The Zoning Hearing Board shall consist of five residents of the Borough appointed by resolution of Council. Their terms of offices shall be five years and shall be so fixed that the term of office of one member shall expire each year. The Board shall promptly notify Council of any vacancies which occur. Appointments to file the vacancies shall be only for the unexpired portion of the term. Members of the Board shall hold no other elected or appointed office in the Borough, nor shall any member be an employee of 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 an alternate member shall be three years. Alternates shall hold no other elected or appointed office in the Borough, including service as a member of the Planning Commission or as Zoning Officer, nor shall any alternate 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 the Board nor be compensated unless designated as a voting alternate member.

The Zoning Hearing 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 its 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 Section 908 of the Planning Code.[1]

The Chairman of the Board may designate alternate members of the Board to replace any absent or disqualified member, and 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 reach 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 decision on the matter or case. Designation of an alternate shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.

The Board may make, alter and rescind rules and forms for its procedure consistent with Board ordinances and Pennsylvania law. The Board shall keep full public records of its business, which records shall be the property of the Borough.

The Board shall submit a report of its activities to Council once a year.

Substantive challenges to the validity of any zoning ordinance, except those brought before Council pursuant to Planning Code Sections 609.1 and 916.1(a)(2).[1]

Appeals from the determination of the Code Enforcement 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.

Appeals from a determination by a municipal engineer or the Code Enforcement Officer with reference to the administration of any floodplain or flood hazard or ordinance or such provisions within the Zoning Ordinance.

Applications for variances from the terms of the Zoning Ordinance and flood hazard ordinance[2] or such provisions within the Zoning Ordinance, pursuant to Planning Code Section 910.2.[3]

Application for special exceptions under the zoning ordinances or floodplain or flood hazard ordinance or such provisions within a zoning ordinance, pursuant to Planning Code Section 912.1.[4]

Appeals from the determination of any officer or agency charged with the administration of any transfers of development rights or performance density provisions of the Zoning Ordinance.

Appeals from the Code Enforcement Officer's determination under Planning Code Section 916.2.[5]

Appeals from the determination of the Code Enforcement Officer or municipal engineer in the administration of any zoning 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 VII of the Planning Code.[6]

Council may prescribe reasonable fees with respect to hearings 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.

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 his 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 applicant's 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 Borough, 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, when 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.

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 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 a stenographer shall be share 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 office 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 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 his 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. When 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 Planning Code 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 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. Except for challenges filed under Planning Code Section 916.1,[1] where the Board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided in § 300-25B, 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. When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a decision within 10 days from the last day it could have met to render a decision in the same manner as provided in § 300-26. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this section 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 him not later than the day following its date. 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.

Variances.

Special exceptions. See Article XVII for standards and criteria for special exceptions.

In granting any variance or special exception, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the Planning Code and the Zoning Ordinance.

Generally. All appeals from decisions of the Board shall be subject to the time limitations and requirements of Article XI-A[1] and any other applicable provision of the Planning Code. The proceedings set forth in Article XI-A of the Planning Code shall constitute the exclusive mode for securing a review of any decision of the Board.

Manner of filing. Appeals under Section 909.1(a)(1), (2), (3), (4), (7), (8) and (9) of the Planning Code[2] may be filed with the Board, in writing, by the landowner affected, by an officer or agency of the Borough or by any aggrieved person. A request for a variance under Section 910.2[3] and for a special exception under Section 912.1[4] may be filed with the Board by any landowner or by any tenant with the permission of such landowner.

Time limitation. 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 Borough officer, agency or body, if such proceeding is designed to secure a reversal or to limit the approval in any manner, unless such person alleges and proves that he or she had no notice, knowledge or reason to believe that such approval had been given. If such person has succeeded to this interest after such approval, he or she shall be bound by the knowledge of his or her predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision by the Code Enforcement Officer on a challenge to the validity of an ordinance or map pursuant to Section 916.2[5] shall preclude an appeal from a final approval, except in the case where the final submission substantially deviates from the approved tentative plans. All appeals from determinations adverse to the landowners shall be filed by the landowner within 30 days after notice of the determination is issued.

Stay of proceedings. Upon a filing of any proceeding referred to in Section 913.3 of the Planning Code[6] and during the pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Code Enforcement Officer or of any agency or body, and all official action thereunder, shall be stayed unless the Code Enforcement 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 over zoning appeals on petition, after notice, to the Code Enforcement 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 over zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board. The question of whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court.