The Zoning Hearing Board ("Board") created and existing at the time of adoption of this chapter shall continue under and in accordance with the provisions of this section. Matters pending before the Board at the time this chapter becomes effective shall continue, and be completed under the Zoning Ordinance in effect at the time the Board took jurisdiction of said matters.

The members of the Board shall consist of five members who are residents of the City appointed by the City Council. Their terms of office shall be five years and shall be so fixed that the term of office of no more than one member shall expire each year. The Board shall promptly notify the City Council of any vacancies that occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members and alternate members of the Board shall hold no other elected or appointed office in the City and shall not be an employee of the City. The Zoning Administrator or designee shall serve as the nonvoting Secretary to the Board. Newly appointed Board members should attend a minimum of four hours of zoning training within the first year of appointment. All Board members should participate in at least one zoning class or seminar during each two-year period.

City Council may appoint by resolution at least one, but not more than three, residents of the City to serve as alternate members of the Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of this section, an alternate shall be entitled to participate in all proceedings and discussions of the Board to the same extent as provided by law for Board members, including specifically the right to cast a vote as a voting member during the proceedings, and shall have all the powers and duties set forth in this chapter and as otherwise provided by law. Alternates shall hold no other office in the City. Any alternate may participate in any proceeding or discussion 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 § 600-405C hereof. On the resignation of a voting member of the Board, an alternate member shall automatically become a voting member, in order of his or her appointment, to the unexpired term of the member who resigned.

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

   A.   The Board shall elect officers from its own membership. Officers shall serve annual terms and may succeed themselves.

   B.   For the conduct of any hearing and taking of any action, a quorum shall be not less three voting members of the Board.

   C.   If, by reason of absence or disqualification of a member, a quorum is not possible, 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. An alternative may also serve as may be otherwise allowed under the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq., 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.

   D.   The Board may make, alter and rescind rules and forms, for its procedure, consistent with all applicable City ordinances and laws of the commonwealth.

   E.   The fees for all proceedings, hearings and actions by the Board shall be paid by the applicant.

   F.   The Board may appoint a hearing officer from its own membership to conduct any hearing on its own behalf, and the parties may waive further action by the Board as provided in § 600-410H.

   G.   The Board shall keep full public records of its business and should submit a report of its activities to the City Council at least once a year.

The Zoning Hearing Board shall be responsible for the following:

   A.   Appeals from the determination of the Zoning Administrator.

      (1)   The Board shall hear and decide appeals where it is alleged by the appellant that the Zoning Administrator has failed to follow prescribed procedures, failed to grant or deny a permit, failed to act on an application for a permit, failed or refused to register a nonconforming building, lot, structure or sign, has improperly issued a cease and desist order, or has misinterpreted or misapplied any valid provision of this chapter.

      (2)   All appeals that allege that the Zoning Administrator has made an error shall be filed directly with the Secretary of the Board within 30 days of the Zoning Administrator's alleged error.

      (3)   Such appeals shall be in writing, shall explain fully the facts, parties in the case, and shall clearly state the reasons or provisions of the Part on which the appeal is based.

   B.   Challenges to the validity of this chapter or map.

      (1)   The Board shall hear substantive challenges to the validity of any land use ordinance, except those brought before City Council pursuant to §§ 609.1 and 916.1(a)(2) of the Municipalities Planning Code, as amended, 53 P.S. §§ 10609.1 and 10916.1(a)(2).

      (2)   The Board shall hear challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption, which challenges shall be raised by an appeal taken within 30 days after the effective date of said ordinance.

      (3)   Within 45 days, 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.

   C.   Other appeals.

      (1)   The Board shall also hear appeals from a determination by the Department of Public Works or Zoning Administrator with reference to the administration of Part 18, Floodplain Overlay Zone, of this chapter.

      (2)   The Board shall also hear appeals regarding the administration of any transfers of development rights.

