[Ord. 687, 10/6/1986, § 1101]
The proceedings set forth in this Part shall constitute the
exclusive mode for securing review of any ordinance, decision, determination
or order of the Town, its agencies or officers, adopted or issued
pursuant to the Pennsylvania Municipalities Planning Code, Act 247
as amended.
[Ord. 687, 10/6/1986, § 1102]
Questions of an alleged defect in the process of enactment or
adoption of the Zoning Chapter or Map shall be raised by an appeal
taken directly from the action of the Town Council to the court.
[Ord. 687, 10/6/1986, § 1103]
1.
Landowner Appeals.
A.
A landowner who, on substantive grounds, desires to challenge the
validity of this Chapter 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:
B.
The submissions referred to in subsection (A) above shall be governed
by the following:
(1)
The landowner shall make a written request to the Board or Council
that it hold a hearing on his challenge. The request shall contain
a short statement reasonably informing the Board or the Council of
the matters that are in issue and the grounds for the challenge. Such
statement shall contain a certification that the landowner did not
know at the time of the application:
(a)
That the Town had resolved to consider a particular scheme of
rezoning by publication of notice of hearings on a proposed Comprehensive
Plan or proposed zoning ordinance or otherwise.
(b)
That the scheme of rezoning would be inconsistent with the landowner's
proposed use; provided that this rezoning scheme had reached sufficient
particularity to disclose that, if adopted, it would cure the defect
in this Chapter attacked by the substantive challenge.
(2)
The request may be submitted at any time after this Chapter
or Map takes effect but if an application for a permit or approval
is denied thereunder, the request shall be made not later than the
time provided for appeal from a denial thereof. In such case, if the
landowner elects to make the request to the Council and the request
is timely, the time within which he may seek review of the denial
of the permit or approval or other issues shall not begin to run until
the request to the Council is finally disposed of.
(3)
The request shall be accompanied by plans and other materials
describing the use or development proposed by the landowner in lieu
of the use or development permitted by the challenged Chapter or Map.
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 permit so long as they provide reasonable notice of
the proposed use or development and a sufficient basis for evaluating
the challenged Chapter or Map in the light thereof. Nothing contained
herein shall preclude the landowner from first seeking a final permit
or approval before submitting his challenge to the Board or the Council.
(4)
If the submission is made to the Council under subsection (A)(2)
above, the request shall be accompanied by an amendment or amendments
to the Chapter proposed by the landowner to cure the alleged defects
therein.
(5)
Notice of the hearing required by § 27-1208, §§ 1003(B) and 27-1004, whichever is applicable, shall include notice that the validity of this Chapter or Map is in question and shall give the place where and the times when a copy of the landowner's request, including the plans submitted pursuant to subsection (B)(3) above, and the proposed amendments, if any, submitted under subsection (B)(4), above, may be examined by the public.
(6)
The Board or the Council, as the case may be, shall hold a hearing upon the landowner's request pursuant to § 27-1208 or §§ 27-1003(B) or 27-1004, whichever is applicable, commencing not later than 60 days after the request is filed unless the landowner requests or consents to an extension of time.
C.
For the purpose of appealing to court, the landowner's request for
a curative amendment is denied when:
(1)
The Council notifies the landowner that it will not adopt the
amendment.
(2)
The Council adopts another amendment which is unacceptable to
the landowner.
(3)
The Council fails to act on the landowner's request, in which
event the denial is deemed to have occurred on the 30th day after
the close of the last hearing on the request unless the time is extended
by mutual consent between the landowner and the Town.
2.
Appeals by Persons Aggrieved. Persons aggrieved by a use or development
permitted on the land of another by an ordinance or map or any provision
thereof who desire to challenge its validity on substantive grounds
shall first submit their challenge to the Zoning Hearing Board for
a report thereon under § 27-1003(B). The submission to the
Board shall be governed by the following:
A.
The aggrieved person shall submit a written request to 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.
B.
The request shall be submitted within the time limitations prescribed by § 27-1006. In order not to unreasonably delay the time when a landowner may secure assurance that the ordinance or map under which he proposes 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 § 27-1006 by the following procedure:
(1)
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 zoning 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.
(2)
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 Town. 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 opinion of the Zoning Officer shall be deemed to be a preliminary approval under § 27-1006 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.
C.
