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05/23/97 RUSSELL YOST v. ZONING HEARING BOARD

May 23, 1997

RUSSELL YOST, T/D/B/A R.L. YOST TRUCKING, APPELLANT
v.
ZONING HEARING BOARD OF THE BOROUGH OF CANONSBURG V. THE BOROUGH OF CANONSBURG



Appealed From No. 96-1225. Common Pleas Court of the County of Washington. Judge SENECA.

Before: Honorable James Gardner Colins, President Judge, Honorable James R. Kelley, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Kelley. President Judge Colins Dissents.

The opinion of the court was delivered by: Kelley

OPINION BY JUDGE KELLEY

FILED: May 23, 1997

Russell Yost, t/d/b/a R. L. Yost Trucking (Yost) appeals from an order of the Court of Common Pleas of Washington County denying Yost's appeal from a decision of the Zoning Hearing Board of the Borough of Canonsburg (ZHB). We vacate and remand.

Yost owns a tract of real property in Washington County. Approximately three acres are located in the Borough of Canonsburg (borough) and approximately one and one-half acres are located in Cecil Township. Yost utilizes the property to conduct a landscaping business as a valid pre-existing, non-conforming use. *fn1

On or about February 2, 1995, Yost petitioned the borough's planning commission to rezone the three acres of Yost's property located in the borough from R/1, low density residential district) to I/1, light industrial district. This request was denied by the planning commission.

Thereafter, the borough council held a meeting on June 12, 1995 at which time they voted on and approved a motion wherein the borough council directed Yost to apply, within two (2) business days for a certificate of occupancy for nonconforming uses pursuant to section 904 of the borough's zoning ordinance. *fn2 In addition, the borough council's motion provided that Yost's application for a certificate of occupancy would be approved for the three acres located within the borough subject to certain restrictions and/or conditions. *fn3 The borough council's motion required Yost to comply with the imposed restrictions and/or conditions within thirty (30) days of Yost's application for a certificate of occupancy. If Yost failed to apply for a certificate of occupancy within the imposed time limits, the borough council's motion provided that the borough's enforcement officer would issue a notice of violation of the borough zoning ordinance to Yost.

Yost failed to apply for a certificate of occupancy; therefore, on or about June 20, 1995, the borough's enforcement officer issued a zoning enforcement notice to Yost. Therein, it was alleged that Yost violated section 904(2) of the borough's zoning ordinance and failed to comply with the other conditions imposed by the borough council, through its motion, on June 12, 1995. Yost appealed the zoning enforcement notice to the ZHB.

A hearing was held on August 22, 1995 before the ZHB. Before the ZHB, Yost challenged the borough's requirement that Yost apply for a certificate of occupancy subject to the imposed restrictions and/or conditions. The ZHB did not vote on Yost's appeal at the August 22, 1995 hearing.

On October 19, 1995, the ZHB held a meeting during which the ZHB voted to deny Yost's appeal. By letter dated February 15, 1996, the borough's solicitor forwarded to Yost's counsel a copy of the minutes of the October 19, 1995 meeting. This was Yost's first notice of the ZHB's decision regarding Yost's appeal. Yost timely appealed the ZHB's denial of his appeal to the trial court.

Without taking additional evidence, the trial court upheld the ZHB's decision and denied Yost's appeal. The trial court determined that (1) the borough possessed the authority to impose reasonable restrictions on an expansion of a non-conforming use and (2) a thorough review of the August 12, 1995 minutes of the ZHB revealed that the restrictions imposed upon Yost were reasonable and within the authority of the borough. This appeal followed. *fn4

On appeal herein, Yost raises the following issues:

1. Whether the ZHB's failure to (1) issue a decision containing findings of fact and Conclusions of law and (2) notify Yost of its decision more than one hundred (100) days after the decision was rendered, ...


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