      (3)   The Board shall also hear appeals from the determination of the Zoning Administrator or Department of Public Works in the administration of any ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development not involving the provisions of Chapter 515, Subdivision and Land Development, of the Code of the City of Reading.

      (4)   The Board shall also hear appeals from any Zoning Administrator's determination made under § 916.2 of the Municipalities Planning Code, as amended, 53 P.S. § 10916.2.

   D.   Variances.

      (1)   The Board may hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant.

      (2)   The Board may grant a variance only if all of the following conditions, where relevant, are determined to exist:

         (a)   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 Part in the neighborhood or district in which the property is located.

         (b)   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.

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

         (d)   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.

         (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.

      (3)   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.

   E.   Special exceptions.

      (1)   The Board shall hear and decide requests for all special exceptions filed with the Board in writing by any landowner (or any authorized agent) as provided in this chapter and in accordance with such standards and criteria contained in this chapter.

      (2)   In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes and intent of this chapter.

      (3)   Special exception use standards are provided in §§ 600-1201 and 600-1202.

   F.   Conduct of hearings. The Zoning Hearing Board ("the Board") shall conduct hearings and make decisions in accordance with the provisions of § 600-410 hereof and of the Municipalities Planning Code, as amended, 53 P.S. § 10101 et seq.

   G.   Reporting requirements. The Board shall keep full public records of its business, which is the property of the City, and shall submit an annual report of its activities to the City Council.

   H.   Court appeals.

      (1)   In the case of an appeal from the Board to the Court of Common Pleas, the Board shall make the return or file the certiorari required by law, and shall promptly notify the City Solicitor of such appeal and furnish him with a copy of the return including the transcript of testimony.

      (2)   Any decision of the Board not appealed within 30 days after notice thereof shall be final, unless otherwise provided under state law.

Within the limitations budgeted by City Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. The members of the Board may receive compensation for the performance of their duties as may be fixed by City Council.

Every application for a variance, special exception or interpretation of a ruling of the Zoning Administrator shall be made in writing on a form prepared by the Zoning Hearing Board. Such application shall be filed with the Board, and shall include the following:

   A.   The name, address and signature of the applicant or appellant.

   B.   The name and address of the owner of the property.

   C.   A brief description and location of the property to be affected by such proposed change or appeal.

   D.   A statement of the present zoning classification of the property in question and the present use thereof.

   E.   A reasonably accurate description of the new construction, additions or changes intended to be made under this application indicating the size, height and uses of such proposed improvements. A plot plan of the property to be affected, indicating the location and size of the lot and the size of existing and intended improvements, shall be attached to the description. Plot plans shall be clear, legible and accurately drawn to scale.

   F.   Submittal of appropriate fees.

   G.   Applicants may ask the Zoning Administrator to delay or continue their hearing before the Zoning Hearing Board no later than three days before the date of the hearing and no more than two times if a continuance fee to be established by the Zoning Administrator is paid when the request is made. Third requests for a delay or a continuance must be made to and approved by the Chair of the Zoning Hearing Board. [Added 12-16-2013 by Ord. No. 83-2013]

The time limitations for raising certain issues and filing certain proceedings with the Board shall be the following:

   A.   No person shall be allowed to file any proceeding with the Board later than 30 days after any application for development, preliminary or final, has been approved by the appropriate City officer, agency or body pursuant to § 914.1(a) of the Municipalities Planning Code, as amended, 53 P.S. § 10914.1(a).

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

The Board shall conduct hearings and make decisions in accordance with the following:

   A.   Notice of hearings. Notice of all hearings of the Board shall be given as follows:

      (1)   Advertisement.

         (a)   Notice to the public shall be published once each week for two successive weeks, in a newspaper of general circulation in the City.

         (b)   The first publication shall not be more than 30 days and second publication shall not be less than seven days from the date of the hearing.

         (c)   The notice shall state the time and place of the hearing and the particular nature of the matter to be considered.

      (2)   Posting. Written notice of such hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.

      (3)   Notification requirements. The Board shall give public notice of all matters to be heard at any given hearing and shall give written notice to the owner, appellant, Mayor, City Council, to the governing body of any municipality located within 500 feet of the property at issue, and to all other interested parties who have registered their names and addresses in writing with the City for notices on such matter.

         (a)   Notice shall also be provided to the last known primary owner of every lot that is abutting, directly across the street or at least partially within 100 feet of the lot in question. However, failure of such notice to be provided shall not delay or negate the hearing and the decision and shall not be a grounds for appeal.

         (b)   The notices herein required shall state the location of the building or lot, the general nature of the question involved and the time and place of the hearing.

   B.   Fees and costs. City Council may establish by ordinance a reasonable fee schedule to be paid by the applicant.5,6

   C.   Time constraints. The first hearing shall be held before the Board or Hearing Officer within 60 days from the date of receipt of the applicant's complete application, unless the applicant has agreed in writing to an extension of time. 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.

   D.   Persons entitled to present appeals before the Board. An appeal of the decision of the Zoning Administrator must be presented before the Zoning Hearing Board by one or more of the following persons:

      (1)   The landowner.

      (2)   A party with equitable interest in the property.

      (3)   An attorney licensed to practice in the Commonwealth of Pennsylvania.

      (4)   A person with a properly executed power of attorney.

   E.   Parties. The parties to the hearing shall be the applicant(s), the City and any person affected by the application. 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.

   F.   Oaths and subpoenas. The Chairman or acting Chairman of the Board 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.

   G.   Representation by Counsel. 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 witness on all relevant issues.

   H.   Conduct of hearings. 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. The parties may, however, waive the decision or findings by the Board and accept the decision or findings of the Hearing Officer as final.

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

   J.   Record.

      (1)   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.

      (2)   The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board 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.

   K.   Ex parte communications.

      (1)   The Board shall not communicate, directly or indirectly, with any party or its representative in connection with any issues involved, except upon notice and opportunity for all parties to participate.

      (2)   The Board 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.

      (3)   After the commencement of hearings, the Board shall not inspect the site or its surroundings with any party or its representative, unless all parties are given an opportunity to be present.

   L.   Conflicts of interest. No member of the Board shall vote upon or participate in deliberations concerning any application for which the member has a conflict of interest. Grounds for disqualification on an individual appeal include, but are not restricted to, the following:

      (1)   Direct or indirect financial or property interest.

      (2)   Direct business association with one of the parties involved.

      (3)   A close familial relationship with one of the parties involved.

      (4)   An overt expression or affiliation with an organization whose ideology expresses a predisposition toward the parties or the intent of the parties involved.

   A.   Upon filing of any proceeding referred to in § 600-408 and while pending before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Administrator or of any agency or body, and all official action thereunder shall be stayed.

   B.   Action by appropriate City officials shall not be stayed if the Zoning Administrator or any other appropriate agency or body certifies as to the Board facts indicating that such stay would cause peril to life or property.

   C.   Notwithstanding Subsection B above, a restraining order may be granted by the Board or by the court having jurisdiction of zoning appeals on petition after notice to the Zoning Administrator or other appropriate agency or body.

      (1)   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 persons to post a bond as a condition to continuing the proceedings before the Board.

      (2)   The granting of a petition presented pursuant to Subsection C(1) and the amount of any bond related thereto shall be within the sound discretion of the court.

   A.   The Board shall render a written decision or make written findings (when no decision is called for) on the application, within 45 days after the last hearing before the Board. See § 908 of the Municipalities Planning Code, 53 P.S. § 10908.

   B.   Where the application is contested or denied, the decision shall be accompanied by findings of fact and conclusions based thereon, together with the reasons therefor.

   C.   Any conclusion based on any provision of the Municipalities Planning Code, as amended, 53 P.S. § 10101 et seq., or of this chapter, shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in light of the facts found.

