A.
Zoning Hearing Board.
(1)
There is hereby created for the Borough a Zoning Hearing Board in accordance with the provisions of Article IX of the Pennsylvania Municipalities Planning Code, 53 P.S. § 10901 et seq.
(2)
Membership of the Board. The membership of the Zoning Hearing Board
shall, upon the determination of the Borough Council, consist of either
three or five residents of the Borough appointed by resolution of
the Borough Council. Their terms of offices shall be so fixed that
the term of one member shall expire each year. The Board shall promptly
notify the Borough Council of any vacancies which occur. Appointments
to fill vacancies shall be only for the unexplored portion of the
term. Members of the Board shall hold no other office in Oakdale Borough.
(3)
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 which appointed the member, 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.
(4)
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 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 this chapter.
(5)
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, which records
shall be the property of the Borough, and shall submit a report of
its activities to the Borough Council as requested by the Borough
Council.
(6)
Within the limits of funds appropriated by the Borough Council, the
Board may employ or contract for secretaries, clerks, legal counsel,
consultants and other technical and clerical services. Members of
the Board may receive compensation for the performance of their duties,
as may be fixed by the Borough Council, but in no case shall it exceed
the rate of compensation authorized to be paid to the members of the
Borough Council.
B.
Functions. The Zoning Hearing Board shall perform the following functions:
(1)
To 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 or any
valid law regulation governing the action of the Zoning Officer.
(2)
To hear and decide questions of fact and interpretation, not already
properly determined at a hearing before another competent agency or
body, bearing on a challenge to the validity of any ordinance or map,
or portion thereof.
(3)
To hear and decide requests for variance from the terms of this chapter,
where it is alleged that the provisions of this chapter inflict unnecessary
hardship upon the applicant.
(4)
To hear and decide requests for special exceptions expressly allowed
by this chapter.
C.
Hearings. Upon the filing with the Board of an appeal, a request
for interpretation or findings of fact concerning any contested ordinance
or map, or an application for a special exception or variance, the
Board shall fix a time and place for a public hearing. The Board shall
conduct hearings and make decisions in accordance with the following
requirements:
(1)
Public notice shall be given, and written notice shall be given to
the applicant, the Zoning Officer, such other persons as the Borough
Council shall designate and to any person who has made timely request
for the same. Written notices shall be given at such time and in such
manner as shall be prescribed by rules of the Board. 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.
(2)
The Borough may prescribe reasonable fees with respect to hearings
before the Zoning Hearing Board. Fees for said hearing 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
the legal expenses of the Zoning Hearing Board, expenses for engineering,
architectural or other technical consultants or expert witness cost.
(3)
The hearing shall be held within 60 days from the date of the applicant's
request, unless the applicant has agreed, in writing, to an extension
of time.
(4)
The hearing shall be conducted by the Board, and 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, the
applicant, in addition to the Borough, 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.
(5)
The parties to this 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 shall have 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.
(6)
The Chairman or Acting Chairman of the Board of 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.
(7)
The parties shall have the right to be represented by counsel and
shall be afforded the opportunity to respond and to present evidence
and cross-examine all adverse witnesses on all relevant issues.
(8)
Formal rules of evidence shall not apply, but irrelevant, immaterial
or unduly repetitious evidence may be excluded.
(9)
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 person requesting
such copy or copies. In either case, the party requesting the original
transcript shall bear the cost thereof.
(10)
The Board or the hearing officer shall not communicate, directly
or indirectly, with any party or representative in connection with
any issue involved except upon notice and opportunity for all parties
to participate, shall not take notice of any communication, report,
staff memorandum, or other materials, except advice from its or his
solicitor, 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 hearing with any party or his representative
unless all parties are given an opportunity to be present.
(11)
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 for the Board and
30 days for a hearing officer after the last hearing before the Board
or the hearing officer. If the Board fails to render the decision
within the period required by this chapter or fails to hold the required
hearing within 60 days from the date of the applicant's request for
hearing, 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 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 chapter. If the Board shall fail to provide such notice, the
applicant may do so.
(12)
A copy of the final decision or, where no decision is called
for, 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 names and addresses 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 where the full decision or findings may be
examined.
