[Ord. 116, 9/7/2011, § 2400]
1.
The Zoning Hearing Board shall consist of five residents of the Township
appointed by the Board of Supervisors. The existing terms of office
shall continue, with terms of office being five years, and with the
terms being 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.
2.
Alternate Members. The Board of Supervisors may appoint alternate
members of the Zoning Hearing Board within the applicable provisions
of § 903 of the Pennsylvania Municipalities Planning Code,
53 P.S. § 10903.
3.
Vacancies. Appointments to fill vacancies shall be only for the unexpired
portion of a term.
4.
Removal of Members. Any member of the Zoning Hearing Board may be
removed for malfeasance, misfeasance or nonfeasance in office or for
other just cause by a majority vote of the Township Supervisors taken
after the member has received 15 days' advance notice of the
intent to take such a vote. A hearing shall be held in connection
with the vote if the member shall request it in writing.
5.
Organization. The applicable provisions of § 906 of the
MPC, 53 P.S. § 10906, shall apply.
[Ord. 116, 9/7/2011, § 2401]
The Zoning Hearing Board shall adopt such rules and regulations
to govern its procedures as it may deem necessary, and as provided
for by §§ 906, 907 and 908 of the MPC, 53 P.S. §§ 10906,
10907, 10908. Meetings of the Board shall be held at the call of the
chairman and at such other times as the Board may determine. The chairman,
or in his absence, the acting chairman may administer oaths and compel
the attendance of witnesses. All meetings of the Board shall be open
to the public. The Board shall keep minutes of its proceedings, showing
the vote of each member upon each question, or if absent or failing
to vote, indicating such fact, and shall keep records of its examinations
and other official action, all of which shall be immediately filed
with the Township Secretary and shall be a public record.
[Ord. 116, 9/7/2011, § 2402]
1.
Any application, including an appeal, to the Zoning Hearing Board
shall be submitted to the Zoning Officer. All applications shall be
made on the form supplied by the Township (as amended by resolution
from time to time) and shall contain, at a minimum, all information
requested on such form. All applications shall contain the following
information:
A.
Name and address of the applicant and, if different, the name and
address of the landowner. If the applicant is not the landowner of
record, information demonstrating that the applicant has the legal
right to make the application shall accompany the application. The
address and zoning district of the property for which relief is requested,
needs to be provided.
B.
Dimensions and shape of the lot to be developed, the exact location
and dimensions of any structures existing or to be erected, and the
distance from each structure (existing and proposed) from all front,
side and rear yard boundaries, and the location of any on-site sewage
disposal systems and wells, and the distance of same from boundaries
and structures.
C.
The height of any proposed buildings or structures.
D.
Existing and proposed uses of all existing and proposed structures.
E.
Existing and proposed off-street parking and loading spaces.
F.
Names and addresses of adjoining property owners, including properties
directly across a public right-of-way.
G.
A site plan with sufficient detail and accuracy to demonstrate compliance
with all applicable provisions of this chapter.
H.
A written description of the proposed use in sufficient detail to
demonstrate compliance with all applicable provisions of this chapter
(1) if requesting a special exception, or (2) demonstrating unnecessary
hardship if requesting a variance, or (3) explaining how the Zoning
Officer erred in an appeal from a determination of the Zoning Officer.
I.
A reference to all Sections of this chapter which are relevant to
the application or appeal. The information required pursuant to Paragraphs
B and E shall be included on the plan provided for submission.
J.
A listing of all special exceptions and/or variances which the applicant
is requesting.
K.
A recitation of all previous hearings before the Zoning Hearing Board
concerning the property in question, together with the docket number,
the date of such hearing, and a copy of the decision rendered as a
result of such hearing.
2.
Applications shall include the appropriate fee established by resolution
or ordinance by the Board of Supervisors. Failure to complete the
application as required in this section with all requested information
and/or failure to pay the prior required filing fee shall render the
application void as if it had not been filed. Any such void application
shall be immediately returned to the applicant, and the Board will
take no further action in regard to same.
