[Added 5-5-1994 by Ord. No. 94-04]
Nothing in this article shall be construed to relieve the owner or his agent, the developer, or the applicant for a conditional use approval from obtaining approval in accordance with Chapter 167, Subdivision and Land Development, of the Code of the Township of West Brandywine, or other applicable ordinances.
The requirements of this article and the standards
for specific types of conditional uses found elsewhere in this chapter
shall be deemed an element of the definition under which a conditional
use permit may be granted. The failure of the applicant to demonstrate
compliance with these requirements, in the discretion of the Board,
can be deemed either a basis for establishing conditions or limitations
on an approval or the basis for a denial of a conditional use application.
A.
Ownership. The tract of land under application for
conditional use approval shall be in one ownership, or shall be subject
of an application filed jointly by the owners of the entire tract,
and shall be under unified control. If ownership of the entire tract
is held by more than one person or entity, the application shall identify
and be filed on behalf of all of the said owners. Approval of the
plan shall be conditioned upon agreement by the applicant or applicants
that the tract shall be developed under single direction in accordance
with the approved plan. No site preparation or construction shall
be permitted other than in accordance with the approved plan. If ownership
of all or any portion of the tract changes subsequent to approval
of the plan, no site preparation or construction by such new owner
or owners shall be permitted unless and until such owner or owners
shall review the terms and obligations of the approved plan and agree
in writing to be bound thereby with respect to development of the
tract.
B.
Sewer and water facilities. Applicant shall demonstrate evidence of adequate water supply and sewage disposal capability. The tract of land shall be served by a water supply system and a sewage system deemed acceptable by the Board of Supervisors, upon recommendation of the Township Engineer. Such facilities shall be designed and constructed in compliance with §§ 167-57 and 167-58 of Chapter 167, Subdivision and Land Development, of the Code of the Township of West Brandywine and the West Brandywine Township Sewage Facilities (Act 537) Plan.
C.
Development stages and permits. The development of
a tract carried out in either a single phase or in stages shall be
executed in accordance with a development agreement. The owner, developer,
and Township shall enter into said agreement embodying all details
regarding compliance with this chapter to assure the binding nature
thereof on the overall tract and its development, which agreement
shall be recorded with the final development plan.
D.
Stormwater management. The control of erosion and sediment during construction, and the ongoing management of stormwater on the tract, shall be accomplished in accordance with applicable provisions of Article VIII of Chapter 167, Subdivision and Land Development, of the Code of the Township of West Brandywine.
E.
Covenants and restrictions. The language, terms and
conditions of any proposed covenants or restrictions shall be subject
to review and recommendation by the Township Solicitor.
A.
Application for conditional use shall be filed with
the Township Manager on such forms as may be prescribed for said purpose.
The application shall be accompanied by a fee as prescribed by the
Board of Supervisors by population enacted after the approval of this
chapter. The application shall state the following:
(1)
The name and address of the applicant.
(2)
The name and address of the owner of the real estate
to be affected by the proposed conditional use application.
(3)
A description and location of the real estate on which
the conditional use is proposed.
(4)
A statement of the present zoning classifications
of the real estate in question, the improvements thereon, and the
present use thereof.
(5)
A statement of the section of this chapter which authorizes
the conditional use.
B.
Development plan. The application for conditional
use approval shall be accompanied by a unified, overall site plan
covering the entire tract, regardless of any intended phasing of development.
The plan shall be prepared with sufficient detail to adequately illustrate
the proposed development uses and nondevelopment uses of the tract,
including (where appropriate), reserve areas for possible future expansion;
coordinated internal and external vehicular and pedestrian circulation;
well related, convenient and efficient parking and loading areas;
agreeable surroundings that provide comfort, safety, and convenience
for prospective residents, customers, and/or workers; and high quality
design in terms of building relationship, facade treatment, signage,
lighting, landscaped and planted buffers and screens, as well as other
natural and constructed amenities in furtherance of the comprehensive
planning objectives of West Brandywine Township.
C.
Site analyses. The application for conditional use approval shall be accompanied by site analyses in accordance with the requirements of § 167-26 of Chapter 167, Subdivision and Land Development, of the Code of the Township of West Brandywine. The applicant shall indicate how any or all of the inventoried resources will be affected by the proposed development, and shall describe mitigating measures to be employed in addressing these impacts. The development impacts and the proposed mitigating measures shall be described in narrative and graphic form, as appropriate.
