A.
Appeals from decision of the Zoning Officer.
(1)
The Zoning Hearing Board, hereafter known as 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 this chapter.
(2)
An appeal may be filed with the Secretary of the Board in writing
by any landowner affected, any officer or agency of the Borough, or
any person aggrieved.
B.
Challenges to the validity of an ordinance or map.
(1)
The Board shall hear challenges to the validity of any part of this
chapter or amendment thereof, unless such challenge is accompanied
by a curative amendment or unless it challenges the procedure of adoption
of the Zoning Ordinance or any amendment.
(2)
In the case of a challenge to the process of adoption, appeal from
the action of Borough Council shall be made directly to the Westmoreland
County Courts. If the challenge is accompanied by a curative amendment,
appeal shall be made to Council.
(3)
In challenges of the validity of this chapter, the Board shall take
evidence and make a record thereon. 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 courts.
(4)
A challenge may be filed with the Board in writing by any landowner
affected, any officer or agency of the Borough, or any person aggrieved.
(5)
The written request of a landowner shall include a short statement
informing the Board of the matters that are at issue and the grounds
for the challenge as well as a certification by the landowner that
he was not aware that the Borough was considering a scheme of rezoning
that would detrimentally affect a plan he proposes and that such a
scheme would be inconsistent with his proposed plan. The request shall
be accompanied by plans describing the proposed use.
(6)
A person aggrieved by a development on lands of another but in conformance
with this chapter may challenge the Zoning Ordinance by filing a written
request with the Board that it hold a hearing on the challenge. The
request shall contain a short statement reasonably informing the Board
of the matters that are in issue and the grounds for the challenge.
(7)
The Board may hear challenges to other Borough ordinances or regulations
that apply to the same plan for which a zoning challenge has been
brought, but in such a case the Board shall have no power to pass
on the nonzoning issues and shall merely take evidence of such issues
and include them in the record.
(8)
If the Board finds merit in the challenge, the Board's decision shall
include recommended amendments to the challenged section of this chapter
which will cure the defects found. If the challenge involves the use
of a specific site, the Board shall consider the applicant's proposal
against its impact on roads, utilities and community facilities, the
suitability of the site and the proposal's impact on the physical
features of the site and its surroundings and, if housing, the degree
to which the proposal helps cure a deficiency in a particular type
of housing in the Borough.
[Added 11-5-1990 by Ord.
No. 2-1990]
C.
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. An appeal for variance may be filed with the Board by any
landowner or any tenant with the landowner's permission.
(2)
Variance from the terms of this chapter shall not be granted by the
Board unless a written application for a variance is submitted to
the Zoning Officer, demonstrating:
(a)
That there are unique physical circumstances or conditions,
including but not limited to 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 zone 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 variance will not have the effect of granting a special
privilege to the appellant not shared by other property owners in
the zone district;
(d)
That such unnecessary hardship has not been created by the appellant;
(e)
That the variance, if authorized, will not alter the essential
character of the neighborhood in which the property is located nor
substantially or permanently impair the appropriate use or development
of adjacent property or be detrimental to the public welfare.
(3)
The variance, if authorized, shall present the minimum variance that
will afford relief and will represent the least modification possible
of the regulation in issue.
(4)
If the Board finds in favor of the appellant, it may prescribe appropriate
conditions and safeguards deemed necessary to implement the purposes
and intent of this chapter.
(5)
Under no circumstances shall the Board grant a variance to allow
a use not permissible or by implication prohibited under the terms
of this chapter in the zoning district containing the property for
which the variance is sought.
(6)
Before considering a variance the Board may request written recommendations
from the Planning Commission supporting or discouraging the proposal.
(7)
The Board's decision approving a variance shall be voided if the
appellant fails to secure a zoning permit within six months of receiving
the variance.
D.
Review and decision of special exception uses. The Board shall hear and decide proposals for special exception uses in accordance with § 500-26 of this chapter.
E.
Appeals for approval of development not specifically listed in any
zone district.
(1)
If a developer proposes a use not listed specifically as a permitted
or special exception use in any zone district and his request for
a zoning permit from the Zoning Officer or for special exception use
approval is denied, such developer may appeal to the Zoning Hearing
Board for a hearing on his proposal.
