Public Notice. Notice shall be given and written notice shall be given to (1) the applicant, (2) the Borough Zoning Officer, (3) the abutting property owners and (4) to any person who has made timely request for same. Written notices shall be given at such time and in such manner as shall be prescribed by rules of the Zoning Hearing Board and by the provisions of this Chapter. 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.

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

Conduct of 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. The hearings shall be conducted by the Zoning Hearing Board or the Zoning Hearing 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 Zoning Hearing Board; 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 Zoning Hearing Board and accept the decision or findings of the hearing officer as final.

The parties to the hearing shall be the Borough of Cornwall, any person affected by the application who has made timely appearance of record before the Zoning Hearing Board, and any other person including civic or community organizations permitted to appear before the Board. The Zoning Hearing 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.

The chairman or acting chairman of the Zoning Hearing 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.

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.

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

The Zoning Hearing 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.

The Zoning Hearing Board or 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, 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 representative unless all parties are given an opportunity to be present.

Decisions. The Zoning Hearing 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 Zoning Hearing Board or hearing officer. Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with reasons therefor. Conclusions based on any provisions of this Chapter or any Borough ordinance, rule, or regulation, or the Pennsylvania Municipalities Planning Code, Act 247, 53 P.S. §10101 et seq., as amended, 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 stipulation that his decision or findings are final, the Zoning Hearing Board shall make his report and recommendations available to the parties within 45 days and the parties shall be entitled to make written representations thereon to the Zoning Hearing 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 Zoning Hearing 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 failure of the Zoning Hearing Board to meet or render a decision as herein above provided, the Zoning Hearing Board shall give public notice of said decision within 10 days from the last day it could have met to render a decision in the same manner as provided in subsection .A of this Section. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this Section shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.

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 Zoning Hearing Board no 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.

Substantive challenges to the validity of any land use ordinance, except those brought before Borough Council pursuant to §§14-3203.1 (Procedure for Landowner Curative Amendments) and 14-3014 (Validity of Ordinance: Substantive Questions).

Challenges to the validity of any 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.

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.

Appeals from the determination of the Zoning Officer or Borough Engineer with reference to the administration of any floodplain or flood hazard ordinance or such provisions within a land use ordinance.

Applications for variances from the terms of this Chapter or any floodplain or flood hazard ordinance, or such provisions within a land use ordinance, pursuant to §14-3007.

Applications for special exceptions under this Chapter or any floodplain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to §14-3008.

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.

Appeals from the Zoning Officer’s determination of preliminary opinion pursuant to the requirements of §14-3015.

Appeals from the determination of the Zoning Officer or Borough Engineer in the administration of any land use ordinance or provision thereof with reference to sedimentation and erosion control and storm water management insofar as the same relate to development not involving subdivision/land development ordinance or planned residential development applications.

All applications for approvals of planned residential and planned business developments under Article 17.

All applications for approval of subdivisions or land developments in accordance with the requirements of the Cornwall Borough Subdivision and Land Development Ordinance [Chapter 13].

Applications for conditional use under the express provisions of this Chapter.

Applications for curative amendment to this Chapter pursuant to §§14-3014 and 14-3203.1.

All petitions for amendments to land use ordinances, pursuant to the procedures set forth in §14-3203. Any action on such petitions shall be deemed to be legislative acts, provided that nothing contained in this paragraph shall be deemed to enlarge or diminish existing law with reference to appeals to court.

Appeals from the determination of the Zoning Officer or Borough Engineer in the administration of any provision 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 development involving subdivision/land development ordinance or planned residential development applications. Where such determination relates only to development not involving an application for subdivision/land development or planned residential development, the appeal from such determination of the Zoning Officer or Borough Engineer shall be to the Zoning Hearing Board pursuant to §14-3006.1.E.

Applications for a special encroachment permit and applications for a permit when an official map has been adopted in accordance with Article IV of the MPC, 53 P.S. §10401 et seq.

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.

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;

That such unnecessary hardship has not been created by the appellant.

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.

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.

General Criteria.

Conditional Use Application. A conditional use application must include all the plan requirements listed in §14-2603 of this Chapter.

Conditions. The Borough Council in approving conditional use applications, may attach reasonable 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 and be subject to the penalties described in this Chapter.