D.
Appeals to court. Any person aggrieved by the decision of the Zoning
Hearing Board or any other officer may, within 30 days after issuance
of notice of the decision or report of the Board, file a zoning appeal
with the Court of Common Pleas of Allegheny County.
A.
The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
(1)
Substantive challenges to the validity of any land use ordinance,
except those brought before the Borough Council pursuant to Sections
609.1 and 916.1(a)(2) of the Pennsylvania Municipalities Planning
Code (hereinafter "MPC"), 53 P.S. §§ 10609.1 and 10916.1.
(2)
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
of the effective date of said ordinance. Where the ordinance appealed
from is the initial zoning ordinance of the Borough and a Zoning Hearing
Board has not been previously established, the appeal raising procedural
questions shall be taken directly to court.
(3)
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.
(4)
Appeals from a determination by the Borough Engineer or the Zoning
Officer with reference to the administration of any floodplain or
flood hazard ordinance or such provisions within a land use ordinance.
(5)
Applications for variances from the terms of this chapter and flood
hazard ordinance or such provisions within a land use ordinance, pursuant
to Section 910.2 of the MPC, 53 P.S. § 10910.2.
(6)
Applications for special exceptions under this chapter or floodplain
or flood hazard ordinance or such provisions within a land use ordinance,
pursuant to Section 912.1 of the MPC, 53 P.S. § 10912.1.
(7)
Appeals from the determination of any officer or agency charged with
the administration of any transfers of development rights or performance
density provisions of this chapter.
(8)
Appeals from the Zoning Officer's determination under Section 916.2
of the MPC, 53 P.S. § 10916.2.
(9)
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 applications under Article V or VII of the MPC, 53 P.S. § 10501 et seq. or § 10701 et seq.
B.
The Borough Council shall have exclusive jurisdiction to hear and
render final adjudications in the following matters:
(1)
All applications for approvals of planned residential developments under Article VII of the MPC pursuant to the provisions of Section 702 of the MPC, 53 P.S. § 10702.
(2)
All applications pursuant to Section 508 of the MPC, 53 P.S. § 10508, for approval of subdivisions or land developments under Article V of the MPC, 53 P.S. § 10501 et seq.
(3)
Applications for conditional use under the express provisions of
this chapter.
(4)
Applications for curative amendment to this chapter or pursuant to
Sections 609.1 and 916.1(a) of the MPC, 53 P.S. §§ 10609.1
and 10916.1(a).
(5)
All petitions for amendments to land use ordinances, pursuant to
the procedures set forth in Section 609 of the MPC, 53 P.S. § 10609.
(6)
Appeals from the determination of the Zoning Officer or the Borough Engineer in the administration of any land use ordinance or provisions thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to applications for land development under Articles V and VII of the MPC, 53 P.S. §§ 10501 et seq. and 10701 et seq. Where such determination relates only to development not involving an Article V or VII application, the appeal from such determination of the Zoning Officer or the Borough Engineer shall be to the Zoning Hearing Board pursuant to this section. Where the applicable land use ordinance vests jurisdiction for final administration of subdivision and land development applications in the Planning Commission, all appeals from determinations under this subsection shall be to the Planning Commission and all appeals from the decision of the Planning Commission shall be to court.
A.
No person shall be allowed to file any proceeding with the Zoning
Hearing Board later than 30 days after an application for development,
preliminary or final, has been approved by the Borough 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 on a tentative
plan or from an adverse decision by the Zoning Officer on a challenge
to the validity of this chapter or an amendment hereto or map or an
amendment thereto shall preclude an appeal from a final approval,
except in the case where the final submission substantially deviates
from the approved tentative approval.
B.
All appeals from determinations adverse to the landowner shall be
filed by the landowner within 30 days after notice of the determination
is issued.
A.
Upon filing of any appeal proceeding before the Zoning Hearing Board
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.
B.
After the petition is presented, the court shall hold a hearing to
determine if the filing of the appeal is frivolous. At the hearing,
evidence may be presented on the merits of the case. It shall be the
burden of the applicant for a bond to prove the appeal is frivolous.
