Borough of Waynesboro, PA Article XII Zoning Hearing Board; Jurisdiction; Conditional Uses

§ 295-105 Membership of Board.

A. The membership of the Board shall consist of five residents of the Borough appointed by the Borough Council. The terms of office of a five-member Board shall be five years and shall be so fixed that the term of office 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 unexpired portion of the term. Members of the Board shall hold no other elected or appointed office in the Borough, nor shall any member be an employee of the Borough.

B. The Borough Council may appoint at least one but no more than three residents of the Borough 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 this section of this article, an alternate shall be entitled to participate in all proceedings and discussions of the Board to the same and full 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 set forth in this act and as otherwise provided by law. Alternates shall hold no other elected or appointed office in the Borough, including membership on the Planning Commission and Zoning Officer, nor shall any alternate be an employee of the Borough. 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 § 295-108 unless designated as a voting alternate member pursuant to this section of this article.

§ 295-106 Removal of members.

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.

§ 295-107 Organization of the Board.

A. The Board shall elect from its own membership a Chairman and a Vice Chairman who shall chair the proceedings of the Board in the absence of the Chairman 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 three members of the Board.

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 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 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.

§ 295-108 Expenditures for services.

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. Alternate members of the Board may receive compensation, as may be fixed by the Borough Council, for the performance of their duties when designated as alternate members pursuant to § 295-105, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of the Borough Council.

§ 295-109 Hearings.

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

A. Public notes shall be given and written notice shall be given to the applicant, the Zoning Officer, all adjoining property owners (including those property owners across street rights-of-way), such other persons as the Borough Council shall designate by ordinance 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 ordinance or, in the absence of ordinance provision, 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.

(1) The Borough Council may prescribe reasonable fees with respect to hearings before the Zoning Hearing Board. Fees for said hearings may include compensation for the stenographer 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 legal expenses of the Zoning Hearing Board, expenses for engineering, architectural or other technical consultants or expert witness costs.

(2) The first hearing before the Board shall be commenced within 60 days from the date of receipt of the applicant's application, unless the applicant has agreed in writing to an extension of time. Each subsequent hearing before the Board shall be held within 45 days of the prior hearing, unless otherwise agreed to by the applicant in writing or on the record. An applicant shall complete the presentation of his case in chief within 100 days of the first hearing. Upon the request of the applicant, the Board shall assure that the applicant receives at least seven hours of hearings within the 100 days, including the first hearing. Persons opposed to the application shall complete the presentation of their opposition to the applicant within 100 days of the first hearing held after the completion of the applicant's case in chief. And applicant may, upon request, be granted additional hearings to complete his case in chief provided the persons opposed to the application are granted an equal number of additional hearings. Persons opposed to the applicant may, upon the written consent or consent on the record by the applicant and Borough, be granted additional hearings to complete their opposition to the application provided the applicant is granted an equal number of additional hearings for rebuttal.

B. The hearings shall be conducted by the Board. The decision or, where no decision is called for, the findings shall be made by the Board.

C. The parties to the hearing shall be the Borough, any person affected by the application who has made timely appearance or 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.

D. The Chairman or Vice Chairman of the Board 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.

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

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

G. The Board 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 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.

H. The Board 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 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 hearings with any party or his representative unless all parties are given an opportunity to be present.

I. The Board 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. Each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Conclusions based on any provisions of the Municipalities Planning Code,[1] Act 170 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 the facts found. 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 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 Subsection A of this section. 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.

[1] Editor's Note: See 53 P.S. § 10101 et seq.

J. 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 name and address 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 at which the full decision or findings may be examined.

§ 295-110 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 Borough Council pursuant to Sections 609.1 and 916.1(a)(2) of the Municipalities Planning Code, Act 170.[1]

[1] Editor's Note: See 53 P.S. §§ 10609.1 and 10916.1(a)(2).

(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, 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, sign or lot.

(4) Appeals from a determination by the head of Borough Engineering Services 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 Zoning Ordinance and floodplain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to Section 910.2 of the Municipalities Planning Code, Act 170.[2]

[2] Editor's Note: See 53 P.S. § 10910.2.

