A. 
In accordance with Article IX of the Pennsylvania Municipalities Planning Code,[1] a Zoning Hearing Board is hereby created.
[1]
Editor's Note: See 53 P.S. § 10901 et seq.
B. 
Members of the existing New Wilmington Borough Zoning Hearing Board shall continue in office and serve on this Board. Terms, appointments and qualifications will be in accordance with Section 903 of the Municipalities Planning Code.[2]
[2]
Editor's Note: See 53 P.S. § 10903.
C. 
The Board shall hold meetings, adopt rules of procedure, keep minutes and records and, pursuant to notice, take testimony under oath, render decisions or findings all in accordance with the powers and time limits as set forth by the Pennsylvania Municipalities Planning Code. The Board shall also have such powers as are expressly set forth or as are reasonably inferred either by this chapter or the Pennsylvania Municipalities Planning Code.
D. 
Also, in accordance with the Pennsylvania Municipalities Planning Code, the Borough Council may, by resolution, appoint up to three alternate members to the Board, whose duties shall be as set forth in the Municipalities Planning Code.
[Amended 2-2-1998 by Ord. No. 429]
Fees for the filing of appeals or other proceedings in front of the Board will be set by resolution of the Borough Council.
[Amended 2-5-1996 by Ord. No. 420]
The New Wilmington Zoning Hearing Board shall have the following powers, duties and functions, as well as those reasonably inferred from this chapter or the Pennsylvania Municipalities Planning Code:
A. 
Substantive challenges to the validity of any land use ordinance, except those brought before the governing body pursuant to Sections 609.1 and 916.1(a)(2) of the Planning Code.[1]
[1]
Editor's Note: See 53 P.S. §§ 10609.1 and 10916.1(a)(2), respectively.
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 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 nonconforming 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 variances from the terms of this chapter and the Flood Hazard Ordinance or such provisions within a land use ordinance, pursuant to Section 910.2 of the Planning Code[2] and Subsection H of this section.
[2]
Editor's Note: See 53 P.S. § 10910.2.
F. 
Appeals from the Zoning Officer's determination under Section 916.2 of the Planning Code.[3]
[3]
Editor's Note: See 53 P.S. § 10916.2.
G. 
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 Article V or VII applications of the Planning Code.[4]
[4]
Editor's Note: See 53 P.S. § 10501 et seq., and 53 P.S. § 10701 et seq, respectively.
H. 
Variances.
(1) 
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, 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 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.
(2) 
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purpose of this chapter.
Within the limits of funds appropriated by the Borough Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants or other services as may be required.
[Amended 5-7-2001 by Ord. No. 453; 10-4-2004 by Ord. No. 476]
The Board shall conduct hearings and make decisions in accordance with Article IX of the Pennsylvania Municipalities Planning Code[1] and the following requirements:
A. 
Notice of hearings shall be given to the public by public notice as set forth in the Pennsylvania Municipalities Planning Code in a newspaper of general circulation in the Borough. Such notice shall state the time and place of the hearing and the particular nature of the matter to be considered at the hearing. 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 prescribed by rules of the Board. In addition to the notice provided herein, written notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.
B. 
The Borough Council may prescribe reasonable fees with respect to hearings before the Zoning Hearing Board. Fees for said hearings may include compensation for the Secretary and members of the Zoning Hearing Board, notice and advertising costs and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses of the Zoning Hearing Board, expenses for engineering, architectural or other technical consultants or expert witness costs.
C. 
The first hearing shall be held 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 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. An applicant may, upon request, be granted additional hearings to complete his 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 of 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.
D. 
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 may waive decision or findings by the Board and accept the decision or findings of the hearing officer as final.
E. 
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.
F. 
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.
G. 
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.
H. 
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
I. 
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.
J. 
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, except that advice from the Board's Solicitor is exempt from this restriction; 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.
K. 
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. Where 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 the Pennsylvania Municipalities Planning Code or any 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 Section 916.1 of the Pennsylvania Municipalities Planning Code, where the Board fails to render the decision within the period required by this chapter or the Pennsylvania Municipalities Planning Code, or fails to commence, conduct or complete the required hearing as required by Article IX of the Pennsylvania Municipalities Planning Code, 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 hereinabove provided, the Board shall give public notice of said decision within 10 days in the same manner as provided in Subsection 607(1) of the Pennsylvania Municipalities Planning Code. Nothing in this subsection shall prejudice the right of any party to appeal the decision to a court of competent jurisdiction.
L. 
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 no later than the last day of the hearing, the Board shall provide, by mail or otherwise, a brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
In accordance with Section 912 of the Pennsylvania Municipalities Planning Code,[1] the Board, upon appeal, shall have the power to authorize variances from the provisions of this chapter provided that 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 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 appellant.
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 authorizing a variance, the Board may attach such reasonable conditions as it deems necessary to assure compliance with the objectives of this chapter.
[1]
Editor's Note: 53 P.S. § 10912 was repealed 12-21-1988, P.L. 1329, No. 170, § 90; see now 53 P.S. § 10910.2.
The Board shall have the power to decide applications for special exceptions as specified in this chapter, in harmony with its general purposes and intent and in accordance with the standards set forth. The Board shall approve a special exception only if it meets the following standards and criteria:
A. 
The use is compatible with adjacent uses and structures.
B. 
The use is suited to the topography and other characteristics of the site.
C. 
The use complies with all off-street parking and other provisions of this chapter.
D. 
The Board shall apply the specific standards and criteria set forth in Article III of this chapter.
In cases involving performance standards:
A. 
The Board may require a plan of the proposed construction or development, a description of machinery proposed and specifications for the mechanisms and techniques to be used.
B. 
The Board may obtain qualified expert consultants to testify as to whether a proposed use will conform to the performance requirements.
[Amended 10-4-2004 by Ord. No. 476]
Any person aggrieved by any decision of the Board, or any taxpayer of the Borough, may appeal therefrom in accordance with Article X of the Pennsylvania Municipalities Planning Code. [1]
[1]
Editor's Note: Sections 11001 and 11003 through 11011 of Article X of the Municipalities Planning Code were repealed 12-21-1988, P.L. 1329, No. 170. Section 11002 of Article X was repealed 4-28-1978, P.L. 202, No. 53. For provisions regarding appeals, see now Article X-A of the Municipalities Planning Code (53 P.S. § 11001-A et seq.).