Township of Upper Uwchlan, PA
Chester County
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Table of Contents
Table of Contents

§ 200-120 Statutory provisions; establishment and membership.

A. 
The provisions of this article of the chapter are intended to parallel the Pennsylvania Municipalities Planning Code and said provisions are amended as the MPC is amended.
B. 
There shall be a Zoning Hearing Board which shall consist of three members who shall be appointed by resolution of the Board of Supervisors and who shall be residents of the municipality. The Board of Supervisors 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 their 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. Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by majority vote of the governing body which appointed the member, taken after the member has received 15 days' advance notice of the intent to take such a vote. A hearing will be held in connection with the vote if the member shall request it in writing.
C. 
When used hereafter in this article, the word "Board" shall mean the Zoning Hearing Board.

§ 200-121 Organization. [1]

The Board shall elect, from its members, its officers, who shall serve annual terms as such and may succeed themselves. For the conduct of any hearing and the taking of any action, a quorum shall not be less than a majority of all the 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 further action by the Board as provided in § 200-125B. The Board may make, alter and rescind rules and forms for its procedure consistent with the provisions of this chapter and the laws of the commonwealth. The Board shall keep full public record of its business, which records shall be the property of the Township, and shall submit a report of its activities to the Board of Supervisors as requested.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 200-122 Applications for hearings.

A. 
Applications for hearings before the Board shall be filed with the Board together with the proper fee.
B. 
An application for a special exception or variance from the terms of this chapter shall state:
(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 exception or variance.
(3) 
A brief description and location of the real estate to be affected by such proposed change.
(4) 
A statement of the present zoning classification of the real estate in question, the improvements thereon, and the present use thereof.
(5) 
A statement of the section of this chapter under or from which the exception or variance requested may be authorized, and reasons why it should be granted.
(6) 
A reasonably accurate description of the present improvements and the additions intended to be made under the application or appeal, if any, indicating the size of such proposed improvements, material, and general construction thereof. In addition, there shall be attached a plot plan to scale of the real estate to be affected, indicating the location and size of the lot and size of improvements now erected and proposed to be erected thereon.
C. 
Applications for other than special exception or variance from terms of this chapter shall contain sufficient written information to fully describe the intended use. Where, in the sole discretion of-the Zoning Officer, it is appropriate for the applicant to furnish plans and/or specifications or any other relevant information incident to intended use, such information shall be required to be submitted with the application.
D. 
In the event that any required information is not furnished, the application shall be refused and the fee returned to the applicant.
E. 
The first hearing before the Zoning Hearing Board shall be commenced within 60 days from the date of receipt of the applicant's application, unless the applicant has agreed in writing to an extension of time. Each subsequent hearing before the Zoning Hearing Board shall be held within 45 days of the prior hearing, unless otherwise agreed to by the applicant in writing or on the record. An applicant shall complete the presentation of his case-in-chief within 100 days of the first hearing. Upon the request of the applicant, the Zoning Hearing Board shall assure that the applicant receives at least seven hours of hearings within the 100 days, including the first hearing. Persons opposed to the application shall complete the presentation of their opposition to the application within 100 days of the first hearing held after the completion of the applicant's case-in-chief. An applicant may, upon request, be granted additional hearings to complete his case-in-chief provided the persons opposed to the application are granted an equal number of additional hearings. Persons opposed to the application may, upon the written consent or consent on the record by the applicant and municipality, be granted additional hearings to complete their opposition to the application provided the applicant is granted an equal number of additional hearings for rebuttal.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 200-123 Notice of hearings.

