Township of Uwchlan, PA Article 9 Zoning Hearing Board

§ 901 Creation; appointment; organization.

901.1 Creation of Board. The Board of Supervisors hereby creates a Zoning Hearing Board, herein referred to as the "Board," consisting of three residents of the Township appointed by the Board of Supervisors pursuant to Article IX of the Pennsylvania Municipalities Planning Code,[1] as amended, who shall perform all the duties and have all the powers prescribed by said Code and as herein provided.

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

901.2 Appointment. One member of the Board shall be designated to serve until the first day of January following the adoption of this ordinance, one until the first day of the third January thereafter. Their successors shall be appointed on the expiration of their respective terms to serve for a term of three years. Members of the Board shall hold no other office in the Township.

901.3 Removal. Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Board of Supervisors, taken after the member has received 15 days' advance notice of the intent to take such a vote. A hearing shall be held, if the Board member requests one in writing.

901.4 Vacancies. Vacancies shall be filled by appointment by the Board of Supervisors for the unexpired portion of the vacated term.

901.5 Compensation and expenditures for services.

a. The members of the Board may receive such compensation as shall be fixed by the Board of Supervisors, by resolution, but in no case may it exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors.

b. Within the limits of funds appropriated by the Board of Supervisors, the Board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services.

901.6 Organization. The Board may promulgate such rules and forms for its procedure, not inconsistent with this and other ordinances of the Township and laws of the Commonwealth of Pennsylvania, as it may deem necessary to the proper performance of its duties and to the proper exercise of its powers. Such rules shall be continued in force and effect, until amended or repealed by the Board or by law. The Board shall elect from its own membership its officers, who shall serve annual terms as such, and may succeed themselves.

901.7 Meetings. Meetings and hearings of the Board shall be held at the call of the Chairman and at such other times as the Board, by majority vote, may determine.

901.8 Minutes and records. 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 of Supervisors. The Board shall submit an annual report of its activities each year to the Board of Supervisors.

§ 902 Hearings.

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 where two members are disqualified to act in a particular matter, the remaining member may act for the Board. 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, 53 P.S. § 10908, as amended.

902.1 The Board shall conduct hearings and make decisions in accordance with the following requirements and the requirements of § 908 of the Municipalities Planning Code:[1]

a. Notice shall be given to the public, the applicant, the Zoning Officer, and such other persons as the Board of Supervisors shall designate by ordinance and to any person who has made timely request for the same. Notice to the public shall be in accordance with the provisions of § 805.3 of this ordinance. Notice to others herein provided for shall be by mail to the designated persons or agency not less than 15 days prior to the date of the hearing. In addition to the notice provided 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 receipt of the applicant's request, unless the applicant has agreed in writing to an extension of time.

b. 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 Municipality, 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.

c. 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 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.

d. The Chairman or Acting Chairman of the Board or the Hearing Officer presiding shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.

e. 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 on all relevant issues.

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

g. The Board or the Hearing Officer, as the case may be, shall keep stenographic record of the 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 the Hearing Officer or shall be paid by the person appealing 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.

h. The Board or the Hearing Officer shall not communicate, directly or indirectly, with any party or his representatives in connection with any issue involved except upon notice and opportunity for all parties to participate, shall not take notice of any communication, reports, staff memoranda, or other materials unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surroundings after the commencement of hearings with any party or his representative unless all parties are given an opportunity to be present. The Board and/or the Hearing Officer may, however, communicate with or receive advice from its Solicitor.

i. 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. Each decision shall be accompanied by findings of fact and conclusions of law based thereon together with the reasons therefor. Conclusions based on any provisions of the Pennsylvania Municipalities Planning Code,[2] as amended, or of this ordinance, shall contain a reference to the provisions relied on and the reason why the conclusion is deemed appropriate in light of the facts 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 its 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, 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. 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.

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

j. 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.

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

§ 903 Functions of the Zoning Hearing Board.

The Zoning Hearing Board shall have the following powers:

903.1 Appeals from the Zoning Officer: interpretation and review.

a. To hear and decide appeals where it is alleged by the appellant that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of this ordinance or the Official Zoning Map or any valid rule or regulation governing the action of the Zoning Officer. Such appeals must be taken within 30 days of the Zoning Officer's action or decision.

b. To interpret the provisions of this ordinance, with the advice of the Solicitor of the Board of Supervisors and the Planning Commission where there is doubt as to its meaning or application. To determine the exact location of a district boundary line on the Zoning Map that forms a part of this ordinance when the Zoning Officer is unable to make such determinations.

c. Nothing contained herein shall be construed to deny the appellant the right to proceed directly to court, where appropriate, pursuant to Pennsylvania Rules of Civil Procedure, Sections 1091 to 1098, relating to mandamus.

903.2 Challenges to the validity of Zoning Ordinance or the Official Zoning Map. The Board shall hear challenges to the validity of this ordinance or the Official Zoning Map except as indicated in Section 1003 and Subsection (1)(b) of Section 1004 of the Pennsylvania Municipalities Planning Code, as amended.[1] In all such challenges, the Board shall take evidence and make a record thereon as provided in § 902. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.

[1] Editor's Note: Sections 1003 and 1004 of the Pennsylvania Municipalities Planning Code were repealed 12-21-1988 by P.L. 1329, No. 170, § 100. See now 53 P.S. §§ 11002-A and 10916.1.

903.3 Unified appeals. When the Board has jurisdiction over zoning matters pursuant to §§ 903.1, 903.2 and 903.4, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any Township ordinance or requirement pertaining to the same development plan or development. In any such case, the Board shall have no power to pass upon the non-zoning issues, but shall take evidence and make a record thereon as provided in § 902. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.

