The Zoning Hearing Board consists of three members
appointed in compliance with the Pennsylvania Municipalities Planning
Code or prior enabling laws. The Board of Supervisors 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.
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 Chairperson or, in his absence, the Vice
Chairperson 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. An alternate
member may not discus the matter before the Zoning Hearing Board with
any party or other person.
A.
The Board shall annually elect officers from its membership.
B.
For the conduct of any hearing and the taking of any
action, a quorum shall be no less than two voting members.
C.
The Board may make, alter and rescind rules and forms
for its procedure consistent with ordinances of the Township and the
laws of the commonwealth.
D.
The Board shall keep public records of its business,
which records shall be the property of the Township, and shall submit
reports of its activities to the Township, as requested by the Board
of Supervisors.
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 under Section 916.1, Validity of Ordinance; Substantive
Questions, of the Pennsylvania Municipalities Planning Code, except
those brought before the Board of Supervisors as curative amendments.
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, 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 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 administration of any
floodplain or flood hazard ordinance or such provisions within a land
use ordinance.
E.
Applications for variances from the terms of this
chapter.
F.
Applications for special exceptions under this chapter.
G.
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 chapter.
H.
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 425, Subdivision and Land Development.
I.
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 municipality, 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 two 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 not 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 copy of the deed to the property in question.
E.
A statement of the present zoning classification of
the subject property with the improvements thereon and the present
use thereof.
F.
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 the request.
G.
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.
H.
Any and all additional information that may be required
by the Zoning Hearing Board.
I.
Envelopes addressed to all landowners within 500 feet
of the applicant's land in Upper Hanover Township and adjacent municipalities,
where appropriate, with sufficient prestamped postage for certified
mail, return receipt requested, with certified mailing slips completed.
The applicant is responsible for obtaining the names of all owners
within 500 feet of the applicant's land and is advised to seek assistance
from the Tax Collector for Upper Hanover Township and/or the Secretary
of Upper Hanover Township for so doing.
J.
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 Township Secretary, members of the Board, notice and advertising costs, stenographic costs in accordance with § 500-608F 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.
A.
Immediately upon receipt of an application, the Township
Secretary shall promptly forward the application to the Zoning Hearing
Board Solicitor along with all of the above information.
B.
The Township Secretary, in consultation with the Zoning
Hearing Board Solicitor, shall fix a reasonable time and place for
a public hearing on the application. Said hearing shall occur no more
than 60 days after the application is made to the Secretary, unless
the applicant has agreed in writing to an extension of time.
C.
A true and correct copy of the application and all
related information shall be forwarded to each member of the Planning
Commission, each Township Supervisor, each Zoning Hearing Board member,
the Zoning Hearing Board Solicitor, and the Township Solicitor.
D.
Upon receipt of a Zoning Hearing Board application,
the Planning Commission and/or Board of Supervisors, at its next regularly
scheduled meeting, may consider the application and may, at its sole
discretion, resolve to comment thereon.
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 Hanover Township and adjacent
municipalities, where appropriate, by certified mail with return receipt
requested.
A.
Hearings shall be initially held at the first possible
monthly meeting date, established by the Board of Supervisors at its
reorganizational meeting, following the receipt of a complete application
and sufficient time for public notice. Continuations or postponed
meetings shall be held at the call of the Chairperson and at such
times as the Board may determine. Hearings shall be conducted by the
Zoning Hearing Board.
B.
The parties to the hearing shall be the municipality,
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
production of relevant documents and papers, 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 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 its solicitor; or
(3)
Inspect the subject site or its surroundings after
commencement of hearings with any party or his representative.
A.
The Board shall render a written decision or make
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.
Where the Board fails to render the decision within
the required period or fails to hold the required hearing within 60
days of application, 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 § 500-607 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 or 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 interests of the Township, the convenience of the community (where
applicable), and the public welfare.
D.
Consider the effect of the proposed change upon the
logical, efficient and economical extension of services and facilities
such as water, sewers, police and fire protection, and schools.
E.
Consider the suitability of the proposed location
of the 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.
A.
Variance. The Board shall hear requests for variances
where it is alleged that the provisions of the chapter inflict unnecessary
hardship upon the applicant. The Board may by rule prescribe the form
of application and may require preliminary application to the Zoning
Officer. The Board may grant a variance, provided that all of 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 the chapter and that the authorization
of a variance is therefore necessary to enable the reasonable use
of the property.
(3)
That the unnecessary hardship has not been created
by the applicant. Monetary hardship, standing alone, is insufficient
to justify consideration by the Board.
(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, nor be detrimental to the
public welfare.
(5)
That 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.
(6)
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.
B.
Special exception. The Board shall hear and decide requests for special exceptions in accordance with the standards and criteria found in the particular section of the chapter that permits application for said special exception and with the general standards in § 500-610. In granting any special exception, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the chapter.
C.
Burden of proof. For variances, the burden of proof
shall be on the applicant. For special exceptions, once the applicant
has met the standards of the chapter, the applicant shall be entitled
to the special exception unless others can prove that it would adversely
affect the public health, safety, morals or welfare.
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 determinations 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.
(1)
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, 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.