(2)
The Board shall determine which zone district is most appropriate
for the proposed use based on the permitted and special exception
uses in the zone district the Board selects, even though the district
may not be the one containing the property for which the developer
is making the request.
(3)
In determining the appropriate zone district, the Board shall establish
the proposed use as a special exception use in the zone district selected,
subject to approval as for any special exception use.
A.
Membership.
(1)
The members of the Board in office at the time of adoption of this
chapter shall continue until the expiration of their terms. The membership
of the Board shall consist of three persons, all residents of Vandergrift
Borough, who shall be appointed by the Borough Council and may be
reappointed upon completion of a term.
(2)
Members of the Board shall hold no other office in the Borough, elective
or appointed.
[Amended 11-5-1990 by Ord. No. 2-1990]
(3)
Council may appoint by resolution one but not more than three residents
of the Borough to serve as alternate members of the Board for three-year
terms. None shall hold any other public office in the Borough. Alternate
members shall be selected in rotation by the Board Chairman to serve
in the place of a regular member who is unable to sit on a particular
case. The alternate shall have the full powers and duties of the replaced
regular member during the case and may participate in any other proceeding
or discussion of the Board but without the right to vote.
[Amended 11-5-1990 by Ord. No. 2-1990]
C.
Removal of members.
(1)
Any Board member may be removed for malfeasance, misfeasance or nonfeasance
in office or for other just cause by a majority vote of Borough Council
taken after the Board member has received at least 15 days' notice
such vote will be taken.
(2)
The Board member thus accused may request, by written communication
to the Borough Secretary no later than seven days prior to the meeting
of Council at which the vote for removal is to be taken, a hearing
before Council, after which Council, at its discretion, may take a
vote for removal of the Board member.
D.
Organization of the Board.
(1)
The Board shall annually elect officers from among its membership,
to include a Chairman, Vice Chairman and Secretary.
(2)
The Board shall reorganize at its first meeting in each calendar
year. Board members may succeed themselves in their positions.
(3)
The Chairman shall call and chair all meetings of the Board. The
Vice Chairman shall act in the absence of the Chairman and shall assist
the Secretary.
(4)
The Secretary shall keep the minutes of the proceedings, recording
the vote of each member; shall transcribe and distribute or arrange
to have transcribed and distributed all testimony given at hearings
under procedures described below; shall draw up the agenda for each
meeting; shall be responsible for placing of notices for public hearings;
and shall handle all correspondence.
(5)
The Board may, within its annual budget provided by Borough Council,
hire secretarial assistance and/or legal counsel, and purchase equipment
and supplies. The Board shall not retain the same law firm that serves
Council.
[Amended 11-5-1990 by Ord. No. 2-1990]
(6)
The Board may make, alter or rescind rules and forms for its procedure
consistent with this and other ordinances of the Borough and the laws
of the commonwealth.
(7)
The Board shall keep full public records of its business and shall
submit an annual report of its activities to Borough Council not later
than 60 days after the start of the subsequent year.
A.
Hearings shall be conducted by the Board, or the Board may appoint
any member as a hearing officer. The Board shall schedule and hold
a hearing within 60 days of receiving an appeal or proposal requiring
a hearing. The decision or, where no decision is called for, the findings
shall be made by the Board, but the parties may waive a decision or
findings by the Board and accept the decision or findings of the hearing
officer as final.
B.
The parties to a hearing shall be Vandergrift Borough, the party
filing the application, any party affected by the application who
has made a request to appear in writing with the Board Secretary prior
to the hearing, and any other person or civic or community organization
which the Board permits to appear after filing a request to appear
at least five days before the hearing.
C.
Before a hearing may commence, all fees and costs relative to the
proceedings shall be paid by the applicant. Fees shall be established
by resolution of Borough Council.
D.
Public notice.
(1)
Public notice of the hearing shall be placed in a newspaper of general
local circulation at least twice, the first notice not more than 30
days before the hearing and the second not less than seven days before
the hearing. The notice shall state the date, time, place and purpose
of the hearing.