After consideration of all evidence presented, if the court determines
that the appeal is frivolous, it shall grant the petition for a bond.
The right to petition the court to order the appellants to post bond
may be waived by the appellee, but such waiver may be revoked by him
if an appeal is taken from a final decision of the court.
C.
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.
An order denying a petition for bond shall be interlocutory. An order
directing the responding party to post a bond shall be interlocutory.
D.
If an appeal is taken by a respondent to the petition for a bond
from an order of the court dismissing a zoning appeal for refusal
to post a bond and the appellate court sustains the order of the court
below to post a bond, the respondent to the petition for a bond, upon
motion of the petitioner and after hearing in the court having jurisdiction
of zoning appeals, shall be liable for all reasonable costs, expenses
and attorney fees incurred by the petitioner.
A.
The Board shall hear requests for variances where it is alleged that
the provisions of this chapter inflict unnecessary hardship upon the
applicant. The Board may prescribe the form of application and may
require preliminary application to the Zoning Officer. The Board may
grant a variance, provided that all of the following findings are
made where relevant in a given case:
(1)
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 chapter in the neighborhood or district
in which the property is located.
(2)
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)
Such unnecessary hardship has not been created by the appellant.
(4)
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.
(5)
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.
B.
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.
Where the Borough Council, in this chapter, has stated special
exceptions to be granted or denied by the Zoning Hearing Board pursuant
to express standards and criteria, the Board shall hear and decide
requests 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 this chapter, as it may deem necessary to implement the purposes
of this chapter and the Pennsylvania Municipalities Planning Code,
53 P.S. § 10101 et seq.
B.
The special exception shall not involve any element or cause any condition that may be dangerous, injurious, or noxious to any other property or persons, and shall comply with the performance standards of § 375-32.
C.
The special exception shall be sited, oriented and landscaped to
produce a harmonious relationship of buildings and grounds to adjacent
buildings and properties.
D.
The special exception shall produce a total visual impression and
environment which is consistent with the environment of the neighborhood.
E.
The special exception shall organize vehicular access and parking
to minimize traffic congestion in the neighborhood.
F.
The special exception shall preserve the purpose of this chapter.
All special exceptions shall comply with the requirements of
this section. In order to determine whether a proposed use will conform
to the requirements of this chapter, the Zoning Hearing Board may
also obtain a qualified consultant to testify, whose cost for services
shall be borne by the applicant.
A.
Fire protection. Fire prevention and firefighting equipment acceptable
to the Board of Fire Underwriters shall be readily available when
any activity involving the handling or storage of flammable or explosive
materials is carried on.
B.
Electrical disturbances. No activity shall cause electrical disturbance
adversely affecting radio or other equipment in the vicinity.
C.
Noise. Noise which is determined to be objectionable because of volume,
frequency, or beat shall be muffled or otherwise controlled, except
fire sirens and related apparatus used solely for public purpose shall
be exempt from this requirement.[1]
D.
Vibrations. Vibrations detectable without instruments on neighboring
property in any district shall be prohibited.
E.
Odors. No malodorous gas or matter shall be permitted which is discernible
on any adjoining lot or property.
F.
Air pollution. Pollution of air by flash, dust, smoke, vapors, or
other substance shall be controlled by the Allegheny County Smoke
and Air Pollution Control Ordinance.
G.
Glare. Lighting devices which produce objectionable direct or reflected
glare on adjoining properties or thoroughfares shall not be permitted.
H.
Erosion. No erosion by wind or water shall be permitted which will
carry objectionable substances onto neighboring properties.
I.
Water pollution. Water pollution shall be subject to the standards
established by the Pennsylvania Department of Environmental Protection.
The Zoning Hearing Board shall have the power to authorize changes
of lawful nonconforming uses as follows:
A.
A nonconforming use which occupies a portion of a structure or premises
may be extended within such structure or premises as it existed when
the prohibitory provision took effect, but not in violation of the
area and yard requirements of the district in which such structures
or premises are located. No change of a nonconforming use shall entail
structural alterations or any additions other than those required
by law for the purpose of safety and health.
B.
The Zoning Hearing Board may impose such conditions as it deems necessary
for the protection of adjacent property and the public interest.
