Township of Whitehall, PA Article V Zoning Hearing Board

§ 27-33 Continuation.

The Zoning Hearing Board (hereinafter referred to as "Board") created and existing under preexisting ordinances of the Township shall continue under and in accordance with the provisions of this chapter. Matters pending before the Board at the time this chapter becomes effective shall continue and be completed under the zoning ordinance in effect at the time the Board took jurisdiction of said matters.

§ 27-34 Membership.

A. The Board shall consist of five members who are residents of the Township appointed by resolution by the Commissioners. The terms of office shall be five years and shall be so fixed that the term of office of one member of the five member Board shall expire each year. The Board shall promptly notify the President of the Board of Commissioners of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Board shall hold no other office in the Township. The Zoning Officer shall serve as Secretary to the Board. Members of the Board appointed prior to the adoption of this chapter shall, after enactment, complete the remainder of the term for which they were appointed. After the enactment of this amendment, the Board of Commissioners shall appoint, by resolution, two additional members whose terms shall commence on the date of appointment and shall terminate December 31, 2001 and December 31, 2002, respectively.

[Amended 3-9-1998 by Ord. No. 2079]

B. The Board of Commissioners may appoint by resolution at least one, but not more than three, residents of the Township to serve as alternate members of the Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of § 27-36B, an alternate shall be entitled to participate in all proceedings and discussions of the Board to the same extent as provided by law for Board members, including specifically the right to cast a vote as a voting member during the proceedings, and shall have all the powers and duties as set forth in this chapter and as otherwise provided by law. Alternates shall hold no other office in the Township, including membership on the Planning Commission and Zoning Officer. Any alternate may participate in any proceeding or discussion of the Board but shall not be entitled to vote as a member of the Board nor be compensated pursuant to § 27-37 unless designated as a voting alternate member pursuant to § 27-36B.

[Amended 12-18-1989 by Ord. No. 1657]

§ 27-35 Removal of members.

Any member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause by majority vote of the Commissioners taken after the member has received 15 days advanced written notice of the intent to take such vote. A public hearing shall be held in connection with the Commissioners' action if the member shall request the same in writing.

§ 27-36 Organization.

A. 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 not be less than a majority of all of the members of the Board, but, where any members are disqualified to act in a particular matter, the remaining members may act for the Board. The Board may appoint a hearing officer from its own membership to conduct any hearing on its own behalf, and the parties may waive further action by the Board as provided in § 27-39D.

B. If, by reason of absence or disqualification of a member, a quorum is not reached the Chairman of the Board shall designate as many alternate members of the Board to sit on the Board as may be needed to provide a quorum. Any alternate member of the Board shall continue to serve on the Board in all proceedings involving the matter or case for which the alternate was initially appointed until the Board has made a final determination of the matter or case. Designation of an alternate pursuant to this section shall be made on a case-by-case basis in rotation according to declining seniority among all alternates.

C. The Board may make, alter and rescind rules and forms for its procedures, consistent with the Township ordinances and laws of the Commonwealth. The Board shall keep full public records of its business, which records shall be the property of the Township and shall submit a report of its activities to the Commissioners, as requested by the Commissioners.

§ 27-37 Expenditures for service.

Within the limits of funds appropriated by the Commissioners, the Board may utilize secretaries, clerks, legal counsel, consultants and other technical and clerical staff. Selection of all such counsel and consultants shall be made by the Commissioners. Members of the Board may receive compensation for the performance of their duties, as may be fixed by the Commissioners, but in no case shall it exceed the rate of compensation authorized by the provisions of the Municipalities Planning Code. Alternate members of the Board may receive compensation, as may be fixed by the Commissioners, for the performance of their duties when designated as alternate members pursuant to § 27-36B, but in no case shall such compensation exceed the rate of compensation authorized by the provisions of the Municipalities Planning Code.

§ 27-38 Applications.

