The purpose of this article is to establish regulations to govern the establishment, functions, and procedures of the Zoning Hearing Board, hereinafter called "Board" in this article.

The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters based on Act 247, the Pennsylvania Municipalities Planning Code (MPC), as amended.[1]

There shall be a Zoning Hearing Board, which shall consist of three members who shall be residents of the Borough appointed by resolution of the Borough Council.

The terms of office shall be three years and shall be so fixed that the term of office of one member shall expire each year.

The Zoning Hearing 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 Zoning Hearing Board shall hold no other elected or appointed office in the Borough nor shall any member be an employee of the Borough.

Any member of the Zoning Hearing Board 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 15 days' advance 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.

The Borough Council may appoint by resolution at least one but no more than three residents of the Borough to serve as alternate members of the Board. The term of office of the alternate member shall be three years, and the alternate member shall hold no other office in the Borough. When seated pursuant to the provisions of § 400-132, 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 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 elected or appointed office in the Borough or be an employee of the Borough. Any alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote as a member of said Board nor be compensated pursuant to § 400-133, unless designated as a voting alternate member pursuant to § 400-132.

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

For the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of all the members of the Board, but 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 § 400-134.

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

The Board shall keep full public records of its business, which shall be the property of the Borough, and shall submit a report of its activities to the Borough Council once a year.

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 to sit on the Board as may be needed to provide a quorum. 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 article shall be made on a case-by-case basis in rotation to declining seniority among all alternates.

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. Stenographer fees shall be borne in accordance with § 400-134H.

Members of the Board, including alternate members when designated, 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 Borough Council.

The applicant, before the Board shall deposit, with the Borough Secretary, at the time the application is filed, a sum of money, to pay the costs of the hearing, which sum shall be set, from time to time, by Borough Council, by resolution. Funds deposited in excess of the actual cost of the requested hearing shall be returned to the applicant upon completion of the proceedings. In the event that the costs of the hearing exceed the funds deposited, the applicant shall pay the Borough Secretary an amount equal to such excess costs as authorized by the Pennsylvania Municipalities Planning Code.[1]

The Borough Council may prescribe reasonable fees with respect to hearings, in accordance with § 400-134, before the Board. Fees for said hearings may include compensation for the secretary and members of the Board, notice and advertising costs and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses of the Board, expenses for engineering, architectural or other technical consultants or expert witness costs.

Notice. The Board shall fix a reasonable time and place for public hearings and shall give notice thereof as follows:

The first hearing before the Board or Hearing Officer shall be commenced within 60 days from the date of receipt of the applicant's application, unless the applicant has agreed in writing to an extension of time. Each subsequent hearing before the Board or Hearing Officer 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 their case-in-chief within 100 days of the first hearing. Upon the request of the applicant, the 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 applicants case-in-chief. An applicant may, upon request, be granted additional hearings to complete their case-in-chief provided the persons opposed to the application are granted an equal number of additional hearings. Persons opposed to the application may, upon the written consent or consent on the record by the applicant and municipality, be granted additional hearings to complete their opposition to the application provided the applicant is granted an equal number of additional hearings for rebuttal.

The hearings shall be conducted by the Board or the Board may appoint any member or an independent attorney as a hearing officer. The decision, or, where no decision is called for, the findings shall be made by the Board, but the parties, prior to the decision of the hearing, may waive decision or findings by the Board and accept the decision or findings of the hearing officer as final.

The parties to the hearing shall be the Borough, any person who is entitled to notice under § 400-134A, any person affected by the application who has made timely appearance of record before the Board and any other person including civic or community organizations permitted to appear by the Board. The Board shall have the power to require that all persons who wish to be considered parties enter appearances in writing on forms provided by the Board for that purpose.

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.

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.

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

The Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings. The appearance fee for the 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.

The Board or the hearing officer shall not communicate, directly, or indirectly, with any party or their 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, except advice from their solicitor, 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 their representative unless all parties are given an opportunity to be present.

The Board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for; make written findings on the application within 45 days after the last hearing before the Board or hearing officer. 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 of any act, 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 their decision or findings are final, the Board shall make their 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. Except for challenges filed under this chapter or otherwise, where the Board has power to render a decision and the Board or the hearing officer, as the case may be, fails to render the same, or fails to commence, conduct, or complete the required hearing as herein provided, the decision shall be deemed to have been rendered in favor of the applicant, unless the applicant has agreed in writing on the record 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 hereinabove provided, the Board shall give public notice of said decision within 10 days from the last day the Board could have met to render a decision, as provided § 400-134A. 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.

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 them not later than the day following its date. To all other persons who have filed their names 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.

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 the zoning ordinance in the neighborhood or district in which the property is located.

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 the Zoning Ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.

That such unnecessary hardship has not been created by the appellant.

That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, not substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.

