Township of New Garden, PA Article XX Zoning Hearing Board

§ 200-156 Membership, appointment and removal.

A. Appointment. The membership of the Zoning Hearing Board shall consist of three residents of the Township, appointed by the Board of Supervisors in accordance with Article IX of the Pennsylvania Municipalities Planning Code, as amended (53 P.S. § 10901 et seq.). Each term of office shall be three years and shall be so fixed that the term of office of one member shall expire each year. The terms for the initial three members so appointed shall be one, two, and three years, respectively.

B. Alternates. The Board of Supervisors may appoint at least one but no more than three residents of the Township to serve as alternate members of the Board. The term of office of an alternate member shall be three years. When seated in accordance with the provisions of § 200-157B, 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 the 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 set forth in this chapter, by the Code, and as otherwise provided by law. Alternates shall hold no other office in the Township, including membership on the Planning Commission and the Zoning Officer. Any alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote as a member of said Board nor will they be compensated pursuant to § 200-158D, unless designated as a voting alternate member pursuant to § 200-157B.

C. Vacancies. The Zoning Hearing Board shall promptly notify the Board of Supervisors of any vacancies which occur. Appointments to fill vacancies shall be only for the duration of the unexpired portion of the term.

D. Limitation of responsibilities. Members of the Zoning Hearing Board shall hold no other office in the Township.

E. 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 by the Board of Supervisors. Such vote shall not take place until 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.

§ 200-157 Designation of officers; seating of alternates; procedures.

A. Conduct of the Board. The Zoning Hearing Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves. For the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of all the members of the Zoning Hearing Board. The Zoning Hearing Board may appoint a hearing officer from its own membership to conduct any hearing on its behalf, and who shall perform such duties as required in § 200-160.

B. Quorum. 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 said Board as may be needed to provide a quorum. Any alternate members of the Board shall continue to serve on that Board in all proceedings involving the matter or case for which the alternate was initially appointed until the Board has made a final determination of 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 all alternates.

C. Establishment of procedure. The Zoning Hearing Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of New Garden Township and the laws of the commonwealth. The Zoning Hearing Board may, subject to approval by the Board of Supervisors, employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services.

§ 200-158 Expenditures for services.

A. Municipal fees for services. Within the limits of the funds appropriated by the Board of Supervisors and upon prior approval of the Board, the Supervisors may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services as limited by this chapter. The Board may employ legal counsel, but the attorney shall not be the Township Solicitor. Stenographers' fees shall be borne in accordance with Subsection C.

B. Applicant fees. An applicant before the Zoning Hearing Board shall deposit with the Treasurer of New Garden Township the appropriate filing fee. Fees shall be established by resolution of the Board of Supervisors.

C. Stenographer fees. The fee to hire a stenographer shall be paid equally by the applicant and the Township. The applicant shall pay a deposit as set from time to time by resolution of the Board of Supervisors for use of a stenographer. A transcript of the proceedings shall be paid by the party requesting it and the party appealing a decision will pay for the cost of a transcript.[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

D. Compensation. Members of the Board may receive compensation for the performance of their duties, as may be fixed by the Board of Supervisors. In no case shall the rate of compensation exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors. Alternate members of the Board may receive compensation, as may be fixed by the Board of Supervisors, for the performance of their duties when designated as alternate members pursuant to § 200-156B, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors.

§ 200-159 Functions and jurisdiction.

The Zoning Hearing Board shall function in strict accordance with and pursuant to the Municipalities Planning Code[1] and shall have all the functions set forth therein.

A. Appeals from the Zoning Officer. The Board shall hear and decide appeals where it is alleged that the Township Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of a valid ordinance or map of the Township or any valid rule or regulation governing the duties of the Zoning Officer.

B. Special exceptions. The Board shall hear and decide requests for special exceptions authorized by this chapter in accordance with the standards or criteria set forth in § 200-163. The Zoning Hearing Board may attach such reasonable conditions and safeguards it may deem necessary as prescribed in § 200-163 to implement the purposes of the Comprehensive Plan, the Municipalities Planning Code, and this chapter. The burden of proof as to all specific standards and criteria, and all general standards and criteria, at all times remains with the applicant.

