Upper Dublin Township Zoning Hearing Board members and Joseph M. - - PDF document

Memorandum from Community Planning and Zoning Upper Dublin Township

To: Zoning Hearing Board members and Joseph M. Bagley, Esq. From: Richard D. Barton, Zoning Officer Date: December 4, 2018 Subject: Outline of presentation, "Duties of a Zoning Hearing Board Member" Last month, your compatriot Phyllis Engart attended a workshop sponsored by PSATS, a Pennsylvania Townships Association, concerning the duties of a Zoning Hearing Board

• member. She kindly provided an outline of the workshop, which is attached for your
• reference. I find the outline to be a very good overview for both new and experienced

ZHB members. Let Joe Bagley and me know if you have any questions on the material.

Duties of a

Zoning Hearing Board Member

Elam Herr, Chairman, East Hempfield Township Zoning Hearing Board; PSATS Assistant Executive Director

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Zoning in Pennsylvania

• Municipalities Planning Code (MPC)
• Establishes basic rules to enact, administer and enforce zoning
• Authorizes enactment of zoning ordinance (Article VI)
• Zoning ordinance designed to achieve a

municipality's goals and objectives

• Zoning hearing board renders decisions on specific

types of land use appeals and applications

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The Zoning Hearing Board

• If you have a zoning ordinance, you MUST have a

zoning hearing board (Section 901)

• Two or more municipalities can form a joint zoning

hearing board (Section 904)

• Primary purpose: determine governing body's intent
• Quasi-judicial role: it functions like a court without

formal proceedings

• No legislative power (cannot make/modify zoning
• rdinance)
• Helps ensure due process
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Zoning Hearing Board Members

• Membership

O 3 or 5 members

• 1-3 alternates
• Staggered 3 or 5-year terms
• Board elects officers for 1-year

terms

• Qualifications

O CANNOT hold any other elected

• r appointed office or be an

employee of the municipality

• Must be resident of municipality
• Compensation

0 May be compensated and/or

reimbursed for expenses

• Decision of Governing

Body

• Not to exceed amount

paid to Governing Body

• Removal

0 May be removed for just

cause

• Malfeasance-illegal act
• Misfeasance-improper
• Nonfeasance-failure to

preform duties

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ZHB Proceedings

• Board creates rules and procedures
• Retain separate legal counsel

O Separate firm from municipal solicitor (section 617.3.c)

• Stenographic record required for hearings by

MPC Section 908(7)

O If you don't have one and case is appealed, the court might remand back in order that a record be created.

• Subject to requirements of Sunshine Act & Right-

to-Know Law

O Meetings must be advertised & open to public

• Minutes & records are part of municipality's record retention
• must be open to public
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Ethical considerations

• Subject to PA State Ethics Act
• Must file Statement of Financial Interest form
• Every year
• One year after leaving office
• Conflicts of interest
• Vested financial interest
• Close personal or business relationship
• Accepting or receiving personal financial benefit
• Perceived conflicts of interest
• The appearance of a conflict can be just as harmful an

actual conflict

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Ethical considerations

• Do you think you have a conflict?
• Seek advice from your solicitor or an opinion from the

State Ethics Commission

• Solicitor is only advising
• Commission provides limited protection
• If a conflict exists...
• Abstain from all discussions & voting
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Protection for private property owners

MPC Section 603.1

Section 603.1. Interpretation of Ordinance Provisions. In interpreting the language of zoning ordinances to determine the extent of the restriction upon the use of the property, the language shall be interpreted, where

doubt exists as to the intended meaning of the

language written and enacted by the governing body, in favor of the property owner and against any implied extension of the restriction.

