The Zoning Hearing Board shaU have the following functions:
A. Hearings. The Board shaU conduct hearings and make decisions in accordance with Article IX of the Municipahties Planning Code.
B. Fees. The Borough Council shall, by resolution, establish reasonable fees, as authorized by the Municipahties Planning Code, to be paid by the apphcant and persons requesting any notice not required by this Part, such fees shall be paid at the time application or request for notice is made. All such fees paid as above described are and shall be non-refundable.
C. Jurisdiction. The Zoning Hearing Board shall have such jurisdiction, hear such appeals and make such decisions as authorized in Article IX of the Municipahties Planning Code.
D. Appeals. 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 rule or regulation governing the action of the Zoning Officer. Nothing herein contained shall be construed to deny to the appellant the right to proceed directly in court where appropriated and authorized by the Municipahties Planning Code.
E. Variances. The Board shall hear requests for variances where it is alleged that the provisions of this Chapter inflict unnecessary hardship upon the apphcant. The Board shall prescribe the form of application and 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 no 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.
(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 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 appeUant.
(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 pubhc welfare.
(5) That the variance, if authorized, will represent the minimum variance which will afford relief and 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 Chapter.
F. Parties Appellant Before Board. Appeals under § 27-1002(D) above, and proceedings to challenge this Chapter may be filed with the Board, in writing, by the landowner affected. Requests for variance under § 27-1002(E) above, may be filed with the Board by any landowner or any tenant with permission of such landowner.
(1) Time Limitations. The time limitations for raising certain issues and filing certain proceedings with the Board shall be the following:
(a) No person shall be allowed to file any proceeding with the Board later than 30 days after any application for development, prehminary or final, has been approved by an appropriate municipal agency or body if such proceeding is designed to secure reversal or to hmit the approval in any manner unless such person alleges and proves that he had no notice, knowledge, or reason to beheve 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.
(b) The failure of anyone other than the landowner to appeal from an adverse decision on a tentative or prehminary plan by the Borough Council or from an adverse decision by the Zoning Officer on a challenge to the vahdity of an ordinance or map shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative or prehminary approval.
(2) Stay of Proceedings. Upon filing of any proceeding referred to in § 27-1002 of this Part, and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or 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 the court having jurisdiction of zoning appeals on petition after notice to the Zoning Officer or other appropriate agency or body. When an apphcation 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 apphcant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continue 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.
G. The first hearing before the Board or hearing officer shall be commenced within 60 days from the date of receipt of the applicant's application, unless the apphcant has agreed in writing to an extension of time. Each subsequent hearing before the Board or hearing officer shall be held within 45 days of the prior hearing, unless otherwise agreed to by the apphcant in writing or on the record. The apphcant 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 7 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 on the record by the applicant and the Borough, be granted additional hearings to complete their opposition to the apphcation provided the apphcant is granted an equal number of additional hearings for rebuttal. [Ord. 553]
(1) Written notification shall be given to neighboring property owners within 300 feet of a property line when a zoning variance has been requested and a zoning hearing has been set. Said notification shall include the physical address f the property for which the variance is sought, as well as date, time and location of the pending zoning hearing, together with a copy of variance request or summary of terms of requested variance. [Ord. 548]
(2) Written notification shall be given to all owners of property abutting or adjacent to the property for which and apphcation or appeal to the Zoning Hearing Board has been filed and a hearing before the Zoning Hearing Board has been scheduled. Said notification shall include the date, time and location of the hearing together with a summary of the relief being requested. [Ord. 550]
H. The appearance fee for a stenographer shall be shared equally by the apphcant and the Board. The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board or shall be paid by the person appeahng 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.
I. 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, shaU 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 content the material so noticed and shaU 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.
J. The Board shaU 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 therefore. Conclusions based on any provisions of this Chapter, 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 partes 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 § 27-1003 of this Part, where the Board fails to render the decision within the period required by this subsection, or fails to commence, conduct or complete the required hearing as provided in subsection (G) of this Section the decision shall be deemed to have been rendered in favor of the applicant unless the apphcant 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 from the last day it could have met to render a decision in the same manner as provided in § 27-1002(l)(A)of this Part. If the Board shall fail to provide such notice, the applicant may do so. Nothing in this subsection shall prejudice the right of any party opposing the apphcation to appeal the decision to a court of competent jurisdiction. [Ord. 553]
(Ord. 462, 8/14/1995, §1001; as amended by Ord. 548, 10/13.2003, §1; by Ord. 550, 3/8/2004, §1; and by Ord. 553, 5/10/2004, §1)