903.4 Variances.

a. To authorize, upon appeal in specific cases, such variance(s) from the terms of this ordinance as will not be contrary to public interest, where a literal enforcement of the provisions of this ordinance 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 ordinance and the Pennsylvania Municipalities Planning Code,[2] as amended. The Board may, by rule, prescribe the form of application and may require preliminary application to the Zoning Officer. The Board may grant variance relief in proper cases, including, without limitation, any case in which it is established to the satisfaction of the Board that an effect of the zoning regulation at issue or challenged is to deprive the landowner of a property or other right guaranteed or protected by the Commonwealth of Pennsylvania or United States Constitutions; and further provided 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 circumstances or conditions generally created by the provisions of the Zoning Ordinance 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 Zoning Ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.

(3) That such unnecessary hardship has not been created by the appellant, subsequent to the adoption of this ordinance, or prior ordinances, whether in violation of the provisions hereof or not, and that such circumstances or conditions are such that strict application of the provisions of this ordinance would deprive the applicant of the reasonable use of such land, structure, or building.

(4) That for reasons fully set forth in the findings of the Board, the granting of the variance is necessary for the reasonable use of the land or building and that the variance as granted by the Board is the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

(5) 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.

(6) That any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and district in which the subject property is situated, nor substantially or permanently impair the appropriate use or development of adjacent property.

(7) That no nonconforming use of neighboring lands, structures, or buildings in the same district, and no permitted or nonconforming use of land, structure, or building in other districts shall be considered grounds for the granting of a variance.

(8) That in no case shall a variance be granted solely for reasons of additional financial gain on the part of the applicant.

(9) That the jurisdiction of the Board of Supervisors shall not be infringed upon by action of the Board in any matter which should appropriately be the subject for an amendment to the Zoning Ordinance or Zoning Map. No variance shall be granted under this section to allow a structure or use in a zoning district restricted against such structure or use.

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

b. If a variance is granted, the necessary permit(s) shall be secured and the authorized action begun within three months after the date when the variance is finally granted, and the building or alteration, as the case may be, shall be completed within 12 months of said date. For good cause the Board may, upon application in writing stating the reasons therefore, extend to six months the three-month application period.

c. Should the applicant fail to obtain the necessary permits within said six months' period or having obtained the permit should he fail to commence work thereunder within such six months' period, it shall be conclusively presumed that the applicant or appellant has waived, withdrawn, or abandoned his appeal or his application, and all provisions, variances, and permits granted to him shall be deemed automatically rescinded by the Board.

903.5 Special exceptions.

a. To hear and decide only such special exceptions to the terms of this ordinance upon which the Board, by the provisions of this ordinance, is specifically authorized. The granting of a special exception when specifically authorized by the terms of the ordinance shall be subject to the following conditions:

(1) Such use shall be one which is specifically authorized as a special exception use in the zoning district.

(2) Such special exception shall only be granted subject to any applicable condition and safeguards as required by this ordinance.

(3) Such special exception may be granted subject to additional reasonable conditions and safeguards as may be deemed by the Board to be advisable and appropriate.

(4) Such use shall not adversely affect the character of the zoning district, nor the conservation of property values, nor the health and safety of residents or workers on adjacent properties and in the general neighborhood.

(5) Such use shall be of such size and so located and laid out in relation to its access streets that vehicular and pedestrian traffic to and from such use will not create undue congestion or hazards prejudicial to the general neighborhood.

(6) Such use shall not conflict with the direction of building development in accordance with the Comprehensive Plan or portion thereof which has been adopted by the Board of Supervisors.

(7) Each applicant for special exception shall establish the effect of the proposed development on the reserve capacity or level of service of the public roads and road intersections providing access to and in the area of the subject property. No special exceptions shall be granted if the proposed development is shown to have the predicted effect of materially increasing traffic congestion on the said roads or at the said road intersections.

b. All applications for special exceptions shall be submitted to the Planning Commission for its review and recommendations. If the Planning Commission does not make any recommendations within 30 days, it shall be deemed that the Planning Commission has recommended approval of the application for special exception.

c. If a special exception is granted, the necessary permit(s) shall be secured within two years after the date when the special exception is granted.

d. Should the applicant fail to obtain the necessary permits within said two-year period, or having obtained the permit should he fail to commence work thereunder within such two-year period, it shall be conclusively presumed that the appellant or applicant has waived, withdrawn, or abandoned his appeal or his application, and all provisions, variances and permits granted to him be deemed automatically rescinded by the Board.

§ 904 Procedures for application to the Zoning Hearing Board.

The Board shall act in strict accordance with the procedure specified by Article IX of the Pennsylvania Municipalities Planning Code, as amended, and by this ordinance. All appeals and applications made to the Board shall be in writing, on forms prescribed by the Board. Every appeal or application shall refer to the specific provision of this ordinance involved and shall exactly set forth the interpretation that is claimed, the grounds for any challenges to the validity of this ordinance, the use for which a special exception is sought, or the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be. In the event the procedures set forth in this ordinance shall be in conflict with or contrary to the procedures set forth in the Pennsylvania Municipalities Planning Code,[1] as amended, then and in such event the procedures set forth in the latter shall prevail.

Applications and appeals together with the required filing fee, as established by the Board of Supervisors, shall be submitted to the Secretary of the Zoning Hearing Board.

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

§ 905 Stay of proceedings.

Upon filing of any proceeding referred to in § 903 and during its pendency before the Zoning Hearing 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 Hearing Board facts indicate that such stay would cause imminent peril to life or property. In such case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing Board. 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 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 fees incurred by the petitioner.