[Amended 8-6-1998 by Ord. No. 98-08]
D.
Market analysis.
(1)
Purpose. A market analysis, while not required, shall
be submitted if requested by the Board. If such an analysis is requested,
it shall contain information indicating the likelihood of the proposed
conditional use meeting with market support.
(2)
Contents of market analysis. A market analysis shall
contain the following information:
(a)
Uses evaluated. A description of the land uses
evaluated as a part of the market analysis shall be provided. Included
shall be the nature of the proposed uses in terms of the intended
attraction of the proposed use to neighborhood, community, and/or
regional populations and markets.
(b)
Identification of competition. Existing and
approved developments that are likely to be in competition with the
proposed use shall be identified. The analyst selected to perform
the market study shall determine the area within which existing developments
are likely to compete with the proposed use.
(c)
Analysis. Dependent upon type of use proposed,
the market analysis shall include identification of the trade area
to be served, where relevant the supportability of floor areas to
be devoted to specific use(s), a computation of existing floor areas
of a nature similar to the use proposed, and a determination of the
net supportable floor area within the trade area or study area defined.
(d)
Conclusions. The analyst shall proffer an opinion
regarding the likelihood of the proposed use meeting with market support.
Included in the conclusions shall be a statement regarding the appropriate
time frame to consider construction of the development and scheduling
of the development. Additionally, the types of tenants (if a leased
project) which are likely to meet with market support in the development
shall be identified.
E.
Traffic analysis. The Board of Supervisors at its
sole discretion may require applicant to provide traffic studies demonstrating
feasible compliance with the objectives of this chapter and the West
Brandywine Township Comprehensive Plan.[1] Such studies shall estimate traffic volumes, turning movements
and levels of service at intersections, and potentially unsafe conditions
existing prior to development as well as may be reasonably expected
to occur after proposed development and shall suggest action(s) to
mitigate any anticipated reduction of level of service or other negative
impact to traffic conditions resulting from development as proposed.
In granting conditional use approval, the Board may attach conditions
requiring specific improvements to local roads to be incorporated
into plans for development, to the extent necessary to maintain pre-existing
levels of service, correct unsafe conditions which may be worsened
by traffic impacts of development, and otherwise provide for safe
and convenient access for residents, visitors, employees, and emergency
service personnel and vehicles.
[Amended 11-16-1994 by Ord. No. 94-08; 10-4-2001 by Ord. No.
01-02; 10-5-2023 by Ord. No. 2023-04]
A.
Planning Commission review and recommendation.
(1)
Upon receipt of a complete application for conditional use approval,
the Township Manager shall refer one copy of the application to the
Township Planning Commission for its review.
(2)
Upon receipt of application and proposed site plan when required,
the Planning Commission shall review the conditional use request with
the applicant at its next regularly scheduled meeting or at a special
meeting at the discretion of the Planning Commission. Applicant shall
appear before the Planning Commission to present its proposed use
and application.
(3)
The Planning Commission, upon review of the conditional use
application, is afforded an opportunity to provide a report to the
Board of Supervisors containing a recommendation on whether the application
should be: (a) granted; (b) granted with conditions (specifically
identifying the conditions that the Board of Supervisors should consider);
(c) denied; or (d) deferred so that additional information can be
supplied. The report should be provided to the Board of Supervisors
and the applicant prior to the close of the applicant's presentation
of its case-in-chief in the conditional use proceedings before the
Board of Supervisors. In the event the Planning Commission fails to
provide a report, a written certification from the Planning Commission
that it has not provided a recommendation or review shall be submitted.
Applicant shall be required, as part of its conditional use presentation
to the Township Board of Supervisors, to supply the review and recommendation
generated by the Planning Commission.
(4)
Nothing herein shall abrogate the Township's obligations
under the Pennsylvania Municipalities Planning Code[1] to comply with the requirements of holding a hearing and
issuing a decision on the application, provided that the absence of
a recommendation from the Planning Commission may affect the decision
rendered by the Board.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(5)
For purposes of this provision, the application shall be deemed
complete when the Township is in receipt of the accompanying fee,
plan(s) for development, natural and cultural resources analysis,
and market analysis if required.
B.
