The membership of the Zoning Hearing Board shall consist of five residents of Plains Township appointed by the Township Board of Commissioners by resolution. The terms of office for Board members shall be five years and shall be so fixed that the term of office of one member shall expire each year. The Board shall promptly notify the Township Board of Commissioners 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, including membership upon the Planning Commission.

(Ord. 1998-1, 3/19/1998, § 1501)

   The Township Board of Commissioners may appoint by resolution one resident of Plains Township to serve as an alternate member of the Board. When seated pursuant to the provisions of § 27-1504 of this Chapter, 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 proceedings, and shall have all the powers and duties set forth in this Chapter and as otherwise provided by law. An alternate shall hold no other office in the Township, including membership on the Planning Commission. An alternate may participate in any proceedings or discussions of the Board, but shall not be entitled to vote as a member of the Board unless designated as a voting alternate member pursuant to § 27-1504 of this Chapter. The term of office for an alternate member of the Zoning Hearing Board shall be one year.

(Ord. 1998-1, 3/19/1998, § 1502)

   Any Board member or alternate may be removed for malfeasance, misfeasance or nonfeasance in office or for any other just cause by the Township Board of Commissioners. Prior to any vote by the Township Board of Commissioners, the member shall receive notice 15 days in advance of the date at which it intends to take such a vote. A hearing before the Township Board of Commissioners shall be held in connection with the vote, if the member requests a hearing in writing.

(Ord. 1998-1, 3/19/1998, § 1503)

   1.   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. The Board, however, 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 § 27-1506. If by any reason of absence or disqualification of a member, a quorum is not reached, the Chairperson of the Board shall designate the alternate member of the Board to be seated to establish a quorum. The 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.

   2.   The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of Plains Township and laws of the Commonwealth. The Board shall keep full public records of its business, which records shall be the property of the Township, and shall submit an annual report of its activities to the Township Board of Commissioners.

(Ord. 1998-1, 3/19/1998, § 1504)

   Within the limits of appropriated funds, the Board may employ or contract for secretaries, clerks, legal counsel, consultants and technical services which they may deem necessary to augment the Board in the performance of its duties.

(Ord. 1998-1, 3/19/1998, § 1505)

   The Zoning Hearing Board shall conduct hearings and render decisions in accordance with the following:

   A.   Notice of hearings before the Board shall be by public notice; a notice published once a week for two successive weeks in a newspaper of general circulation in the Township. Such notice shall state the time and place of the hearing and the particular nature of matters to be considered at the hearing by the Board. The first publication shall not be more than 30 days and the second publication shall not be less than seven days from the date of the hearing.

   B.   Written notice of all hearings before the Board shall be conspicuously posted on the affected property not less than one week prior to the hearing.

   (1)   Written notice shall be given to the Zoning Officer, to the applicant, to the owner of record of the subject property before the Board, if different than that of the applicant, to the owner of record of any property which has a common side yard or rear yard boundary or opposite frontage with the subject property before the Board and to any party or person who has submitted a written request to receive notification on the subject property.

   (2)   The applicant shall be responsible for providing the Zoning Hearing Board with the names and addresses of the true and correct owners of record based upon the records contained in the Luzerne County Tax Assessor’s Office. While it shall be the intent of the Plains Township Zoning Hearing Board to provide written notice to property owners which have a common side yard, rear yard or opposite frontage to the subject property before the Board, failure to do so shall not represent a basis for appeal or otherwise invalidate a decision and/or finding of the Zoning Hearing Board.

   (3)   In the event a hearing is continued to a future date for the purpose of obtaining additional information, additional testimony or to render a decision, and the Zoning Hearing Board publicly announces during the course of the hearing the time and date for the resumption of the hearing, additional written notice need not be provided to the above parties.

   C.   The Township Board of Commissioners may prescribe reasonable fees with respect to hearings before the Board. Fees for said hearings may include compensation for the Secretary, notice and advertising costs and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses of the Board or expenses for engineering, architectural or other technical consultants or expert witnesses.