   D.   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 within 45 days and the parties shall be entitled to make written recommendations thereon to the Board prior to final decision or entry of findings. The Board's decision shall be entered no later than 30 days after the decision of the hearing officer.

   E.   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 or on the record to an extension of time.

   A.   A copy of the final decision or a copy of the findings (when no decision is called for) shall be delivered to the applicant personally or mailed to him or her no later than one working day following its date.

   B.   The Board shall provide (by mail or otherwise) a brief notice of the decision or findings and a statement of the place where the full decision or findings may be examined to all other persons who have filed their names and addresses with the Board.

   C.   When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a timely decision, as required by § 600-410C or 600-412E hereof, 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 § 600-410A. If the Board shall fail to provide such notice, the applicant may do so.

   A.   If a variance is granted or the issuance of a permit is approved, or other action by the appellant is authorized, the necessary permit shall be secured and the authorized action begun according to the stipulations set form in this Part as found in § 600-301E through H.

   B.   Should the appellant or applicant fail to obtain necessary permits within a 24-month period from the date of approval, or having obtained the permit should he or she fail to commence work thereunder within a 36-month period, it shall be conclusively presumed that the appellant or applicant has waived, withdrawn or abandoned its appeal or application, and all provisions, variances and permits granted to him or her shall be deemed rescinded by the Board without further action. The Board may grant time extensions for the failure to obtain the necessary permits and/or commence the work thereunder within 24 months and 36 months respectively.

   C.   Should the appellant or applicant commence construction or alteration within said 36-month period, but should he or she fail to complete such construction or alteration within a 60-month period, the Board may, upon 10 days' notice in writing, rescind or revoke the granted variance, or the issuance of the permit, or the other action authorized to the appellant or applicant. The Board may grant a time extension, if and only if, the Board finds that a good cause appears for the failure to complete within such 60-month period.

   D.   The Zoning Hearing Board shall include all conditions of approval that may include any restrictions, limitations and/or any clarifications that pertain to the case.

   A.   Parties to proceedings authorized in this Part may utilize mediation as an aid in completing such proceedings. The Board shall neither initiate mediation nor participate as a mediating party in any proceeding pending before the Board. Mediation shall supplement, not replace, those procedures in this chapter once said procedures have been formally initiated. Nothing in this section shall be interpreted as expanding or limiting City police powers or as modifying any principles of substantive law.

   B.   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 Board shall not initiate mediation proceedings until the City shall have assured that, in such case, the mediating parties, assisted by the mediator as appropriate, have developed terms and conditions for:

      (1)   Funding mediation.

      (2)   Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and demonstrated skills in mediation.

      (3)   Completing mediation, including time limits for such completion.

      (4)   Suspending time limits otherwise authorized in this Part, provided there is written consent by the mediating parties and by an applicant or City decisionmaking body if either is not a party to the mediation.

      (5)   Identifying all parties and affording them the opportunity to participate.

      (6)   Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public.

      (7)   Assuring that mediation solutions are in writing and signed by the parties, and become subject to review and approval by the appropriate decisionmaking body pursuant to the authorized procedures set forth in the other sections of this chapter.

   C.   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.

   A.   All appeals for securing review of this chapter or any decision, determination or order of this Board or of City Council, or of any of the City's agencies or officers issued pursuant to this chapter, shall be in conformance with the Municipalities Planning Code, as amended, 53 P.S. § 10101 et seq.

   B.   Questions of an alleged defect in the process of enactment or adoption of this chapter or the Zoning Map(s) associated herewith shall be raised by an appeal taken directly from the action of City Council to the Berks County Court of Common Pleas filed no later than 30 days from the effective date of such ordinance or map.

   C.   No person may file a subsequent zoning application with the Zoning Administrator if there is currently an appeal or litigation relating to the same property pending before the Zoning Hearing Board or any of the local, state or federal court systems requesting the same or substantially similar relief. [Added 12-16-2013 by Ord. No. 83-2013]