[Ord. 284 (86-2), 8/14/1986, § 501; as amended by Ord. 336 (92-3), 5/6/1992, §§ 7 — 10]
1. 
Membership of Board. The membership of the Board shall consist of three residents of the Borough appointed by resolution of the Borough Council. Their terms of office shall be three years and shall be so fixed that the term of one member shall expire each year. The Board shall promptly notify Borough Council of any vacancies in its membership that 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. Borough Council may appoint by resolution at least one, but not 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. When seated pursuant to the provisions of Subsection 2 of this Part, 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 powers and duties as set forth in this chapter and as otherwise provided by law. Alternates shall hold no other office in the Borough, including members on the Planning Commission and Zoning Officer. 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 unless designated as a voting member pursuant to the provisions of Subsection 2 of this Part.
2. 
Organization of Board.
A. 
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 of the members of 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 § 27-502 of this chapter.
B. 
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 until the Board has made a final determination of the matter or case. Designation of an alternate pursuant to this provision shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.
C. 
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, with records shall be the property of the Borough, and shall submit a report of its activities to Borough Council as requested by Borough Council.
3. 
Jurisdiction of Board. The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudication in the following matters:
A. 
Substantive challenges to the validity of any land use ordinance, except challenges brought before the Borough Council pursuant to the provisions of §§ 609.1 and 916.1(a)(2) of the Municipalities Planning Code, Act 170 of 1988, 53 P.S. §§ 10609.1, 10916.1(a)(2).
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.
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 ordinance or flood hazard ordinance or any such provisions within a land use ordinance.
E. 
Applications for variances from the terms of this Part or floodplain or flood hazard ordinance as provided in § 27-503 of this chapter.
F. 
Applications for special exceptions under this chapter or floodplain or flood hazard ordinance as provided in § 27-504 of this chapter.
G. 
Appeals from the Zoning Officer's determination when a preliminary opinion pursuant to § 27-703, Subsection 6, is sought.
H. 
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 other than the Subdivision and Land Development Ordinance [Chapter 22] or the planned residential development provisions of Part 8 of this chapter.
In exercising its jurisdiction, the Board shall have the power to reverse, affirm or modify any order, requirement, decision or determination from which an appeal is made and may make any order, requirement, decision or determination that may be required.
4. 
Board Calendar. Each application filed with the Board in proper form with the required data shall be numbered serially and be placed upon the calendar of the Board by the Secretary. Applications shall be assigned for hearing in the order in which they appear on the calendar. The hearing shall be held within 60 days from the date of the application, unless the applicant has agreed in writing to an extension of time.
[Ord. 284 (86-2), 8/14/1986, § 501; as amended by Ord. 336 (92-3), 5/6/1992, § 11; and by Ord. 365 (95-4), 1/2/1996, § 5]
1. 
Notice; Conduct of Meeting.
A. 
Public notice of the hearing shall be given and written notice shall be given to the applicant, the Zoning Officer, to all property owners within 200 feet of the lot which is the subject of the hearing and to any person who has made timely request for same. Written notices shall be given at least 15 days prior to the hearing. In addition to the written 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. 
Borough Council may by resolution prescribe reasonable fees with respect to hearings before the Board. Said fees 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 shall not include legal expenses of the Board, expenses for engineering, architectural or other technical consultants or expert witness costs.
C. 
The hearings 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; however, appellant or the applicant as the case may be, in addition the Board, 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.
D. 
Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
E. 
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, 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 with any party or his representative unless all parties are given an opportunity to be present.
2. 
Representation; Statements.
A. 
Parties to the hearings 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 the 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.
B. 
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.
C. 
Statements shall be made in the following order or as the Chairman may direct:
(1) 
Opening statement by Zoning Officer to clarify reasons for the application.
(2) 
Statements of the applicant or appellant.
(3) 
Statements of Zoning Officer or other officials.
(4) 
Statements of any private citizen.
D. 
The applicant or appellant shall be given an opportunity for rebuttal.
3. 
Witnesses. The Chairman or acting Chairman of the Board or the hearing officer presiding 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.
4. 
Decision Procedure.
