Membership of the Zoning Hearing Board. The membership of the Board shall, upon determination of the Borough Council, consist of either three or five residents of the Borough appointed by resolution of the Borough Council. 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 Borough Council shall appoint two additional members to the Board with terms scheduled to expire in accordance with the provision of this section. The Board will promptly notify the Borough Council 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 Borough.

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 an alternate member shall be three years. If by reason of absence or disqualification of a member a quorum is not reached, the Chairman of the Board shall designate as many alternate members of the Board to sit on the Board as may be need to provide a quorum. Any alternate member of the 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 section shall be made on a case-by-case basis in rotation according to declining seniority among all alternates. 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 the Municipalities Planning Code[1] and as otherwise provided by law. Alternates shall hold no other office in the Borough, including membership on the Planning Commission and Zoning Officer or his designee.

Removal of members. Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by a majority vote of the Borough Council which appointed the member, 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 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 be not 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 § 450-60.

If by reason of absence or disqualification of a member a quorum is not reached, the Chairman of the Board shall designate as many alternate members of the Board to sit on the Board as may be needed to provide a quorum. Any alternate member of the Board shall continue to serve on the Board in all proceedings involving the matter or cause 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 section 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, consistent with ordinances of the Borough and laws of the commonwealth. The Board shall keep full public records of its business, which records shall be the property of the Borough, and shall submit a report of its activities to the Borough Council as requested by the Borough Council.

Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer or his designee, 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 provision, by rules of the Board. 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.

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 overheard 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 first hearing before the Board or hearing officer shall be commenced 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 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 the persons opposed to the application are granted an equal number of additional hearings. Persons opposed to the application may, upon the written consent on the record by the applicant and Borough, be granted additional hearings to complete their opposition to the application, provided the applicant is granted an equal number of hearings for rebuttal.

The Zoning Officer or their designee, shall submit each application to the Borough Council and Planning Commission at least 30 days prior to the hearing on such proposed hearings to provide the Borough Council and Planning Commission an opportunity to submit recommendations to the Zoning Hearing Board for consideration at the hearing.

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 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 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 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 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. 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 Municipalities Planning Code or of any ordinance, rule or regulations 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 § 916.1 of the Pennsylvania Municipalities Planning Code,[1] where the Board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided in Subsection C, 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 Subsection A of this section. 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 and Article X-A of the Pennsylvania 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 this article and Article X-A of the Pennsylvania Municipalities Planning Code once they have been formally initiated. Nothing in this section shall be interpreted as expanding or limiting Borough 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. Any municipality offering the mediation option 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 mediation agreement, shall be admissible as evidence in any subsequent judicial or administrative proceedings.

The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:

The Borough Council or, except as to Subsection B(3), (4) and (5), the planning agency, if designated, shall have exclusive jurisdiction to hear and render final adjudications in the following matters:

The Board shall hear and decide on the request in accordance with the standards and criteria for special exception uses as set forth in Article VI of this chapter. In determining that a use shall be permitted, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.

The Board may require the submission or presentation of such plans and other materials as it deems necessary to make a proper determination. Any subsequent amendment or addition to plans for which a permit is sought shall be subject to review and public hearing of the Board.

If the special exception use involves the site plan review process, the following procedure should also be in use. The Board's hearing and decision shall follow the receipt of the Planning Commission's site plan review report. The Planning Commission shall have 30 days from the date of the regular meeting of the Planning Commission next following the date the application is submitted within which to file its report thereon. In the event the Planning Commission fails to file its report within 30 days, such application shall be deemed to have been approved by the Planning Commission. The Planning Commission may have representation at the public hearing held by the Zoning Hearing Board on such applications.

A special exception use which is approved by the Zoning Hearing Board shall be construed to be a conforming use, except when accomplished by variance.

The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant, such as appeal from a denial of a building permit by the Zoning Officer or his designee. The Board may by rule prescribe the form of application and may require preliminary application to the Zoning Officer or his designee. The Board may grant a variance, provided that all of the following findings are made where relevant in a given case:

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. No variance shall be granted to allow a structure or use in a district in which such structure or use is restricted. A use permitted as the result of the granting of a variance shall be construed to be a nonconforming use.