(6) Applications for special exceptions under this Zoning Ordinance or floodplain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to Section 912.1 of the Municipalities Planning Code, Act 170.[3]

[3] Editor's Note: See 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 Zoning Ordinance.

(8) 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 Zoning Ordinance.

(9) Appeals from the determination of the Zoning Officer or municipal 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 Article V or VII applications pursuant to the Municipalities Planning Code, Act 170.[4]

[4] Editor's Note: See 53 P.S. § 10501 et seq. and 53 P.S. § 10701 et seq., respectively.

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

(1) Applicants for conditional use under the expressed provisions of this chapter.

(2) Applications for curative amendment to a zoning ordinance pursuant to Sections 609.1 and 916.1(a)(2) of the Municipalities Planning Code, Act 170.[5]

[5] Editor's Note: See 53 P.S. §§ 10609.1 and 10916.1(a)(2).

(3) All petitions for amendments to land use ordinances, pursuant to the procedures set forth in the Municipalities Planning Code, Act 170.[6] 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.

[6] Editor's Note: See 53 P.S. § 10101 et seq.

(4) Appeals from the determination of the Zoning Officer or the Head of Borough Engineering Services 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 application for land development under Articles V and VII of the Municipalities Code, Act 170.[7] Where such determination relates only to development not involving an Article V or VII application of the Municipalities Code, Act 170, the appeal from such determination of the Zoning Officer or the head of Borough Engineering Services shall be submitted to the Zoning Hearing Board pursuant to Subsection A(9) of this section. Where the applicable land use ordinance vests jurisdiction for final administration of subdivision and land development applications in the planning agency, all appeals from determinations under this subsection shall be to the planning agency and all appeals from the decision of the planning agency shall be to court.

[7] Editor's Note: See 53 P.S. § 10501 et seq. and 53 P.S. § 10701 et seq., respectively.

§ 295-111 Applicability to judicial remedies.

Nothing contained in this article shall be construed to deny the appellant the right to proceed directly to court where appropriate, pursuant to the Pennsylvania Rules of Civil Procedure No. 1091 (relating to action in mandamus).

§ 295-112 Zoning Hearing Board's functions; variances.

A. The Board shall hear requests for variances where it is alleged that the provisions of this Zoning Ordinance inflict unnecessary hardship upon the applicant. The Board may by rule 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) 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 Zoning Ordinance 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 Zoning Ordinance 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.

B. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the Municipalities Planning Code[1] and this Zoning Ordinance.

[1] Editor's Note: See 53 P.S. § 10101 et seq.

C. Variances within the floodplain district. If compliance with any of the requirements of this article or the use requirements of the Floodplain Management Ordinance[2] would result in an exceptional hardship for a prospective builder, developer, or landowner, the Zoning Hearing Board may, upon request, grant relief from the strict application of the requirements.

(1) Variance procedures and requirements. Requests for variances within a floodplain shall be considered by the Zoning Hearing Board in accordance with the following:

(a) No variance shall be granted for any construction, development, use or activity within any floodway area that would cause any increase in the one-hundred-year flood elevation.

(b) Except for a possible modification of the freeboard requirements involved, no variance shall be granted for any of the other requirements pertaining specifically to development which may endanger human life.

(c) If granted, a floodplain variance shall involve only the least modification necessary to provide relief.

(d) In granting any variance, the Zoning Hearing Board shall attach whatever reasonable conditions and safeguards it considers necessary in order to protect the public health, safety, and welfare, and to achieve the objectives of this chapter.

(e) Whenever a variance is granted within a floodplain, the Zoning Hearing Board shall notify the applicant, in writing, that:

[1] The granting of the variance may result in increased premium rates for flood insurance.

[2] Such variances may increase the risks to life and property.

(f) In reviewing any request for a variance, the Zoning Hearing Board shall consider, but not be limited to, the following:

[1] That there is good and sufficient cause.

