[Amended 2-9-1995 by Ord. No. 95-4]
The Board of Supervisors shall appoint a Zoning
Hearing Board consisting of three members. The Board of Supervisors
shall designate one such member to serve until the first day of January
following the original effective date of this chapter, one until the
first day of the second January thereafter, and one until the first
day of the third January thereafter; shall reappoint or appoint three
successors on the expiration of their respective terms to serve three
years, and shall fill any vacancy for the unexpired term of any member
whose term becomes vacant.
A. The members of the Zoning Hearing Board shall be removable
for cause by the Board of Supervisors upon written charges and after
a public hearing.
B. Zoning Hearing Board members shall be residents of
the Township and may hold no other office in the Township.
C. The word "Board" when used in this article shall mean
the Zoning Hearing Board.
D. Where legal counsel is desired, an attorney, other
than the Solicitor of the Township, may be appointed to serve as counsel
to the Zoning Hearing Board.
E. The compensation of the members and alternates to
the Zoning Hearing Board shall be established by resolution of the
Board of Supervisors, but, in no case, shall the compensation exceed
the rate of compensation authorized to be paid to the Supervisors.
The Board of Supervisors may appoint by resolution
no more than three residents of the Township to serve as alternate
members of the Board. The term of office of an alternate shall be
three years.
A. 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 provide a quorum. An alternate so designated shall be
entitled to participate in all proceedings and discussions of the
Board to the same and full extent as provided by law for 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 article and as otherwise provided by law.
B. 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 determination of the matter or case.
C. Designation of an alternate shall be made on a case-by-case
basis in rotation according to declining seniority among all alternates.
D. Alternate members may hold no other office in the
Township.
E. Any alternate may participate in any proceeding or
discussion of the Board but may not vote as a member nor be compensated
unless designated as a voting alternate as provided above.
The Zoning Hearing Board shall have exclusive
jurisdiction to hear and render final adjudications in the following
matters:
A. Substantive challenges to the validity of any land
use ordinance, except those brought before the Board of Supervisors
pursuant to the curative challenge and amendment process.
B. Challenges to the validity of a land use ordinance
raising procedural questions or alleged defects in the process of
enactment or adoption which challenges shall be raised by an appeal
filed within 30 days after the effective date of said ordinance.
C. Appeals from the determination of the Zoning Officer,
including the grant or denial of any permit, or failure to act on
the application therefor, the issuance of any enforcement notice or
the registration or refusal to register any nonconforming use, structure
or lot.
D. Appeals from a determination by the Township Engineer
or the Zoning Officer with reference to the floodplain ordinance or
such provisions within a land use ordinance.
E. Applications for variance from the terms of this chapter.
F. Applications for special exceptions under the zoning
or floodplain ordinance.
G. Appeals from the determination of the Zoning Officer or Township Engineer in the administration of ordinance provisions for sedimentation and erosion control and stormwater management insofar as the determination does not involve an application pursuant to Chapter
240, Subdivision and Land Development.
H. Interpretation of the words, terms, rules, regulations,
provisions and restrictions of this chapter where there is doubt as
to the meaning thereof, including determination in specific instances
whether questionable uses are permitted by virtue of being "similar
to" or "customarily incidental to" permitted uses as provided by this
chapter.
When the order, requirement, decision or determination
of a Township officer is appealed to the Board, the Board shall have
the power to reverse or affirm in whole or in part, and the decision
of the Board shall be enforced as though it were the decision of the
officer appealed from.
Challenges and appeals may be filed with the
Board in writing by the landowner affected, any officer or agency
of the Township, or any person aggrieved. Requests for variance or
special exception may be filed by any landowner or any tenant with
permission of the landowner. An appeal or application regarding a
matter within the jurisdiction of the Board may be filed with the
Township Secretary on forms provided by the Zoning Hearing Board.
The applicant shall provide seven copies of the application and accompanying
materials, which shall include:
A. The name and address of the applicant, and of the
applicant's representative(s) or agent(s) where applicable.
B. The name and address of the record owner of the property
that is the subject of the application or appeal. Where the applicant
is no the record owner of the subject property, a signed and notarized
statement from the record owner, authorizing the applicant to pursue
the specific appeal or application.
C. A brief description and location of the subject property,
along with a survey and/or sketch of the property boundaries.
D. A statement of the present zoning classification of
the subject property with the improvements thereon, and the present
use thereof.
E. A statement of the section of this chapter under which
consideration by the Board is requested, along with a summary of reasons
or arguments in support of request.
F. A reasonably accurate description of the improvements
or changes intended to be made under the application. In addition,
there shall be attached a plot plan of the property to be affected,
indicating the location and size of the lot, and the size and location
of the existing and proposed improvements or changes.
