There is hereby created and continued the East Earl Township Zoning Hearing Board. As used in the Zoning Ordinance, unless the text clearly indicates otherwise, the term "Board" shall refer to such Zoning Hearing Board.

Zoning Hearing Board membership. The membership of the Board shall, upon determination of the governing body, consist of either three or five residents of the Township appointed by resolution by the Board of Supervisors.

Terms of membership. The terms of office of a three-member board shall be three years and shall be so fixed that the term of office of one member shall expire each year. The terms of office of a five-member board shall be five years and shall be so fixed that the term of office of one member of a five-member board shall expire each year. If a three-member board is changed to a five-member board, the members of the existing three-member board shall continue in office until their term of office would expire under prior law. The Board of Supervisors shall appoint two additional members to the Board with terms scheduled to expire in accordance with the provisions of this section. The Board shall promptly notify the Board of Supervisors of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Board shall hold no other office in the Township.

Alternate membership. The Board of Supervisors may appoint by resolution at least one but no more than three residents of the Township to serve as alternate members of the Board. The term of office of an alternate member shall be three years. The powers and duties of alternate members shall be as provided for in Section 903 of the MPC.[1]

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.

Applications for variances from the terms of the Zoning Ordinance pursuant to § 450-191 of this Zoning Ordinance.

Applications for special exceptions under the Zoning Ordinance pursuant to § 450-191 of this Zoning Ordinance.

Appeals from the Zoning Officer's determination under § 450-195 of this Zoning Ordinance.

All other matters authorized by the MPC.[1] In addition to the powers set forth in this section, the Zoning Hearing Board shall have all powers and jurisdiction set forth in the MPC.

An application, including an appeal, to the Zoning Hearing Board shall be submitted to the Zoning Officer. All applications shall be made on the form supplied by the Township and shall contain all information requested on such form. All applications shall contain the following information:

Applications shall include the appropriate fee established by resolution or ordinance by the Board of Supervisors. Failure to pay the required filing fee shall render the application incomplete.

Neither the Zoning Officer nor any other Township employee may advise the applicant on completion of the application. The Zoning Officer shall review the application to determine if the pending request to the Board is clearly indicated and supportive information is complete to the extent that the application can be properly advertised. If within 10 days from the date of submission the Zoning Officer determines that the application is incomplete, the Zoning Officer may return the application to the applicant and inform the applicant that his application is incomplete. If the Zoning Officer fails to return an application to the applicant within the ten-day period, it shall not be deemed an acknowledgement by the Township that the application meets the requirements of this chapter, as such determination shall then be under the jurisdiction of the Zoning Hearing Board. Notwithstanding the foregoing, the Zoning Officer shall not be authorized to return appeals from a determination of the Zoning Officer.

After the Zoning Officer has reviewed the application for completeness, including any supplemental information submitted before the hearing has been advertised, the application shall be considered closed. The Zoning Hearing Board shall not reform any application and shall not be required to grant parts of an application. If an applicant desires to change an application after it has been submitted, the applicant may withdraw the application by filing a request to withdraw and shall submit another application in the form provided by the Township which will be considered filed on the date it is submitted to the Zoning Officer and a new application fee is paid. Pursuant to the foregoing, the Board, in its discretion, may allow permitted amendments at the time of the hearing in the interest of administrative economy which are not prejudicial to other parties or may continue the hearing subject to the applicant paying any fee established by the Township for continuances.

Appeals to the Zoning Hearing Board may be taken by any person or Township official aggrieved or affected by any provision of the Zoning Ordinance or by any decision, including any order to stop, cease and desist issued by the Zoning Officer. The hearing for such appeal shall be taken within 60 days from the date of the applicant's request and as provided by the rules of the Board by filing with the Zoning Officer and with the Board a notice of appeal specifying the grounds thereof, unless the applicant has agreed in writing to an extension of time. Upon payment of any fees established by resolution of the Board of Supervisors, the Zoning Officer shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

The Board shall conduct hearings and make decisions in accordance with the following requirements:

The Board of Supervisors 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. 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 the 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 hearings 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 Township, may prior to the decision of the hearing, waive decision or findings by the Board and accept the decision or findings of the hearing officer as final.

The parties to the hearing shall be the Township, 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 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 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 Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings.

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, 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.

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 hearing officer. Each decision shall be accompanied by findings of fact and conclusions based on any provisions of this chapter or of any act, rules, or regulation and 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 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 Board prior to final decisions or entry of findings, and the Board's decision shall be entered no later than 30 days after the decision 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 hereinabove provided, the 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 § 450-182A of this Zoning Ordinance. 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.