A. 
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 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 chapter 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 decision of the hearing officer. Where the Board fails to render the decision within the period required by this subsection, or fails to hold the required hearing within 60 days from 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 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 from the last day it could have met to render a decision in the same manner as provided in this section. If the Board fails to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the applicant to appeal the decision to a court of competent jurisdiction.
B. 
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.
C. 
Whenever the Board imposes a condition or conditions with respect to the granting of an application or appeal, this condition must be stated in the order of the Board and in the permit issued pursuant to the order by the Zoning Officer. This permit remains valid only as long as the condition or conditions upon which it was granted or the conditions imposed by this chapter are adhered to.
5. 
Records. 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.
[Ord. 284 (86-2), 8/14/1986, § 503]
1. 
Filing of Variance.
A. 
An application may be made to the Zoning Hearing Board for a variance where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. The application must be on a form provided for that purpose by the Zoning Officer. It must be filed with the Board and copies given to the Zoning Officer and Borough Planning Commission. The applicant must provide all the information requested on the form, together with any other information and data that may be required to advise the Board of the variance, whether such information is called for by the official form or not.
B. 
Unless otherwise specified or extended by the Board, a variance authorized by it expires if the applicant fails to obtain a building permit or use certificate within six months from the date of authorization of the variance.
2. 
Referral to Planning Commission. All applications for a type-of-use variance shall be referred to the Planning Commission for a report. Such report shall be advisory to the Board, and, if it is not provided before the date of the hearing upon the application, the Board may proceed in its absence.
3. 
Standards for Variance. Where there is unnecessary hardship, the Board may grant a variance in the application of the provisions of this chapter; provided, that the following findings are made where relevant in a given case:
A. 
There are unique physical circumstances or conditions, including (1) irregularity, narrowness, or shallowness of lot size or shape; or, (2) exceptional topographical or other physical conditions peculiar to the particular property, and is not due to circumstances or conditions generally created by the provisions of this chapter in the neighborhood or zone in which the property is located.
B. 
Because of these physical circumstances or conditions, the property cannot reasonably be used in strict conformity with the provisions of this chapter.
C. 
The unnecessary hardship is not financial in nature and has not been created by the appellant.
D. 
The variance, if authorized, will not alter the essential character of the neighborhood or zone 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. 
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.
4. 
Conditions. In granting any variance, the Board may attach such reasonable conditions and safeguards as it considers necessary to implement the purposes of this chapter.
[Ord. 284 (86-2), 8/14/1986, § 504]
1. 
Filing of Special Exception. For any use permitted by special exception, a special exception must be obtained from the Zoning Hearing Board. In addition to the information required on the building permit application, the special exception application must show:
A. 
Ground floor plans and elevations of proposed structures.
B. 
Names and addresses of adjoining owners.
Unless otherwise specified or extended by the Zoning Hearing Board a special exception authorized by the Board expires if the applicant fails to obtain, where required to do so, a building permit or use certificate within six months of the date of the authorization of the special exception.
2. 
Temporary Special Exception. A temporary special exception must be obtained from the Zoning Hearing Board for any nonconformity which is or will be seasonal or is or will be in the public interest. The Zoning Hearing Board may grant a temporary special exception for a nonconforming use or structure, existing or new, which:
A. 
Is beneficial to the public health or general welfare.
B. 
Is necessary to promote the proper development of the community.
C. 
Is seasonal in nature.
The temporary special exception may be issued for a period not exceeding one year, and may be renewed for an aggregate period not exceeding three years. The nonconforming structure or use must be completely removed upon the expiration of the special exception without cost to the Borough.
3. 
Referral to Planning Commission. All applications for a special exception shall be referred to the Borough Planning Commission for a report. Such report shall be advisory to the Board, and, if it is not provided before the date of the hearing upon the application, the Board may proceed in its absence.
4. 
Conditions. The Zoning Hearing Board in passing upon special exception applications, may attach conditions considered necessary to protect the public welfare and the Southern York County (SYC) Region Comprehensive Plan or any other municipal or regional Comprehensive Plan in effect, including conditions which are more restrictive than those established for other uses in the same zone.