Every application for a variance, special exception, mediation, interpretation or appeal of a ruling of the Zoning Officer shall be made on a form prepared by the Zoning Hearing Board. Such application shall be filed with the Board and shall include a statement by the applicant regarding the reasons for the application. Each application to the Board shall be subject to a fee fixed by the Commissioners. An application is not complete until the required fee is paid in full and the appropriate number and type of plans are submitted therewith.

§ 27-39 Hearings and decisions.

The Board shall conduct hearings and make decisions in accordance with the following requirements:

A. The Board shall give public notice of all matters to be heard at any given meeting and shall give written notice to the owner, appellant, the Commissioners, Planning Commission, to the governing body of any municipality located within 500 feet of the property at issue and to all other interested parties who have registered their names and addresses with the Board. The notices herein required shall state the location of the building or lot, the general nature of the question involved and the time and place of the hearing. In addition to the notices provided herein, written notice of said hearing shall be conspicuously posted on the affected tract of land, building or sign at least one week prior to the hearing.

B. The Commissioners may prescribe reasonable fees with respect to hearings before the Zoning Hearing Board. Fees for said hearings may include compensation for the Secretary and members of the Board, notice and advertising costs and necessary administrative overhead connected with the hearings. The costs, however, shall not include legal expenses of the Zoning Hearing Board, expenses for engineering, architectural or other technical consultants or expert witness costs.

C. 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.

D. The hearing shall be conducted by the Board or 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 appellant or the applicant, as the case may be, in addition to the Township, may, prior to the decision of the hearing, waive the decision or findings by the Board and accept the decision or findings of the hearing officer as final.

E. The parties to the hearing shall be the applicant, the Township, any person affected by the application who has made a timely appearance of record before the Board, and any other person including duly constituted civic or community organizations permitted to appear by the Board. The Board shall have the 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.

F. The Chairman or acting Chairman of the Board or 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.

G. The parties shall have the right to be represented by counsel and shall be afforded the opportunity to present evidence and argument and to cross-examine adverse witnesses on all relevant issues.

H. Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence shall be excluded.

I. 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 Board if the transcript is ordered by the Board or Hearing Officer, or shall be paid by the person appealing 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.

J. The Board or the Hearing Officer, as the case may be, shall not communicate, directly or indirectly, with any party or his representatives in connection with any issue involved except upon notice and opportunity for all parties to participate; shall not take notice of any communication, reports, staff memoranda or other materials, except advice from their solicitor, unless all parties are afforded an opportunity to contest the material so noticed; and shall not inspect the site or its surroundings with any party or his representative unless all parties are given an opportunity to be present.

K. 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 after the last hearing before the Board or Hearing Officer. Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon, together with the reasons therefor. Conclusions based on any provisions of this act or of any ordinance, 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 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 parties within 45 days and the parties shall be entitled to make written recommendations thereon to the Board prior to final decision or entry of findings. The Board's decision shall be entered no later than 30 days after the report of the Hearing Officer. Where the Board fails to render the decision within the period required by this subsection, or fails to hold the required hearing within 60 days from the date of the applicant's request for a 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 rendered a decision in the same manner as provided in Subsection A. 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 application to appeal the decision to a court of competent jurisdiction.

L. A copy of the final decision or, where no decision is called for, of 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, a brief notice of the decision or findings and a statement of the place at which the full decision or findings may be examined.

§ 27-40 Mediation option.

A. Parties to proceedings authorized in this chapter may utilize mediation as an aid in completing such proceedings. The Zoning Hearing Board shall neither initiate mediation nor participate as a mediating party in any proceeding pending before the Board. Mediation shall supplement, not replace, those procedures in this chapter once said procedures have been formally initiated. Nothing in this section shall be interpreted as expanding or limiting Township police powers or as modifying any principles of substantive law.

B. Participation in mediation shall be wholly voluntary. The appropriateness of mediation shall be determined by the particulars of each case and the willingness of the parties to negotiate. The Township shall assure that in each case the mediating parties, assisted by the mediator as appropriate, develop terms and conditions for:

(1) Funding mediation. The costs of mediation shall be the sole and separate responsibility of the parties thereto and of neither the Township, the Planning Commission, Zoning Hearing Board or Board of Commissioners.

