be in harmony with and appropriate
in appearance to the existing or intended character of the general
vicinity;
(d)
In conformance with all applicable requirements of this chapter;
(e)
Suitable in terms of effects on highway traffic and safety,
with adequate access arrangements to protect streets from undue congestion
and hazard; and
(f)
In accordance with sound standards of subdivision practice,
where applicable.
(3)
The Zoning Hearing Board may impose whatever conditions regarding
layout, circulation and performance it deems necessary to ensure that
any proposed development will secure substantially the objectives
of this chapter.
D.
Challenge to Validity of Ordinance. As provided for herein and in
accordance with the Pennsylvania Municipalities Planning Code, Section
916.1, as amended,[1] the Board shall hear substantive challenges to this chapter,
or parts hereof, or to the Zoning Map. Recognizing that challenges
to the validity of an ordinance or map may present issues of fact
and interpretation which may lie within the special competence of
the Board and to facilitate speedy disposition of such challenges
by a court, the Board may hear all challenges wherein the validity
of the ordinance or map presents any issue of fact or interpretation
not hitherto properly determined at a hearing before another competent
agency or body and shall take evidence and make a record thereon.
At the conclusion of the hearing, the Board shall decide all contested
questions of interpretation and make findings on all relevant issues
of fact, which shall become part of the record on appeal to court.
The Board shall commence its hearings within 60 days after the request
is filed, unless the landowner requests or consents to an extension
of time. The Board shall determine, within 45 days from the conclusion
of the last hearing, whether the challenged ordinance, or portion
thereof, is defective. If the ordinance is found to be defective,
the Board shall include in its decision recommendations to the Board
of Township Supervisors on such revisions as would cure the defect,
or the identification of such portions as need revision. In reaching
its decision, the Zoning Hearing Board shall consider the amendments,
plans and explanatory materials submitted by the landowner and any
other party to the issue plus the following criteria:
(1)
Impact of the proposal upon roads, sewer facilities, water supplies,
schools and other public services and facilities.
(2)
Impact upon regional housing needs and the effectiveness of
the proposal in providing affordable housing for classes of persons
otherwise unlawfully excluded by the challenged provisions of the
ordinance or map.
(3)
Suitability of the site for the intensity of use proposed in
view of the site's soils, slopes, woodlands, wetlands, floodplains,
aquifers, natural resources and other natural features.
(4)
Impact of the proposed use on the site's soils, slopes,
woodlands, wetlands, floodplains, aquifers, natural resources and
other natural features as well as the degree to which they are protected
or destroyed, the tolerance of the resources to development, plus
any adverse environmental impacts.
(5)
Impact of the proposal on the preservation of agriculture and
any other land uses which are essential to public health and welfare.
[1]
Editor's Note: See now 53 P.S. § 10916.1.
E.
Challenge to Validity of any Land Use Ordinance. Substantive challenges
to the validity of any land use ordinance, except those to be brought
before the Board of Supervisors pursuant to Sections 609.1 and 916.1(a)(2)
of the Pennsylvania Municipalities Planning Code,[2] shall be heard by the Zoning Hearing Board. Procedural
challenges to the validity of any land use ordinance or alleged defects
in the process of enactment or adoption shall be raised by an appeal
to the Zoning Hearing Board within 30 days after the effective date
of said ordinance.
[2]
Editor's Note: See now 53 P.S. §§ 10609.1 and
10916.1.
[Ord. 5/9/1972, § 1120; as amended by Ord. 5/13/1982, § 6; by Ord. 12/12/1991B, § 26;
by Ord. 7/10/1997, § 12; and by Ord. 9/9/2004, § 26]
1.
Parties Appellant Before Board. Appeals from a decision of the Zoning
Officer and proceedings to challenge the validity of the ordinance
may be filed with the Board, in writing, by any officer or agency
of the municipality or any person aggrieved. Requests for a variance
or special exception, however, must be filed with the Board by any
landowner or any tenant with the permission of such landowner.
2.
Hearings Required and Notice of Hearings. The Board shall conduct
hearings on any interpretation, variance, special exception, challenge
or other matter requiring the Board's decision or other official
action. A hearing shall be held within 60 days from the date of the
applicant's request, unless the applicant has agreed, in writing,
to an extension of time. Each subsequent hearing shall be held within
45 days of the prior hearing, unless otherwise agreed to by the applicant,
in writing or on the record. Fees, as established by the Township
Supervisors, may include all costs included in said Fee Resolution
of the Supervisors and shall be payable by the applicant. Upon the
filing with the Zoning Hearing Board of an appeal or application,
the Board shall fix a reasonable time and place for a public hearing
thereon and give notice as follows:
B.
Give written notice to parties in interest who shall be at least
those persons whose property adjoin or are across public roads from
the property in question, as well as any person who has made timely
request for such notice.
C.
Written notice shall be conspicuously posted on the affected tract
of land at least one week prior to the hearing.
3.
Conduct of Meetings. The Board shall prescribe rules for the conduct
of its meeting, such rules to be in conformance with the Pennsylvania
Municipalities Planning Code and this chapter. Meetings shall be held
at the call of the Chairman and at such other times as the Board may
specify in its rules of procedure. Meetings shall be open to the public,
and a quorum of three members shall be required for the Board to take
action. The Zoning Hearing Board Chairman or Acting Chairman shall
have the power to administer oaths and issue subpoenas to compel attendance
of witnesses and the production of relevant documents and papers as
directed by the Board and as requested by the parties in interest.
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.
In any appeal of an enforcement notice to the Zoning Hearing Board,
the Township shall have the responsibility of presenting its evidence
first.
4.
Records and Decisions.
A.
The Board shall keep a record of the proceedings stenographically;
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. The original transcript cost shall be paid by the party appealing
a decision of the Board or otherwise first requesting a transcript,
except that where the Board directs that a transcript be prepared
the Township shall pay for it. The appearance fee for a stenographer
shall be shared equally by the applicant and the Township.
B.
The Board shall keep full public records of its business and shall
submit a report of its activities to the Township Supervisors once
a year, and as otherwise requested by the Supervisors.
C.
The Board shall render a written decision or, when no decision is
called for, make written findings on the application within 45 days.
Each decision shall be accompanied by findings of fact and conclusions
based thereon, together with the reasons therefor. A copy of the decision
or findings shall be delivered to the applicant personally or mailed
by certified mail, return receipt requested, not later than the day
following the date of the decision or findings. To all other persons
who have filed their name and address with the Board not later than
the last day of the hearing, the Board shall provide by mail or otherwise,
brief notice of the decision or findings and a statement of the place
at which the full decision or findings may be examined.
5.
Mediation Option. Where disputes arise in regard to this chapter,
the Township may offer to participate in a professionally conducted
mediation process pursuant to the Pennsylvania Municipalities Planning
Code, 53 P.S. § 10101 et seq.
6.
Appeals to Court. Any person aggrieved by any decision of the Zoning
Hearing Board may, within 30 days after such decision of the Board,
appeal to the Court of Common Pleas of Columbia County, Pennsylvania,
by petition duly verified, setting forth that such decision is arbitrary,
capricious, an abuse of discretion or otherwise not in accordance
with law and specify the grounds upon which he relies. Such appeals
shall be made in accordance with Article X of the Pennsylvania Municipalities
Planning Code (Act 247).[1]
[1]
Editor's Note: Former Article X, Appeals, was repealed in
part December 21, 1988, by P.L. 1329, No. 170. See now 53 P.S. § 11001-A
et seq.