5. 
Application of Use and Lot Area Requirements. The use and lot requirements as set forth in this chapter must be followed by the Zoning Hearing Board. Where no use or lot requirements are set forth for the particular use, the Board must impose extent-of-use requirements as necessary to protect the public welfare and the Southern York County (SYC) Region Comprehensive Plan or any other municipal or regional Comprehensive Plan in effect.
6. 
General Standards. A special exception may be granted when the Zoning Hearing Board finds from a preponderance of the evidence produced at the hearing that:
A. 
The proposed use, including its nature, intensity and location, is in harmony with the orderly and appropriate development of the zone.
B. 
Adequate water supply, sewage disposal, storm drainage and fire and police protection are or can be provided for the use.
C. 
The use of adjacent land and buildings will not be discouraged and the value of adjacent land and buildings will not be impaired by the location, nature and height of buildings, walls and fences.
D. 
The use will have proper location with respect to existing or future streets giving access to it, and will not create traffic congestion or cause industrial or commercial traffic to use residential streets.
E. 
The specific standards set forth for each particular use for which a special exception may be granted have been met.
The applicant for a special exception shall have the burden of proof, which shall include the burden of going forward with the evidence and the burden of persuasion on all questions of fact which are to be determined by the Zoning Hearing Board.
7. 
Special Standards. In addition to the general standards for all special exceptions as contained in § 27-504, Subsection 6, the specific standards for particular uses as listed in Part 6 must be met prior to the granting of a special exception.
[Ord. 284 (86-2), 8/14/1986; as added by Ord. 336 (92-3), 5/6/1992, § 12]
1. 
Request. A person challenging the validity of an ordinance or map or any provision thereof on substantive grounds before the Board shall make a written request to the Board that it hold a hearing on the challenge. The request shall contain the reasons for the challenge. Nothing herein shall preclude a person from first seeking a final approval before submitting his challenge.
2. 
Determination. Based upon the testimony presented at the hearing or hearings, the Board shall determine whether the challenged ordinance or map is defective, as alleged by the landowner. If the challenge is found to have merit, the decision of the Board shall include recommended amendments to the challenged ordinance which will cure the defects found. In reaching its decision the Board shall consider the amendments, plans and explanatory material submitted by the person making the challenge and shall also consider:
A. 
The impact of the applicant's proposal upon roads, sewer facilities, water supplies, schools and other public service facilities.
B. 
If the applicant's proposal is for a residential use, the impact of the proposal upon regional housing needs and the effectiveness of the proposal in providing housing needs of a type actually available to and affordable by classes of persons otherwise unlawfully excluded by the challenged provisions of the ordinance or map.
C. 
The suitability of the site for the intensity of use proposed by the site's soils, slopes, woodlands, wetlands, floodplains, aquifers, natural resources and other natural features.
D. 
The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, natural resources and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts.
E. 
The impact of the applicant's proposal on the preservation of agriculture and other land uses that are essential to public health and welfare.
3. 
Hearing; Decision. The Board shall commence its hearings pursuant to the provisions of § 27-501 of this chapter within 60 days after the request is filed unless the landowner request or consents to an extension of time. The Board shall render its decision within 45 days after the conclusion of the last hearing. If the Board fails to act on the request within that time, unless the time for decision is extended by natural consent of the landowner and Board, denial of the request is deemed to have occurred on the forty-sixth-day after the close of the last hearing. The challenge shall also be deemed denied if the Board fails to commence the hearing within 60 days after the request unless the landowner requests or consents to an extension of time.
[Ord. 284 (86-2), 8/14/1986; as added by Ord. 336 (92-3), 5/6/1992, § 13]
1. 
No person shall be allowed to file any proceeding with the Board later than 30 days after an application for development, preliminary or final, has been approved by the Zoning Officer or Borough Council 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 and 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 the Zoning Officer on a challenge to the validity of an ordinance or map pursuant to the provisions of § 27-505 of this chapter shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative plan.
2. 
All appeals from determinations adverse to a landowner shall be filed by the landowner within 30 days after notice of the determination is issued.