Hearing Procedures. 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 Planning Commission at least 30 days prior to the hearing on such application to provide the Planning Commission an opportunity to submit recommendations. If, after any public hearing held upon an application, the proposed application is substantially revised, the Borough Council shall hold another public hearing, pursuant to public notice, before proceeding to vote on the application.

The petitioner repeatedly violates conditions or safeguards specified in the Zoning Hearing Board’s (Borough Council’s) decision.

The petitioner initiates use or construction contrary to the Zoning Hearing Board’s (Borough Council’s) decision.

The petitioner is found to have misrepresented or falsified information pertinent to the Zoning Hearing Board’s (Borough Council’s) decision.

The Zoning Hearing Board’s (Borough Council’s) decision was in error and the revocation is instituted within 30 days of the original decision or prior to substantial reliance thereon by the petitioner.

To the Zoning Hearing Board under §§14-3006.1.A and .1.B.

To Borough Council under §14-3006.2.B, together with a request for a curative amendment under §14-3203.

In challenges before the Zoning Hearing Board, the challenging party shall make a written request to the Board that it hold a hearing on its challenge. The request shall contain the reasons for the challenge. Where the landowner desires to challenge the validity of such ordinance and elects to proceed by curative amendment, under §14-3203, his application to Borough Council shall contain, in addition to the requirements of the written request hereof, the plans and explanatory materials describing the use or development proposed by the landowner in lieu of the use or development permitted by the challenged ordinance or map. Such plans or other materials shall not be required to meet the standards prescribed for preliminary, tentative, or final approval or for the issuance of a permit, so long as they provide reasonable notice of the proposed use or development and a sufficient basis for evaluating the challenged ordinance or map in light thereof. Nothing herein contained shall preclude the landowner from first seeking a final approval before submitting his challenge.

If the submission is made by the landowner to Borough Council under subsection .1.B, the request also shall be accompanied by an amendment or amendments to the ordinance proposed by the landowner to cure the alleged defects therein.

If the submission is made to Borough Council, the Borough Solicitor shall represent and advise it at the hearing or hearings referred to in §14-3006.2.B.

Borough Council may retain an independent attorney to present the defense of the challenged ordinance or map on its behalf and to present their witnesses on its behalf.

Based on the testimony presented at the hearing or hearings, Borough Council or the Zoning Hearing Board, as the case may be, shall determine whether the challenged ordinance or map is defective, as alleged by the landowner. If a challenge heard by Borough Council is found to have merit, Borough Council shall proceed as provided in §14-3203. If a challenge heard by the Zoning Hearing Board is found to have merit, the decision of the Zoning Hearing Board shall include recommended amendments to the challenged ordinance which will cure the defects found. In reaching its decision, the Zoning Hearing Board shall consider the amendments, plans and explanatory material submitted by the landowner and shall also consider:

Borough Council or the Zoning Hearing Board, as the case may be, shall render its decision within 45 days after the conclusion of the last hearing.

If Borough Council or the Zoning Hearing Board, as the case may be, fails to act on the landowner’s request within the time limits referred to in subsection .3.F, a denial of the request is deemed to have occurred on the 46th day after the close of the last hearing.

The Zoning Hearing Board or Borough Council, as the case may be, fails to commence the hearing within the time limits set forth in subsection .4.

Borough Council notifies the landowner that it will not adopt the curative amendment.

Borough Council adopts another curative amendment which is unacceptable to the landowner.

The Zoning Hearing Board or Borough Council, as the case may be, fails to act on the request 45 days after the close of the last hearing on the request, unless the time is extended by mutual consent by the landowner and the Borough.

The landowner may submit plans and other materials describing his proposed use or development to the Zoning Officer for a preliminary opinion as to their compliance with the applicable ordinances and maps. Such plans and other materials shall not be required to meet the standards prescribed for preliminary, tentative, or final approval or for the issuance of a building permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis for a preliminary opinion as to its compliance.

If the Zoning Officer’s preliminary opinion is that the use or development complies with the ordinance or map, notice thereof shall be published once each week for two successive weeks in a newspaper of general circulation in the Borough. Such notice shall include a general description of the proposed use or development and its location, by some readily identifiable directive, and the place and times where the plans and other materials may be examined by the public. The favorable preliminary approval under §14-3012 and the time therein specified for commencing a proceeding with the Zoning Hearing Board shall run from the time when the second notice thereof has been published.