G. Any and all additional information that may be required
by the Zoning Hearing Board.
H. Payment to the Township in accordance with a fee schedule
recommended by the Board and adopted by the Township Board of Supervisors,
as amended.
(1) Such fees may include compensation for the secretary and members of the Board, notice and advertising costs, stenographic costs in accordance with §
285-33F herein, and necessary administrative overhead connected with the hearing.
(2) The fees may not include compensation for the legal
expenses of the Board, or expenses for engineering, architectural
or other technical consultant or expert witness fees.
(3) All permissible costs shall be borne by the applicant,
based on an itemized list of expenses.
The Board shall give public notice and written
notice as follows:
A. By publishing a notice once a week for two successive
weeks in a newspaper of general circulation in the Township. Such
notice shall state the time and place of the hearing, the particular
nature of the matter to be considered at the hearing and the specific
ordinance provisions that permit consideration by the Zoning Hearing
Board. The first publication shall not be more than 30 days and the
second not less than seven days from the date of the hearing.
B. By mailing or serving written notice to the record
owner, applicant and applicant's representative.
C. By conspicuously posting written notice of hearing
on the affected tract of land at least one week prior to the meeting.
D. By mailing or serving notice thereof to the Township
Supervisors, Planning Commission Chairperson, Zoning Hearing Board
members and Zoning Officer.
E. By mailing or giving written notice to any and all
parties in interest who have made a timely request for the notice.
F. By mailing a written notice to any and all parties
registered for that purpose.
G. By mailing a written notice to all landowners within
500 feet of the applicant's land in Upper Frederick Township and adjacent
municipalities, where appropriate, by certified mail with return receipts
requested.
H. By providing a list of names and addresses of all
parties who have been mailed or served notice, to the applicant, the
Township Supervisors, Planning Commission Chairperson, all Zoning
Hearing Board members and the Zoning Officer.
I. Costs of mailing, posting and serving notices shall be paid by the applicant as part of the fees charged for the hearings, in accordance with §
285-30H, herein.
[Amended 6-13-2002 by Ord. No. 02-09]
A. Hearing shall be held at the call of the Chairperson
and at such times as the Board may determine. The first hearing shall
be commenced within 60 days from the date of the applicant's request,
unless the applicant has agreed, in writing, to an extension of time.
Each subsequent hearing shall be held within 45 days of the prior
hearing, unless otherwise agreed to by the applicant in writing or
on the record. An applicant shall complete the presentation of his
case-in-chief within 100 days of the first hearing. Upon the request
of the applicant, the Board or Hearing Officer shall assure that the
applicant receives at least seven hours of hearings within the 100
days, including the first hearing. Persons opposed to the application
shall complete the presentation of their opposition to the application
within 100 days of the first hearing held after the completion of
the applicant's case-in-chief. An applicant may, upon request, be
granted additional hearings to complete his case-in-chief provided
the persons opposed to the application are granted an equal number
of additional hearings. Persons opposed to the application may, upon
the written consent or consent on the record by the applicant and
municipality, be granted additional hearings to complete their opposition
to the application provided the applicant is granted an equal number
of additional hearings for rebuttal.
B. 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 the power to require that all persons who wish to be considered
parties enter appearances in writing on forms provided for that purpose.
C. The Chairperson or acting Chairperson may administer
oaths and issue subpoenas to compel the attendance of witnesses and
productions of relevant documents and appears, including witnesses
and documents requested by the parties.
D. 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.
E. Formal rules of evidence shall not apply, but irrelevant,
immaterial or unduly repetitious evidence may be excluded.
F. The Board shall keep a stenographic record of the
proceedings.
(1) The appearance fee for a stenographer shall be shared
equally by the applicant of the applicant and the Board.
(2) The cost of the original transcript shall be paid
by the Board if the transcript is ordered by the Board, 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.
G. Except upon notice and opportunity for all parties
to be present, to participate, and to inspect and contest materials,
the Board shall not:
(1) Communicate, directly or indirectly, with any party
or his representative in connection with any issue involved.
(2) Take notice of any communication, reports, staff memoranda
or other materials, except advice from their Solicitor.
(3) Or inspect the subject site or its surroundings after
commencement of hearings with any party or his representatives.
[Amended 6-13-2003 by Ord. No. 02-09]
A. The Board shall render a written decision or making
written findings on the application within 45 days of the last hearing.
Each decision shall be accompanied by findings of fact and conclusions
based upon findings. Conclusions based on any provision of a Township
ordinance shall contain a reference to the provision.
B. Except for challenges filed under §
285-37C, where the Board fails to render the decision within the required period required by this section, or fails to commence, conduct or complete the required hearing as provided by §
285-33A, 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.