C. Variances. The Board shall hear requests for variances where it is alleged that the provisions of this chapter create unnecessary hardship on an applicant when applied to a tract of land. In granting a variance, the Zoning Hearing Board may attach such reasonable conditions and safeguards it may deem necessary as prescribed in § 200-162 to implement the purposes of the Municipalities Planning Code, the Township Comprehensive Plan, and this chapter.

D. Validity of the chapter. The Board shall hear and make findings on challenges to the validity of this chapter with respect to substantive questions. The Board shall also hear and decide procedural challenges to the validity of any land use ordinance within 30 days of enactment. This will include challenges that raise questions of defective enactment. A procedural appeal from the enactment of a zoning ordinance shall initially be heard by the Board rather than the court.

E. Appeals from determinations by the Zoning Officer or Municipal Engineer. The Board shall hear and make decisions on appeals from determinations by the Zoning Officer or Municipal Engineer with reference to:

(1) Administration of the floodplain ordinance;[2]

[2] Editor's Note: See Ch. 96, Floodplain Management.

(2) The granting or denial of any permit, or failure to act on an application;

(3) The issuance of any cease-and-desist order; and

(4) The registration or refusal to register any nonconforming use, structure, or lot.

(5) With reference to sedimentation, erosion control, and stormwater management not related to Articles V or VII of the Pennsylvania Municipalities Planning Code.

[1] Editor's Note: See 53 P.S. § 10101 et seq.

§ 200-160 Hearings.

The Zoning Hearing Board shall conduct hearings and make decisions in accordance with the following requirements:

A. Notice.

[Amended 4-3-2006 by Ord. No. 165; 3-12-2007 by Ord. No. 170]

(1) The Board shall set a reasonable time and place for public hearings and shall give notice thereof as follows:

(a) By publishing a notice thereof at least seven days before the date fixed for the hearing in a newspaper of general circulation in the Township.

(b) By mailing or delivering a hearing notice at least seven days prior to the hearing to the applicant.

(c) By mailing or delivering a hearing notice at least seven days in advance thereof to the Zoning Officer, the Township Secretary, the Board of Supervisors, the Township Planning Commission and to every other person or organization who shall have registered with the Board, in writing, for the purpose of receiving such notices.

(d) By posting notice of the hearing in a conspicuous location on the affected tract of land at least seven days prior to the hearing.

(e) By mailing or delivering a hearing notice to the owner or occupier of every parcel of property/lot within 500 feet of the property in question, provided that failure to give notice as required by this subsection shall not invalidate any action taken by the Board.

(2) The notice herein required shall state the location of the lot or building and the general nature of the relief requested and/or issues to be decided by the Board.

B. Timing. The hearing(s) shall be held within the time frames set forth in the Municipalities Planning Code,[1] as amended.

[Amended 4-3-2006 by Ord. No. 165]

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

C. Parties to the hearing. The parties to the hearing shall be:

(1) The Township;

(2) Any person affected by the application who has made a timely appearance of record before the Board; and

(3) Any other person including civic or community organizations permitted to appear by the Board.

D. Powers of the Chairman. 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.

E. Rights of the parties. 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.

F. Exclusion of evidence. Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.

G. Record of the proceedings. The Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings.

H. 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 unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surroundings with any party or his representative unless all parties are given an opportunity to be present.

§ 200-161 Decisions.

A. The Board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within the time frame set forth in the Municipalities Planning Code, as amended.[1] Each decision shall be accompanied by findings and conclusions together with the reasons for such conclusions. Conclusions based on any provisions of this chapter or of any act, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found.

[Amended 4-3-2006 by Ord. No. 165]

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

B. If the hearing is conducted by a hearing officer, and there has been no stipulation that this decision or findings are final, the Board shall make its report and recommendations available to the parties. The parties shall be entitled to make written representations to the Board prior to final decisions or entry of findings. Where the Board has power to render a decision and the Board or the hearing officer, as the case may be, fails to render the same within the period required by this clause, the decision shall be deemed to have been rendered in favor of the applicant.

