The membership of the Zoning Hearing Board shall consist of three (3) residents of the Borough appointed by Resolution of Borough Council. Their terms of office shall be three (3) years and shall be so fixed that the term of office of one (1) member shall expire each year. The Board shall promptly notify Borough Council when vacancies occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Board shall hold no other office in the Borough, including membership on the Planning Commission and Zoning Officer.
Appointment of Alternate Members:
Borough Council may appoint by Resolution at least one (1), but no more than three (3), residents of the Borough to serve as alternate members of the Board. The term of office of an alternate member shall be three (3) years. When seated pursuant to the provisions of § 1501.2, 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 power and duties set forth in this Ordinance and as otherwise provided by law. Alternates shall hold no other office in the Borough, including membership on the Planning Commission and Zoning Officer. Any alternate may participate in any proceedings or discussion of the Board but shall not be entitled to vote as a member of the Board unless designated as a voting alternate member pursuant to § 1501.2 of this Ordinance.
Participation by Alternate Members:
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 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 Subsection shall be made on a case by case basis in rotation according to declining seniority among all alternates.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudication in the following matters:
Substantive challenges to the validity of any land use ordinance, except curative amendments brought before the applicable Borough Council.
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 with thirty (30) days after the effective date of the Ordinance.
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.
Appeals from a determination by the Borough Engineer or the Zoning Officer with reference to the administration of any flood plain or flood hazard ordinance or such provisions within a land use ordinance.
Applications for variances from the terms of this Ordinance, any flood hazard ordinance or such provisions within a land use ordinance pursuant to § 190-1503.
Appeals from the Zoning Officer's determination under Section 916.2 of the Pennsylvania Municipalities Planning Code. (Act 247, as amended)
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 subdivision and land development.
The Board, upon appeal, shall have the power to authorize variances from the requirements of this Ordinance, and to attach such conditions to the variance as it deems necessary to assure compliance with the purposes of this Ordinance. A variance may be granted, if all of the following findings are made where relevant in a given case:
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 Ordinance in the neighborhood or Zoning 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 this 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 Zoning 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.
That the variance, if authorized, will represent the minimum variance necessary to afford relief and will represent the least modification possible of the regulation 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 Ordinance and protect the public health, safety and welfare.
The Board shall have the power to hear and decide on applications for uses by special exception as authorized by this Ordinance, in harmony with its general purpose and intent, and in accordance with the standards set forth in Article XIII and the procedure for approval specified in § 1301.3. The Board shall approve a use by special exception only if it meets all applicable requirements of this Ordinance and the express standards and criteria set forth in Article XIII. In granting a use by special exception, the Board may attach such reasonable safeguards, in addition to those expressed in this Ordinance, as it may deem necessary to properly implement this Ordinance and protect the public health, safety and welfare.
The first public hearing shall be held on any appeal filed under § 190-1502 of this Ordinance within sixty (60) days from the date of the applicant's request, unless the applicant has agreed in writing to an extension of time. The public hearing shall be held pursuant to public notice, as defined by this Ordinance. In addition to the public notice, at least one (1) week prior to the hearing, the Board shall post at least one (1) copy of the notice on the affected property and shall mail a copy of the notice by regular mail to each adjacent property owner, including those located across a street right-of-way.
Each subsequent hearing shall be held within forty-five (45) days of the prior hearing, unless otherwise agreed to by the applicant. Any party aggrieved by the schedule or progress of the hearings may apply to the Court of Common Pleas for judicial relief. The hearings shall be completed no later than one hundred (100) days after the completion of the applicant's case in chief, unless extended for good cause upon application to the Court of Common Pleas.
The Board shall comply with the provisions of the Pennsylvania Municipalities Planning Code (Act 247, as amended) regarding conduct of the public hearing.
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 forty-five (45) days after the last hearing before the Board or hearing officer. 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 provision 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 has been conducted by the 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 forty-five (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 thirty (30) days after the report of the hearing officer.
Where the Board fails to render a decision within forty-five (45) day period or fails to commence or complete the required hearing as provided for in § 190-1505, 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 failure of the Board to meet or render a decision, the Board shall give public notice of the decision within ten (10) days from the last day it could have met to render a decision. 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 the Court of Common Pleas.
Parties to proceedings authorized in this Article may utilize mediation as an aid in completing such proceedings. In proceedings before the Zoning Hearing Board, in no case shall the Zoning Hearing Board initiate mediation or participate as a mediating party. Mediation shall supplement, not replace, those procedures in this Article once they have been formally initiated. Nothing in this Subsection shall be interpreted as expanding or limiting municipal police powers or as modifying any principles of substantive law.
Participation in mediation shall be wholly voluntary. The appropriateness of mediation shall be determined by the particulars of each case and the willingness of the parties to negotiate. Any municipality offering the mediation option shall assure that in each case, the mediating parties, assisted by the mediator as appropriate, develop terms and conditions for:
Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation.
Completing mediation, including time limits for such completion.
Suspending time limits otherwise authorized in this Ordinance or in the Pennsylvania Municipalities Planning Code (Act 247, as amended), provided there is written consent by the mediating parties, and by an applicant or Borough decision-making body, if either is not a party to the mediation.
Identifying all parties and affording them the opportunity to participate.
Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public.
Assuring that mediated solutions are in writing and signed by the parties, and become subject to review and approval by the appropriate decision-making body pursuant to the authorized procedures set forth in this Ordinance.
No offers or statements made in the mediation sessions, excluding the final written mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceedings.
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.
Stenographer's Appearance Fee and Transcripts:
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.
Members of the Board may receive compensation for the performance of their duties as may be fixed by the participating Borough Councils, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the participating Borough Councils. Borough Council shall budget funds for the Board to employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services.
No person shall file any proceeding before the Zoning Hearing Board later than thirty (30) days after a preliminary or final application for development has been approved by an appropriate Borough 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.
The failure of anyone, other than the landowner, to appeal from an adverse decision by a Zoning Officer on a challenge to the validity of an ordinance or map filed pursuant to Section 916.2 of the Pennsylvania Municipalities Planning Code shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.
A landowner may file an appeal from determinations adverse to the landowner within thirty (30) days after notice of the determination is issued.
Upon filing of any proceeding 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 the zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the Board. The question whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court.
All appeals from decisions rendered by the Zoning Hearing Board shall be taken to the Allegheny County Court of Common Pleas and shall be filed within thirty (30) days after the entry of the decision or, in the case of a deemed decision, within thirty (30) days after the date upon which notice of said deemed decision is given as required by Section 908(9) of the Pennsylvania Municipalities Planning Code (Act 247, as amended).