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Zoning Terminology

MPC Sections 107 (a) and 107 (b)

• Conditional use (a)
• Decision (b)
• Determination (b)
• Hearing (b)
• Public hearing (a)
• Public notice (a)
• Special exception (a)
• Variance (dimensional vs. use) (a)
• g

Zoning Terminology

Terminology not found in MPC definitions

• Permitted use
• use by right, specifically allowed in a particular district or zone
• Use not provided for
• Something the governing body never thought of
• Parties to the hearing
• The applicant, governing body, other affected persons
• Entry of appearance
• Statement by affected persons indicating you want to be a party
• Findings of fact
• Factual information pertaining to the case
• Conclusions of law
• Actual references to court cases and their decisions
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Authority

Section 909.1. Jurisdiction.

(a) Exclusive jurisdiction to hear & decide: (1) Substantive challenges to the validity of any land use ordinance, except curative amendments (2) Appeals from the determination of the zoning officer (i) granting or denial of a permit (ii) issuance of a cease & desist order (iii) registration of a nonconforming use, structure or lot (3) Appeals from the determination of the zoning officer

• r engineer regarding flood plains
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ZHEI jurisdiction

(5) Applications for variances (6) Applications for special exceptions (7) Appeals from administration of Transfer of Development Rights (TDR) program (8) Appeals from the determination of the zoning officer for a preliminary opinion under MPC Section 916.2

• ordinance or map free from challenges
• to see if plan is in compliance with ordinance

(9) Appeals from determinations related to sedimentation & erosion control or storm water management on single lots

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ZHB jurisdiction - variances

Section 910.2. Variances.

• Granted where it is alleged that the provisions of the ZONING

ORDINANCE

inflict unnecessary hardship on the property.

• Variances run with the property—not the applicant
• Dimensional
• Use
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ZHB jurisdiction - variances

Section 910.2. Variances.

All of the following must be true:

• 1. There are unique physical circumstances or conditions
• 2. There is no possibility that the property can be developed in strict

conformity with the provisions of the zoning ordinance & that the variance is necessary to enable the reasonable use of the property.

• 3. The unnecessary hardship has not been created by the appellant.
• 4. The variance will not alter the essential character of the neighborhood,

substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.

• 5. The variance will represent the minimum variance that will afford relief and

represent the least modification as possible.

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ZHB jurisdiction - variances

Section 910.2. Variances.

• Dimensional Variances

"the quantum of proof required to establish unnecessary hardship is indeed lesser when a dimensional variance, as

• pposed to a use variance, is sought."
• Hertzburg v. Zoning Board of Adjustment of the City of Pittsburgh, 721

A.2d 43, 46 (Pa. 1998)

"Hertzburg did not alter the principle that a substantial burden must attend all dimensionally compliant uses of the property, not just the particular use the owner chooses...".

• Great Valley School District v. Zoning Hearing Board of East Whiteland

Township, 863 A.2d 74 (Pa. CmwIth 2004).

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ZHB jurisdiction - variances

Section 910.2. Variances.

• Dimensional Variances (Continued)

"The applicant must establish all elements to be entitled to a variance."

• David Demko vs. City of Pittsburgh Zoning Board of Adjustment vs.

Nubum Development Authority of Pittsburgh No. 646 C.D. 2016. Argued Nov 15, 2016. Dated march 7, 2016.

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ZHB jurisdiction - special exceptions

Section 912.1. Special Exceptions

• Special exceptions are neither special nor exceptions
• Special exceptions are permitted uses, but...
• Must meet conditions of the zone and the additional criteria in
• rdinance for the particular special exception
• Subject to further review & approval by ZHB
• To be evaluated against specific standards & criteria in zoning
• rdinance
• Lot size, setbacks, buffering, landscaping, parking, etc.
• Subject to reasonable conditions & safeguards attached by ZHB
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Process

Pre-hearing

• Application filed
• By applicant or his representative
• Application checked for completeness
• Municipality's responsibility to see that it is complete
• Once accepted the clock starts running
• Fee paid
• Public notice
• Sections 107(a) and 908 (1) of the MPC, and the Sunshine law
• Applicant, municipality, other persons designated by the

municipality, and any person who made timely request

• Proper posting
• Section 908.1 of the MPC
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Process