The Board shall hold a hearing upon the aggrieved person's request pursuant to Part 10, § 27-1003(B) commencing not later than 60 days after the request is filed. If a hearing has been held by the Council covering the same matters, at which a stenographic record has been taken, the Board shall, upon motion of any party, accept said record as the record in the case before the Board, but the Board shall not be precluded from taking additional evidence, unless such evidence ought to be excluded under § 27-1002(F). After submitting his challenge to the Board, as provided in subsections (A) and (B) above, any party aggrieved may take the same to court by appeal.
[Ord. 687, 10/6/1986, § 1104]
1.
Landowner Appeals.
A.
A landowner who desires to file a zoning application or to secure
review or correction of a decision or order of the Council or of any
officer or agency of the Town which prohibits or restricts the use
or development of land in which he has an interest on the grounds
that such decision or order is not authorized by or is contrary to
the provisions of this Chapter or map shall proceed as follows:
(1)
From a decision of the Town Council or Planning Commission under the Subdivision and Land Development Ordinance the landowner may appeal directly to court or to the Zoning Hearing Board under § 27-1004, in cases where that section is applicable. Under the Town provisions for the submission of preliminary or tentative plans an adverse decision thereon shall, at the landowner's election, be treated as final and appealable.
(2)
From the decision of the Town Council or Planning Commission denying tentative approval of a development plan under ordinance provisions for a planned residential development or, if tentative approval has been granted, from any adverse decision on an application for final approval, the landowner may appeal directly to court or to the Zoning Hearing Board under § 27-1004 in cases where that section is applicable.
(3)
To the extent that the Board has jurisdiction of the same under
§ 27-1003(A), all other appeals shall lie exclusively to
the Zoning Hearing Board.
(4)
Applications under §§ 1003(C) and 1003(D) shall
be made exclusively to the Zoning Hearing Board.
B.
Appeals to the Zoning Hearing Board pursuant to subsections (A)(1)
and (3) above, shall be filed within 30 days after notice of the decision
is issued or, if no decision is made, within 30 days from the date
when a decision is deemed to have been made under this Chapter.
C.
Appeals to Court.
(1)
Appeals to court may be taken by the landowner from any decision
of the Town Council or Planning Commission under subsections (A)(1)
and (A)(2), above, after the decision is issued or, if no decision
is made, when a decision is deemed to have been made under this Chapter.
(2)
Appeals to court from any decision of the Zoning Hearing Board
may be taken by any party aggrieved.
2.
Appeals by Persons Aggrieved.
A.
Persons aggrieved by a use or development permitted on the land of
another who desire to secure review or correction of a decision or
order of the Town Council or of any officer or agency of the Town
which has permitted the same, on the grounds that such decision or
order is not authorized or is contrary to the provisions of an ordinance
or map shall first submit their objections to the Zoning Hearing Board
under §§ 27-1003(A) and 27-1006. The submission shall
be governed by the provisions of § 27-1003(B).
B.
Appeals to court from the decision of the Zoning Hearing Board may
be taken by any party aggrieved.
[Ord. 687, 10/6/1986, § 1105]
1.
Zoning appeals shall be entered as of course by the Prothonotary
or Clerk upon the filing of a zoning appeal notice which concisely
sets forth the grounds on which the appellant relies. The appeal notice
need not be verified. The zoning appeal notice shall be accompanied
by a true copy thereof.
2.
Upon filing of a zoning appeal, the Prothonotary or Clerk shall forthwith
as of course, send to the Town Council, Board or agency whose decision
or action has been appealed, by registered or certified mail, the
copy of the zoning appeal notice together with a writ of certiorari
commanding said Council, Board or agency within 20 days after receipt
thereof to certify to the court its entire record in the matter in
which the zoning appeal has been taken, or a true and complete copy
thereof, including any transcript of testimony in existence and available
to the Council, Board, or agency at the time it received the writ
of certiorari.
3.
If the appellant is a person other than the landowner of the land
directly involved in the decision or action appealed from, the appellant,
within seven days after the zoning appeal is filed, shall serve a
true copy of the zoning appeal notice by mailing said notice to the
landowner or his attorney at his last known address. For identification
of such landowner, the appellant may rely upon the record of the Town
and, in the event of good faith mistakes as to such identity, may
make such service nunc pro tunc by leave of court.
4.