Board of Supervisors hearing. The application shall be reviewed at
one or more advertised public hearings of the Township Board of Supervisors
with the initial hearing being commenced within 60 days of receipt
of the application pursuant to Section 908 of the Pennsylvania Municipalities
Planning Code,[2] as amended, unless the applicant agrees in writing to
an extension of time. Each subsequent hearing shall be held within
45 days of the prior hearing, unless extended by the applicant. The
Supervisors shall either approve or deny the application in writing
within 45 days after the date of the final hearing unless such time
is extended by agreement of the applicant.
[2]
Editor's Note: See 53 P.S. § 10908.
C.
Hearing notice and procedures. The Board of Supervisors shall hold
a public hearing on the conditional use application in accordance
with the following procedures:
(1)
Notice of the hearing shall be given to the public each week for
two successive weeks in a newspaper of general circulation in the
Township. The first publication shall not be more than 30 days and
the second publication shall not be less than seven days from the
date of the hearing. The notice shall state the time and place of
the hearing and shall summarize the application.
(2)
Additionally, notice shall be given to the applicant, and to any
person who has made a timely written request for same. Notice shall
also be given to the Township Code Enforcement Officer, the Zoning
Officer, Township Engineer, Traffic Consultant (if applicable), Chief
of Police, the Director of Public Works, the Fire Marshal and the
Emergency Management Coordinator, for the purpose of allowing such
officials to provide an impact statement in their respective roles,
if they deem it necessary in their professional discretion, on the
proposed conditional use on Township services and the impact on the
public health, safety and welfare.
(3)
Notice of the hearing shall be conspicuously posted on the affected
tract of land at least seven days' prior to the date of the hearing.
(4)
At least seven days' prior to the date of the hearing, applicant
shall provide notice of its application, on a form acceptable to the
Township, to all neighboring property owners who own properties within
500 feet of the boundary of the applicant's property.
(5)
The parties to the hearing shall be the Township, any person
affected by the application who has made a timely appearance of record
before the Board of Supervisors, 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.
(6)
The Chairman, Vice Chairman, 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.
(7)
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.
(8)
Formal rules of evidence shall not apply, but irrelevant, immaterial,
or unduly repetitious evidence may be excluded.
(9)
The Board or the hearing officer, as the case may be, shall
keep a stenographic record of the hearing proceedings. The appearance
fee for a stenographer shall be shared equally by the applicant and
the Board. The cost of the original transcript shall be paid by the
Board if the transcript is ordered by the Board or hearing officer
or shall be paid by the person appealing from the decision of the
Board if such appeal is made, and in either event, the cost of additional
copies shall be paid by the person requesting such copy or copies.
In other cases, the party requesting the original transcript shall
bear the cost thereof.
(10)
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 last
hearing before the Board or hearing officer, unless extended by the
applicant. Where the application is contested or denied, the decision
shall be accompanied by findings of fact and conclusions based thereon,
together with the reasons therefor, for the final decision.
(11)
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 the applicant not later than the day following the date
on which the written decision is rendered. 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.
(13)
No procedure set forth in this section shall be inconsistent
with any of the applicable provisions of Act 247, the Municipalities
Planning Code, as amended.
D.
In granting a conditional use permit, the Board of Supervisors may
also attach such conditions and safeguards, in addition to those expressed
in this chapter, as it may deem necessary to implement the purpose
of Act 247, the Municipalities Planning Code, as amended, or this
chapter. These may include reasonable conditions on the design, layout,
and/or operation of such use in relation to the unique characteristics
of the tract and adjacent properties, including but not limited to
the following:
(1)
Hours of operation.
(2)
Noise.
(3)
Glare.
(4)
Integration of the use within the overall design of a proposed
planned commercial development or planned mixed-use development.
(5)
Proximity to residential uses or residentially zoned areas.
(6)
Additional parking demand and/or opportunities for shared parking.
In addition, such conditions may also include, but need not be limited
to:
E.
The applicant shall have the burden to prove, by preponderance of
evidence, that the proposed use will comply in all respects with this
chapter and other Township ordinances, county, state or federal legislation.
When the applicant does not provide information as required, then
it shall be presumed that the proposed use is not in accordance with
the requirements applicable for the granting of conditional use approval.
If, after any public hearing, the application is amended or changed
substantially, the Board of Supervisors may resubmit the application
to the Planning Commission for review and may hold an additional public
hearing or hearings pursuant to public notice as aforesaid.
F.
