The proceedings set forth in this article shall
constitute the exclusive mode for securing review of this chapter,
or decision, determinations or orders issued by Borough Council, its
agencies or officers pursuant to this chapter.
Appeals to a court shall be taken to the Court
of Common Pleas of Franklin County.
Questions of an alleged defect in the process
of enactment or adoption of this chapter and map shall be raised by
an appeal taken directly from the action of the Borough Council to
the court filed not later than 30 days from the effective date of
this chapter and map.
[Amended 1-3-1995 by Ord. No. 1995-2]
A.
A landowner who, on substantive grounds, desires to
challenge the validity of an ordinance or map or any provision thereof
which prohibits or restricts the use or development of land in which
he has an interest shall submit the challenge either:
(1)
To the Zoning Hearing Board under § 205-43A(1) of this chapter; or
(2)
To the Borough Council under § 205-43B(4), together with a request for a curative amendment under § 609.1 of the Municipalities Planning Code (hereafter "MPC"), 53 P.S. § 10609.1.
B.
Persons aggrieved by a use or development permitted on the land of another by an ordinance or map, or any provision thereof, who desires to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a decision thereon under § 205-43A(1) of this chapter.
C.
(1)
In challenges before the Zoning Hearing Board, the
challenging party shall make a written request to the Board that it
hold a hearing on its challenge. The request shall contain the reasons
for the challenge. Where the landowner desires to challenge the validity
of such ordinance and elects to proceed by curative amendment under
§ 609.1 of the MPC, 53 P.S. § 10609.1, his application
to the Borough Council shall contain, in addition to the requirements
of the written request hereof, the plans and explanatory materials
describing the use or development proposed by the landowner in lieu
of the use or development permitted by the challenged ordinance or
map. Such plans or other materials shall not be required to meet the
standards prescribed for preliminary, tentative or final approval
or for the issuance of a permit, so long as they provide reasonable
notice of the proposed use or development and a sufficient basis for
evaluating the challenged ordinance or map in light thereof. Nothing
herein contained shall preclude the landowner from first seeking a
final approval before submitting his challenge.
(2)
If the submission is made by the landowner to the Borough Council under Subsection A(2), the request also shall be accompanied by an amendment or amendments to the ordinance proposed by the landowner to cure the alleged defects therein.
(3)
If the submission is made to the Borough Council,
the Borough Solicitor shall represent and advise it at the hearing
or hearings referred to in § 909.1(b)(4) of the MPC, 53
P.S. § 10909.1(b)(4).
(4)
The Borough Council may retain an independent attorney
to present the defense of the challenged ordinance or map on its behalf
and to present their witnesses on its behalf.
(5)
Based upon the testimony presented at the hearing
or hearings, the Borough Council or the Zoning Hearing Board, as the
case may be, shall determine whether the challenged ordinance or map
is defective, as alleged by the landowner. If a challenge heard by
the Borough Council is found to have merit, the Borough Council shall
proceed as provided in § 609.1 of the MPC, 53 P.S. § 10609.1.
If a challenge heard by the Zoning Hearing Board is found to have
merit, the decision of the Zoning Hearing Board shall include recommended
amendments to the challenged ordinance which will cure the defects
found. In reaching its decision, the Zoning Hearing Board shall consider
the amendments, plans and explanatory material submitted by the landowner
and shall also consider:
(a)
The impact of the proposal upon roads, sewer
facilities, water supplies, schools and other public service facilities.
(b)
If the proposal is for a residential use, the
impact of the proposal upon regional housing needs and the effectiveness
of the proposal in providing housing units of a type actually available
to and affordable by classes of person 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 proposal on the preservation
of agriculture and other land uses which are essential to public health
and welfare.
(6)
The Borough Council or the Zoning Hearing Board, as
the case may be, shall render its decision within 45 days after the
conclusion of the last hearing.
D.
The Zoning Hearing Board or the Borough Council, as
the case may be, shall commence its hearing within 60 days after the
request is filed unless the landowner requests or consents to an extension
of time.
E.
Public notice of the hearing shall include notice
that the validity of the ordinance or map is in question and shall
give the place where and the times when a copy of the request, including
any plans, explanatory material or proposed amendments may be examined
by the public.
F.
The challenge shall be deemed denied when:
(1)
The Zoning Hearing Board or Borough Council, as the case may be, fails to commence the hearing within the time limits set forth in Subsection D.
(2)
The Borough Council notifies the landowner that it
will not adopt the curative amendment.
(3)
The Borough Council adopts another curative amendment
which is unacceptable to the landowner.
(4)
The Zoning Hearing Board or the Borough Council, as
the case may be, fails to act on the request 45 days after the close
of the last hearing on the request, unless the time is extended by
mutual consent by the landowner and the Borough.
G.
Where a curative amendment proposal is approved by the grant of a curative amendment, application by the Borough Council pursuant to § 909.1(b)(4) of the MPC, 53 P.S. § 10909.1(b)(4), or a validity challenge is sustained by the Zoning Hearing Board pursuant to § 909.1(a)(1) of the MPC, 53 P.S. § 10909.1(a)(1), or the court acts finally on appeal from denial of a curative amendment proposal or a validity challenge, and the proposal or challenge so approved requires a further application for subdivision or land development, the developer shall have two years from the date of such approval to file an application for preliminary or tentative approval pursuant to Article V or VII of the MPC, 53 P.S. § 10501 et seq. and 10701 et seq. Within the two-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. Upon the filing of the preliminary or tentative plan, the provisions of § 508(4) of the MPC, 53 P.S. § 10508(4), shall apply. Where the proposal appended to the curative amendment application or the validity challenge is approved but does not require further application under any subdivision or land development ordinance, the developer shall have one year within which to file for a building permit. Within the one-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. During these protected periods, the court shall retain or assume jurisdiction for the purpose of awarding such supplemental relief as may be necessary.
[Amended 1-3-1995 by Ord. No. 1995-2]
In order not to unreasonably delay the time
when a landowner may secure assurance that the ordinance or map under
which he proposed to build is free from challenge, and recognizing
that the procedure for preliminary approval of his development may
be too cumbersome or may be unavailable, the landowner may advance
the date from which time for any challenge to the ordinance or map
will run under § 914.1 of the MPC, 53 P.S. § 10914.1,
by the following procedure:
A.
The landowner may submit plans and other materials
describing his proposed use or development to the Zoning Officer for
a preliminary opinion as to their compliance with the applicable ordinances
and maps. Such plans and other materials shall not be required to
meet the standards prescribed for preliminary, tentative or final
approval or for the issuance of a building permit so long as they
provide reasonable notice of the proposed use or development and a
sufficient basis for a preliminary opinion as to its compliance.
B.
If the Zoning Officer's preliminary opinion is that
the use or development complies with the ordinance or map, notice
thereof shall be published once each week for two successive weeks
in a newspaper of general circulation in the Borough. Such notice
shall include a general description of the proposed use or development
and its location, by some readily identifiable directive, and the
place and times where the plans and other materials may be examined
by the public. The favorable preliminary approval under § 914.1
of the MPC, 53 P.S. § 10914.1, and the time therein specified
for commencing a proceeding with the Board shall run from the time
the second notice thereof has been published.
