Memorandum from Community Planning and Zoning Upper Dublin Township Zoning Hearing Board members and Joseph M. Bagley, Esq. To: 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 • 1 Zoning in Pennsylvania • Municipalities Planning Code (MPC) o Establishes basic rules to enact, administer and enforce zoning o 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 • •2 1
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 o No legislative power (cannot make/modify zoning ordinance) o Helps ensure due process • •3 Zoning Hearing Board Members • Membership • Compensation 0 May be compensated and/or O 3 or 5 members • 1-3 alternates reimbursed for expenses o Staggered 3 or 5-year terms • Decision of Governing Body o Board elects officers for 1-year terms • Not to exceed amount paid to Governing Body • Qualifications • Removal O CANNOT hold any other elected 0 May be removed for just or appointed office or be an employee of the municipality cause o Must be resident of municipality • Malfeasance-illegal act • Misfeasance-improper • Nonfeasance-failure to preform duties • •4 2
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 o Minutes & records are part of municipality's record retention • must be open to public • 5 Ethical considerations • Subject to PA State Ethics Act o Must file Statement of Financial Interest form • Every year • One year after leaving office • Conflicts of interest o Vested financial interest o Close personal or business relationship o Accepting or receiving personal financial benefit • Perceived conflicts of interest o The appearance of a conflict can be just as harmful an actual conflict • •6 3
Ethical considerations • Do you think you have a conflict? o 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... o Abstain from all discussions & voting • •7 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. • •8 4
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 o use by right, specifically allowed in a particular district or zone • Use not provided for o Something the governing body never thought of • Parties to the hearing o The applicant, governing body, other affected persons • Entry of appearance o Statement by affected persons indicating you want to be a party • Findings of fact o Factual information pertaining to the case • Conclusions of law o Actual references to court cases and their decisions • •10 5
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 or engineer regarding flood plains • 11 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 • 12 • 6
ZHB jurisdiction - variances Section 910.2. Variances. • Granted where it is alleged that the provisions of the ZONING inflict unnecessary hardship on the property. ORDINANCE o Variances run with the property—not the applicant • Dimensional • Use • 13 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. • • 14 7
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 opposed to a use variance, is sought." o 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...". o Great Valley School District v. Zoning Hearing Board of East Whiteland Township, 863 A.2d 74 (Pa. CmwIth 2004). • • 15 ZHB jurisdiction - variances Section 910.2. Variances. • Dimensional Variances (Continued) "The applicant must establish all elements to be entitled to a variance." o 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. • •16 8
ZHB jurisdiction - special exceptions Section 912.1. Special Exceptions • Special exceptions are neither special nor exceptions • Special exceptions are permitted uses, but... o Must meet conditions of the zone and the additional criteria in ordinance for the particular special exception o Subject to further review & approval by ZHB o To be evaluated against specific standards & criteria in zoning ordinance • Lot size, setbacks, buffering, landscaping, parking, etc. o Subject to reasonable conditions & safeguards attached by ZHB • 17 Process Pre-hearing • Application filed o By applicant or his representative • Application checked for completeness o Municipality's responsibility to see that it is complete o Once accepted the clock starts running • Fee paid • Public notice o Sections 107(a) and 908 (1) of the MPC, and the Sunshine law o Applicant, municipality, other persons designated by the municipality, and any person who made timely request • Proper posting o Section 908.1 of the MPC • •18 9
Process Hearing • Role of zoning hearing board o Chairman o Rules and decorum • Role of applicant • Role of zoning officer • Role of governing body o Party to the case o Cannot over ride a ZHB decision • Role of municipal solicitor • Role of zoning hearing board solicitor • Other parties • Individuals affected but not parties • •19 Process Hearing (continued) • Presentation by applicant (municipality) o Applicant or by his representative o Municipality would present case first if the applicant is appealing determination of zoning officer • Witnesses o Any party may present witnesses • Evidence (exhibits) • Continuances • Deliberation o ZHB treated differently from governmental agencies • Decision • Appeals to court by affected party o Within 30 days of the decision • 020 10
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