(2)
After the petition is presented, the court shall hold
a hearing to determine if the filing of the appeal is frivolous. At
the hearing, evidence may be presented on the merits of the case.
It shall be the burden of the applicant for a bond to prove the appeal
is frivolous. After consideration of all evidence presented, if the
court determines that the appeal is frivolous, it shall grant the
petition for a bond. The right to petition the court to order the
appellants to post bond may be waived by the appellee, but such waiver
may be revoked by him if an appeal is taken from a final decision
of the court.
(3)
The question whether or not such petition should be
granted and the amount of the bond shall be within the sound discretion
of the court. An order denying a petition for bond shall be interlocutory.
An order directing the responding party to post a bond shall be interlocutory.
(4)
If an appeal is taken by a respondent to the petition
for a bond from an order of the court dismissing a zoning appeal for
refusal to post a bond and the appellate court sustains the order
of the court below to post a bond, the respondent to the petition
for a bond, upon motion of the petitioner and after hearing in the
court having jurisdiction of zoning appeals, shall be liable for all
reasonable costs, expenses and attorney's fees incurred by the petitioner.
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 to the Zoning
Hearing Board. Persons aggrieved by a use or development permitted
on the land of another by an ordinance or map, or any provision thereof,
who desire to challenge its validity on substantive grounds shall
first submit their challenge to the Zoning Hearing Board for a decision
thereon.
(1)
The challenging party shall make a written request
to the Board that it hold a hearing on its challenge. The request
shall contain the reasons for the challenge. Nothing herein contained
shall preclude the landowner from first seeking a final approval before
submitting his 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 presented at the hearing(s),
the Zoning Hearing Board shall determine whether the challenged ordinance
or map is defective as alleged. If the Zoning Hearing Board finds
the challenge 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 Zoning Hearing Board
shall consider the 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, 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, woodland, wetlands, floodplains, aquifers, 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 agriculture and other land uses which are essential to public health,
safety, morals and welfare.
(5)
The Zoning Hearing Board shall render its decision
within 45 days after the conclusion of the last hearing. 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 on the 46th day after
the close of the last hearing.
(6)
The Board shall commence its hearing within 60 days
after the request is filed unless the landowner requests or consents
to an extension of time.
(8)
Where a validity challenge is sustained by the Zoning
Hearing Board or the court acts finally on appeal from denial of a
curative amendment proposal or a validity challenge, and the proposal
or challenge so approved requires further application for subdivision
or land development, the developer shall have two years from the date
of such approval to file an application for preliminary plan approval
under the normal plan approval process. Within the two-year period,
no subsequent change or amendment in the zoning, subdivision or other
governing ordinance or plan shall be applied in any manner which adversely
affects the rights of the applicant as granted in the curative amendment
or sustained validity challenge.
(9)
Where the proposal appended to the curative amendment
or validity challenge is approved but does not require further application
under any subdivision or land development ordinance, the developer
shall have one year within which to file for a building permit. Within
the one-year period, no subsequent change or amendment in the zoning,
subdivision or other governing ordinance or plan shall be applied
in any manner which adversely affects the rights of the applicant
as granted in the curative amendment or the sustained validity challenge.
(10)
During the one- or two-year protected periods,
the court shall retain or assume jurisdiction for the purpose of awarding
such supplemental relief as may be necessary.
A.
Unless otherwise specified by the Zoning Hearing 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.
[Amended 1-8-2002 by Ord. No. 02-05]
B.
Where a curative amendment proposal is approved by the Board of Supervisors, or a validity challenge is sustained by the Zoning Hearing Board, or the court acts finally on appeal from denial of a curative amendment proposal or a validity challenge, and the proposal or challenge so approved requires a further application for subdivision or land development, the developer shall have two years from the date of such approval to file an application for preliminary or tentative (sketch) approval pursuant to Chapter 425, Subdivision and Land Development.
C.
Where the proposal appended to the curative amendment
application or the validity challenge is approved but does not require
further application under any subdivision or land development ordinance,
the developer shall have one year within which to file for a building
permit. Within the one-year period no subsequent change or amendment
in the zoning, subdivision or other governing ordinance or plan shall
be applied in any manner which adversely affects the rights of the
applicant as granted in the curative amendment or challenge.
Any persons aggrieved by the decision of either
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.
In order not to unreasonably delay the time
when a landowner may secure assurance that the ordinance or map under
which he proposed to build is free from challenge, and recognizing
that the procedure for preliminary approval of his development may
be too cumbersome or may be unavailable, the landowner may advance
the date from which time for any challenge to the ordinance or map
will run by the following procedure:
A.
The landowner may submit plans and other materials
describing his proposed use or development to the Zoning Officer for
a preliminary opinion as to their compliance with the applicable ordinances
and maps. Such plans and other materials shall not be required to
meet the standards prescribed for preliminary, tentative or final
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 ordinance or map, notice
thereof shall be published once each week for two successive weeks
in a newspaper of general circulation in the municipality. 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. The favorable preliminary approval under Section 914.1.
of the Pennsylvania Municipalities Planning Code, and the time therein
specified for commencing a proceeding with either the Board of Supervisors
or the Zoning Hearing Board shall run from the time when the second
notice thereof has been published.