[Amended 4-8-1991 by Ord. No. 1729]

(2) Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation.

(3) Completing mediation, including time limits for such completion.

(4) Suspending time limits otherwise authorized in this chapter, provided there is written consent by the mediating parties and by an applicant or Township decision making body if either is not a party to the mediation.

(5) Identifying all parties and affording them the opportunity to participate.

(6) Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public.

(7) Assuring that mediated solutions are in writing and signed by the parties and become subject to review and approval by the appropriate decision making body pursuant to the authorized procedures set forth in the other sections of this chapter.

C. No offers or statements made in the mediation sessions, excluding the final written mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceedings.

§ 27-41 Jurisdiction.

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 Commissioners pursuant to § 609.1 of the Municipalities Planning Code and § 27-50A(2) hereof.

(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 after the effective date of said ordinance.

(3) Appeals from the determination of the Zoning Officer including, but not limited to, the granting or denial of any permit, failure to act on the application therefor or the issuance of any cease and desist order or enforcement notice.

(4) Appeals from a determination by the Township Engineer with reference to the administration of the Township Floodplain Ordinance or such provisions within a land use ordinance.

(5) Applications for variances from the provisions of this chapter or such provisions within a land use ordinance, pursuant to § 27-42.

(6) Applications for special exceptions or such provisions within a land use ordinance, pursuant to § 27-43.

(7) Appeals from the Zoning Officer's determination under § 27-51.

(8) Appeals from the determination of the Zoning Officer or Township 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 development not involving the provisions of Chapter 22, Subdivision and Land Development, or the planned residential development sections of this chapter.

(9) Appeals from denials of special encroachment permits pursuant to § 405 of the Municipalities Planning Code.

(10) Appeals involving reasonable accommodations as provided in the Federal Fair Housing Act or the Americans with Disabilities Act.

[Added 1-11-2016 by Ord. No. 3039]

(a) Such reasonable accommodation shall be requested in writing, in accordance with the above noted laws, as well as applicable Pennsylvania laws.

(b) If the applicant is requesting reasonable accommodation for persons with disabilities as defined in the hereinabove noted Acts, the applicant shall identify the following:

[1] The protected disability;

[2] The extent of the modification of the provisions of this chapter for a reasonable accommodation;

[3] The manner by which the reasonable accommodation requested may be removed when such person of protected class will no longer be present on the property.

(c) Any modification approved under this section may be limited to the time period for which the person with disabilities occupies or utilizes the premises.

B. The Commissioners shall have exclusive jurisdiction to hear and render final adjudications in the following matters:

(1) All applications for approvals of planned residential developments pursuant to the provisions of § 702 of the Municipalities Planning Code.

(2) Applications for conditional uses under the express provisions of §§ 27-44 and 27-45 hereof.

(3) Applications for curative amendment pursuant to § 609.1 of the Municipalities Planning Code and § 27-50A(2) hereof.

(4) All petitions for amendments to land use ordinances, pursuant to the procedures set forth in § 609 of the Municipalities Planning Code. Any action on such petitions shall be deemed legislative acts, provided that nothing contained in this clause shall be deemed to enlarge or diminish existing law with reference to appeals to court.

(5) Appeals from the determination of the Zoning Officer or the Township 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 the provisions of Chapter 22, Subdivision and Land Development, or the planned residential development sections of this chapter.

(6) Applications for a special encroachment permit pursuant to § 405 of the Municipalities Planning Code and applications for a permit pursuant to § 406 of the Municipalities Planning Code.

§ 27-42 Variances.

A. The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant.

B. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purpose of this chapter and the laws of the Commonwealth.

C. The Board may grant a variance provided the following findings are made where relevant in a given case:

(1) That 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) 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.

(3) That such unnecessary hardship has not been created by the appellant.

(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 public welfare.

(5) That 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.

(6) The variance shall not permit a use specifically prohibited by this chapter.

§ 27-43 Special exceptions.

