A Zoning Hearing Board is established in order that the objectives of this Chapter may be more fully and equitably achieved and a means for competent interpretation of this Chapter provided.

(Ord. 379, 7/6/2009, § 1801)

   The Borough Council shall appoint by resolution a Zoning Hearing Board consisting of three members who are residents of the Borough. The terms of office shall be for 3 years and shall be so fixed that the term of office of one member shall expire each year. 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.

      A.   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. The member must be given 15 days written notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member shall request it in writing.

      B.   The word “Board” when used in this Chapter shall mean the Zoning Hearing Board.

(Ord. 379, 7/6/2009, § 1802)

   1.   The Borough Council may appoint by resolution at least one but no more than 3 residents of the Borough to serve as alternate members of the Board, subject to the following provisions: The term of office of an alternate shall be 3 years.

   2.   The term of office of an alternate shall be 3 years.

   3.   Alternate members shall hold no other office in the Borough.

   4.   If, by reason of absence or disqualification of a member, a quorum is not reached, the Chairman of the Board shall designate as many alternate members of the Board to sit on the Board as may be needed to provide a quorum. An alternate so designated shall be entitled to participate in all proceedings and discussions of the Board to the same and full extent as provided by law for Board members, including specifically the right to cast a vote as a voting member during the proceedings, and shall have all the powers and duties set forth in this Part and as otherwise provided by law.

   5.   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.

   6.   Designation of an alternate shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.

   7.   Any alternate may participate in any proceeding or discussion of the Board but may not vote as a member nor be compensated unless designated as a voting alternate as provided above.

   8.   In the event that a member is unable to attend a hearing or is disqualified from participating in a hearing by reason of conflict of interest or any other reason, the Chairman may designate an alternate to participate in the hearing. Once designated, the alternate shall participate in any subsequent hearings on the application for which they were designated as a member of the Board, and shall participate in rendering any decision on such application.

(Ord. 379, 7/6/2009, § 1803)

   1.   The Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves.

   2.   For the conduct of any hearing and the taking of any action, a quorum shall be no less than two voting members, but the Board may appoint a Hearing Officer from its own membership to conduct any hearing on its behalf and the parties may waive further action by the Board as provided in this Chapter.

   3.   The Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the Borough and the laws of the Commonwealth.

   4.   The Board shall keep full public records of its business, which records shall be the property of the Borough, and shall submit reports of its activities to the Borough as requested by the Borough Council.

   5.   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 shall it exceed the rate of compensation authorized to be paid to the members of the Borough Council.

(Ord. 379, 7/6/2009, § 1804)

   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 the curative challenge and amendment process.

      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 filed within 30 days after the effective date of said ordinance.

      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 therefore, the issuance of any enforcement notice or the registration or refusal to register any nonconforming use, structure or lot.

      D.   Appeals from a determination by the Borough Engineer or the Zoning Officer with reference to the Floodplain Ordinance or such provisions within a land use ordinance.

      E.   Applications for variance from the terms of this Chapter.

      F.   Applications for special exceptions under the terms of this Chapter.

      G.   Appeals from the determination of the Zoning Officer or Borough Engineer in the administration of ordinance.

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

      A.   All applications for subdivisions and land developments pursuant to the Borough of Telford Subdivision and Land Development Ordinance [Chapter 22], as amended.

      B.   Applications for conditional uses under the express provisions of this Chapter.

      C.   Applications for curative amendments pursuant to this Chapter or pursuant to the Municipalities Planning Code, 53 P.S. § 10101 et seq.

      D.   All petitions for amendments to land use ordinances pursuant to the Municipalities Planning Code, 53 P.S. § 10101 et seq.

(Ord. 379, 7/6/2009, § 1805)

   Upon receipt of an application, the Zoning Hearing Board Chairman shall fix a reasonable time and place for a public hearing on the application. Said hearing shall be held within 60 days from the date of the applicant’s request, unless the applicant has agreed in writing to an extension of time.

(Ord. 379, 7/6/2009, § 1806)

   Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer and to any person who has made timely request for the same. Written notices shall be given at such time and in such manner as shall be prescribed by rules of the Board. In addition to the written notice provided herein, written notice of said hearing shall be conspicuously posted on the affected tract of land in accordance with the Municipalities Planning Code (MPC), 53 P.S. § 10101 et seq.