3.
The Zoning Officer shall review the application to determine if it is generally in a form that complies with terms of this chapter. If within five days from the date of submission, the Zoning Officer determines that the application is incomplete, the Zoning Officer shall return the application to the applicant and inform the applicant that his application is incomplete, in which event, it shall be considered as rejected pursuant to Subsection 2 above. If the Zoning Officer fails to return an application to the applicant within the five-day period, it shall not be deemed an acknowledgement by the Township that the application meets the requirements of this chapter. Notwithstanding the foregoing, the Zoning Officer shall not be authorized to return appeals from a determination of the Zoning Officer.
4.
After the Zoning Officer has reviewed the application for completeness,
including any supplemental information submitted before the hearing
has been advertised, the application shall be considered closed. The
applicant shall not be permitted at the hearing to change the application
or supplement the application with plans or other information which
should have been submitted with the application, and the Zoning Hearing
Board shall consider the application as filed. The Zoning Hearing
Board shall not reform any application and shall not be required to
grant parts of an application. If an applicant desires to change an
application after it has been submitted, the applicant shall withdraw
the application by filing a request to withdraw and shall submit another
application in the form provided by the Township which will be considered
filed on the date it is submitted to the Zoning Officer and a new
application fee is paid. Pursuant to the foregoing, the Board, in
its discretion, may allow permitted amendments at the time of the
hearing in the interest of administrative economy which are not prejudicial
to other parties or may continue the hearing subject to the applicant
paying any fee established by the Township for continuances.
[Ord. 116, 9/7/2011, § 2403]
1.
Variances, special exceptions, and appeals to the Zoning Hearing Board or any other matter over which the Zoning Hearing Board has jurisdiction pursuant to § 27-2405 of this chapter, may be taken by any person or Township official aggrieved or affected by any provision of the Zoning or decision, including any order to stop, cease and desist, issued by the Zoning Officer. The hearing for such appeal shall be taken within 60 days from the date of the applicant's request and as provided by the rules of the Board by filing with the Zoning Officer and with the Board a notice of appeal specifying the grounds thereof, unless the applicant has agreed in writing to an extension of time. Upon payment of any fees established by resolution of the Board of Supervisors, the Zoning Officer shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
2.
The Board shall conduct hearings and make decisions in accordance
with the following requirements:
A.
Public Notice. The Board shall fix a reasonable time and place for
hearings and shall give notice thereof as required by the MPC, 53
P.S. § 10101 et seq.
(1)
Ad. Public notice shall be given as required by the MPC, 53
P.S. § 10101 et seq. The notice shall state the time and
place of the hearing and the particular nature of the matter to be
considered.
(2)
Posting. Notice of such hearing shall be conspicuously posted
on the affected tract of land at least one week prior to the hearing.
The Township Staff shall post the property. It is the responsibility
of the applicant to make sure that such notice remains posted until
the hearing.
(3)
Persons Given Notice. The Township shall provide written notice
to the Applicant of the time and place of the hearing. The Township
should also provide notice to the Chairperson of the Board of Supervisors.
Also, such notice shall be given to any other person or group (including
civic or community organizations) who has made a written timely request
for such notice. Any such notices should be mailed or delivered to
the last known address.
B.
Fees. The Board of Supervisors may by resolution prescribe reasonable
fees with respect to hearings before the Zoning Hearing Board. Fees
for said hearings may include compensation for the secretary and members
of the Zoning Hearing Board, notice and advertising costs, and necessary
administrative overhead connected with the hearing. The costs, however,
shall not include legal expenses of the Zoning Hearing Board, expenses
for engineering, architectural, or other technical consultants or
expert witness costs. The appearance fee for a stenographer shall
be shared equally by the applicant and the Board. The cost of the
original transcript shall be paid by the Board if the transcript is
ordered by the Board or the hearing officer or shall be paid by the
person appealing from the decision of the Board if such appeal is
made, and in either event the cost of additional copies shall be paid
by the person requesting such copy or copies. In other cases the party
requesting the original transcript shall bear the cost thereof.