Where this chapter permits, special exceptions may be granted or denied by the Board pursuant to the provisions of § 27-45. In granting a special exception, the Board shall consider the recommendations, if any, of the Planning Commission and Zoning Officer and may attach such reasonable conditions and safeguards, in addition to those expressed by this chapter, as it may deem necessary to implement the purposes of this chapter and the laws of the Commonwealth.

§ 27-44 Conditional uses.

A. The Commissioners shall process, hear and decide, by resolution, all conditional use applications as hereinafter set forth.

[Amended 4-8-1991 by Ord. No. 1729]

B. The Commissioners may make, alter and rescind rules and forms for its procedures, consistent with the Township ordinances and laws of the Commonwealth. The Commissioners shall keep full public records of its business, which records shall be the property of the Township.

C. The Commissioners shall conduct hearings and make decisions in accordance with the following requirements:

(1) The Commissioners shall give public notice of all matters to be heard at any given meeting and shall give written notice to the owner, appellant, planning commission, to the governing body of any municipality located within 500 feet of the property at issue and to all other interested parties who have registered their names and addresses with the Board. The notices herein required shall state the location of the building or lot, the general nature of the question involved and the time and place of the hearing. In addition to the notices provided herein, written notice of said hearing shall be conspicuously posted on the affected tract of land, building or sign at least one week prior to the hearing.

(2) The Commissioners may prescribe reasonable fees with respect to hearings which shall include, but not be limited to, fees for notice and advertising costs and necessary administrative overhead connected with the hearings. The costs, however, shall not include legal expenses of the Commissioners, expenses for engineering, architectural or other technical consultants or expert witness costs.

(3) The hearing shall be held within 60 days from the date that the applicant has submitted a complete application, necessary documents and fully paid all required fees, unless the applicant has agreed in writing to an extension of time.

(4) The hearing shall be conducted entirely by the Commissioners.

(5) The parties to the hearing shall be the applicant, the Township, any person affected by the application who has made a timely appearance of record before the Commissioners, and any other person, including duly constituted civic or community organizations to appear by the Commissioners. The Commissioners shall have the power to require that all persons who wish to be considered parties enter appearances in writing on forms provided by the Commissioners for that purpose.

(6) The president or acting president of the Commissioners 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.

(7) The parties shall have the right to be represented by counsel and shall be afforded the opportunity to present evidence and argument and to cross-examine adverse witnesses on all relevant issues.

(8) Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence shall be excluded.

[Amended 8-8-2005 by Ord. No. 2578]

(9) The Commissioners shall keep a stenographic record of all the proceedings. The appearance fee for a stenographer shall be shared equally by the applicant and the Commissioners. The cost of the original transcript shall be paid by the Commissioners if the transcript is ordered by the Commissioners or shall be paid by the person appealing from the decision of the Commissioners if such appeal is made and, in either event, the cost of additional copies shall be paid by the person requesting such copy of copies. In other cases, the party requesting the original transcript shall bear the cost thereof.

(10) The Commissioners shall not communicate, directly or indirectly, with any party or his representatives in connection with any issue involved, except upon notice and opportunity for all parties to participate; shall not take notice of any communications, reports, staff memoranda or other materials, except advice from the Solicitor, unless all parties are afforded an opportunity to contest the material so noticed; and shall not inspect the site or its surroundings with any party or his representative unless all parties are given an opportunity to be present.

(11) The Commissioners shall 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 Commissioners. Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon, together with the reasons therefor. Conclusions based on any provisions of this act or of any ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in light of the facts found.

(12) A copy of the final decision or where no decision is called for, of 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 Commissioners not later than the last day of the hearing the Commissioners shall provide, by mail or otherwise, a brief notice of the decision of findings and a statement of the place at which the full decision or findings may be examined.

D. The parties may use mediation as an aid in completing the procedures set forth herein. The Commissioners shall not initiate mediation or participate as a mediating party in any pending proceeding. Mediation shall supplement, not replace, those procedures in this chapter once such procedures have been formally initiated. Nothing in this section shall be interpreted as expanding or limiting Township police powers or as modifying any principle of substantive law. Mediation shall be provided by and conform to those provisions of § 27-40B and C.

