[Amended 11-26-1990 by Ord. No. 218; 1-23-2006 by Ord. No.
390]
A.
The Board of Commissioners shall appoint, by resolution,
a Zoning Hearing Board consisting of three members who shall hold
no other office in the Township. The Board of Commissioners shall
designate one such member to serve until the first day of January
following the 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 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. The members of the Zoning Hearing Board shall
be removable for cause by the Board of Commissioners upon written
charges and after a public hearing. The word "Board," when used in
this article, shall mean the Zoning Hearing Board.
B.
The Board of Commissioners may appoint, by resolution,
at least one, but no more than three, residents of Upper Pottsgrove
Township to serve as alternate members of the Board. The term of office
of an alternate shall be three years. When seated pursuant to the
provisions of this article, 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 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 by the Pennsylvania
Municipalities Planning Code (53 P.S. 10101 et seq.), as amended,
and as may otherwise be provided by law. Alternate members shall hold
no other office in the Township. Any alternate may participate in
any proceeding or discussion of the Board but shall not be entitled
to vote as a member of the Board nor be compensated pursuant to this
article unless designated as a voting alternate member.
[Added 11-26-1990 by Ord. No. 218]
The Zoning Hearing Board shall have exclusive
jurisdiction to hear and render final adjudications in the following
matters:
A.
Appeals and challenges.
(2)
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
taken within 30 days after effective date of said ordinance.
(3)
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 thereof, or the issuance of any
cease-and-desist order.
(4)
Appeals from a determination by the Township Engineer
or the Zoning Officer with reference to the administration of any
floodplain or flood hazards ordinance or such provisions within a
land use ordinance.
(6)
Appeals from the determination of the Zoning Officer
or Township Engineer in the administration of any land use ordinance
or provisions thereof with reference to sedimentation and erosion
control and stormwater management insofar as the same relate to development
not involving subdivision and land development.
B.
Variances. To authorize, upon appeal in specific cases,
such variances(s) from the terms of this chapter as will not be contrary
to public interest, where a literal enforcement of the provisions
of this chapter will result in unnecessary hardship. 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
and the Pennsylvania Municipalities Planning Code, as amended. The
Board may, by rule, prescribe the form of application and may require
preliminary application to the Zoning Officer.
C.
Special exceptions. To hear and decide only such special
exceptions to the terms of this chapter upon which the Board, by the
provisions of this chapter, is specifically authorized.
[Amended 11-26-1990 by Ord. No. 218]
In exercising the above-mentioned powers, the
Board may reverse or affirm, modify or in part may modify the order,
requirement, decision or determination appealed from and may make
such order, requirement, decision or determination as ought to be
made and, to that end, shall have all the powers of the officer from
whom the appeal is taken.
[Amended 11-26-1990 by Ord. No. 218]
The Board may adopt rules of procedure in accordance with the several provisions of this chapter and the requirements of Article XI of the Pennsylvania Municipalities Planning Code, as amended, as to the conduct of the business of the Board.
[Amended 11-26-1990 by Ord. No. 218]
Meetings of the Board shall be held at the call
of the Chairman and at such 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 full stenographic
records of its proceedings showing the vote of each member upon each
question or if absent or failing to vote indicating such fact. The
Board shall also keep full public records of its business and other
official action, copies of which shall be immediately filed with the
Secretary of the Board and shall be the property of the Township.
The Board shall submit a report of its activities as requested by
the Board.
[Added 11-26-1990 by Ord. No. 218; amended
8-14-2000 by Ord. No. 309]
A.
For the conduct of any hearing and the taking of any
action, a quorum shall be not less than a majority of all members
of the Board, but the Board may appoint a hearing officer from its
own membership to conduct any hearing on its behalf and the parties
may waive decisions or findings by the Board and accept the decision
or findings of the hearing officer as final as provided in § 908
of the Pennsylvania Municipalities Planning Code, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10908.
B.
The Board shall conduct hearings and make decisions
in accordance with the following requirements:
(1)
Public notice shall be given and written notice shall
be given to the applicant, the Zoning Officer, the Board and to any
person who has made timely request for the same. Written notice shall
be given at such time and in such manner as shall be prescribed by
rules of the Board. In addition to the written notice provided for
herein, notice of said hearing shall be conspicuously posted on the
affected tract of land at least one week prior to the hearing. The
hearing shall be held within 60 days from the date of the applicant's
request, unless the applicant has agreed in writing to an extension
of time. In the event the applicant is unwilling to agree to the scheduling
of a public hearing within 120 days of the filing of the application,
the application shall be considered withdrawn. Thereafter, the new
application must be filed and fees paid before any further proceedings
are held.
(2)
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.
(3)
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 by the Board
for that purpose.