The Board shall give notice as follows:
A. 
By publishing a notice thereof in a newspaper of general circulation within the Township once a week for two successive weeks prior to the date fixed for the hearing.
B. 
By mailing notice thereof to the applicant and to any person who has made timely request for same. In addition, notice of said hearing shall be conspicuously posted on the affected tract of land.
C. 
By mailing notice thereof to the Township Zoning Officer, to the Chairman of the Township Board of Supervisors and to the Chairman of the Township Planning Commission.
D. 
The Board may mail notice thereof to the owner of every lot on the same street within 500 feet of the lot or building in question on every lot not on the same street within 200 feet of said lot or building. But failure to give notice, either in part or in full, as stated by this paragraph shall not invalidate any action taken by the Board.
E. 
The notice herein required shall state the name of the applicant, the location of the lot or building and the general nature of the question involved, and the date, time and location of the hearing. In addition thereto, the notice shall state that the validity of the landowners request, including plans and proposed amendments, may be examined by the public at the Township Building during regular business hours.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 200-124 Expenditures for services; fees.

A. 
Within the limits of funds appropriated by the Board of Supervisors, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. Members of the Zoning Hearing Board may receive compensation for the performance of their duties, as may be fixed by the Board of Supervisors.
B. 
The applicant before the Board shall deposit with the Treasurer of the Township, such a sum of money as set forth in the fee schedule adopted by the Board of Supervisors to pay the cost of the hearing.
C. 
The following administrative costs incurred by the Township relative to hearing before the Board shall be paid from the application filing fee:
(1) 
Cost of preparation of required notices.
(2) 
Cost of mailing notices, including postage.
(3) 
Cost of advertising.
(4) 
Cost of posting notice or verification.
(5) 
Duplication or copying costs.
(6) 
An equal share of the Court Reporter's attendance fee.
(7) 
Cost of stenographic record, if such record is requested by the Board or the applicant.
(8) 
Other costs related to the application.
D. 
Continued hearings and collection of fees.
(1) 
In the event more than one hearing is necessary on any application, as promptly as may be possible following the initial hearing, the Board Secretary shall determine the total amount of all taxable costs incurred, and shall deduct same from the application fee. In the event the application fee is, at any time, insufficient to cover the costs incurred or reasonably anticipated to be incurred, the Board Secretary shall notify the applicant, provide the applicant with a written copy of each item of taxable cost, and shall require the applicant to pay, within 10 days of such notification, any balance then due together with a further minimum deposit of 1/2 of the initial filing fee. In the event of multiple hearings, all taxable costs shall be reported and collected in accordance with this procedure.
(2) 
The failure of the Board Secretary to demand additional deposits from time to time shall not relieve the applicant of liability for costs, charges, expenses and fees in excess of deposit; and in the event of default, such shall be recovered by such action as is by law provided.
(3) 
All funds deposited by the applicant in excess of the actual cost of the hearing or hearings shall be returned to the applicant upon completion of the proceeding.

§ 200-125 Hearings.

The Board shall conduct hearings and make decisions in accordance with the following requirements:
A. 
Hearings of the Board shall be held at the call of the Chairman and at a reasonable time and place for public hearings and notification of said hearing shall be as provided by § 200-123.
B. 
The hearings shall be conducted by the Board or the Board may appoint any member or an independent attorney as the hearing officer. The decision or, where no decision is called for, the findings, shall be made by the Board, however, the applicant or appellant, as the case may be, in addition to the Township, may, prior to the decisions of the hearing, waive decision or findings by the Board and accept the decision or findings of the hearing officer as final.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
C. 
The parties to the hearing shall be any person who is entitled to notice under § 200-123, above, without special request therefor, who has made timely appearance of record before the Board and any other person permitted to appear by the Board.
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 adverse witnesses on all relevant issues.
F. 
Formal rules of evidence shall not apply, but irrelevant, immaterial, unduly repetitious and hearsay evidence shall be excluded and other inadmissible evidence may be excluded at the discretion of the Board.
G. 
The Board or hearing officer, as the case may be, shall keep a stenographic record of the proceedings and a transcript of the proceedings and copies of graphic or written material received in evidence shall be made available to any party at cost.
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 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 with any party or his representative after the commencement of the hearing unless all parties are given an opportunity to be present.
I. 
At any time prior to rendering its written decision, the Board may consult with the Planning Commission, Township Engineer, or any other body for the purpose of resolving technical consideration relative to an application before it, and may at its discretion include the recommendation of said consultants in its final decision.
J. 
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 Hearing Board or hearing officer. Each decision shall be accompanied by findings and conclusions based thereon, together with the reasons therefor. Conclusions based on any provisions of this chapter or of any act, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found. If the hearing is conducted by the hearing officer and there has been no stipulation that this decision or findings are final, the Board shall make its report and recommendation available to the parties, and the parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings. Where the Board has power to render a decision and the Board or the hearing officer, as the case may be, fails to render the same within the forty-five-day period required by this clause, and unless the applicant has agreed or shall agree in writing to an extension of time, the decision shall be deemed to have been rendered in favor of the applicant.
K. 
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.

