1.   Membership of Board.

      A.   The membership of the Board shall, upon the determination of the Borough Council, consist of either three or five residents of the Borough appointed by the Borough Council. The terms of office of a three member board shall be 3 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 3 years and shall be so fixed that the term of office of no more than two members shall expire each year and of the initial appointments of the two additional members, one shall be appointed for a 1-year term and one shall be appointed for a 2-year term. 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 provisions of this subsection. The Board shall 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, except that no more than one member of the Board may also be a member of the Borough Planning Commission.

      B.   A five member Board shall not be changed to a three member Board except upon an affirmative vote on the question by a majority of the electors of the Borough voting thereon at a referendum held at the municipal or general election prior to a year in which the terms of two of the members on the Board expire.

   2.   Organization of Board. 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 where two members are disqualified to act in a particular matter, the remaining member may act for the Board. 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 § 27-502. 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 and shall submit a report of its activities to the Borough Council once a year.

   3.   Powers. The Zoning Hearing Board has the following powers:

      A.   Interpretation. To interpret any provision of this Chapter including zone boundaries.

      B.   Special Exceptions. To hear and decide special exceptions upon which the Board is required to pass under this Chapter as per § 27-504 following.

      C.   Appeals. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Zoning Officer in the enforcement or interpretation of this Chapter.

      D.   Variances. To authorize, upon application, in specific cases a variance from the terms of this Chapter as per § 27-503 following.

      E.   Rehearings. To grant the rehearing of a case if it appears there has been a substantial change in the facts as evidence of the case as presented at the initial hearing.

      F.   Challenge to the Validity of this Chapter or Map. The Board shall hear challenges to the validity of this Chapter or map except as indicated in the Pennsylvania Municipalities Planning Code, §§ 1003 and 1004 (1)(b), 53 P.S. §§11003, 11004(1)(b). In all such challenges the Board shall take evidence and make a record thereon as provided in § 27-502. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.

      G.   Unified Appeals. Where the Board has jurisdiction over a zoning matter, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any Borough ordinance or requirement pertaining to the same development plan or development. In any such case the Board shall have no power to pass upon the nonzoning issues, but shall take evidence and make a record thereon as provided in § 27-502. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.

   3.   In exercising the powers above, the Board, in conformity with the provisions of this Chapter, may reverse, affirm, or modify the order, requirement, decision, or determination appealed from or requested, and may make any order, requirement, decision or determination as ought to be made.

   4.   Board Calendar. Each application or appeal filed in the proper form with the required data must be numbered serially and be placed upon the calendar of the Board by the Secretary. Applications and appeals must be assigned for hearing in the order in which they appear on the calendar. However, for good reason, the Board may order the advance of the application or appeal. The Board must fix a reasonable time for hearings.

(Ord. 6/6/1988, §501)

   1.   Notice; Conduct of Meeting.

      A.   Notice shall be given to the public, the applicant, the Zoning Officer, such other persons as the Borough shall designate by ordinance and to any person who has made timely request for the same. 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.

      B.   The Borough Council may establish reasonable fees, based on cost, to be paid by the applicant and by persons requesting any notice not required by ordinance. In addition to the notice provided herein, notice of said hearing shall be conspicuously posted on the affected tract of land.

      C.   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, but the parties may waive decision or findings by the Board and accept the decision or findings of the hearing officer as final.

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

      E.   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 unless the parties are afforded an opportunity to contest the material so noticed and shall not inspect the site or its surroundings with any party or his representa tive unless all parties are given an opportunity to be present.

   2.   Representation; Statements.

      A.   Parties to the hearings 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 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.

      B.   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.

      C.   Statements are to be made in the following order or as the Chairman may direct:

         (1)   Applicant or appellant.

         (2)   Zoning Officer and other officials.

         (3)   Any private citizen.

      D.   The applicant or appellant must be given an opportunity for rebuttal.

   3.   Witnesses. 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.

   4.   Decision Procedure.

      A.   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 provisions of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq., 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 of findings is final, the Board shall make his report and recommendations available to the parties 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 45 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 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 Borough shall give public notice of said decision within 10 days in the same manner as provided in subparagraph .A of this Section. Nothing in this subsection shall prejudice the right of any party opposing the application to urge that such decision is erroneous.

      B.   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 no 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.

      C.   Whenever the Board imposes a condition or conditions with respect to the granting of an application or appeal, this condition must be stated in the order of the Board and in the permit issued pursuant to the order by the Zoning Officer. This permit remains valid only as long as the conditions or conditions upon which it was granted or the conditions imposed by this Chapter are adhered to.

   5.   Records. The Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings, and a transcript of the proceedings and copies of graphic or written material received in evidence shall be made available to any party at cost.

(Ord. 6/6/1988, §502)

   1.   Filing of Variance.

      A.   An application may be made to the Zoning Hearing Board for a variance where it is alleged that the provisions of this Chapter inflict unnecessary hardship upon the applicant. The application must be on a form provided for that purpose by the Zoning Officer. It must be filed with the Board and copies given to the Zoning Officer and Borough Planning Commission. The applicant must provide all the information requested on the form, together with any other information and data that may be required to advise the Board of the variance, whether such information is called for by the official form or not.

      B.   Unless otherwise specified or extended by the Board, a variance authorized by it expires if the applicant fails to obtain a zoning/use permit or use certificate within 6 months from the date of authorization of the variance. [Ord. 2007-2]

   2.   Referral to Planning Commission. All applications for a type-of-use variance shall be referred to the Planning Commission for a report.

   3.   Standards for Variance. Where there is unnecessary hardship, the Board may grant a variance in the application of the provisions of this Chapter; provided, that the following findings are made where relevant in a given case:

      A.   There are unique physical circumstances or conditions, including (1) irregularity, narrowness, or shallowness of lot size or shape, or (2) exceptional topographical or other physical conditions peculiar to the particular property, and is not due to circumstances or conditions generally created by the provisions of this Chapter in the neighborhood or zone in which the property is located.

      B.   Because of these physical circumstances or conditions, the property cannot reasonably be used in strict conformity with the provisions of this Chapter.

      C.   The unnecessary hardship is not financial in nature and has not been created by the appellant.

      D.   The variance, if authorized, will not alter the essential character of the neighborhood or zone 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.

      E.   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.

   4.   Conditions. In granting any variance, the Board may attach such reasonable conditions and safeguards as it considers necessary to implement the purposes of this Chapter.

(Ord. 6/6/1988, §503; as amended by Ord. 2007-2, 12/17/2007)

   1.   Filing of Special Exceptions. For any use permitted by special exception, a special exception must be obtained from the Zoning Hearing Board. In addition to the information required on the zoning/use permit application, the special exception application must show: [Ord. 2007-2]

      A.   Ground floor plans and elevations of proposed structures.

      B.   Names and addresses of adjoining owners.

      C.   Unless otherwise specified or extended by the Zoning Hearing Board a special exception authorized by the Board expires if the applicant fails to obtain, where required to do so, a zoning/use permit or use certificate within 6 months of the date of the authorization of the special exception. [Ord. 2007-2]

   2.   Temporary Special Exceptions. A temporary special exception must be obtained from the Zoning Hearing Board for any nonconformity which is or will be seasonal or is or will be in the public interest. The Zoning Hearing Board may grant a temporary special exception for a nonconforming use or structure, existing or new, which:

      A.   Is beneficial to the public health or general welfare.

      B.   Is necessary to promote the proper development of the community.

      C.   Is seasonal in nature.

      D.   The temporary special exception may be issued for a period not exceeding 1 year, and may be renewed for an aggregate period not exceeding 3 years. The nonconforming structure or use must be completely removed upon the expiration of the special exception without cost to the Borough.

   3.   Referral to Planning Commission. All applications for a special exception shall be referred to the Borough Planning Commission for a report.

   4.   Conditions. The Zoning Hearing Board in passing upon special exception applications, may attach conditions considered necessary to protect the public welfare and the Comprehensive Plan, including conditions which are more restrictive than those established for other uses in the same zone.

   5.   Application of Extent-of-Use Regulations. The extent-of-use regulations as set forth in this Chapter must be followed by the Zoning Hearing Board. Where no extent- of-use regulations are set forth for the particular use, the Board must impose extent-of- use requirements as necessary to protect the public welfare and the Comprehensive Plan.

   6.   General Standards. A special exception may be granted when the Zoning Hearing Board finds from a preponderance of the evidence produced at the hearing that:

      A.   The proposed use, including its nature, intensity and location, is in harmony with the orderly and appropriate development of the zone.

      B.   That adequate water supply, sewage disposal, storm drainage and fire and police protection are or can be provided for the use.

      C.   That the use of adjacent land and buildings will not be discouraged and the value of adjacent land and buildings will not be impaired by the location, nature and height of buildings, walls and fences.

      D.   That the use will have proper location with respect to existing or future streets giving access to it, and will not create traffic congestion or cause industrial or commercial traffic to use residential streets.

      E.   That the specific standards set forth for each particular use for which a special exception may be granted have been met.

      F.   The applicant for a special exception shall have the burden of proof, which shall include the burden of going forward with the evidence and the burden of persuasion on all questions of fact which are to be determined by the Zoning Hearing Board.

   7.   Special Standards. In addition to the general standards for all special exceptions as contained in subsection .6, the specific standards for particular uses as listed in Part 6 must be met prior to the granting of a special exception.

(Ord. 6/6/1988, §27-504; as amended by Ord. 2007-2, 12/17/2007)