(4)
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.
(5)
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 all adverse witnesses and
documents requested by the parties.
(6)
Formal rules of evidence shall not apply, but irrelevant,
immaterial, or unduly repetitious evidence may be excluded.
(7)
The Board or the hearing officer, as the case may
be, shall keep stenographic records and a transcript of the proceedings.
(8)
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 communications,
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.
(9)
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 45 days after the hearing or, if said hearing is continued, within 45 days after said continued hearing. Each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Conclusions based on any provisions of the Pennsylvania Municipalities Planning Code, as amended, or of this chapter, shall contain a reference to the provisions relied on and the reasons why the conclusion is deemed appropriate in the light of the fact found. If the hearing is conducted by a hearing officer, and there has been no stipulation that his decision or findings are final, the Board shall make his report and recommendations available to the parties within 45 days and the parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings, and the Board's decision shall be entered no later than 30 days after the report of the hearing officer. Where the Board fails to render the decision within the period required by this Subsection B(9), or fails to hold the required hearing within 60 days from the date of the applicant's request for a hearing, 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. When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a decision as hereinabove provided, the Board shall give public notice of said decision within 10 days from the last day it could have met to render a decision in the same manner as provided in Subsection B(1) of this section. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the rights of any party opposing the application to appeal the decision to a court of competent jurisdiction.
[Added 11-26-1990 by Ord. No. 218]
A copy of the final decision or, where no decision
is called for, of the 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 any instance where the Zoning Hearing Board
is required to consider a variance or special exception from this
chapter or map in accordance with the provisions of this chapter,
the Board shall, among other things:
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 property adjacent
to the area included in the proposed change or plan 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 public services and
facilities such as public water, sewers, police and fire protection,
and public schools.
E.
Consider the suitability of the proposed location
of an industrial or commercial use with respect to probable effects
upon highway traffic, and assure adequate access arrangements in order
to protect major streets from undue congestion and hazard.
F.
Be guided in its study, review and recommendation
by sound standards of subdivision practice where applicable.
G.
Impose such conditions, in addition to those required,
as are necessary to assure that the intent of this chapter is complied
with, which conditions may include, but are not limited to, harmonious
design of buildings, planting and its maintenance as a sight or sound
screen, the minimizing of noxious, offensive or hazardous elements,
and adequate standards of parking and sanitation.
H.
With respect to a variance, determine that there are
special circumstances or conditions fully described in the findings
applying to the land or buildings for which the variance is sought,
which circumstances or conditions are such that the application of
the provisions of this chapter would deprive the applicant of the
reasonable use of such land or building.
I.
Determine that the unique circumstances for which
the variance is sought were neither created by the owner of the property,
nor were due to or the result of general conditions in the district
in which the property is located.
[Amended 11-26-1990 by Ord. No. 218; 3-8-1993
by Ord. No. 243]
At least 30 days before the date of the hearing
for a special exception or variance before the Zoning Hearing Board,
the Secretary of such Board shall transmit to the Planning Commission
a copy of the notice of the hearing and shall transmit other information
furnished by the applicant or the Zoning Officer for the Planning
Commission's review and recommendations. If the Planning Commission
does not make any recommendations within 30 days, it shall be deemed
that it has recommended approval of the application. The Planning
Commission or its representative may appear before the Zoning Hearing
Board to present evidence or argument in regard to such application.
The Zoning Hearing Board in considering any
matter within its jurisdiction may consult with the Upper Pottsgrove
Township Planning Commission, the Montgomery County Planning Commission
or any other specialist or groups of specialists having expert knowledge
of the matter under consideration.
[Amended 12-12-1994 by Ord. No. 257]
A.
A special exception or variance, which has been granted or otherwise allowed, shall expire unless the applicant therefor, within one year from the special exception/variance authorization date (as defined in Subsection B or within such additional time as the Board may specify pursuant to Subsection C):
(1)
Obtains all permits as may be required for the construction and/or use permitted by the special exception or variance (including, without limitation, a building permit and a permit required under Article XIX of this chapter); and
(2)
Commences and diligently pursues substantial construction
and/or use permitted by and in accordance with the special exception
or variance.
B.
For purposes of Subsection A, above, the "special exception/variance authorization date" shall have the following meanings:
(1)
In the case the special exception or variance is granted by affirmative decision of the Board with or without conditions attached, the "special exception/variance authorization date," subject to Subsection B(3)(b), below, shall be the date of the written decision of the Board.
(2)
In the case the special exception or variance is allowed by deemed decision of the Board because of its failure to hold a hearing or render a decision as provided by the Pennsylvania Municipalities Code and this article, the "special exception/variance authorization date," subject to Subsection B(3)(b), below, shall be the date on which the decision of the Board is deemed to have been rendered in favor of the applicant.
