The Zoning Hearing Board which existed at the time of adoption of this article shall continue in existence as previously established.
The membership of the Zoning Hearing Board shall consist of three members who are residents of the Borough of Trainer, and they shall be appointed by 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 will be made by the Borough Council to fill only the unexpired portion of the term. Members of the Zoning Hearing Board shall hold no other office in the municipality, except that no more than one member of the Board may also be a member of the Planning Commission.
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, 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 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 where two members are disqualified to act in a particular matter, the remaining member may act for the Board. 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 § 265-61. 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 and shall submit a report of its activities to the Borough Council once a year.
The Board shall adopt rules in accordance with the provisions of this chapter. Such rules shall include, but shall not be limited to, the manner of filing appeals, the manner of filing applications for special exceptions and variances from the terms of this article, and the manner of giving notice of public hearing where required under the terms of this chapter. Such rules shall be made available to the public.
The Zoning Hearing Board shall perform the following functions:
A. 
Appeals from the Zoning Officer. 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 a valid ordinance or map or any valid rule or regulation governing the action of the Zoning Officer.
B. 
Challenge to the validity of any ordinance or map. The Board shall hear challenges to the validity of the Zoning Ordinance or Map and shall take evidence and make a record thereon as provided in Article XI, § 265-62 of this chapter. At the conclusion 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 the court. Exceptions to the above are as indicated in Article X of the Pennsylvania Municipalities Planning Act 247, as amended.[1]
[1]
Editor's Note: See now Article X-A, Appeals to Court, of 53 P.S. § 10101 et seq.
C. 
Variances. The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. Subject to the provisions of § 265-58, 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 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 of 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 this chapter 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 in issue.
(6) 
In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the Pennsylvania Municipalities Planning Act 247, as amended, and this Zoning Ordinance.
D. 
Special exceptions. Where the governing body in this chapter has stated special exceptions to be granted or denied by the Board pursuant to express standards and criteria, the Board shall hear and decide request for such special exceptions in accordance with such standards and criteria. In granting a special exception, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in the chapter, as it may deem necessary to implement the purposes of the Pennsylvania Municipalities Planning Act 247, as amended, and this Zoning Ordinance.
E. 
Unified appeals. Where the Board has jurisdiction over a zoning matter pursuant to Subsections A through C of this section, 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. In any such case, the Board shall have no power to pass upon the nonzoning issues but shall take evidence and make a record thereon as provided in § 265-61. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
F. 
Parties appellant before Board. Appeals under § 265-59A and proceedings to challenge an ordinance under § 265-59B may be filed with the Board in writing by the landowner affected, any officer or agency of the municipality, or any person aggrieved. Requests for a variance under § 265-59C and for a special exception under § 265-59D may be filed with the Board by any landowner or any tenant with the permission of such landowner.
G. 
Time limitations; persons aggrieved. 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 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 he had no notice, knowledge or reason to believe that such approval had been given. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest.
H. 
Stay of proceedings. Upon filing of any proceeding referred to in § 265-59F and during its pendency before the Board, 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 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 of zoning appeals on petition after notice to the Zoning 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 of 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.
Meetings of the Zoning Hearing Board shall be held at the call of the Chairman and at such other times as the Board may determine. Such Chairman or, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses. All meetings of the Board shall keep minutes of its proceedings showing the vote of each member upon each question or, if absent of failing to vote, indicating such a fact, and shall keep records of its examinations and other official actions. Every rule or regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Board shall immediately be filed in the office of the Board and shall be a public record.
The Board shall conduct hearings and make decisions in accordance with the following requirements:
A. 
Notice shall be given to the public, the applicant, the Zoning Officer, such other persons as the governing body shall designate by ordinance, and to any person who has made timely request for the same. Notices shall be given at such time and in such manner as shall be prescribed by rules of the Board in accordance with state law. The Borough Council may establish a reasonable fee, based on cost, to be paid by the applicant and by persons requesting any notice not required by ordinance.
B. 
The hearing 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, but the parties may waive decision or findings by the Board and accept the decision or findings of the hearing officer as final.
C. 
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 may require that all persons who wish to be considered parties enter appearances in writing or on forms provided by the Board for that purpose.
D. 
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.
E. 
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.
F. 
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
G. 
The Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings and a transcript of the proceedings, and copies of graphic or written material received in evidence shall be made available to any party at cost.
H. 
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; 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.
I. 
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 the Pennsylvania Municipalities Planning Act, Act 247, as amended, 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, 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 decision of the hearing officer. 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 within the period required by this subsection, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing to an extension of time. Nothing in this subsection shall prejudice the right of any party opposing the application to urge that such decision is erroneous.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
J. 
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.
The Zoning Hearing Board shall hear and decide appeals from any order, requirement, decision or determination made by any administrative officer charged with the enforcement of this chapter. It shall also hear and decide all matters referred to it or upon which it is required to pass under the terms of this chapter. Such appeal may be taken by any person aggrieved or by any officer, department, board, or bureau of the Borough affected by the decision of the administrative officer. Such appeal shall be taken within a reasonable time as provided by the rules of the Board by filing with the officer from whom the appeal is taken and with the Board of Appeals a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which action the appeal was taken.
Any person or persons jointly or severally aggrieved by any decisions of the Zoning Hearing Board, or any taxpayers, or any officer, department, board or bureau of the Borough may present to the court of common pleas a petition duly verified, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of the illegality. Such appeal shall follow the format, procedures and guidelines outlined in the Pennsylvania Municipalities Planning Act, Act 247, as amended.