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 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 at which the full decision or findings may be examined.

Parties to proceedings authorized by this article may utilize mediation as an aid in completing such proceedings. In exercising such an option, the Township, the Board, and the mediating parties shall meet the stipulations and follow the procedures set forth in § 450-197 of this Zoning Ordinance and Section 908.1 of the MPC.[1]

Variances. The Board shall hear requests for variances where it is alleged that the provisions of the Zoning Ordinance 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. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this Zoning Ordinance. The Board may grant a variance, provided that all of the following findings are made where relevant in a given case:

Special exceptions. Where the Board of Supervisors, in the Zoning Ordinance, has stated special exceptions to be granted or denied by the Board pursuant to express standards and criteria, the Board shall hear and decide requests for such special exceptions in accordance with such standards and criteria as provided in Article XXII of this Zoning Ordinance. In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in the Zoning Ordinance, as it may deem necessary to implement the purposes of this Zoning Ordinance.

Planning Commission review of a special exception. On the Township's receipt of any application to the Zoning Hearing Board or any conditional use filing to the Board of Supervisors, the Township shall forward a copy of such filing to the Township Planning Commission.

Expiration of approval. Unless otherwise specified by the Board or by law, a variance or special exception shall expire if the applicant fails to obtain a zoning permit within one year of the date of authorization thereof by the Board or by the court if such special exception or variance has been granted after an appeal. A variance or special exception shall also expire if the applicant fails to complete any erection, construction, reconstruction, alteration or change in use authorized by the special exception or variance approval within two years from the date of authorization thereof by the Board or by the court if such variance or special exception has been subject to an appeal. The Board for reasonable cause shown may extend the approval for an additional period for one year, provided that said request is submitted in writing no later than 30 days prior to the expiration of said approval.

No person shall be allowed to file any proceeding with the Board later than 30 days after an application for development, preliminary or final, has been approved by an appropriate municipal officer, agency, or body if such proceeding is designed to secure reversal or to limit the approval in any manner unless such person alleges and proves that he had no notice, knowledge, or reason to believe that such approval, had been given. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan pursuant to Section 709 of the MPC[1] or from an adverse decision by the Zoning Officer on a challenge to the validity of an ordinance or map pursuant to § 450-194 of this Zoning Ordinance shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.

All appeals from determinations adverse to the landowners shall be filed by the landowner within 30 days after notice of determination is issued.

Upon filing of any proceeding referred to in § 450-188, and during its pendency before the Board, all land development pursuant to any challenged ordinance, order, or approval of the Zoning Officer, or of any agency or body, and all official action thereunder, shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies to the Board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order, which may be granted by the Board or by the court having jurisdiction of zoning appeals on petition after notice to the Zoning Officer or other appropriate agency or body. When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board.

After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous and is for the purpose of delay. At the hearing, evidence may be presented on the merits of the case. After consideration of all evidence presented, if the court determines that the appeal is frivolous and is for the purpose of delay, it shall grant the petition for a bond. The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him if an appeal is taken from a final decision of the court.

The question whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court. An order denying a petition for bond shall be interlocutory. An order directing the responding party to post a bond shall be interlocutory.

If an appeal is taken by a respondent to the petition for a bond from an order of the court dismissing a zoning appeal for refusal to post a bond and the appellate court sustains the order of the court below to post a bond, the respondent to the petition for a bond, upon motion of the petitioner and after hearing in the court having jurisdiction of zoning appeals, shall be liable for all reasonable costs, expenses, and attorney fees incurred by the petitioner.

A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge either:

Persons aggrieved by a use or development permitted on the land of another by an ordinance or map, or any provision thereof, who desires to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a decision thereon under § 450-194 of this Zoning Ordinance.

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 in a newspaper of general circulation in the Township. 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 and the time therein specified for commencing a proceeding with the Board shall run from the time when the second notice thereof has been published.

Parties to proceedings authorized in this Zoning Ordinance may utilize mediation as an aid in completing such proceedings. In proceedings before the Zoning Hearing Board, in no case shall the Zoning Hearing Board initiate mediation or participate as a mediating party. Mediation shall supplement, not replace, those procedures in this Zoning Ordinance once they have been formally initiated. Nothing in this section shall be interpreted as expanding or limiting municipal police powers or as modifying any principles of substantive law.

Participation in mediation shall be wholly voluntary. The appropriateness of mediation shall be determined by the particulars of each case and the willingness of the parties to negotiate. The Township shall assure that, in each case, the mediating parties, assisted by the mediator as appropriate, develop terms and conditions for:

No offers or statements made in the mediation sessions, excluding the final written mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceedings.