1.   Creation and Membership. There is hereby continued, to be appointed by the Borough Council, a Zoning Hearing Board, consisting of three (3) residents. Of the initial appointees to this Board, one (1) shall be designated until the first day of January following the date of this Chapter, one (1) until the first day of the second January thereafter, and one (1) until the first day of the third January thereafter. Their successors in office shall be appointed on the expiration of their respective terms to serve three (3) years. The Board shall promptly notify the Borough Council of any vacancies which occur. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. Members of the Board shall hold no other office in the Borough. [Ord. 97-3A]

   2.   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 fifteen (15) days' advance notice of the charges and 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.

   3.   Organization. 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 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 for in Section 1002, below. The Board may make, alter, and rescind rules and forms for its procedure, consistent with the provisions of its charter and with the provisions of this Chapter. 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.

   4.   Expenditures for Services. Within the limits of funds appropriated by the Borough Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services.

   Members of the Board may receive compensation for the performance of their duties, as may be fixed by the Borough Council, but in no case shad it exceed the rate of compensation authorized to be paid to the members of the Borough Council.

   5.   Meetings. Meetings shall be held at the call of the Board Chairman and at such other times as appeals are brought before the Board.

(Ord. 87-8, 12/10/1987; as amended by Ord. 97-3A, 3/3/1997)

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

   1.   Time for Hearing and Notice of Hearings. A hearing shall be held within sixty (60) days from the date of the applicant's request unless the applicant has agreed in writing to an extension of time. Notice of hearings shall be given to the public, the applicant, the Zoning Officer, and such other persons who may have made timely request for the same, at such time and in such manner as may be specified by rules of the Board. In the absence of such Rules, such notice shall state the time and place of the hearing, and the particular nature of the matter to be considered, as follows: [Ord. 97-3A]

      A.   To the public: by publication at least ONCE in a newspaper of general circulation within the Borough, such publication to be not more than sixty (60) days, nor less than three (3) days prior to the date of the hearing.

      B.   To the applicant, Zoning Officer, and to such other persons who have made timely request for such notice, by direct individual notice mailed, handed or delivered at least three (3) days prior to the hearing.

      In addition to the notice above provided, the Zoning Officer shall conspicuously post notice of the hearing on the affected property and also prominently in the Borough Building no less than three (3) days prior to the date of the hearing.

   2.   Hearing Officer. 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 decisions or findings by the Board and accept the decision or findings of the hearing officer as final.

   3.   Parties to the Hearing. The parties to the hearing shall be Shamokin Dam 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 by the Board to appear. 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.

   4.   Oaths and Subpoenas. The chairman or acting chairman of the Board or the hearing officer presiding shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.

   5.   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 witnesses on all relevant issues.

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

   7.   Stenographic Record. 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 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. [Ord. 97-3A]

   8.   Conduct of Board or Hearing Officer. 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 after the commencement of hearings with any party or his representative unless all parties are given an opportunity to be present.

   9.   Written Decision or Findings. 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 forty-five (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 (Act 247 as amended) 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 decisions or findings are final, the Board shall make his report and recommendations available to the parties within forty-five (45) days, and the parties shall be entitled to make written representations thereon to the Board prior to the final decision or entry of findings, and the Board's decision shall be entered no later than thirty (30) days after the report 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 sixty (60) days from the date of the applicant's request for a hearing, the decision shall have been 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 here-in-above provided, the Board shall give public notice of said decision within ten (10) days in the same manner as provided in subsection 1 of this section. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction. [Ord. 97-3A]

   10.   Copy of Final Decision or Findings. A copy of the final decision or, where no decision is called for, of the findings shall be delivered to the applicant personally or mailed to him not later than the day following the date of the decision. To all other persons who have filed their name and address with the Board not later than the last day of the hearing, the Board shall provide by mail or otherwise, brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.

   11.   Fees. The Borough Council shall establish, by resolution, fees with respect to hearings before the Zoning Hearing Board. [Ord. 97-3A]

(Ord. 87-8, 12/10/1987; as amended by Ord. 97-3A, 3/3/1997)

   The jurisdiction of the Board and the jurisdiction of the Borough Council, as well as the functions of the Board shall be as follows:

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

      A.   Substantive challenges to the validity of any land use ordinance, except those brought before the Borough Council pursuant to §§609.1 and 916.1(a)(2) of the Pennsylvania Municipalities Planning Code (hereinafter "MPC"), 53 P.S. §§10609.1, 10916.1.

      B.   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 thirty (30) days after the effective date of said ordinance. Where the ordinance appealed from is the initial zoning ordinance of the Borough and a Zoning Hearing Board has not been previously established, the appeal raising procedural questions shall be taken directly to court.

      C.   Appeals from the determination of the Zoning Officer including, but not limited to, the granting or denial of any permit, or failure to act on the application therefor, the issuance of any cease and desist order or the registration or refusal to register any noconforming use, structure or lot.

      D.   Appeals from a determination by the Borough Engineer or the Zoning Officer with reference to the administration of any floodplain or flood hazard ordinance or such provisions within a land use ordinance.

      E.   Applications for variance form the terms of this Chapter and flood hazard ordinance or such provisions within a land use ordinance, pursuant to §910.2 of the MPC, 53 . P.S. §10610.2.

      F.   Applications for special exceptions under this Chapter or floodplain or flood hazard ordinance, or such provisions within a land use ordinance, pursuant to §912.1 of the MPC, 53 P.S. §10912.1.

      G.   Appeals from the determination of any officer or agency charged with the administration of any transfers of development rights or performance density provisions of this Chapter.

      H.   Appeals from the Zoning Officer's determination under §916.2 of the MPC, 53 P.S. §10916.2.

      I.   Appeals from the determination of the Zoning Officer or Borough Engineer in the administration of any land use ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development not involving applications under Article V or Article VII of the MPC, 53 P.S. §§10501 et seq., 10701 et seg.

   2.   The Borough Council shall have exclusive jurisdiction to hear and render final adjudications in the following matters:

      A.   All applications for approval of planned residential developments under Article VII of the MPC pursuant to the provisions of § 702 of the MPC, 53 P.S. §10702.

      B.   All applications pursuant to §508 of the MPC, 53 P.S. §10508, for approval of subdivisions or land developments under Article V of the MPC, 53 P.S. §10501 et seq.

      C.   Applications for conditional use under the express provisions of this Chapter.

      D.   Applications for curative amendment to this Chapter or pursuant to §§609.1 and 916.1(a) of the MPC, 53 P.S. §§10609.1, 10916.1(a).

      E.   All petitions for curative amendment to this Chapter or pursuant to §§609.1 and 916.1(a) of the MPC, 53 P.S. §§10609.1, 10916.1(a).

      F.   Appeals from the determination of the Zoning Officer or the Borough Engineer in the administration of any land use ordinance or provisions thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to applications for land development under Articles V and VII of the MPC, 53 P.S. § 10501 et sect, 10701 seq. Where such determination relates only to development not involving an Article V or VII application, the appeal from such determination of the Zoning Officer of the Borough Engineer shall be to the Zoning Hearing Board pursuant to this Section. Where the applicable land use vests jurisdiction for final administration of subdivision and land development applications in the Planning Commission, all appeals from determinations under this subsection shall be to the Planning Commission and all appeals from the decision of the Planning Commission shall be to court.

   3.   Variances. The Zoning Hearing Board shall hear requests for variances where 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:

      A.   That 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.

      B.   That 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 therefor necessary to enable the reasonable use of the property.

      C.   That such unnecessary hardship has not been created by the applicant.

      D.   That 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.   That 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.

      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, 53 P.S. §10101 et seq.

   4.   Standards for Grant of Variance.

      A.   Under no circumstances shall the Zoning Hearing Board grant a variance to allow a use not permissible under the terms of this Chapter in the district involved or any use expressly or by implication prohibited by the terms of this Chapter in said District.

      B.   A variance from the terms of this Chapter shall not be granted by the Zoning Hearing Board unless and until:

         (1)   A written application for a variance is submitted demonstrating that:

            (a)   Special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, structures or building in the same district.

            (b)   Literal interpretation of the provisions of this Chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this Chapter.

            (c)   The special conditions and circumstances do not result from the action of the applicant.

            (d)   Granting the variance requested will not confer on the applicant any special privilege that is denied by this Chapter to other lands, structures or buildings in the same district.

      No conforming use of neighboring lands, structures or buildings in the same district and no permitted or nonconforming use of lands, structures or buildings in other districts shall be considered grounds for the issuance of a variance.

         (2)   Notice of public hearing shall be given as in §1002, above.

         (3)   The public hearing shall be held. Any party may appear in person or by agent or by attorney.

         (4)   The Zoning Hearing Board shall make findings that the requirements of subsection (3) have been met by the applicant for a variance.

         (5)   The Zoning Hearing Board shall further make a finding that the reasons set forth in the application justify the granting of the variance and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure.

   5.   Special Exceptions.

      A.   Where the Borough Council, in this Chapter, has stated special exceptions to be granted or denied by the Zoning Hearing Board pursuant to express standards and criteria, the Board shall hear and decide requests for such special exceptions in accordance with such standards and criteria. 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 of this Chapter and the Pennsylvania Municipalities Planning Code, 53 P.S. §10101 et seq.