That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the ordinance 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.

Notwithstanding the variance requirements in § 400-135A through F above, the Board will grant reasonable accommodations and permit reasonable modifications where requested by or on behalf of disabled persons. A "reasonable accommodation" is a change in rules, policies, practices or services to enable a person with a disability to use and enjoy a dwelling unit or common space. A "reasonable modification" is a structural modification that is made to allow persons with disabilities the full enjoyment of housing and related facilities. Accommodations or modifications need not be made where to do so would fundamentally alter the programs or create an undue financial and administrative burden.

Assure itself that the size, scope, extent and character of the proposed change is consistent with the spirit, purpose and intent of the Zoning Ordinance, promotes the harmonious and orderly development of the zoning district involved, and will not adversely affect the health, safety, or welfare of the Borough or its residents.

Determine that the proposed change will not substantially injure or detract from the use of the neighborhood property or from the character of the neighborhood, and that the use of the property adjacent to the area included in the proposed change or plan is adequately safeguarded.

Consider the effect of the proposed change upon the logical, efficient, and economical extension of public services, and facilities such as public water, sewers, police and fire protection, and public schools, and assure adequate arrangements for sanitation in specific instances.

Be guided in its study, review and recommendations by sound standards or subdivision practice where applicable.

Guide the development of roadway frontage insofar as possible so as to limit the total number of access points and encourage access onto alleys or minor roads perpendicular to major roads, through routes, or business corridors.

Consider the suitability of the proposed location of an industrial or commercial use with respect to probable effects upon traffic, and assure adequate access arrangements in order to protect major roadways from undue congestion and hazard.

Ensure the proposed use is suitable with respect to automobile and pedestrian traffic and roadways in the area and provides for adequate access and off-street parking arrangements in order to protect major roads from undue congestion and hazard.

Ascertain the adequacy of sanitation and public safety provisions, where applicable, and require a certificate of adequacy of sewage and water facilities from the Board of Health or the appropriate governmental health agency in any case required herein or deemed advisable.

Require that all parking, loading, access or service areas shall be adequately illuminated at night while in use, and that such lighting, including sign lighting, shall be arranged so as to protect roadways and neighboring properties from direct glare or hazardous interference of any kind in accordance with Article XVII for off-street parking and loading and Article XVI for lighting requirements.

Impose such conditions, in addition to those required, as are necessary to assure that the general purpose and intent of the Zoning Ordinance is complied with, which conditions may include, but are not limited to, harmonious design of buildings, planting and its maintenance as a sight or sound screen, aesthetics, landscaping, effect on natural resources, hours of operation, lighting, numbers of persons involved, ventilation, noise, sanitation, safety, smoke and fume control and the minimizing of noxious, offensive or hazardous elements.

Weigh each case on its own merits, separately, based upon pertinent information present or known to the Board, and without regard to any previous cases.

Notwithstanding the special exception requirements in § 400-136A through K above, the Board will grant reasonable accommodations and permit reasonable modifications where requested by or on behalf of disabled persons. A "reasonable accommodation" is a change in rules, policies, practices or services to enable a person with a disability to use and enjoy a dwelling unit or common space. A "reasonable modification" is a structural modification that is made to allow persons with disabilities the full enjoyment of housing and related facilities. Accommodations or modifications need not be made where to do so would fundamentally alter the programs or create an undue financial and administrative burden.

No person shall be allowed to file any proceeding with the Board later than 30 days after an application for development, preliminary or final, has been approved by an appropriate municipal 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 they had no notice, knowledge, or reason to believe that such approval had been given. If such person has succeeded to their interest after such approval, they shall be bound by the knowledge of his predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan pursuant Section 709 of the Municipalities Planning Code,[1] or from an adverse decision by the Borough Zoning Officer on a challenge to the validity of an ordinance or map pursuant to Section 916.2 of the Municipalities Planning Code,[2] shall preclude an appeal from a final approval, except in the case where the final submission substantially deviates from the approved tentative approval.

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

Unless otherwise specified by the Board, a special exception, special relief or variance shall expire within one year from the date of authorization if the applicant fails to obtain the appropriate permit or fails to file for an extension as per § 400-140B below.

An applicant may request an extension of time in writing for a period not to exceed six months, citing the reasons for which the extension is necessary, subject to the approval of the Board. Such applications for extension must occur before the expiration of the initial authorization.

A landowner affected or any person aggrieved by any decision of the Board or any officer of the Borough may file an appeal under § 400-130B(1), (2), (3), (4), (7), (8) of this article with the Board in writing specifying the grounds thereof within the time required by the Municipalities Planning Code, or as provided by the rules of the Board.

Appeals regarding § 400-66, Flood Hazard District. [In accordance with the Federal Emergency Management Agency (FEMA).] Where the following conflicts with other applicable requirements of this article, the following shall apply: