The Tullytown Borough Zoning Hearing Board presently consists of and shall continue to consist of five members, appointed by the Borough Council. The term of office of each member shall be five years, as presently fixed so that the term of office of at least one but no more than two members shall expire each year. Members of the Board shall be residents of the Borough and shall hold no other office in the Borough.
A. 
Organization of Zoning Hearing Board. The Board shall elect a Chairman from its membership annually, and, within the limits of funds appropriated by Borough Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services.
B. 
Alternate members. The governing body may appoint by resolution at least one but not more than three residents of the municipality to serve as alternate members of the Zoning Hearing Board, subject to the following provisions:
(1) 
The term of office of an alternate member shall be three years.
(2) 
Alternate members shall hold no office in the municipality.
(3) 
Any alternate member may participate in any proceeding or discussion of the Zoning Hearing Board but shall not be entitled to vote as a member of the Zoning Hearing Board nor receive any compensation (if such compensation exists) unless designated as a voting alternate member.
(4) 
If, by reason of absence or disqualification of a Zoning Hearing Board member, a quorum is not reached, the Chairman of the Zoning Hearing Board shall designate as many alternate members to sit on the Zoning Hearing Board as may be needed to provide a quorum. Any alternate member shall continue to serve on the Zoning Hearing Board in all proceedings involving the matter or case for which the alternate member was initially appointed until the Zoning Hearing Board has made a final determination of the matter or case. Designation of an alternate member shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.
A. 
Hearings. The Board shall meet as needed to hear and consider all such matters which shall properly come before it. All such meetings shall be open to the public.
B. 
Persons entitled to initiate action before the Board. Appeals from the Zoning Officer pursuant to § 185-102A hereof and proceedings to challenge an ordinance under § 185-102B hereof may be filed by any officer or agency of the Borough or by any person aggrieved. Requests for a variance under § 185-102C and for a special exception under § 185-102D hereof may be filed by any landowner or tenant with the permission of such landowner.
C. 
Manner of initiating action before the Board. All action before the Board shall be initiated by a written application for hearing which shall be filed with the Zoning Officer at least three weeks prior to the meeting at which the particular matter is to be heard. All applications shall be made on forms specified by the Board, and no application form shall be accepted unless the same shall be fully and legibly completed and unless all exhibits and supplemental material required by the application shall be attached (and until all fees required under § 185-94 of this chapter shall have been paid).
D. 
Time limitations. All appeals from the Zoning Officer and all requests for variances, as provided in § 185-102A and C, respectively, shall be filed within 30 days following the refusal of the Zoning Officer to grant a zoning permit.
E. 
Notification of hearings. All hearings shall be held within 60 days from the date of the applicant's request, unless the applicant agreed in writing to an extension of time. Notification of the time and place of all hearings shall be given by mail to the applicant and to all persons who own real estate within 200 feet of any property which is the subject of an application. Notice of the hearings of any particular application shall also be given to any person who shall timely request the same in writing, such request to be accompanied by a fee in the sum of $1. The first publication shall not be more than 30 days and the second publication shall not be less than seven days from the date of the hearing. In addition, written notice of the hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.
F. 
Parties. Parties to any hearing shall be the municipality, any person entitled to notice under Subsection E without special request who has given timely appearance of record before the Board, and any other person permitted to appear by the Board.
G. 
Witnesses. The Chairman or Acting Chairman of the Board 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.
H. 
Representation. The parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond and present evidence and cross-examine adverse witnesses on all relevant issues.
I. 
Rules of evidence. Formal rules of evidence shall not apply; but irrelevant, immaterial or unduly repetitious evidence may be excluded.
J. 
Record. The Board 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.
K. 
Communications. The Board shall not communicate, directly or indirectly, with any party or his representative 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. "Board" as used here shall include not only the members but also any secretary, clerk, legal counsel, or consultant of the Board.
L. 
Decisions. The Board 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. 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 this act 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 light of the facts found. 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 its report and recommendations available to the parties within 45 days and the parties shall be entitled to make written findings, and the Board's decision shall be entered no later than 30 days after the report. Where the Board fails to hold a hearing within 60 days of 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. 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 provided above, 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 53 P.S. § 10908(1). 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.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
M. 
Copies of decisions. A copy of the final decision or, where no decision is called for, the findings shall be delivered to the applicant personally or mailed 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.
N. 
Appeals to the courts. Zoning appeals may be taken to the court by any party before the Board or any officer or agency of the Borough, as provided by law.
The Board shall perform any function required of it, by and in accordance with, the provisions of the Pennsylvania Municipalities Planning Code[1] including the following:
A. 
Appeals from the Zoning Officer.
(1) 
The Board shall hear and decide appeals where it is alleged by the appellant that the Zoning Officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of the Zoning Ordinance or Map.
(2) 
Appeals to the Zoning Hearing Board may be taken by the landowner affected, any officer or agency of the Borough, or any person aggrieved by any decision of the Zoning Officer. These appeals must be filed within 30 days of the date the decision is rendered by the Zoning Officer.