   D.   The first hearing shall be held within 60 days from the applicant’s request, unless the applicant has agreed in writing to an extension of time. The 60-day time period shall not commence until the applicant has submitted a properly completed application, with all required signatures, supporting information, the names and mailing addresses of parties to receive notice of the hearing, and all required fees. Each subsequent hearing 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 or her case-in-chief within 100 days of the first hearing. Upon the request of the applicant, the Zoning Hearing 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 or her case-in-chief provided the persons opposed to the application are granted an equal number of hearings. Persons opposed to the application may, upon written consent or consent on the record by the applicant and Township, may be granted additional hearings to complete their opposition to the application provided the applicant is granted an equal number of additional hearings for rebuttal. [Ord. 2005-5]

   E.   Hearings shall be conducted by the Board or by any member appointed by the Board as a hearing officer. The decision, or where no decision is called for, the findings shall be made by the Board, unless the appellant or applicant, as the case may be, in addition to the Township, agree to waive any decision or findings by the Board and accept the decision or findings of the hearing officer as final. If the decision or findings of the hearing officer are to be accepted as final, all parties to the hearing must agree to such stipulation at the outset of the hearing.

   F.   The parties to the hearing shall be the Township, any person affected by the application who has made a 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 to the hearing enter appearances in writing on forms provided by the Board for such purpose.

   G.   The presiding Chairperson or Acting Chairperson of the Board or hearing officer shall have the power to administer oaths and issue subpoenas to compel attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by parties to the hearing. The parties to the hearing shall have the right to be represented by legal counsel and shall be afforded the opportunity to respond and present evidence and arguments and to cross-examine adverse witnesses on all relevant issues.

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

   I.   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 from the decision of the Board, if such appeal is made and in the event the cost of additional copies shall be paid by the person requesting such copies. In other cases the party requesting the original transcript shall bear the cost thereof.

   J.   The Board, collectively or individually, or the hearing officer, shall not communicate directly or indirectly with any party or his or her representatives in connection with any issue before the Board 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 all 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 or her representative unless all parties are given an opportunity to be present.

   K.   The Board or the hearing officer, as the case may be, shall render a written decision or, if no decision is called for, make written findings on the application within 45 days after the last hearing before the Board or hearing officer. If 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 this Chapter or any other ordinance, rule or regulation, shall contain a reference to the provisions relied upon and the reasons why the conclusion is 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 or her decision or findings are final, the Board shall make his or her report and recommendations available to the parties of record within 45 days. The parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings, with the Board’s decision entered no later than 30 days after the report of the hearing officer. If the Board fails to hold the required hearing within 60 days from the date of the applicant’s request for 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. If a decision has been rendered in favor of the applicant because of their failure of the Board to meet or render a decision as hereinabove provided, the Board shall give public notice of said decision within ten days from the last day it could have met to render a decision in the same manner as provided under Paragraph A. above and written notice of the decision shall be mailed to those parties identified under Paragraph B. above. If the Board fails to provide such notice, the applicant may do so. Nothing contained within this Section shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.

   L.   In any appeal of an enforcement notice under § 27-1304 of this Chapter to the Zoning Hearing Board shall require that the Zoning Officer and/or Township provide its evidence first to the Board regarding the basis, nature and supporting information regarding the subject enforcement notice. Upon the conclusion of the same, the appealing party shall provide the Board with his or her evidence in contesting the subject enforcement notice. Any filing fees paid by a party to appeal an enforcement notice to the Zoning Hearing Board shall be returned to said party, if Zoning Hearing Board or any subsequent court rules in favor of the appealing party.

   M.   The final decision or, where no decision is called for, the findings shall be rendered by the Zoning Hearing Board at a public hearing. A copy of the written decision or findings shall be delivered to the applicant personally or mailed to him or her not later than the day following the date of the Board’s decision or findings. The Zoning Hearing Board shall provide by mail or otherwise, to all persons who have filed their name and address with the Board, not later than the last day of the hearing, a statement of brief notice of the decision or findings and a statement of the place and at which a copy of the full decision or findings may be examined.

(Ord. 1998-1, 3/19/1998, § 1506; as amended by Ord. 2005-5, 3/10/2005, § 9)

   1.    Mediation may be utilized as an aid designed to supplement, as opposed to replacing, any proceedings before and under the jurisdiction of the Zoning Hearing Board. In no case, however, shall the Board or any member of the Board, initiate the use of mediation. No member of the Board shall be allowed to participate as a mediating party or be present during any sessions of mediation. Nothing within this Section shall be interpreted as expanding or limiting municipal police powers or modifying any principles of substantive law.