C. When a decision has been deemed to have been rendered in favor of the applicant because of the failure of the Board to hold a hearing or render a decision as provided, the Board shall give public notice of said deemed decision within 10 days from the last day it could have met to render a decision. Such notice shall be given in the manner prescribed by §
285-31, herein. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.
D. A copy of the final decision or findings shall be
delivered to the applicant personally or mailed to him not later than
the day following its date. 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.
In the consideration of an application for variance
or special exception, the Board shall:
A. Consider the suitability of the property for the use
desired. Assure itself that the proposed change is consistent with
the spirit, purpose and intent of this chapter.
B. Determine that the proposed change will not substantially
injure of detract from the use of neighboring property or from the
character of the neighborhood and that the use of the adjacent property
is adequately safeguarded.
C. Determine that the proposed change will serve the
best interest of the Township, the convenience of the community (where
applicable) and the public welfare.
D. Determine that the proposed change will serve the
best interests of the Township, the convenience of services and facilities
such as water, sewer, police and fire protection and schools.
E. Consider the suitability of the proposed location
of use with respect to probable effects upon traffic and assure adequate
access arrangements in order to protect roads from undue congestion
and hazard.
F. Be guided in its study, review and recommendation
by sound standards of subdivision practice where applicable.
G. The Board shall be limited to consideration of applications
as they relate to ordinance provisions in effect at the time of the
application. The Township Board of Supervisors shall retain the exclusive
right to enact and amend ordinances.
Decisions on appeals and applications to the
Board, other than variances and special exceptions, shall be considered
in accordance with the following:
A. Time limitations on appeals.
(1) All appeals from determination adverse to a landowner
shall be filed by the landowner within 30 days after notice of the
determination is issued.
(2) Appeals designed to secure reversal or limit the approval
of any application for development, preliminary or final, shall be
filed with the Board no later than 30 days after the application is
approved by an appropriate Township officer or agency, unless the
person filing proves that he had no notice, knowledge or reason to
believe that such approval had been given. If such person succeeded
to his interest after such approval, he shall be bound by the knowledge
of his predecessor in interest.
B. Effect of filing. Upon filing of any proceeding before
the Board, and during its pendency, 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 thereunder, shall
be stayed unless the Zoning Officer, agency or body certifies to the
Board facts indicating imminent peril to life or property, in which
case the development or official action shall not be stayed other
than by a restraining order granted by the Board or by the court having
jurisdiction of zoning appeals.
C. Substantive validity challenge. A landowner who desires
to challenge, on substantive grounds, the validity of a map or ordinance
provision which prohibits or restricts the use or development of land
in which he has an interest, may submit the challenge either to the
Zoning Hearing Board or, with a request for curative amendment, to
the Township Board of Supervisors.
(1) The written application to the Zoning Hearing Board
shall contain the reasons for the challenge.
(2) Public notice of the hearing shall include notice
that the validity of the ordinance or map is in question, and shall
specify the place and time where a copy of the request and its accompanying
materials may be examined by the public.
(3) Based upon the testimony at the hearing(s), the Board
shall determine whether the challenged ordinance or map is defective,
as alleged. If the challenge is found to have merit, the decision
of the Board shall include recommended amendments to the challenged
ordinance which will cure the defects found.
(4) In reaching its decision, the Board shall consider
the plans and explanatory material submitted by the landowner, and
shall also consider:
(a)
The impact of the proposal upon roads, sewer
facilities, water supplies, schools and other public service facilities.
(b)
If the proposal is for 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 persons otherwise unlawfully excluded
by the challenged provisions of the ordinance or map.
(c)
The suitability of the site for the intensity
of use proposed by the site's soils, slopes, woodland, 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, aquifers, natural
resources and other natural features, the degree to which these are
protected or destroyed, the tolerance of the resources to development
and any adverse environmental impacts.
(e)
The impact of the proposal on the preservation
of agricultural and other land uses which are essential to public
health and welfare.
(5) If the Board fails to act on the request within 45
days of the last hearing, a denial of the request is deemed to have
occurred.
Unless otherwise specified by the Board, a special
exception or variance shall expire if the applicant fails to obtain
any and all permits within one year of the date of the decision. The
applicant may apply to the Board for postponement of the expiration,
providing in writing an explanation of the reasons why permits were
not obtained and a request for a postponement to a specific date.
All parties who originally received notification of the Board's decision
in the matter shall be notified of the postponement of expiration,
at the applicant's expense.
Any persons aggrieved by the decision of the
Board may within 30 days thereafter appeal to the Court of Common
Pleas of Montgomery County by petition duly verified setting forth
the grounds upon which said appeal is taken.