§ 200-126 Functions.

The Board shall have the following functions:
A. 
Substantive challenges to the validity of this chapter, except those brought before the Board pursuant to Sections 609.1. and 916.1(a)(2) of Act 247, as amended by Act 170.
B. 
Challenges to the validity of this chapter 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 the effective date of said ordinance. Where the ordinance appealed from is the initial zoning ordinance of the municipality and a Zoning Hearing Board has not been previously established, the appeal raising procedural questions shall be taken directly to court.
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 order 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 administration of any floodplain or flood hazard ordinance or such provisions within a land use ordinance.
E. 
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.
F. 
Appeals from the Zoning Officer's determination under Section 916.2.
G. 
Appeals from the determination of the Zoning Officer or Township Engineer in the administration of this chapter or provision thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development.
H. 
Challenge the validity of this chapter or Zoning Map. The Zoning Hearing Board shall hear challenges to the validity of a zoning ordinance or map as follows:
(1) 
A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provision thereof which prohibits or restricts the use of development of land in which he has an interest shall submit the challenge to either the Zoning Hearing Board or the Board of Supervisors.
(2) 
Persons aggrieved by a use or development permitted on the land of another by an ordinance or map or any provision thereof, who desires to challenge its validity shall submit their challenge pursuant to Sections 909.1 and 609.1 of Act 247, as amended by Act 170.
(3) 
In all such challenges, the Zoning Hearing Board shall decide all contested questions and shall make findings on all relevant issues of fact and of interpretation, and submit such findings as part of the record on appeal to the court.
I. 
Variances. The Board shall hear and decide requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship on the applicant. The Board may by rule prescribe the form of application as provided by § 200-111. The Board may grant a variance 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 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 this chapter and that the authorization of a variance is therefore necessary to enable the reasonable use of property.
(3) 
That such unnecessary hardship has not been created by the applicant.
(4) 
That the variance, if authorized, will neither 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 in the case where the property in part or totally is located within the regulatory floodway the granting of a variance will not increase the base flood elevation. Where the issuing of a variance will permit the construction of a structure or portion thereof below the base flood elevation in the Floodplain District, the applicant shall be notified in writing over the signature of the Township Zoning Officer that the construction or location of a structure below the base flood elevation will increase the risk to life and property and that flood insurance premium rates for the affected structure will increase. A record of all variance actions including the reasons and justification for the issuance of the variance shall be maintained.
(6) 
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. In granting any variance, the Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.
J. 
Special exceptions. The Board shall hear and decide requests for special exceptions where the ordinance has stated special exceptions are to be granted by the Board pursuant to the following express standards and criteria, in addition to such other considerations and determinations as may be required by law and other provisions of this chapter. The Board shall:
(1) 
Give full consideration to the size, scope, extent, and character of the exception desired and assure itself that such request is consistent with the plan for future land use in Upper Uwchlan and with the spirit, purpose and intent of this chapter.
(2) 
Take into consideration the character and type of development in the area surrounding the location for which the request is made and determine that the proposed change or modification, if permitted, will constitute an appropriate use in the area and will not substantially injure or detract from the use of surrounding property or from the character of the neighborhood.
(3) 
Consider the public interest in, or the need for, the proposed use or change, to determine that the proposal will serve the best interest of the Township, the convenience of the community (where applicable) and the public health, safety, morals and general welfare.
(4) 
Make certain that the proposed change is reasonable in terms of the logical, efficient, and economical extension of public services and facilities, including, but not limited to, public water, sewers, police and fire protection, transportation and public schools.
(5) 
Be guided in its study, review and recommendations by sound standards or subdivision practice where applicable.
(6) 
Review the recommendations of the Planning Commission on the proposed development plan, where such plan is required. The Board shall not be bound by such recommendations nor shall the Board be bound by the action of the Board of Supervisors in relation to the development plan.
(7) 
Guide the development of highway frontage insofar as possible to limit the total number of access points, reduce the need for on-street parking, and encourage the frontage of buildings on parallel marginal roads or on roads perpendicular to the highway.
(8) 
Consider, where pertinent, the effects of the proposal with respect to congestion on the roads or highways, the most appropriate use of land, conserving the value of buildings, safety from fire, panic, and other dangers, adequacy of light and air, the prevention of overcrowding of land, congestion of population and adequacy of public and community services and determine that approval of the application will not have a substantially adverse effect thereon.
(9) 
Be assured that the natural features and processes characterizing the proposed site and its surroundings shall not suffer unmitigated degradation, that the management of storm waste, the provision of water or sewer service, and any other alterations to the site's predevelopment condition shall be consistent with the Township goals, practices, and plans in these regards, and that demand for water and energy by the proposed use shall be minimized to the optimal extent.
(10) 
Impose such conditions, in addition to those required, as are necessary to assure that the intent of this chapter is complied with, and which are reasonably necessary to safeguard the health, safety, morals and general welfare of the residents of the Township at large and the residents and owners of the property adjacent to the area in which the proposed use is to be conducted. Conditions may include, but are not limited to, harmonious design of buildings, aesthetics, hours of operation, lighting, numbers of persons involved, noise, sanitation, safety, smoke and fume control and the minimizing of noxious, offensive or hazardous elements.
(11) 
Special conditions. In addition to conforming with the general standards, above, and all other applicable regulations contained in this chapter, the proposed special exception must conform with all conditions for that use as follows:
(a) 
Require that all commercial or industrial parking, loading, access or service areas shall be adequately illuminated at night while in use, and that such lighting, including sign lighting, shall be arranged so as to protect the highway and neighboring properties from discomfort or hazardous interference of any kind.
K. 
Unified appeals. Where the Board has jurisdiction over a zoning matter, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any municipal 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. 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.