C.
Conduct of Hearing. The hearings shall be conducted by the Board,
or the Board may appoint any member as a hearing officer. The decision
or, where no decision is called for, the findings shall be made by
the Board. However, the appellant, or the applicant, as the case may
be, in addition to the Township, may, prior to the decision of the
hearing, waive decision or findings by the Board and accept the decision
or findings of the hearing officer as final.
D.
Parties. The parties to the hearing shall be the Township, any person
affected by the application who has made timely appearance of record
before the Board, and any other person including civic or community
organizations permitted to appear by the Board. The Board shall have
power to require that all persons who wish to be considered parties
enter appearances in writing on forms provided by the Board for that
purpose.
E.
Powers. The chairman or acting chairman of the Board or the hearing
officer presiding shall have power to administer oaths and issue subpoenas
to compel the attendance of witnesses and the production of relevant
documents and papers, including witnesses and documents requested
by the parties.
F.
Parties Right of Representation. The parties shall have the right
to be represented by counsel and shall be afforded the opportunity
to respond and present evidence and argument and cross-examine adverse
witnesses on all relevant issues.
G.
Rules. Formal rules of evidence shall not apply, but irrelevant,
immaterial, or unduly repetitious evidence may be excluded.
H.
Record. The Board or the hearing officer, as the case may be, shall
keep a stenographic record of the proceedings.
I.
Communications. The Board or the hearing officer shall not communicate,
directly or indirectly, with any party or his representatives in connection
with any issue involved except upon notice and opportunity for all
parties to participate, shall not take notice of any communication,
reports, staff memoranda, or other materials, except advice from their
solicitor, unless the parties are afforded an opportunity to contest
the material so noticed, and shall not inspect the site or its surroundings
after the commencement of hearings with any party or his representative
unless all parties are given an opportunity to be present.
J.
Decisions. The Zoning Hearing Board shall render decisions within
the time limits and in the manner required by the MPC, 53 P.S. § 10101
et seq.
K.
Mediation. Parties to proceedings authorized by this article may,
following written agreement by all relevant parties, utilize mediation
as an aid in completing such proceedings. In exercising such an option,
the Township, the Board, and the mediating parties shall meet the
stipulations and follow the procedures set forth in § 908.1
of the MPC, 53 P.S. § 10908.1.
[Ord. 116, 9/7/2011, § 2404]
1.
The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final applications in the following matters:
A.
Appeals from the Determination of the Zoning Officer. 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 therefore, the issuance of any cease and desist order
or the registration or refusal to register any nonconforming use,
structure or lot.
B.
Variances. Applications for variances from the terms of this chapter
pursuant to § 27-2406.1 and the flood hazard provisions
within this chapter.
C.
Special Exceptions. Applications for special exceptions pursuant
to § 27-2406.2 or floodplain or flood hazard provisions
within this chapter.
D.
Appeals from the Determination of Flood Hazard or Floodplain Provisions.
Appeals from a determination by the Township Engineer or the Zoning
Officer with reference to the administration of any floodplain or
flood hazard provisions within this chapter.
E.
Appeals from the Determination of Erosion and Sedimentation and Stormwater Management. Appeals from the determination of the Zoning Officer or Township Engineer in the administration of any provision of this chapter with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development not involving applications under the West Cocalico Township Subdivision, Land Development and Stormwater Management Ordinance [Chapter 22].
F.
Appeals from the Preliminary Opinion of the Zoning Officer. Appeals
from the Zoning Officer's determination of preliminary opinion
pursuant to § 916.2 (and any subsequent amendments) of the
Municipalities Planning Code, 53 P.S. § 10916.2.
G.
Substantive Validity Challenge. Substantive challenges to the validity
of this chapter, except those brought before the Board of Supervisors
pursuant to § 609.1 or § 916.1(a)(2) of the Municipalities
Planning Code, 53 P.S. §§ 10609.1, 10916.1(a)(2). In
all such challenges, the Zoning Hearing Board shall take evidence
and make a record thereon as provided in § 27-2404.H. At
the conclusion of the hearing, the Board shall decide all contested
questions and shall make findings on all relevant issues of fact which
shall become part of the record on appeal to the court.
H.
Procedural Challenge. Challenges to the validity of this chapter
raising procedural questions or alleged defects in the process of
enactment or adoption which challenges shall be raised by an appeal
taken within 30 days after the effective date of this chapter.
I.
All Other Matters Authorized by the MPC. In addition, to the powers
set forth in this section, the Zoning Hearing Board shall have all
powers and jurisdiction set forth in the MPC, 53 P.S. § 10101
et seq.
[Ord. 116, 9/7/2011, § 2405]
1.
Variances. The Board shall hear requests for variances where it is
alleged that the provisions of this chapter inflict unnecessary hardship
upon the applicant. 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. The Board may grant a variance,
provided that all of the following findings are made where relevant
in a given case, but the burden of proof of all elements of the application
shall be upon the applicant:
A.
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.
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.
Such unnecessary hardship has not been created by the appellant.
D.
The variance, if authorized, will not alter the essential character
of the neighborhood or district in which the property is located,
nor substantially or permanently impair the appropriate use or development
of adjacent property, nor be detrimental to the public welfare.
E.
The variance, if authorized, will represent the minimum variance
that will afford relief and will represent the least modification
possible of the regulation in issue.
F.
When a variance for any development proposed within the Floodplain
District is before the Zoning Hearing Board for consideration, the
following additional provisions apply:
(1)
No variance shall be granted for any construction, development,
use, or activity within the floodway area that would cause any increase
in the 100-year flood elevation.
(2)
Whenever a variance is granted, the Township shall notify the
applicant in writing that (a) the granting of the variance may result
in increased premium rates for flood insurance and (b) such variances
may increase the risks to life and property.
(3)
A complete record of all variance requests and related actions
shall be maintained by the Township. In addition, a report of all
variances granted during the year shall be included in the annual
or biennial report to the Federal Emergency Management Agency.
2.
Special Exceptions. Where the Board of Supervisors, in this chapter, has allowed for the issuance of special exceptions by the Zoning Hearing Board pursuant to express standards and criteria, the Board shall hear and decide requests for such special exceptions in accordance with such standards and criteria as provided in Part 23 of this chapter or any other relevant portions of this chapter. In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of this chapter. The burden of proof of all elements of the application is upon the applicant.
A.
Referral to Township Planning Commission. All applications for a
special exception shall be referred to the Township Planning Commission
for review and comment. However, the Zoning Hearing Board shall meet
the time limits for a decision provided in this section, regardless
of whether the Township Planning Commission has provided comments.
B.
In order to receive a special exception, the applicant shall establish
by credible evidence that:
(1)
The proposed use is consistent with the purpose and intent of
this chapter.
(2)
The proposed use does not detract from the use and enjoyment
of adjoining or nearby properties beyond that which is to be ordinarily
anticipated by the use.
(3)
The application complies with all criteria for the respective
use in Part 23.
(4)
The proposed use does not substantially impair the integrity
of the West Cocalico Township Strategic Plan and the Strategic Comprehensive
Plan for the Cocalico Region.
(5)
The required front yard, side yards, rear yards, open space
areas, and height limitations for the applicable zoning district have
been met.
(6)
The off-street parking provisions are in conformance with those specified in Part 18 of this chapter.
(7)
Points of vehicular access to the lot are provided at a distance
from intersections and other points of access and in number sufficient
to prevent undue traffic hazards and obstruction to the movement of
traffic.
(8)
The location of the site with respect to the existing roads,
including the existing and future functional classification, giving
access to it is such that the safe capacity of those roads is not
exceeded by the estimated traffic generated or attracted is not out
of character with the normal traffic using said public road.
(9)
The pedestrian access from the off-street parking facilities
is separated from vehicular access and sufficient to meet the anticipated
demand.
