The purpose of this article is to establish regulations to govern the establishment, functions and procedures of the Zoning Hearing Board, hereinafter called "Board" in this article, in accordance with Article IX of the Municipalities Planning Code.

The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters based on Act 247, the Pennsylvania Municipalities Planning Code (MPC), as amended.[1]

There shall be a Zoning Hearing Board consisting of three residents of the Borough, appointed by the resolution of Borough Council in accordance with Article IX of the Municipalities Planning Code.

Terms of office shall be three years and shall be so fixed that the term of office of one member shall expire each year.

The Board shall promptly notify the Borough Council of any vacancy which occurs. Appointments to fill vacancies shall be only for the unexpired portion of the term.

Members of the Board shall hold no other elected or appointed office in the Borough nor shall any member be an employee of the Borough.

Any member of the Board may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Borough Council taken after the member has received 15 days' advance notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member shall request it in writing.

The Borough Council may appoint by resolution at least one, but no more than three, residents of the Borough to serve as alternate members of the Board. The term of office of the alternate member shall be three years, and the alternate member shall hold no other office in the Borough. When seated pursuant to the provisions of § 290-1603C, an alternate shall be entitled to participate in all proceedings and discussions of the Board to the same and full extent as provided by law for Board members, including specifically the right to cast a vote as a voting member during the proceedings, and shall have all the powers and duties set forth in this chapter and as otherwise provided by law. Alternates shall hold no other elected or appointed office in the Borough or be an employee of the Borough. Any alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote as a member of said Board nor be compensated pursuant to § 290-1604C, unless designated as a voting alternate member pursuant to § 290-1603C.

The Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves.

For the conduct of any hearing and the taking of any action, a quorum shall not be less than a majority of all the members of the Board, but the Board may appoint a hearing officer from its own membership to conduct any hearing on its behalf, and the parties may waive further action by the Board, as provided in § 290-1606.

If by reason of absence or disqualification of a member a quorum is not reached, the Chairman of the Board shall designate alternate members to sit on the Board as may be needed to reach a quorum. Any alternate member shall continue to serve on the Board in all proceedings involving the matter or case for which the alternate was initially appointed, until the Board has made a final determination of the matter or case. Designation of an alternate pursuant to this article shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.

The Board may make, alter and rescind rules and forms for its procedure in accordance with the provisions of this chapter as to the manner of filing appeals, applications for special exceptions or variances, and to conduct the business of the Board. In all cases the rules of procedure shall be consistent with Article IX of the Municipalities Planning Code.

Within the limits of funds appropriated by the Borough Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services.

Members of the Board, including the alternate member when designated in accordance with § 290-1603C of this article, may receive compensation for the performance of their duties, as may be fixed by the Borough Council. In no case, however, shall the amount of compensation exceed the rate authorized to be paid to the members of the Borough Council.

Any applicant before the Board shall deposit with the Borough the appropriate filing fee, as established by resolution of the Borough Council.

The 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.

The Board shall keep full public records of its business and shall submit a report of its activities to the Borough Council once a year.

Requests for a variance or special exception may be filed by any landowner or any tenant with permission of the landowner. The appropriate fee, established by the Borough, shall be paid in advance for each appeal or application for a special exception or variance.

The first hearing before the Board or hearing officer shall be held within 60 days from the date of receipt of the applicant's application, unless the applicant has agreed in writing to an extension of time. Each subsequent hearing before the Board or hearing officer shall be held within 45 days of the prior hearing, unless otherwise agreed to by the applicant in writing or on the record. An applicant shall complete the presentation of their case-in-chief within 100 days of the first hearing. Upon the request of the applicant, the Board or hearing officer shall assure that the applicant receives at least seven hours of hearings within the 100 days, including the first hearing. Persons opposed to the application shall complete the presentation of their opposition to the application within 100 days of the first hearing held after the completion of the applicant's case-in-chief. An applicant may, upon request, be granted additional hearings to complete their case-in-chief, provided the persons opposed to the application are granted an equal number of additional hearings. Persons opposed to the application may, upon the written consent or consent on the record by the applicant and municipality, be granted additional hearings to complete their opposition to the application, provided the applicant is granted an equal number of additional hearings for rebuttal.

The hearings shall be conducted by the Board or the Board may appoint any member or an independent attorney 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 Borough, 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 Borough, 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 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 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 copies or copies. In other cases, the party requesting the original transcript shall bear the cost thereof.