   2.   Mediation shall be voluntary among all subject parties with the appropriateness of mediation determined by the particular issues of each case and the willingness among all the subject parties to negotiate. In order to supplement proceedings before the Zoning Hearing Board, the following information shall be submitted to the Board in written form and signed by all parties to the mediation, the selected mediator, and the Zoning Hearing Board.

   A.   Method and commitment of funding of mediation.

   B.   The mediator shall be an attorney and/or an individual who is certified by the American Arbitration Association, who shall possess a working knowledge of municipal zoning and subdivision practices and procedures.

   C.   A schedule which shall clearly prescribe the time limitations for both the start and completion of mediation. The completion date shall be adhered to even if the negotiations fail to result in a mediated agreement by said date.

   D.   Suspension of the appropriate time limitations which apply to the Zoning Hearing Board in convening a hearing and/or rendering a decision, once a hearing is convened, subject to executing a document of expressed written consent by the mediating parties, and by the Zoning Hearing Board.

   E.   Identification of all subject parties and affording them the opportunity to participate.

   F.   A determination of whether some or all of the mediation sessions shall be opened or closed to the public, subject to governing legal constraints.

   G.   An agreement among the mediating parties, that any mediated solution be in written form and subject to review and approval by the Zoning Hearing Board.

   H.   Any mediation which concludes within the prescribed time limits under Subsection C. of this Section, which does resolve in whole or in part, the issues subject to mediation, shall then proceed under the hearing process before the Zoning Hearing Board.

   I.   No offer 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.

(Ord. 1998-1, 3/19/1998, § 1507)

   The Zoning Hearing Board, in accordance with the Pennsylvania Municipalities Planning Code, Act 247, 53 P.S. §§ 10101 et seq., as amended, shall have exclusive jurisdiction to hear and render final adjudication in the following matters:

   A.   Substantive challenges to the validity of any land use ordinance, except for those brought before the Township Board of Commissioners under § 27-1403 of this Chapter.

   B.   Challenges to the validity of any land use ordinance, based upon procedural questions or alleged defects in the process of enactment or adoption. Challenges based upon procedural questions or alleged defects shall be raised by an appeal to the Board within 30 days after the effective date of the Chapter subject to the appeal.

   C.   Appeals from the determination of the Zoning Officer, including, but not limited to, the application and/or interpretation of regulations, granting or denial of any permit, or failure to act on the application therefor, the issuance of any cease and desist order, the revocation of a zoning permitted/or building permit or the registration or refusal to register any nonconforming use, structure or lot.

   D.   Appeals from a determination by the Zoning Officer with reference to the administration of any floodplain provision or regulation within any land use ordinance.

   E.   Applications for variances, pursuant to § 27-1509 of this Chapter.

   F.   Applications for special exceptions pursuant to § 27-1510 of this Chapter.

   G.   Appeals from the determination of the Zoning Officer or Township Engineer in the administration of any land use ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management not related to development which is classified as a subdivision, land development or a planned residential development.

(Ord. 1998-1, 3/19/1998, § 1508)

   1.   Initial determination by Zoning Officer. An application for a variance shall not be submitted to or considered by the Zoning Hearing Board until the following procedure has been completed:

   A.   The applicant submits an application for a zoning permit to the Zoning Officer in accordance with § 27-1302 of this Chapter.

   B.   The Zoning Officer is reviewing the subject application renders a determination that the proposed development and/or use of property fails to comply with an applicable provisions and/or regulations of this Chapter.

   C.   The Zoning Officer specifies the applicable Sections of this Chapter relative to the applicant’s need to secure a variance(s) from the Zoning Hearing Board.

   2.   Provisions for granting variances.

   A.   The Zoning Hearing Board shall hear requests for variances if it is alleged that the provisions of this Chapter 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. The Board may grant a variance, provided that all of the following findings are made where relevant in a given case:

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

   (2)   Because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this Chapter and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.

   (3)   Such unnecessary hardship has not been created by the appellant.

   (4)   The variance, if authorized, will not alter the essential character of the neighborhood or district 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.

   (5)   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.

   B.   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 and the Pennsylvania Municipalities Planning Code, Act 247, 53 P.S. §§ 10101 et seq., as amended.