(10)
The proposed use is not incompatible with the existing traffic
conditions and adjacent uses and will not substantially change the
character of the immediate neighborhood.
(11)
Facilities are available to adequately service the proposed
use (e.g., schools, fire, police, and ambulance protection, sewer,
water, and other utilities, etc.).
(12)
Screening of the proposed use from adjacent uses is sufficient
to prevent the deleterious impact of the uses upon each other.
(13)
The use of the site complies with the requirements of any other
public agency having jurisdiction over the proposed use.
(14)
Operations in connection with a special exception use will not
be more objectionable to nearby properties by reason of noise, odor,
fumes, vibration, glare, or smoke than would be the operations of
any permitted use.
(15)
Sufficient setbacks to and/or from agricultural operations are
provided, in accordance with the applicable zoning district regulations.
3.
Time Limitations. Unless otherwise specified by the Zoning Hearing
Board or by law, a variance or special exception shall expire if the
applicant fails to obtain a zoning permit within one year of the date
of authorization thereof by the Board or by the court if such special
exception or variance has been granted after an appeal. A variance
or special exception shall also expire if the applicant fails to complete
any erection, construction, reconstruction, alteration or change in
use authorized by the special exception or variance approval within
two years from the date of authorization thereof by the Board or by
the court if such variance or special exception has been granted after
an appeal. The Board, for reasonable cause shown, may extend the approval
for such additional time as it deems appropriate under the circumstances.
[Ord. 116, 9/7/2011, § 2406]
1.
Appeals under § 27-2405.1.A, D, E and F, may be filed with
the Board in writing by the landowner affected, any officer or agency
of West Cocalico Township, an equitable owner with a signed agreement
of sale or any person aggrieved. Requests for a variance under § 27-2406.1
and for special exception under § 27-2406.2 may be filed
with the Zoning Hearing Board by any landowner or any tenant with
the permission of such landowner, an equitable owner with a signed
agreement of sale or other such person entitled by law to file such
an application. Requests for a variance under § 27-2406.1
or for a special exception under § 27-2406.2 may be filed
with the Board by any landowner or any tenant with the permission
of the landowner, or other such person entitled by law to file such
an application.
2.
The Board of Supervisors may be a party to any proceeding before
the Zoning Hearing Board. The Board of Supervisors may appeal any
determination by the Zoning Hearing Board to the Court of Common Pleas.
[Ord. 116, 9/7/2011, § 2407]
1.
No person shall be allowed to file any proceeding with the Board later than 30 days after an application for development, preliminary or final, has been approved by an appropriate municipal officer, agency, or body if such proceeding is designed to secure reversal or to limit the approval in any manner unless such person alleges and proves that he had no notice, knowledge, or reason to believe that such approval had been given. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan or from an adverse decision by the Zoning Officer on a challenge to the validity of an ordinance or map pursuant to § 27-2410 of this chapter shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.
2.
All appeals from determinations adverse to the landowners shall be
filed by the landowner within 30 days after notice of determination
is issued.
[Ord. 116, 9/7/2011, § 2408]
Upon filing of any proceeding referred to in § 27-2405, and during its pendency before the Zoning Hearing Board, all land development pursuant to any challenged ordinance, order, or approval of the Zoning Officer, or of any agency or body, and all official action there under, shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies to the Board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the Board or by the court having jurisdiction of zoning appeals on petition after notice to the Zoning Officer or other appropriate agency or body. When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board.
[Ord. 116, 9/7/2011, § 2409]
1.
A landowner who, on substantive grounds, desires to challenge the
validity of an ordinance or map or any provision thereof which prohibits
or restricts the use or development of land in which he has an interest
shall submit the challenge either:
2.
Persons aggrieved by a use or development permitted on the land of
another by an ordinance or map, or any provision thereof, who desires
to challenge its validity on substantive grounds shall first submit
their challenge to the Zoning Hearing Board for a decision thereon
under § 27-2405.1.A of this chapter.