The filing of an appeal in court under this section, shall not stay
the action appealed from but the appellants may petition the court
having jurisdiction of zoning appeals for a stay. If the appellants
are persons who are seeking to prevent a use or development of the
land of another, whether or not a stay is sought by them, the landowner
whose use or development is in question may petition the court to
order the appellants to post bond as a condition to proceeding with
the appeal. After the petition is presented, the court shall hold
a hearing to determine if the filing of the appeal is frivolous and
is for the purpose of delay. At the hearing evidence may be presented
on the merits of the case. After consideration of all evidence presented,
if the court determines that the appeal is frivolous and is for the
purpose of delay, it shall grant the petition. 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. The question of the amount of
the bond shall be within the sound discretion of the court.
[Ord. 687, 10/6/1986, § 1106]
Within the 30 days following the filing of a zoning appeal,
if the appeal is from the Board or an agency of the Town, the Town
and any owner or tenant of property directly involved in the action
appealed from may intervene as of course by filing a notice of intervention,
accompanied by proof of service of the same upon each appellant or
each appellant's counsel of record. All other intervention shall be
governed by the Rules of Civil Procedure.
[Ord. 687, 10/6/1986, § 1107]
If upon motion it is shown that proper consideration of the zoning appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence or may remand the case to the body, agency, or officer whose decision or order has been brought up for review or may refer the case to a referee to receive additional evidence provided that appeals brought before the court pursuant to § 27-1103 shall not be remanded for further hearings before any body, agency or officer of the Town. If the record below includes findings of fact made by the Town Council, Board or agency whose decision or action is brought up for review and the court does not take additional evidence or appoint a referee to take additional evidence, the findings of the Council, Board or agency shall not be disturbed by the court if supported by substantial evidence. If the record does not include findings of fact, or if additional evidence is taken by the court or by a referee, the court may make its own findings of fact based on the record below as supplemented by the additional evidence, if any.
[Ord. 687, 10/6/1986, § 1108]
1.
In a zoning appeal the court shall have power to declare any ordinance
or map invalid and set aside or modify any action, decision or order
of the Town Council, Board or officer of the Town brought up on appeal,
only if it determines that:
A.
The Town has not acted in good faith or made a bona fide attempt
in the adoption of its ordinances or maps, or any amendments thereto,
to meet the statutory and constitutional requirements for nonexclusionary
zoning.
B.
The ordinance imposes limitations that are not reasonably related
to the Town's authority to determine its physical growth pattern,
protect the Commonwealth's public natural resources, coordinate development
with the provision of public services or protect the character of
the Town.
2.
If the court, in accordance with the standards provided in subsection 1 above, finds that an ordinance or map or a decision or order thereunder which has been brought up for review unlawfully prevents or restricts a development or use which has been described by the landowner through plans and other materials submitted to the Town Council, Board or officer of the Town whose action or failure to act is in question on the appeal, it may order the described development or use approved as to all elements or it may order it approved as to some elements and refer other elements to the Council, Board or officer having jurisdiction thereof for further proceedings, including the adoption of alternative restrictions, in accordance with the court's opinion and order. In issuing its order the court shall consider the following:
A.
The locational suitability of the site for the uses proposed, including
the general location of the site with regard to major roads, sewer
facilities, water supplies, schools and other public service facilities
or the Comprehensive Plan and Zoning Chapter of the Town and the County.
B.
The impact of the proposal on regional housing needs, the transportation
network and other public services and facilities.
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.
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Upon motion of any of the parties or upon motion by the court,
the judge of the court may hold a hearing or hearings to receive additional
evidence or employ experts to aid the court to frame an appropriate
order. If the court employs an expert, the report or evidence of such
expert shall be available to any party, and he shall be subject to
examination or cross-examination by any party. He shall be paid reasonable
compensation for his services which may be assessed against any or
all of the parties as determined by the court. The court shall retain
jurisdiction of the appeal during the pendency of any such further
proceedings and may, upon motion of the landowner, issue such supplementary
orders as it deems necessary to protect the rights of the landowner
as declared in its opinion and order.
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3.
The fact that the plans and other materials referred to in subsection (2), above, are not in a form or are not accompanied by other submissions which are required for final approval of the development or use in question or for the issuance of permits shall not prevent the court from granting the definitive relief authorized in subsection (2), above, and the court may act upon preliminary or sketch plans by framing its decree to take into account the need for further submissions before final approval is granted.
4.
No court shall grant or enforce relief with respect to a substantive
challenge without first making an affirmative finding of fact that
the landowner's certification required by § 27-1103(A)(2)(a)
has in fact been made and is true and correct.