(Ord. 1998-1, 3/19/1998, § 1509)

   1.   Initial determination by Zoning Officer. An application for a special exception use shall not be submitted to or considered by the Zoning Hearing Board until the following procedure has been completed:

   A.   The applicant submits an application for a zoning permit to the Zoning Officer in accordance with § 27-1302 of this Chapter and a site plan in accordance with § 27-603 of this Chapter.

   B.   The Zoning Officer shall initially review the site plan to determine its compliance with § 27-603 of this Chapter.

   C.   The Zoning Officer shall also render a determination regarding whether the proposed development and/or use is required to secure any variances from the Zoning Hearing Board, in addition to securing a special exception approval.

   2.   Provisions for granting a special exception approval.

   A.   The Zoning Hearing Board shall hear and decide requests for uses and/or development which are permitted as special exception uses. Special exception uses shall be referred to the Planning Commission for their review, comments and recommendations prior to final action by the Board. The Board shall grant approval only upon the determination that the proposed use and/or development conforms with all applicable standards and provisions within this Chapter and the following expressed standards and criteria:

   (1)   Public services and facilities such as streets, sewers, water, police and fire protection shall be adequate for the proposed use and/or development.

   (2)   Existing and future streets and access to the site shall be adequate for emergency services, for avoiding undue congestion, and for providing for the safety and convenience of pedestrian and vehicular traffic.

   (3)   The relationship of the proposed use and/or development to other uses and activities existing or planned in the vicinity shall be harmonious in terms of the location and site relative to the proposed operation, and the nature and intensity of the operation involved.

   (4)   The relationship of the proposed use and/or development to other activities existing or planned in the vicinity shall be harmonious in terms of the character and height of buildings, walls and fences so that the use, development and value of adjacent property is not impaired.

   (5)   The proposed use and/or development shall not be more objectionable in its operations in terms of noise, fumes, odors, vibration or lights than would be the operations of any permitted use in the district.

   (6)   The proposed use and/or development shall not be injurious to the public interest.

   B.   In granting approval, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this Chapter and the Pennsylvania Municipalities Planning Code, Act 247, 53 P.S. §§ 10101 et seq., as amended.

(Ord. 1998-1, 3/19/1998, § 1510)

   Appeal and/or applications for hearings before the Zoning Hearing Board pursuant to those matters contained within § 27-1509 of this Chapter, may be filed with the Board in writing by the affected landowner or by any aggrieved person or party. The Board shall not accept appeals or applications for hearings from any tenant or equitable owner of a property without the express written consent of the landowner. In such cases, the landowner’s signature shall be required upon all applicable forms, applications or documents which are to be submitted to the Board.

(Ord. 1998-1, 3/19/1998, § 1511)

   1.    No person shall be allowed to file any proceeding with the Zoning Hearing Board later than 30 days after an application for the development, preliminary or final, has been approved by an appropriate Township 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 or she had no notice, knowledge or reason to believe that such approval had been given. If such person has succeeded to his or her interest after such approval, he or she shall be bound by the knowledge of his or her predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan for a planned residential development, pursuant to § 709 of the Pennsylvania Municipalities Planning Code, Act 247, 53 P.S. § 10709, as amended, or from an adverse decision by a zoning officer on a challenge to the validity of an ordinance or map based upon substantive grounds, pursuant to § 916.2 of the Pennsylvania Municipalities Planning Code, Act 247, 53 P.S. § 10916.2, as amended, shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.

   2.   Any landowner wishing to appeal a decision of the Zoning Hearing Board shall be required to file such appeal to a court of competent jurisdiction within 30 days after the notice of the Board’s determination is issued. Failure to do so within the prescribed 30-day time period shall preclude any further appeal of the Board’s decision.

(Ord. 1998-1, 3/19/1998, § 1512)

   1.    Upon filing of any proceeding referred to in § 27-1508 of this Chapter, and during its pendency before the Zoning Hearing 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 the 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 a bond as a condition to continuing the proceedings before the Board.

   2.   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 the 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 appellants to post bond may be waived by the appellee, but such waiver may be revoked by him or her if an appeal is taken from a final decision of the court.

   3.    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.

   4.   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 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’s fees incurred by the petitioner.

(Ord. 1998-1, 3/19/1998, § 1513)