(3)
In the cases of the following appeals to court, the
"special exception/variance authorization date" shall be the date
of the final court order which finally determines and concludes the
appeal litigation without remand to the Board for further hearings
and decision, unless such court order, or prior court order affirmed
thereby, provides otherwise:
(a)
An appeal from the decision of the Board denying
the special exception or variance, in which the court ultimately reverses
the decision of the Board and grants the special exception or variance
with or without conditions attached.
(b)
An appeal from the affirmative or deemed decision
of the Board granting or allowing the special exception or variance,
including an appeal challenging a condition attached by the Board
to such grant, in which the court ultimately affirms or does not entirely
set aside the special exception or variance, regardless whether or
not the court attaches conditions to or otherwise modifies the special
exception or variance, and/or affirms, sets aside or modifies a condition
attached thereto by the Board.
C.
The Board, upon application and for good cause shown, may extend the one-year period of time set forth in Subsection A, above, for such additional time as the Board may deem appropriate. However, the additional time of the extension granted by the Board shall not exceed two years, unless the extension is for a special exception or variance necessary for approval of a subdivision or land development application, in which case the additional time of the extension may exceed two years as the Board may deem appropriate for the completion of the subdivision or land development. More than one application for an extension may be submitted; provided, that in such event the foregoing two-year maximum limitation on the additional time of an extension shall apply to the total additional time of all extensions which the Board may grant. The Board may grant an extension at any time provided that the application for the extension is submitted to the Board prior to the expiration of the special exception or variance as provided in this section. The Board shall not grant an extension upon an application submitted after the expiration of the special exception or variance as provided in this section. An application for an extension may be considered and granted by the Board as part of the proceedings and decision in which it considers and grants the special exception or variance, or in subsequent separate proceedings and decision.
D.
At and upon the expiration of a special exception
or variance, as provided in this section, the special exception or
variance shall become null and void and of no effect without any action
of the Township or the Board being first required. In such event,
the applicant or other person having standing shall be required to
reapply to the Board in the same manner as a new applicant for the
special exception or variance.
[1]
Editor's Note: Section 7 of Ord. 1811 provides:
"Section 7. This ordinance shall be effective immediately upon enactment. The provisions of Section 4 of this ordinance (amending Section 1811 of Part 18 of Chapter 27 of the Township of Upper Pottsgrove Code of Ordinances providing for the expiration of special exceptions and variances) shall apply only to special exceptions or variances granted or otherwise allowed on or after the effective date of this ordinance. The expiration of any special exception or variance granted or otherwise allowed prior to the effective date of this ordinance (including any extensions of the expiration period on such special exception or variance whether the extensions were or are granted before or after the effective date of this ordinance) shall not be affected by the amendments to Section 1811 under Section 4 but shall continue to be governed by the provisions of Section 1811 which stood prior to the amendments."
Any person aggrieved by the decision of the
Board within 30 days thereafter may appeal to the Court of Common
Pleas of Montgomery County by petition duly verified setting forth
the grounds upon which said appeal is taken.
[Amended 11-26-1990 by Ord. No. 218]
Application before the Zoning Hearing Board as provided in Article XVIII shall be accompanied by a cash payment or certified check to the Township in accordance with a fee schedule adopted by the Township Board of Commissioners.
[Added 11-26-1990 by Ord. No. 218]
Appeals under § 350-162A of this article may be filed with the Board in writing by the landowner affected, by an officer or agency of the Township, or any person aggrieved. Requests for a variance under § 350-162B of this article and for special exception under § 350-162C of this article may be filed with the Board by any landowner or any tenant with the permission of such landowner.
[Added 11-26-1990 by Ord. No. 218]
A.
No person shall be allowed to file any proceeding
with the Board later than 30 days after any application for development,
preliminary or final, has been approved by an appropriate officer
of the Township, 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 has 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.
B.
The failure of anyone other than the landowner to
appeal from an adverse decision on a tentative plan pursuant to § 709
of the Pennsylvania Municipalities Planning Code, as amended,[1] or from an adverse decision by the Zoning Officer on a
challenge to the validity of an ordinance or map pursuant to § 916.2
of the Pennsylvania Municipalities Planning Code, as amended,[2] shall preclude an appeal from a final approval except
in the case where the final submission substantially deviates from
the approved tentative approval.
C.
All appeals from determinations adverse to the landowner
shall be filed by the landowner within 30 days after notice of the
determination is issued.
[Added 11-26-1990 by Ord. No. 218]
Upon filing of any proceeding referred to in § 350-162 of this article and during its pendency before the 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 thereunder, 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 of 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.