The variance shall be considered void unless the construction or use which necessitated the variance request is undertaken within one year of the issuance of the variance.

Where the Borough Council, in this chapter, has stated conditional uses to be granted or denied by the Borough Council pursuant to express standards and criteria, the Borough Council shall hold a hearing on and decide requests for such conditional uses in accordance with such standards and criteria. The hearing 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. In granting a conditional use, the Borough Council may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of this article in this chapter.

Advisory report. No application for a conditional use shall be granted by the Borough Council until Borough Council has first received and considered an advisory report thereon from the Hellertown Planning Commission with respect to the location of such use in relation to the needs and growth pattern of the Borough and, where appropriate, with reference to the adequacy of the site area and arrangement of buildings, driveways, parking areas, off-street truck loading spaces, and other pertinent features of the site plan. The Planning Commission shall have 30 days from the date of receipt of the applicant's application within which to file its report thereon.

Filing of conditional use application. For any use permitted by conditional use, a conditional use must be obtained from the Borough Council. In addition to the information required to be shown on the zoning permit application, the conditional use application must show:

General criteria. Each applicant must demonstrate compliance with the following in addition to those set forth in § 450-66E:

Conditions. Borough Council, in approving conditional use applications, may attach conditions considered by it to be 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 article.

Site plan approval. Any site plan presented in support of the conditional use pursuant to Subsection A 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 another conditional use approval to be obtained.

Hearing procedures.

Time limitation.

Decisions.

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 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 on a tentative plan pursuant to § 709 of the Pennsylvania Municipalities Planning Code or from an adverse decision by a zoning officer on a challenge to the validity of an ordinance or map pursuant to § 916.2 of the Pennsylvania Municipalities Planning Code 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 the determination is issued.

Upon filing of any proceeding referred to in § 450-67 and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or his designee or of any agency or body, and all official action thereunder, shall be stayed unless the Zoning Officer or his designee 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 his designee 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 person 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. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the applicant for a bond to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for a bond. The right to petition the court to order the appellant 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 attorneys' fees incurred by the petitioner.

For the preparation of amendments to this chapter, the procedure set forth in § 607 of the Pennsylvania Municipalities Planning Code for the preparation of a proposed zoning ordinance shall be optional.[2]

Before voting on the enactment of an amendment, the Borough Council shall hold a public hearing thereon, pursuant to public notice. In addition, if the proposed amendment involves a zoning map change, notice of said public hearing shall be conspicuously posted by the Borough at points deemed sufficient by the Borough along the tract to notify potentially interested citizens. The affected tract or area shall be posted at least one week prior to the date of the hearing.

In the case of an amendment other than that prepared by the planning agency, the Borough Council shall submit each such amendment to the planning agency at least 30 days prior to the hearing on such proposed amendment to provide the planning agency an opportunity to submit recommendations.

If after any public hearing held upon an amendment, the proposed amendment is changed substantially or is revised to include land previously not affected by it, the Borough Council shall hold another public hearing, pursuant to public notice, before proceeding to vote on the amendment.

If the county planning commission shall have been created for the county in which the municipality proposing the amendment is located then, at least 30 days prior to the public hearing on the amendment by the Borough Council, the Borough shall submit the proposed amendment to the county planning commission for recommendations.

The Borough may offer a mediation option as an aid in completing proceedings authorized by this section. In exercising such an option, the Borough and mediating parties shall meet the stipulations and follow the procedures set forth in Article IX of the Pennsylvania Municipalities Planning Code.

Within 30 days after enactment, a copy of the amendment to this chapter shall be forwarded to the County Planning Commission.