[Amended 11-5-1990 by Ord. No. 2-1990]
(2)
A mailed notice shall be sent by first class mail at least 14 days
prior to the hearing to the applicant, to the Secretaries of Borough
Council and Planning Commission, and to other parties who have filed
a timely request to receive notice. In addition, when the hearing
involves a particular property or properties, notice shall be sent
to the owners and tenants of property abutting and directly across
an intervening street in front of, beside and/or behind the affected
property or properties. The applicant shall provide the Zoning Officer
with the names and addresses of such property owners.
(3)
A copy of the notice shall be posted at the Municipal Building and,
in a case involving particular properties, in a conspicuous location
on the affected property at least seven days prior to the hearing.
[Amended 11-5-1990 by Ord. No. 2-1990]
E.
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.
F.
The parties shall have the right to be represented by counsel and
shall be afforded the opportunity to respond and present evidence
and arguments and to cross-examine adverse witnesses on all relevant
issues. Formal rules of evidence shall not apply but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
G.
The Board or the hearing officer shall keep, or arrange to have kept,
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 for by the Board
if the Board or hearing officer orders it or by a person appealing
the Board's decision if an appeal is made. Additional copies of the
transcript shall be paid for by the parties requesting them.
[Amended 11-5-1990 by Ord. No. 2-1990]
H.
The Board or the hearing officer shall not communicate, directly
or indirectly, with any party and/or representatives of any party
in connection with any issue relevant to the hearing, except upon
notice and opportunity for all parties to participate; shall not take
legal notice of any communications, reports or other materials unless
all parties are afforded an opportunity to contest the material so
noticed; and shall not inspect any site or its surroundings with any
party and/or representative of any party after the hearing has been
advertised unless all parties are given an opportunity to be present.
I.
Hearing decisions.
(1)
The Board or hearing officer shall render a written decision or,
when no decision is required, written findings on the application
within 45 days after the conclusion of the hearing before the Board
or hearing officer. Decisions shall be accompanied by findings of
fact and conclusions based on them, together with the reasons therefor.
Conclusions based on any provisions of this chapter or any other ordinance
or regulation of Vandergrift Borough or the Pennsylvania Municipalities
Planning Code shall contain a reference to the provision relied on
and the reasons why a conclusion is deemed appropriate in the light
of the facts.
(2)
When a hearing is conducted by a hearing officer and there is no
prior stipulation that his decision or findings are final, the Board
shall make his report and recommendations available to the parties,
who shall be entitled to make written representations thereon to the
Board prior to the Board's final decision and entry of findings, which
shall occur not later than 30 days after the hearing officer's decision.
[Amended 11-5-1990 by Ord. No. 2-1990]
(3)
When the Board or hearing officer fails to render a decision where
it or he has the power to do so within 45 days after hearing the application
or fails to hold a hearing within 60 days of the applicant's request,
the decision shall be deemed to have been rendered in favor of the
applicant, and the Board shall place a public notice of the decision
thus granted not later than 10 days after the expiration of the forty-five-day
period in a newspaper of general local circulation. In addition the
decision shall be posted on the affected property and sent by mail
to all parties having an interest in the decision. Any extension of
the forty-five-day period for any other reasons shall be agreeable
to both the Board and the applicant and shall be for a fixed period.
J.
Zoning appeals.
(1)
Once the Zoning Officer has acted on a development proposal pursuant
to the regulations of this chapter, any party may appeal the decision
to the Board not later than 30 days after the Zoning Officer's action,
unless the party can prove he had no knowledge of the decision within
the thirty-day period. A second party succeeding in interest shall
be bound by the first party's knowledge.
(2)
While an appeal is pending before the Board, any development affected
by the appeal shall be halted unless the Zoning Officer certifies
to the Board that suspension would cause imminent peril to life and
property. In this case suspension will occur only by a restraining
order granted by the Board or Westmoreland County Court. The party
forced to stop shall have the right to petition the Court to require
the appealing party to post a bond as a condition of continuing the
appeal, the amount to be determined by the Court. The Court shall
hear the petition, determine whether the appeal is frivolous and,
if so, may require the posting of the bond.
(3)
Appeals from decisions of the Board or upon reports of the Board
in proceedings to challenge the validity of this chapter shall be
filed within 30 days of the decision or completion of the report with
the Clerk of the Westmoreland County Court of Common Pleas.