§ 200-127 Expiration of special exceptions, variances and conditional uses.

Unless otherwise specified by the Board, a special exception, variance or conditional use shall expire if the applicant fails to obtain a building permit or a use and occupancy permit, as the case may be, within six months from the date of authorization thereof.

§ 200-128 Parties appellant before Board.

An appeal to the Board under § 200-126A and proceedings to challenge an ordinance under § 200-126B may be filed with the Board in writing by the landowner affected, any officer of the Township or any person aggrieved. Requests for a variance under § 200-126I and for a special exception under § 200-126J may be filed with the Board by any landowner or any tenant with the permission of such landowner.

§ 200-129 Time limitations.

No aggrieved person shall be allowed to file any proceedings with the Board later than 30 days after (a) any permit has been issued or refused or any other decision made by the Zoning Officer, and (b) any application for development, preliminary or final, has been approved by the Board of Supervisors if such proceeding is designed to secure reversal or to limit approval in any matter.

§ 200-130 Parties to hearing.

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 enter appearances in writing on forms provided by the Board for that purpose. The aforementioned 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.

§ 200-131 Stay of proceedings. [1]

Upon filing of any proceeding referred to in § 200-125, and during its pendency before the 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 Officer or any other appropriate agency or body certifies to the Board facts indicating 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 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. 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.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 200-132 Appeals. [1]

The conditions and proceedings set forth in Article X-A of Act 247, as amended, shall constitute the exclusive mode for securing review of any ordinance, decision, determination or order of the governing body, its agencies or officers adopted or issued pursuant to Act 247, as amended by Act 170 of 1988.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).