A landowner who desires to challenge on substantive grounds the validity of a zoning ordinance or map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest may submit a curative amendment to the Borough Council with a written request that his challenge and proposed amendment be heard and decided as provided in § 916.1 of the Pennsylvania Municipalities Planning Code.[2] The Borough Council shall commence a hearing thereon within 60 days of the request as provided in § 916.1 of the Pennsylvania Municipalities Planning Code. The curative amendment and challenge shall be referred to the planning agency or agencies as provided in § 450-72, and notice of the hearing thereon shall be given as provided in § 450-73 and in § 916.1 of the Pennsylvania Municipalities Planning Code.

The hearing shall be conducted in accordance with § 908 of the Municipalities Planning Code[3] and all references therein to the zoning hearing board shall, for purposes of this section, be references to the Borough Council; provided, however, that the provisions of § 908(1.2) and (9) shall not apply and the provisions of § 916.1 shall control. If a municipality does not accept a landowner's curative amendment brought in accordance with this subsection and a court subsequently rules that the challenge has merit, the court's decision shall not result in a declaration of invalidity for the entire zoning ordinance and map, but only for those provisions which specifically relate to the landowner's curative amendment and challenge.

The Borough Council of the Borough which has determined that a validity challenge has merit may accept a landowner's curative amendment, with or without revision, or may adopt an alternative amendment which will cure the challenged defects. The Borough Council shall consider the curative amendments, plans and explanatory material submitted by the landowner and shall also consider:

The Borough shall declare by formal action, its Zoning Ordinance or portions thereof substantively invalid and propose to prepare a curative amendment to overcome such invalidity. Within 30 days following such declaration and proposal, the Borough Council of the Borough shall:

Within 180 days from the date of the declaration and proposal, the Borough shall enact a curative amendment to validate or reaffirm the validity of its Zoning Ordinance pursuant to the provisions required by § 609 of the Pennsylvania Municipalities Planning Code[2] in order to cure the declared invalidity of the Zoning Ordinance.

Upon the initiation of the procedures, as set forth in Subsection A, the Borough Council shall not be required to entertain or consider any landowner's curative amendment filed under § 450-71, nor shall the Zoning Hearing Board be required to give a report requested under § 450-62 or § 916.1 of the Pennsylvania Municipalities Planning Code[3] subsequent to the declaration and proposal based upon the grounds identical to or substantially similar to those specified in the resolution required in Subsection A(1)(a). Upon completion of the procedure as set forth in Subsections A and B, no rights to cure pursuant to the provisions of § 450-70 and § 916.1 of the Pennsylvania Municipalities Planning Code shall, from the date of the declaration and proposal, accrue to any landowner on the basis of the substantive invalidity of the unamended zoning ordinance for which there has been a curative amendment pursuant to this section.

The Borough having utilized the procedures as set forth in Subsections A and B may not again utilize said procedure for a thirty-six-month period following the date of the enactment of a curative amendment, or reaffirmation of the validity of its Zoning Ordinance, pursuant to Subsection B; provided, however, if after the date of declaration and proposal there is a substantially new duty or obligation imposed upon the Borough by virtue of a change in statute or by virtue of a Pennsylvania appellate court decision, the Borough may utilize the provision of this section to prepare a curative amendment to its ordinance to fulfill said duty or obligation.

Proposed zoning ordinances and amendments shall not be enacted unless notice of proposed enactment is given in the manner set forth in this section and shall include the time and place of the meeting at which passage will be considered, a reference to a place within the Borough where copies of the proposed ordinance or amendment may be examined without charge or obtained for a charge not greater than the cost thereof. The Borough Council shall publish the proposed ordinance or amendment once in one newspaper of general circulation in the Borough not more than 60 days nor less than seven days prior to passage. Publication of the proposed ordinance or amendment shall include either the full text thereof or the title and a brief summary, prepared by the Borough Solicitor and setting forth all the provisions in reasonable detail. If the full text is not included:

In the event substantial amendments are made in the proposed ordinance or amendment, before voting upon enactment the Borough Council shall, at least 10 days prior to enactment, readvertise in one newspaper of general circulation in the Borough a brief summary setting forth all the provisions in reasonable detail, together with a summary of the amendments.

Zoning ordinances and amendments may be incorporated into official ordinance books by reference with the same force and effect as if duly recorded therein.