(3) 
Any appeal from the ruling of the Zoning Officer concerning the enforcement and interpretation of the provisions of this chapter, including any order to stop, cease and desist, shall be filed with the Zoning Officer within 30 days after the date of the Zoning Officer's adverse decision.
(4) 
All appeals and applications made to the Board shall be in writing on standard forms prescribed by the Zoning Hearing Board and accompanied by fees required under § 185-94.
(5) 
All appeals and applications shall refer to the specific provisions of this chapter involved.
B. 
Challenge to the validity of the Zoning Ordinance or Map.
(1) 
The Board shall hear challenges to the validity of the Zoning Ordinance and Map. In all such challenges, the Board shall take evidence and make a record thereon as provided in § 185-101J. At the conclusions of the hearing, 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 court.
(2) 
Where the Board has jurisdiction over a zoning matter pursuant to Subsection A, B or C, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any municipal ordinance or requirement pertaining to the same development plan or development. The Board shall have no power, however, to pass on the nonzoning issues but shall take evidence and make findings on all relevant issues of fact, which shall become part of the record on appeal to the court.
C. 
Variances. The Board shall hear requests for variances where it is alleged that the provisions of the Zoning Ordinance inflict unnecessary hardship upon the appellant. The Board may grant a variance provided the following findings are made where relevant in a given case:
(1) 
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;
(2) 
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;
(3) 
That such unnecessary hardship has not been created by the appellant;
(4) 
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; and
(5) 
That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation at 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. The applicant shall have six months after the time the variance was granted to obtain a building permit for any structure for which the variance was required, or to obtain subdivision or land development approval if the variance is related to a subdivision or land development.
D. 
Special exceptions.
(1) 
Where this chapter has provided for stated special exceptions to be granted or denied by the Zoning Hearing Board, pursuant to expressed standards and criteria, the Zoning Hearing Board shall hear and decide requests for such special exceptions in accordance with such standards and criteria.
(2) 
Upon review of any application for a special exception, the Zoning Hearing Board shall consider and determine, among other things:
(a) 
That the proposed change is consistent with the spirit, purpose and intent of the Zoning Ordinance.
(b) 
That the proposed special exception will not substantially injure or detract from the use of the neighboring property, or from the character of the neighborhood.
(c) 
That all commercial and industrial 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 the highway and neighboring properties from direct glare or hazardous interference of any kind.
(3) 
In granting special exceptions, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it deems necessary to implement the purposes of this chapter.
(4) 
In all applications for special exceptions, the applicant shall have the burden of proving that his application falls within the provisions of the Zoning Ordinance and that granting his application will not be contrary to the public interest.
(5) 
The applicant shall have six months after the time that a special exception is granted in which to obtain a building permit for any structure for which the special exception was required.
(6) 
Criteria for a special exception use "cellular telecommunications facility" in § 185-19G(2).
(a) 
The applicant shall demonstrate that the tower for the telecommunications facility is the minimum height necessary for the service area. The applicant shall also demonstrate that the facility must be located where it is to serve the company's system.
(b) 
The applicant shall present documentation that the tower is designed in accordance with the standards cited in this chapter for cellular telecommunications towers.
(c) 
The applicant shall demonstrate that the proposed tower complies with all state and federal laws and regulations concerning aviation safety.
(d) 
The need for additional buffer yard treatment shall be evaluated.
(e) 
The applicant shall demonstrate that the telecommunication facility must be located where it is proposed in order to serve the applicant's service area.
(f) 
Where the telecommunication facility is located on a property with another principal use, the applicant shall present documentation that the owner of the property has granted an easement for the proposed facility and that vehicular access is provided to the facility.
E. 
Interpretation. Upon appeal from a decision by the Zoning Officer, the Zoning Hearing Board shall decide any question:
(1) 
Involving the interpretation of any provision of this chapter, including determination of the exact location of any district boundary if there is uncertainty;
(2) 
Where it is alleged there is an error in any order, requirement, decision or determination including any order requiring an alleged violation to stop, cease, and desist made by the Zoning Officer in the enforcement of this chapter.
F. 
Court appeal. Any person aggrieved by any decision of the Zoning Hearing Board of the municipality may, within 30 days after such decision of the Board, appeal to the Court of Common Pleas of Bucks County, by petition duly verified, setting forth that such decision is arbitrary, capricious, an abuse of discretion, or not in accordance with law, and specify the grounds upon which he relies. Such appeals shall be made in accordance with Article X-A of the Pennsylvania Municipalities Planning Code.[2]
[2]
Editor's Note: See 53 P.S. § 11001-A et seq.
G. 
Variance in the Flood Hazard Area. Because the issuance of variances in the Flood Hazard Area may result in the Borough being expelled from the National Flood Insurance Program, the Zoning Hearing Board should exercise its authority judiciously, taking into consideration all the requirements of Article IX and the criteria listed in § 185-98.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.