MapLink™ | Procedures | Conditional Use

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Conditional Use
Filing of conditional use.
For any use permitted by conditional use, a conditional use must be obtained from the Borough Council. In addition to the information required on the zoning permit application, the conditional use application must show:
(1) Ground floor plans and elevations of proposed structures;
(2) Names and addresses of adjoining property owners, including properties directly across a public right-of-way;
(3) A scaled drawing (site plan) of the site with sufficient detail and accuracy to demonstrate compliance with all applicable provisions of this chapter.
General criteria.
Each applicant must demonstrate compliance with the following:
(1) The proposed use shall be consistent with the purpose and intent of this chapter;
(2) The proposed use shall not detract from the use and enjoyment of adjoining or nearby properties;
(3) The proposed use will not effect a change in the character of the subject property's neighborhood;
(4)    Adequate public facilities are available to serve the proposed use (e.g., schools, fire, police and ambulance protection, sewer, water, and other utilities, vehicular access, etc.);
(5)    The proposed use complies with the Borough Floodplain Ordinance;
(6)    The proposed use shall comply with those criteria specifically listed in Article XVIII of the Borough's Code. In addition, the proposed use must comply with all other applicable regulations of this chapter; and
(7)    The proposed use will not substantially impair the integrity of the Borough of Middletown's Comprehensive Plan;
The Borough Council, in approving conditional use applications, may attach conditions considered necessary to protect the public welfare and the purposes listed above, including conditions which are more restrictive than those established for other uses in the same zone. These conditions shall be enforceable by the Zoning Officer and failure to comply with such conditions shall constitute a violation of this chapter.

Site plan approval.
Any site plan presented in support of the conditional use shall become an official part of the record for said conditional use. Approval of any conditional use will also bind the use in accordance with the submitted site plan; therefore, should a change in the site plan be required as part of the approval of the use, the applicant shall revise the site plan prior to the issuance of a zoning permit. Any subsequent change to the use on the subject property not reflected on the originally approved site plan shall require the obtainment of another conditional use approval.

Hearing procedures.
(1) Before voting on the approval of a conditional use, the Borough Council shall hold a public hearing thereon, pursuant to public notice. The Borough Council shall submit each such application to the Borough Planning Committee at least 30 days prior to the hearing held upon an application to provide the Borough Planning Committee an opportunity to submit recommendations. If, after any public hearing held upon an application, the proposed application is revised, the Board of Supervisors shall hold another public hearing, pursuant to public notice, before proceeding to vote on the application.

(2) Public notice, as defined herein, and written notice shall be given to the applicant, the Zoning Officer, such other persons as the Borough Council shall designate by ordinance, 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 or, in the absence of ordinance provisions, by rules of the Borough Council. 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.

(3) The Borough Council may prescribe reasonable fees with respect to hearings. Fees for said hearings may include compensation for the secretary, notice and advertising costs, and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses, expenses for engineering, architectural, or other technical consultants, or expert witness costs.

(4) The parties to the hearing shall be the Borough, any person affected by the application who has made timely appearance of record before the Borough Council, and any other person, including civic or community organizations permitted to appear by the Borough Council. The Borough Council shall have power to require that all persons who wish to be considered parties enter appearance, in writing, on forms provided by the Borough Council for that purpose.

(5) The Council President or Acting Council President of the Borough Council shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and paper, including witnesses and documents requested by the parties.

(6) 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.

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

(8) The Borough Council may keep a stenographic record of the proceedings. The appearance fee for a stenographer shall be shared equally by the applicant and the Borough Council. The cost of the original transcript shall be paid by the Borough Council if the transcript is ordered by the Borough Council, or shall be paid by the person appealing the decision of the Borough Council 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.

(9) The Borough Council 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, except advice from their solicitor, unless 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.

(10) The hearing shall be conducted by the Borough Council or the Borough Council may appoint any member or an independent attorney as a hearing officer. The decision, or where there is no decision, the findings shall be made by the Borough Council. However, the appellant or the applicant, as the case may be, in addition to the Borough may, prior to the decision of the hearing, waive decision or findings by the Borough Council and accept the decision or findings of the hearing officer as final.

(11) The Borough Council shall render a written decision or, when no decision is called for, make written finds on the conditional use application within 45 days after the last hearing before the Borough Council. Where the application is contested or denied, each decision shall be accompanied by findings of fact or conclusions based thereon, together with any reasons therefor. Conclusions based on any provisions of this chapter or 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.

(12) Where the Borough Council fails to render the decision within the period required by this article or fails to commence, conduct or complete the required hearing as provided in this chapter, 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 Borough Council to meet or render a decision as hereinabove provided, the Borough Council shall give public notice of the decision within 10 days from the last day it could have met to render a decision in the same manner as required by the public notice requirements of this article. If the Borough Council shall fail to provide such notice, the applicant may do so.
Time limitation.
(1) If a conditional use is granted, the necessary permit shall be secured and the authorized action begun within two years after the date when the conditional use is finally granted, and the building or alteration, as the case may be, shall be completed within three years of said date. For good cause, the Borough Council may at any time, upon application in writing, extend either of these deadlines;

(2) Should the appellant or 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 application, and all approvals and permits granted to him shall be deemed automatically rescinded by the Borough Council;

(3) Should the appellant commence construction or alteration within said two-year period, but should he fail to complete such construction or alteration within said three-year period, the Borough Council may, upon 10 days' notice, in writing, rescind or revoke the granted conditional use, if the Borough Council finds that no good cause appears for the failure to complete within such three-year period, and if the Borough Council further finds that conditions have altered or changed in the interval since the granting of the conditional use that revocation or rescission of the action is justified; and

(4) As an alternative to the preceding, an applicant can request, as part of the original application before the Borough Council the granting of a timetable associated with the request which would supersede the deadlines imposed in this article. In so doing, the applicant must demonstrate that the times requested are logically related to normal and expected progress of the project. In approving a timetable under this section, the Borough Council must establish and bind a definite time frame for issuance of a zoning permit, and completion of construction of the project.