(Ord. 379, 7/6/2009, § 1807)

   1.   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; however, the appellant or the applicant, as the case may be, in addition to the Borough, may, prior to the decision of the hearing, waive decision or findings by the Board and accept the decision or findings of the Hearing Officer as final.

   2.   The parties to the hearing shall be the Borough, any person affected by the application who has made timely appearance of record before the Board, and any other person including civic or community organizations permitted to appear by the Board. The Board shall have the power to require that all persons who wish to be considered parties enter appearances in writing on forms provided for that purpose.

   3.   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.   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.

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

   6.   The Board or Hearing Officer, as the case may be, shall keep a stenographic record of the proceedings.

      A.   The appearance fee for a stenographer shall be shared equally by the applicant and the Board.

      B.   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.

   7.   Except upon notice and opportunity for all parties to be present, to participate, and to inspect and contest materials, the Board shall not:

      A.   Communicate, directly or indirectly, with any party or his representative in connection with any issue involved.

      B.   Take notice of any communication, reports, staff memoranda or other materials, except advice from their Solicitor.

      C.   Inspect the subject site or its surroundings after commencement of hearings with any party or his representative.

(Ord. 379, 7/6/2009, § 1808)

   1.   The Zoning Hearing Board or the Hearing Officer, as the case may be, shall render a written decision or make written findings on the application within 45 days of the last hearing before the Board or Hearing Officer. When the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefore. Conclusions based on any provisions of this Chapter or of any law, ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is found appropriate in the light of the facts found.

   2.   If the hearing is conducted by a Hearing Officer, and there has been no stipulation that his decision or findings are final, the Board shall make his report and recommendations available to the parties within 45 days and the parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings, and the Board’s decision shall be entered no later than 30 days after the report of the Hearing Officer.

   3.   Where the Board fails to render the decision within the required period, or fails to hold the required hearing within 60 days of application, 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.

   4.   When a decision has been deemed to have been rendered in favor of the applicant because of the failure of the Board to hold a hearing or render a decision as provided, the Board shall give public notice of said deemed decision within 10 days from the last day it could have met to render a decision. Such notice shall be given in the manner prescribed by §27-1706 herein. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.

   5.   A copy of the final decision or findings shall be delivered to the applicant personally or mailed within 1 week following the final 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 other wise, brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.

(Ord. 379, 7/6/2009, § 1809)

   1.   Variance. The 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 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 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 therefore 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.

      F.   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.

   2.   Special Exception. 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 any special exception, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this Chapter.

(Ord. 379, 7/6/2009, § 1810)

   Decisions on appeals and applications to the Board, other than variances and special exceptions, shall be considered in accordance with the following:

      A.   Time Limitations.

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

         (2)   Appeals designed to secure reversal or limit the approval of any application for development, preliminary or final, shall be filed with the Board no later than 30 days after the application is approved by an appropriate Borough officer or agency, unless the person filing proves that he had no notice, knowledge or reason to believe that such approval had been given. If such person succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest.

      B.   Stay of Proceedings. Upon filing of any proceeding before the Board, and during its pendency, 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, agency or body certifies to the Board facts indicating imminent peril to life or property, in which case the development or official action shall not be stayed other than by a restraining order granted by the Board or by the court having jurisdiction of zoning appeals.

(Ord. 379, 7/6/2009, § 1811)

   Unless otherwise specified by the Board, a special exception or variance shall expire if the applicant fails to obtain any and all permits within 6 months of the date of authorization thereof. The applicant may apply to the Board for postponement of the expiration, providing in writing an explanation of the reasons why permits were not obtained and a request for a postponement to a specific date. All parties who originally received notification of the Board’s decision in the matter shall be notified of the postponement of expiration, at the applicant’s expense.

(Ord. 379, 7/6/2009, § 1812)

   Any persons aggrieved by the decision of the Board, or any taxpayer, or any officer of the Borough, may within 30 days after any decision of the Board, appeal to the Court of Common Pleas of Montgomery County or Bucks County, as the case may be, by petition in such form as may be prescribed or authorized by law.

(Ord. 379, 7/6/2009, § 1813)