C. A copy of the final decision or, where no decision is called for, of the findings shall be delivered to the applicant personally or by certified mail to him not later than the day following its date. The Board shall provide by mail or otherwise a brief notice of the decision or findings and a statement of the place where the full decision may be examined to all other persons who have filed their names and addresses to the Board no later than the last day of the hearing.

D. Decisions made by the Board or the governing body are appealed to the Court of Common Pleas. However, any person aggrieved by a decision may appeal to the Board if they establish and prove that they had no notice, knowledge, or reason to believe that any action was being taken. That aggrieved party has 30 days from the date of the decision to appeal.

§ 200-162 Standards for review of variance requests.

The Zoning Hearing Board may grant a variance to a provision of this chapter, provided the following standards are satisfied where relevant in a given case:

A. Unique or irregular conditions. The site shall have unique physical circumstances or conditions such as irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property. An unnecessary hardship must be created by such conditions, and not the circumstances or conditions generally created by the provisions of the chapter in the district in which the property is located.

B. Strict conformity cannot occur. Because of the physical circumstances or conditions described in Subsection A, there is no possibility that the property can be developed in strict conformity with the applicable provisions of this chapter so the authorization of a variance is therefore necessary to enable the reasonable use of the property.

C. Liability of the applicant. Such unnecessary hardship described in Subsection A has not been created by the applicant, subsequent to the adoption of this chapter, or prior ordinances, and strict application of the provisions of this chapter would deprive the applicant of the reasonable use of land, structure or building.

D. Impact of variance on district. The variance, if authorized, will not alter the essential character of the applicable zoning district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor impact negatively on buildings or districts of historical or architectural significance, nor be detrimental to the public welfare.

E. Minimum variance. The variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulations in issue.

F. Conditions. The variance, if authorized, shall be subject to such conditions as will assure that the adjustment to provisions of this chapter shall not constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and zoning district in which the property is situated.

G. Financial gain. In no case shall a variance be granted solely for reasons of additional financial gain on the part of the applicant.

§ 200-163 Standards for review of special exception requests.

The Zoning Hearing Board shall hear and decide all requests for special exception uses as identified within this chapter in accordance with the following standards:

A. Relationship to the Comprehensive Plan. Consideration of the size, scope, extent and character of the proposed special exception and assurance that such use is consistent with community goals and objectives of the New Garden Township Comprehensive Plan.

B. Relationship to this chapter. Consideration of the proposed special exception with respect to promoting harmonious development within the spirit, purpose and intent of this chapter, so that the proposed use will not adversely affect the public health, safety and welfare of Township residents.

C. Suitability of the tract. Consideration of the suitability of the tract, including environmental conditions, highway access, and availability of sewer and water facilities.

D. Impact on existing neighborhood character. Consideration of the extent to which the proposed special exception will alter the character of the existing neighborhood and adjacent tracts, or impact negatively on buildings or districts of historical or architectural significance.

E. Impact on circulation. Consideration of the effects of the proposed special exception will have with respect to traffic patterns and volumes, access, parking and undue congestion.

F. Economic impact. Consideration of the character and type of development proposed as it relates to generating revenue for the Township and to the value of the property in the surrounding community.

G. Extension or change. A use of a building or lot authorized as a special exception, either by decision of the Zoning Hearing Board or by the enactment of or amendment to the Zoning Chapter, may be extended or changed within the building or upon the lot only when authorized as a special exception following application to and approval by the Zoning Hearing Board in accordance with procedures, standards and criteria set forth in the Zoning Chapter.

[Added 8-18-2014 by Ord. No. 212]

§ 200-164 Stay of proceedings.

Upon filing of any proceeding before the Zoning Hearing Board and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer, and all official action, 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 such cases, the development or official action shall not be stayed other than by a restraining order, which may be granted by the Board or by the court having jurisdiction of zoning appeals after notice to the Zoning Officer or other appropriate agency or body. When an application for development has been duly approved and proceedings designed to reserve 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.