      B.   A special exception shall not be granted by the Zoning Hearing Board unless and until:

         (1)   A written application for a special exception is submitted indicating the Section of this Chapter under which the special exception is sought and stating the grounds on which it is requested.

         (2)   The Zoning Hearing Board shall make a finding that it is empowered under the Section of this Chapter described in the application to grant the special exception and that the grant of the special exception will not adversely affect the public interest.

         (3)   Before any special exception shall be issued, the Zoning Hearing Board shall make written findings certifying compliance with the specific rules governing individual special exceptions and that satisfactory provisions and arrangement has been made concerning the following, where applicable:

            (a)   Ingress and egress to property and proposed structures thereon, with particular reference to automotive and pedestrian safety and conveniences, traffic flow and control and access in case of fire or catastrophe.

            (b)   Off-street parking and loading areas where required, with particular attention to the items in subsection (5) (B) (3) (a) , above, and the economic, noise, glare or odor effects of the special exception on adjoining properties and properties generally in the district.

            (c)   Refuse and service areas, with particular reference to the items in subsections (5) (B) (3) (a) and (5)(B)(3)(b) above.

            (d)   Utilities, with reference to locations, availability and compatibility.

            (e)   Screening and buffering, with reference to type, dimensions and character.

            (f)   Signs, if any, and proposed exterior lighting, with reference to glare, traffic safety compatibility and harmony with properties in the district.

            (g)   Required yards and other open space.

            (h)   General compatibility with adjacent properties and other property in the district.

         (4)   In granting any special exception, the Zoning Hearing Board may prescribe additional conditions and safeguards in conformity with this Chapter. Violation of such conditions and safe guards, when made a part of the terms under which the special exception is granted, shall be deemed a violation of this Chapter and punishable under Part 9, "Administration and Enforcement." The Zoning Hearing Board shall prescribe a time limit within which the action for which the special exception is required shall be begun or completed, or both. Failure to begin or complete, or both, such action within the time limit set shall void the special exception.

   6.   Borough Council's Function; Conditional Uses. Where this Chapter has stated conditional uses to be granted by Borough Council pursuant to express standards and criteria, the Borough Council shall hold hearings on and decide requests for such 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 the Municipal Planning Act and this Chapter.

(Ord. 87-8, 12/10/1987; as added by Ord. 97-3A, 3/3/1997)

   Where the Board has jurisdiction over a zoning matter pursuant to §1003, above, 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 §1002. 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.

(Ord. 87-8, 12/10/1987; as amended by Ord. 97-3A, 3/3/1997)

   Appeals raising the substantive validity of any land use ordinance (except those to be brought before the Borough Council pursuant to the Pennsylvania Municipalities Code), procedural questions or alleged defects in the process of enactment or adoption of a land use ordinance; or from the determination of the Zoning Officer including, but not limited to, the granting or denial of any permit, or failure to act on the application therefor, the issuance of any cease and desist order or the registration or refusal to register any nonconforming use, structure or lot; from a determination by the Borough Engineer or the Zoning Officer with reference to the administration of any floodplain or flood hazard ordinance or such provisions within a land use ordinance; from the determination of any officer or agency charged with the administration of any transfer of development rights or performance density provisions of this Chapter, from the determination of the Zoning Officer or Borough Engineer in the administration of any land use ordinance or provision thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to development not involving subdivision and land development or planned residential development may be filed with the Zoning Hearing Board in writing by the landowner affected, any officer or agency of the Borough or any person aggrieved. Request for a variance and for special exception may be filed with the Board by any landowner or any tenant with the permission of such landowner.

(Ord. 87-8, 12/10/1987; as amended by Ord. 97-3A, 3/3/1997)

   1.   No person shall be allowed to file any proceeding with the Zoning Hearing Board later than thirty (30) days after an application for development, preliminary or final, has been approved by the Borough if such proceeding is designed to secure reversal or to limit 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 predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan or from an adverse decision by the Zoning Officer on a challenge to the validity of this Chapter or an amendment hereto or map or amendment thereto shall preclude an appeal from a final approval, except in the case where the final submission substantially deviates from the approved tentative approval.

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

(Ord. 87-8, 12/10/1987; as amended by Ord. 97-3A, 3/3/1997)

   1.   Upon filing of any appeal proceeding before the Zoning Hearing Board and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or of any agency or body, and all official action thereunder, shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies to the Board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed otherwise than by a restraining order which may be granted by the Board or by the court having jurisdiction of zoning appeals, on petition, after notice to the Zoning Officer or other appropriate agency or body. When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post 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 an 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 appellants 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.

   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 of the court below to post 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 fees incurred by the petitioner.

(Ord. 87-8, 12/10/1987; as amended by Ord. 97-3A, 3/3/1997)