Any grant of conditional use approval shall be deemed null and void
six months from the date of such approval if, within that period,
no application is made for a building permit, a use and occupancy
permit, or subdivision or land development approval, as appropriate,
unless the Board of Supervisors shall grant an extension at its sole
discretion.
G.
The Board of Supervisors shall have the power in approving a conditional use, to grant modifications and waivers to the applicable provisions of this Chapter 200 when the Board deems such modifications and waivers to be in the public interest.
H.
Any conditions of approval set forth in an order of conditional use
approval issued by the Board of Supervisors shall be stated verbatim
in plan notes on any applicable preliminary or final subdivision or
land development plan submitted to the Township.
I.
The standards described shall be deemed additional and in no way
impair any other applicable standard from this chapter or any other
Township ordinance. Where there is a conflict between the standards
set forth in this section and any other provisions of this chapter
or other Township ordinances, it is intended that the more stringent
provision shall apply, unless the Board expressly agrees to an alternative
condition.
The following criteria shall be used as a guide
by the Board of Supervisors in evaluating a proposed conditional use.
It shall be the burden of the applicant to demonstrate compliance
with all applicable criteria:
A.
The uses proposed shall be limited to those authorized
as conditional uses within the district in which the lot or parcel
is situated. The property subject to conditional use application shall
be suitable for the use desired.
B.
C.
The proposed use at the location set forth in the
application shall be in the public interest and best serve the public
health, safety, morals and general welfare.
D.
Consideration of the character and the type of development
in the area surrounding the location for which the request is made,
and a determination that the proposed change will constitute an appropriate
use in the area and will not injure or detract from the use or value
of the surrounding properties or from the character of the neighborhood.
E.
The development, if more than one building, will consist
of a harmonious grouping of buildings or other structures.
F.
There will be no adverse effect of the proposed conditional
use upon the logical, efficient and economical extension of public
services and facilities, such as public water, sewers, police and
fire protection, recreational opportunities, open space and public
schools and, where necessary, adequate arrangements for expansion
or improvement are assured.
G.
The design and use of any new construction and proposed
change in use of existing buildings will be compatible with the existing
designs and uses in the immediate vicinity and that the proposed design
or use shall be compatible with the character of the neighborhood.
H.
If the development is to be carried out in progressive
stages, each stage shall be so planned that the conditions and intent
of this chapter shall be fully complied with at the completion of
any stage.
I.
The location and layout of the proposed use is suitable
with respect to probable effects upon highway traffic, assure adequate
access arrangements in order to protect major streets and highways
from undue congestion and hazard. The proposed use will not lower
the level of service on adjacent road segments and intersections as
defined by the most recent edition of the Highway Capacity Manual
from the Transportation Research Board. As a policy, proposed projects
should incorporate designs which assure safe and efficient access
and maintain a level of service "C," as a minimum, on all adjacent
road segments and intersections.
J.
The interior traffic circulation shall provide safe
and convenient circulation for all users, including pedestrian and
vehicular modes of transit. Applicant shall demonstrate that sufficient
safeguards such as parking, traffic control, screening, and setbacks
can be implemented to remove any potential adverse influences the
use may have on adjoining uses. In addition, all emergency access
design considerations shall be addressed and incorporated into the
proposed plan.
K.
The adequacy of sanitation and public safety provisions,
where applicable, and the necessity to provide a certificate of adequacy
of sewage and water facilities from a governmental health agency in
such case required or deemed necessary.
L.
Sufficient land area available to be able to effectively
screen the proposed conditional use from adjoining different uses
if required by the Board of Supervisors.
M.
Consideration of any other development impacts and
proposed mitigation identified by the required natural and cultural
resources analysis.
N.
Consideration of likelihood of market success of proposed
use(s), as indicated by market analyses, where required.
O.
Any unique circumstances for which the conditional
use is sought were nether created by the owner of the property, nor
were due to, or the result of, general conditions in the zoning district
in which the property is located.
P.
The Board shall consider additional standards and criteria set forth in § 200-153, Standards for review of special exception, to the degree the Board deems applicable to review of conditional use approval.
Q.
Uses shall meet the provisions and requirements of Chapter 167, Subdivision and Land Development, of the Code of the Township of West Brandywine and all other applicable ordinances and regulations whether or not propounded by West Brandywine Township.
R.
The Board may 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 noise, glare, and noxious,
offensive or hazardous elements, adequate standards of parking and
sanitation.