Hearing

• Role of zoning hearing board
• Chairman
• Rules and decorum
• Role of applicant
• Role of zoning officer
• Role of governing body
• Party to the case
• Cannot over ride a ZHB decision
• Role of municipal solicitor
• Role of zoning hearing board solicitor
• Other parties
• Individuals affected but not parties
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Process

Hearing (continued)

• Presentation by applicant (municipality)
• Applicant or by his representative
• Municipality would present case first if the applicant is appealing

determination of zoning officer

• Witnesses
• Any party may present witnesses
• Evidence (exhibits)
• Continuances
• Deliberation
• ZHB treated differently from governmental agencies
• Decision
• Appeals to court by affected party
• Within 30 days of the decision
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ZHB procedures

Section 908. Hearings

• Governing body may set reasonable fees for hearings.
• The first hearing must begin within 60 days from the date of

receipt of the applicant's application. Each subsequent hearing must be held within 45 days of the prior hearing.

• Applicant can agree to a longer time period.
• The hearings shall be conducted by the full board or the board may

appoint any member or an independent attorney as a hearing

• fficer.
• Must follow the same procedures as full board.
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ZHB procedures

Section 908. Hearings (continued)

• The chair or hearing officer may subpoena witnesses or documents.
• Power there, but hard to force compliance.
• Parties (appellant, municipality or other parties) shall have the right

to be represented by counsel and be afforded the opportunity to present evidence and argument and cross-examine witnesses on all relevant issues.

• Those not wanting to be parties may still ask questions and present

testimony (comments).

• Formal rules of evidence shall not apply, but irrelevant, immaterial,
• r unduly repetitious evidence may be out of order and excluded.
• Stenographic record.
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ZHB procedures

Section 908. Hearings (continued)

• 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.

• The board or the hearing officer 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.

• Copy of the final decision should be delivered or mailed to the

applicant not later than the day following its date.

• Certain cases have stated that the following days delivery is not relevant

as long as the decision is delivered within 45 days of the last hearing.

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Tips for the ZHB

• Learn the language
• MPC
• Ordinance
• Watch the clock

O Deemed approvals

• Follow the rules

O Be consistent

• Don't "legislate from the bench"

O Governing body sets standards in ordinance

• Decision based on law
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• 1. Learn the language
• MPC definitions — Section 107(a) &

107(b)

• Neither Governing Body or ZHB can alter an

MPC definition

• Ordinance definitions
• Ordinance definitions must match the MPC
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Z Watch the clock

• Failure to follow prescribed timeframes

can lead to:

• Deemed approvals
• Successful appeals
• Overturned decisions
• See MPC Timing Provisions
• Section 908
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• 3. Follow the rules
• Be aware of:
• MPC provisions
• Case law
• Rely on your solicitor
• Ordinance provisions
• Follow your solicitor's advice
• There to advise, not to decide issue
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• 4. Don't "legislate from the

bench"

• Make decisions based solely on:
• MPC
• Case law
• Zoning ordinance
• Testimony & evidence at the hearing
• Decisions should not attempt to re-write

the zoning ordinance

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Governor's Center for Local Government Services

• Planning series of publications

PA Municipal Planning Code PS #6 The Zoning Hearing Board

• Land use law library
• Workshops

888-223-6837

C r

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HIThcal-c , ovei

www.landuselawinpa.com

030

Pennsylvania Association of Zoning Officials

• Pennsylvania's only statewide association of Zoning

Officers.

• Founded in 2009 in by local Pennsylvania Zoning

Officers in Bucks County.

• Offers the CZO "Certified Zoning Officer" voluntary

professional credential.

• Dedicated to professional zoning administration.
• On Jan 1st 2017, PAAZO became part of PSATS.
• Resources

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