E. In approving a conditional use the Commissioners shall consider the recommendations, if any, of the Planning Commission and Zoning Officer and may attach such reasonable conditions and safeguards, in addition to those expressed by this chapter, as it may deem necessary to implement the purposes of this chapter and the laws of the Commonwealth.

§ 27-45 Special exception and conditional use submission, review and decision procedures and requirements.

A. The application for a special exception or conditional use shall be submitted on the form provided by the Zoning Officer. No application shall be accepted unless and until all requested data, information and plans are complete and the required number submitted and all fees are paid in full.

B. All requests for special exceptions or conditional uses shall be made in writing by the legal or equitable owner of the subject property or their authorized agents.

C. Applications for a special exception or conditional use shall contain the following:

(1) Accurately scaled site plans, sealed by a registered professional engineer or land surveyor, showing:

(a) The location, size and topography of the tract.

(b) Existing and proposed buildings, parking areas, accesses and improvements.

(c) Location, size and use of open space.

(d) Existing and proposed easements.

(2) A description of any public services and facilities which would be required to be provided in connection with the special exception or conditional use.

(3) A description of size and use of all existing and proposed buildings or structures as well as any other size data for which compliance with this section and other zoning regulations is required.

(4) A description of covenants, grants of easements or other restrictions proposed to be imposed upon the use of the land, buildings and structures, including proposed easements or grants from or for public utilities.

(5) In the case of development plans which call for development over a period of years, the owners or equitable owners shall designate geographic sections for development under the plan and file a schedule showing the proposed areas within which applications for final approval of all sections of the development are intended to be filed. This schedule must be updated annually, on the anniversary of its approval, until the development is completed and accepted.

(6) A description of any and all waivers, variances or interpretations requested or necessary to complete the project as proposed.

(7) Any additional information required by the Planning Commission, Zoning Hearing Board, Township Engineer or Commissioners.

D. When considering a special exception or conditional use, the Zoning Hearing Board or Commissioners, as the case may be, shall forward a copy of the application and corresponding documents the Planning Commission. The Planning Commission shall review the special exception or conditional use and offer its recommendations regarding the effect of the proposed use on the surrounding property, conformity to the comprehensive plan and all of the provisions of this chapter. The Zoning Hearing Board and Commissioners shall not take any action on the special exception or conditional use request until written comments from the Planning Commission have been received or the expiration of 45 days from the date the application was submitted, whichever occurs first.

E. The Zoning Hearing Board and Commissioners shall approve any special exception or conditional use which meets all of the provisions of this chapter, and:

(1) The proposed use:

(a) Is in accord with the existing Comprehensive Plan and the spirit, intent and purpose of this chapter.

(b) Is in the best interests of the Township.

(c) Is suitable for the site chosen.

(d) Is designed, maintained and used so as to be in harmony with adjacent properties in the immediate vicinity.

(2) The proposed use permits the logical, efficient, safe and economic extension of public services and facilities, including but not limited to water, sewer, stormwater controls, schools, police and fire protection.

(3) The proposed use does not:

(a) Substantially increase traffic congestion in the streets.

(b) Increase the danger of fire or panic or otherwise endanger the public safety.

(c) Overcrowd the land or create an undue concentration of population.

(d) Impair an adequate supply of light and air to adjacent property.

(e) Adversely affect the comprehensive plan of the Township.

(f) Unduly burden water, sewer, school, park or other public facilities.

(g) Endanger the safety of persons or property by improper location or design of facilities for ingress or egress.

(h) Otherwise adversely affect the public health, safety or general welfare.

(i) Violate any Federal or State law, statute, rule, directive or regulation.

[Amended 4-8-1991 by Ord. No. 1729]

(j) Interfere or encroach upon any wetlands or floodplains.

[Amended 4-8-1991 by Ord. No. 1729]

(4) The proposed use is not:

(a) Inconsistent with the surrounding zoning and uses.

(b) Detrimental to the appropriate use of adjacent property.

