Appointment of alternative members. 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 Zoning Hearing Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of § 212-2702B, an alternate shall be entitled to participate in all proceedings and discussions of the Zoning Hearing 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 power and duties set forth in this chapter and as otherwise provided by law. Alternates shall hold no other office in the Borough, including membership on the Planning Commission and Zoning Officer. Any alternate may participate in any proceeding or discussion of the Zoning Hearing Board but shall not be entitled to vote as a member of the Zoning Hearing Board nor be compensated pursuant to § 212-2715C unless designated as a voting alternate member pursuant to § 212-2702B.

Participation by alternate members. If by reason of absence or disqualification of a member a quorum is not reached, the Chairman of the Zoning Hearing Board shall designate as many alternate members to sit on the Board as may be needed to provide a quorum. Any alternate member of the Zoning Hearing Board 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 subsection shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.

Substantive challenges to the validity of any land use ordinance, except landowner curative amendments brought before Borough Council, brought in accordance with the procedures specified in Section 916.1 of the Pennsylvania Municipalities Planning Code.[1]

(Reserved)

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 a determination by the Borough Engineer or the Zoning Officer 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 and flood hazard ordinance or such provisions within a land use ordinance pursuant to § 212-2710.

Appeals from the Zoning Officer's determination under Section 916.2 of the Pennsylvania Municipalities Planning Code (Act 247, as amended).[2]

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 stormwater management insofar as the same relate to development not involving subdivision and land development or planned residential development applications.

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.

The Zoning Hearing Board, upon appeal, shall have the power to authorize variances from the requirements of this chapter where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the appellant. A variance may be granted if all of the following findings are made where relevant in a given case:

In granting any variance, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter and protect the public health, safety and welfare.

A public hearing shall be held on any appeal filed under § 212-2709 of this chapter within 60 days of filing a complete 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 his 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 his case in chief, provided that 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 the Borough, be granted additional hearings to complete their opposition to the application, provided that the applicant is granted an equal number of additional hearings for rebuttal.

The public hearing shall be held pursuant to public notice, as defined by this chapter. In addition to the public notice, the Zoning Hearing Board shall give written notice to the applicant, the Zoning Officer, the Borough Manager, the Secretary of the Borough Planning Commission, the President of Borough Council and to any person who has made timely request for the same. Written notice of said public hearing shall also be conspicuously posted on the affected tract of land at least one week prior to the hearing.

The hearings shall be conducted by the Zoning Hearing 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 Zoning Hearing Board, and any other person, including civic or community organizations, permitted to appear by 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 Board or the hearing officer presiding shall have the 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 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 its 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 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 of 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 provision of the Pennsylvania Municipalities Planning Code or any Borough ordinance shall contain a reference to the provision relied on and the reasons why the conclusions are deemed appropriate in 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 its 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 the 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.

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 the date of the decision. 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 Article IX and Article X-A of the Municipalities Planning Code 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 Article IX and Article X-A of the Municipalities Planning Code as enacted by the Borough once they have been formally initiated. Nothing in this subsection 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 Borough 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.

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.

Stenographer's appearance fee and transcripts. 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.

Expenditures. Members of the Board may receive compensation for the performance of their duties as may be fixed by Borough Council, but in no case shall it exceed the rate of compensation authorized to be paid to the members of Borough Council. Within the limits of funds appropriated by Borough Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. Alternate members of the Board may receive compensation, as may be fixed by Borough Council, for the performance of their duties when designated as alternate members pursuant to § 212-2702, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of Borough Council.

No person shall file any proceeding before the Zoning Hearing Board later than 30 days after a preliminary or final application for development has been approved by an appropriate Borough 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 by a Zoning Officer on a challenge to the validity of an ordinance or map filed pursuant to Section 916.2 of the Municipalities Planning Code[1] shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the plans and other materials submitted to the Zoning Officer for a preliminary opinion.

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

Upon filing of any proceeding 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 the zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board. 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.

All appeals from decisions rendered by the Zoning Hearing Board shall be taken to the Allegheny County Court of Common Pleas and shall be filed within 30 days after the entry of the decision or, in the case of a deemed decision, within 30 days after the date upon which notice of said deemed decision is given as required by Section 908(9) of the Pennsylvania Municipalities Planning Code (Act 247, as amended).[1]

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 desire to challenge its validity on substantive grounds, shall first submit their challenge to the Zoning Hearing Board for a decision thereon under § 212-2709A.

The submissions to the Zoning Hearing Board shall be governed by the following:

The Board shall commence its hearings within 60 days after the request is filed unless the landowner requests or consents to an extension of time.

Public notice of the hearing shall include notice that the validity of the ordinance or map is in question and shall give the place where and the times when a copy of the request, including any plans, explanatory material or proposed amendments may be examined by the public.

The challenge shall be deemed denied when:

Where a validity challenge is sustained by the Board or the court acts finally on appeal from denial of a validity challenge, and the proposal or challenge so approved requires a further application for subdivision or land development, the developer shall have two years from the date of such approval to file an application for preliminary or tentative approval pursuant to Chapter 184, Subdivision and Land Development. Within the two-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. Upon the filing of the preliminary or tentative plan, the provisions of Section 508(4) of the Municipalities Planning Code shall apply.[1] Where the proposal appended to the curative amendment application or the validity challenge is approved but does not require further application under any subdivision or land development ordinance, the developer shall have one year within which to file for a building permit. Within the one-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. During these protected periods, the court shall retain or assume jurisdiction for the purpose of awarding such supplemental relief as may be necessary.

A landowner who has challenged on substantive grounds the validity of a zoning ordinance or map to the Board shall not submit any additional substantive challenges involving the same parcel, group of parcels or part thereof until such time as the status of the landowner's original challenge has been finally determined or withdrawn; provided, however, that, if after the date of the landowner's original challenge the Borough adopts a substantially new or different zoning ordinance or zoning map, the landowner may file a second substantive challenge to the new or different zoning ordinance or zoning map under this section.