1. Hearings.
A. The Board shall conduct hearings and make decisions in accordance with § 908, state’s Municipalities Planning Code (Act 170), 53 P.S. § 10908, as amended. Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer, the Planning Commission, the Supervisors, and the Code Enforcement Officer, and to any person who has made timely request for the same. Written notices shall be given at such time and in such manner as shall be prescribed by ordinance and the rules of the Board. In addition to the written notice provided herein, written 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.
B. The hearing 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, wave decision or findings by the Board and accept the decision or finding of the Hearing Officer as final.
C. The parties to the hearing shall be the municipality, any person affected by the application who has made timely appearance of record before the Board, and any other person including civic or community organizations permitted to appear by the Board. The Board shall have the power to require that all persons who wish to be considered parties enter appearances in writing on forms provided by the Board for that purpose.
D. The Chairperson or acting Chairperson 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, or unduly repetitious evidence may be excluded.
G. The Board or the Hearing Officer, as the case may be, shall keep a 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 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.
H. The Board or the Hearing Officer shall not communicate, directly or indirectly, with any party or his or her 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, 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 or her representative unless all parties are given an opportunity to be present.
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 the Hearing Officer. Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefore. Conclusions based on any provisions of any ordinance, 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 a Hearing Officer, and there has been no stipulations that his or her decision of findings are final, the Board shall make his or her 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 herein above provided, the Board shall give public notice of said decision within ten days from the last day it could have met to render a decision in the same manner as provided in division A. above. 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.
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 or her no later then the day following the date of the decision 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 where the full decision or findings may be examined.
2. Jurisdiction.
A. The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1) Substantive challenges to the validity of the land use ordinance, except those brought before the Board of Supervisors pursuant to § 609.1(1) and § 916.1(1)(a) and (b), of the state’s Municipalities Planning Code, Act 170, 53 P.S. §§ 10609.1(1), 10916.1(1)(a) and (b), and § 27-1001 of this Chapter;
(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 the 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 therefor, the issuance of any cease and desist order or the registration or refusal to register any nonconforming use, structure or lot;
(4) Appeals from a determination by a Township Engineer or the Zoning Officer with reference to the administration of any floodplain or flood hazard ordinance (Chapter 8), or such provisions within the land use ordinance;
(5) Applications for variances from the terms of this Chapter and flood hazard ordinance (Chapter 8), or such provisions within a land use ordinance;
(6) Applications for special exceptions under this Chapter or floodplain ordinance (Chapter 8);
(7) Appeals from the determination of any officer or agency charged with the administration of any transfers of development rights or performance density provisions of the Zoning Ordinance (Chapter 27);
(8) Appeals from the Zoning Officer’s determination; and
(9) Appeals from the determination of the Zoning Officer or Township Engineer in the administration of any land use ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development.
B. The Planning Commission shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1) All applications pursuant for approval of subdivisions or land developments under the express provisions of the subdivision and land development ordinance, §§ 22-303 and 22-404 (Chapter 22);
(2) Appeals from the determination of the Zoning Officer or the 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 application for land development under the subdivision and land development ordinance (Chapter 22). Where the applicable land use ordinance vests jurisdiction for final administration of subdivision and land development applications in the planning agency, all appeals from determinations under this division 2.B.(2) shall be to the planning agency and all appeals from the decision of the planning agency shall be to court; and
(3) Applications for a special encroachment permit, pursuant to §§ 405 and 406 of Act 247, as amended by Act 170, 53 P.S. §§ 10405 and 10406.
3. Applicability of judicial remedy. Nothing contained in this Chapter shall be construed to deny the appellant the right to proceed directly to court where appropriate, pursuant to the Pa.R.Civ.Pro. 1091 (relating to action in mandamus).
4. Variances.
A. The Board shall hear requests for variances where it is alleged that the provisions of this Chapter inflict unnecessary hardship upon the applicant. The Board may by rule prescribe the form of application and may require preliminary application to the Zoning Officer. The Board may grant a variance; provided, that all 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 the property;
(3) That such unnecessary hardship has not been created by the appellant;
(4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
(5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
B. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the Municipalities Planning Code, 53 P.S. §§ 10101 et seq., and this Chapter.
5. Special exceptions. In this Chapter, special exceptions may be granted or denied by the Board pursuant to expressed standards and criteria. The Board shall hear and decide requests for such special exceptions in accordance with such standards and criteria as specified under conditional uses herein. In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of this Chapter. The Board shall pursue the following procedures.
A. The Board’s decision to grant a permit for special exception use shall be made only after public notice and hearing. Such permit shall apply specifically to the application and plans submitted and presented at said public hearing. Any subsequent amendments or additions shall be subject to review and public hearing by the Zoning Hearing Board as a special exception use.
B. No application for a permit shall be granted by the Zoning Hearing Board for any special exception use until said Board has first received and considered an advisory report thereon from the Planning Commission with respect to the location of such use in relation to the needs and growth pattern of the township and, where appropriate, with reference to the adequacy of the site area and the arrangement of buildings, driveways, parking areas, off-street truck loading spaces and other pertinent features of the site plan. The Planning Commission shall have 30 days from the date of its receipt of the application within which to file its report thereon. In the event that said Commission shall fail to file its report within such 30 days, such application shall be deemed to have been approved by said Planning Commission.
C. The Commission may have representation at the public hearing held by the Zoning Hearing Board on such application. After receipt of the report, the Zoning Hearing Board shall hear the application in the same manner and under the same procedure as it is empowered by law and ordinance to hear cases and make exceptions to the provisions of this Chapter. The Zoning Hearing Board may thereafter direct the Zoning Officer to issue such permit if, in its judgment, any one of such cases will not be detrimental to the health, safety and general welfare of the township and is deemed necessary for its convenience.
D. A special exception use for which a permit is granted by the Zoning Hearing Board pursuant to the provisions of this Section shall be construed to be a conforming use.
6. Use by conditional use permit.
A. A conditional use is nothing more than a special exception that falls within the jurisdiction of the Board of Supervisors rather than the Zoning Hearing Board. The Board of Supervisors shall hold a hearing pursuant to public notice and recommendations by the planning agency. See, MPC § 603(c)(2), 53 P.S. § 10603(c)(2). The referenced hearing is defined in the state’s Municipalities Planning Code (MPC) § 107(b), 53 P.S. § 10107(b), as an administrative proceeding conducted by a “board” pursuant to § 909.1. “Board” is defined as any body granted jurisdiction under a land use ordinance or under the Municipalities Planning Code, 53 P.S. § 10909.1(b)(3), to render final adjudications. The exclusive power to render a final adjudication for a conditional use is assigned to the Board of Supervisors by MPC § 909.1(b)(3), 53 P.S. § 10909.1(b)(3). In granting a conditional use permit, the Board of Supervisors shall have the opportunity to thoroughly examine the proposal and to impose any reasonable safeguard necessary to implement the purposes of the ordinance and to protect the public’s general welfare.
B. The Board of Supervisors shall act as a quasi-judicial body in a conditional use hearing and shall not advocate a particular position. The Planning Commission may be called upon for testimony before the Board of Supervisors at the conditional use hearing to promote a given viewpoint.
(Ord. 1983-2B, passed 4-30-1984; Ord. 1991-6, passed 4-29-1991; Ord. 2014-06-01, passed 6-12-2014)