§ 27-46 Reapplication.

No person shall be permitted to reapply to the Zoning Hearing Board or Commissioners for any variance, interpretation, special exception or conditional use on the same factual circumstances and seeking the same or similar relief previously requested until the expiration of 12 months from the date of the determination on the original or last application. Reapplications may be permitted upon a showing of changed circumstances but only with the unanimous consent of the Zoning Hearing Board or Commissioners.

§ 27-47 Parties appellant before the Board.

Appeals under § 27-41A(1), (2), (3), (4), (7), (8) and (9) may be filed with the Zoning Hearing Board in writing by the landowner affected, any officer or agency of the Township, or any person aggrieved. Requests for a variance under § 27-42 and for special exception under § 27-43 may be filed with the Zoning Hearing Board by any landowner, equitable landowner or any tenant with the permission of such landowner.

§ 27-48 Time limitations.

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 an appropriate Township officer, agency or body 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 pursuant to § 709 of the Municipalities Planning Code or from an adverse decision by a Zoning Officer on a challenge to the validity of an ordinance or map pursuant to § 27-51 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 landowners shall be filed by the landowner within 30 days after notice of the determination is issued.

§ 27-49 Stay of proceedings.

A. Upon filing of any proceeding referred to in § 27-47 and during its pendency before the Zoning Hearing 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 Township 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 granted by the Court on petition after notice to the Zoning Officer. 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 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 may hold a hearing to determine if the filing of the appeal is frivolous. 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 may grant the petition for a bond.

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.

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 appellant 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.

§ 27-50 Validity of ordinance; substantive questions.

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 § 27-41A.

(2) To the Commissioners under § 27-41B(4) together with a request for a curative amendment under § 609.1 of the Municipalities Planning Code.

B. Persons aggrieved by the 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 § 27-41A(1).

C. The submissions referred to in Subsections A and B shall be governed by the following:

(1) In challenges before the Zoning Hearing Board, the challenging party shall make a written request to the Zoning Hearing 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 Municipalities Planning Code, his application to the Commissioners 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 land development or subdivision approval conditioned upon satisfactory resolution of all zoning issues before submitting his challenge.

(2) If the submission is made by the landowner to the Commissioners under § 27-50A(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 Commissioners, the Township Solicitor shall represent and advise them at any and all hearings.

(4) The Commissioners may retain an independent attorney to present the defense of the challenged ordinance or map on its behalf and to present witnesses on its behalf.

(5) Based upon the testimony presented at the hearing or hearings, the Commissioners 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 Commissioners is found to have merit, the Commissioners shall proceed as provided in § 609.1 of the Municipalities Planning Code. 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 persons 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, woodland, 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 Commissioners or the Zoning Hearing Board, as the case may be, shall render its decision within 45 days after the conclusion of the last hearing.

(7) If the Commissioners or the Zoning Hearing Board, as the case may be, fails to act on the landowner's request within the time limits referred to in Subsection C(6), a denial of the request is deemed to have occurred on the 46th day after the close of the last hearing.

D. The Zoning Hearing Board or Commissioners, as the case may be, shall commence hearings 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 Commissioners, as the case may be, fails to commence the hearing within the time limits set forth in § 27-50D.

(2) The Commissioners notify the landowner that it will not adopt the curative amendment.

(3) The Commissioners adopt a curative amendment which is unacceptable to the landowner.

(4) The Zoning Hearing Board or Commissioners, 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 Township.

G. Where a curative amendment proposal is approved by the grant of a curative amendment application by the Commissioners pursuant to § 27-41B(4) or a validity challenge is sustained by the Zoning Hearing Board pursuant to § 27-41A(1) or the court acts finally on an appeal from a 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 the provisions of Chapter 22, Subdivision and Land Development, or the planned residential development sections of this chapter. 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 Municipalities Planning Code 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.

§ 27-51 Procedure to obtain preliminary opinion.

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 § 27-48 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 Township. 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 § 27-48 and the time therein specified for commencing a proceeding with the Board shall run from the time when the second notice thereof has been published.