The Board or the hearing officer shall not communicate, directly or indirectly, with any party or their 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 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. Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Conclusions based on any provisions of the Municipalities Planning Code 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. 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 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. Except for challenges filed under this chapter or otherwise, where the Board has power to render a decision and the Board or the hearing officer, as the case may be, fails to render the same, or fails to commence, conduct or complete the required hearing as herein provided, the decision shall be deemed to have been rendered in favor of the applicant, unless the applicant has agreed in writing 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 herein above provided, the Board shall give public notice of said decision within 10 days from the last day the Board could have met to render a decision, as provided by this article. 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 them 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.

By publishing a notice thereof consistent with the public notice requirements of the Municipalities Planning Code.

By mailing a notice thereof to the applicant, the Zoning Officer, Borough Secretary and any person who has made timely request for same or who shall have registered their names and addresses for this purpose with the Board.

By mailing notice thereof to the owner, if their address is known, or to the occupant of every lot on the same street within 500 feet of the lot in question and of every lot not on the same street within 150 feet of said lot, provided that failure to mail the notice required by this section shall not invalidate any action taken by the Board.

By posting notice thereof conspicuously on the affected tract of land at least one week prior to the hearing.

The notice herein required shall state the location of the lot or building, the general nature of the question involved, the name of the applicant, tax parcel number, and the date, time and location of the hearing. In addition thereto, the notice may note that a copy of the application, including plans and proposed amendments may be examined by the public at the Borough Hall during regular business hours.

The Board may grant a variance, provided that the specifically enumerated criteria set forth in Section 910.2 of the Municipalities Planning Code are met. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.

Notwithstanding the variance requirements in § 290-1610A above, the Board will grant reasonable accommodations and permit reasonable modifications where requested by or on behalf of disabled persons. A "reasonable accommodation" is a change in rules, policies, practices or services to enable a person with a disability to use and enjoy a dwelling unit or common space. A "reasonable modification" is a structural modification that is made to allow persons with disabilities the full enjoyment of housing and related facilities. Accommodations or modifications need not be made where to do so would fundamentally alter the programs or create an undue financial and administrative burden.

The size, scope, extent and character of the special exception request is consistent with the Comprehensive Plan of the Borough and promotes the harmonious and orderly development of the zoning district involved.

The proposed special exception is an appropriate use consistent with the character and type of development in the area surrounding the location for which the request is made and will not substantially impair, alter or detract from the use of surrounding property or of the character of the neighborhood in light of the zoning classification of the area affected; the effect on other properties in the area; the number, extent and scope of nonconforming uses in the area; and the presence or the absence in the neighborhood of conditions or uses which are the same or similar in character to the condition or use for which the applicant seeks approval.

The proposed special exception is suitable with respect to traffic and highways in the area and provides for adequate access and off-street parking arrangements in order to protect major streets and highways from undue congestion and hazard.

Major street and highway frontage will be developed so as to limit the total number of access points and encourage the frontage of building on parallel marginal roads or on roads perpendicular to the major street or highway.

The proposed special exception is reasonable in terms of the logical, efficient and economical extension of public services and facilities, such as public water, sewers, police, fire protection, and public schools, and ensures adequate arrangements for the extension of such services and facilities in specific instances.

All commercial or industrial parking, loading, access or service areas will be adequately illuminated at night while in use and arranged so as to comply with the requirements of Article XIV and §§ 290-1104 and 290-1107 herein, and Article VI, Design Standards, of Chapter 240, Subdivision and Land Development, relating to access and highway frontage.

Conditions are being imposed on the grant of the request necessary to ensure that the general purpose and intent of the property adjacent to the area included in the proposed special exception is adequately safeguarded with respect to harmonious design of buildings, aesthetics, planting and its maintenance as a sight or sound screen, landscaping, hours of operation, lighting, numbers of persons involved, allied activities, ventilation, noise, sanitation, safety, smoke and fume control and the minimizing of noxious, offensive or hazardous elements.

The proposed special exception protects and promotes the safety, health and general welfare of the Borough.

The proposed special exception shall comply with Chapter 240, Subdivision and Land Development, and all other applicable governmental regulations.

The proposed special exception shall comply with any additional criteria of § 290-1701F herein to the extent deemed applicable by the Zoning Hearing Board.

Notwithstanding the special exception requirements in § 290-1611A through J above, the Board will grant reasonable accommodations and permit reasonable modifications where requested by or on behalf of disabled persons. A "reasonable accommodation" is a change in rules, policies, practices or services to enable a person with a disability to use and enjoy a dwelling unit or common space. A "reasonable modification" is a structural modification that is made to allow persons with disabilities the full enjoyment of housing and related facilities. Accommodations or modifications need not be made where to do so would fundamentally alter the programs or create an undue financial and administrative burden.