[2] That failure to grant the variance would result in exceptional hardship to the applicant.

[3] That the granting of the variance will not result in an unacceptable or prohibited increase in flood elevations, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on, or victimization of the public or conflict with any other applicable local or state ordinance or regulations.

[4] Notwithstanding any of the above, however, all structures shall be designed and constructed so as to have the capability of resisting the one-hundred-year flood.

(2) A complete record of all variance requests and related actions shall be maintained by the Zoning Hearing Board. In addition, a report of all variances granted during the year shall be included in the annual report to the Federal Emergency Management Agency.

[2] Editor's Note: See Ch. 149, Flood Damage Prevention.

§ 295-113 Zoning Hearing Board's functions; special exception.

Where the Borough Council, in this Zoning Ordinance, has stated special exceptions to be granted or denied by the 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 the ordinance, as it may deem necessary to implement the purposes of this act and this Zoning Ordinance.

§ 295-114 Borough Council's functions; conditional uses.

A. Where the Borough Council, in this Zoning Ordinance, has stated conditional uses to be granted or denied by the Borough Council pursuant to express standards and criteria, the Borough Council shall hold hearings on and decide requests for such conditional uses in accordance with such standards and criteria. In granting a conditional use, the Borough Council 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. The procedure for conditional uses shall be in accordance with the Municipalities Planning Code.[1]

[1] Editor's Note: See 53 P.S. § 10101 et seq.

B. A conditional use shall expire if the proposed use or structure contemplated by said conditional use has not been commenced upon within two years of the date of approval. Borough Council may grant an extension of time for good cause.

C. In reviewing any conditional use application, the Borough Council shall take into consideration the public health, safety, welfare and the comfort and convenience of the public in general and the residents of the immediate neighborhood in particular. In considering any application for a conditional use, the Borough Council shall, among other things:

(1) Assure itself that the proposed use is consistent with the spirit, purpose and intent of this chapter and specifically authorized as a conditional use.

(2) Determine that the proposed use will not substantially injure or detract from the use of the neighborhood property or from the character of the neighborhood, and that the use of the property adjacent to the area included in the proposed change or plan is adequately safeguarded.

(3) Determine that the proposed use will serve the best interest of the Borough, the convenience of the community, and the public health, safety and welfare.

(4) Consider the effect of the proposed use upon the logical, efficient and economical extension of public services and facilities such as public water, sewers, police and fire protection, and public schools, and assure adequate arrangements for sanitation in specific instances.

(5) Determine that the use complies with all specified standards for the use.

(6) Be guided in its study, review and recommendation by sound standards of land development practice where applicable.

(7) Guide the development of highway frontage insofar as possible so as to limit traffic hazards and congestion.

D. If a variance and/or a special exception is required for a conditional use, the applicant shall first apply for such variance and/or special exception to the Zoning Hearing Board prior to seeking conditional use approval from the Borough Council.

E. Should a land development plan be required pursuant to Chapter 250, Subdivision and Land Development, a separate land development plan shall be prepared pursuant to that ordinance.

F. An application for a conditional use shall be made, in writing, to the Borough Council and shall be accompanied by the written material and data required by this chapter for a special exception application, along with such other written and graphic material as may be required by the Borough Council in order to adequately make the decisions and determinations required by this chapter, and the names and addresses of all adjacent landowners. Six copies of applications, along with the written material and data required by this chapter, shall be submitted, and shall be accompanied by such fees as shall be set forth in a resolution of the Borough Council.

G. The Borough Council shall hold public hearing upon an application for a conditional use within 60 days after the filing of said application, unless the applicant has agreed in writing to an extension of time. Each subsequent hearing before the Borough Council shall be held within 45 days of the prior hearing, unless otherwise agreed to by the applicant in writing or on the record. An applicant shall complete the presentation of his case in chief within 100 days of the first hearing. Upon the request of the applicant, the Borough Council shall assure that the applicant receives at least seven hours of hearings within the 100 days, including the first hearing. Persons opposed to the application may, upon the written consent or consent on the record by the applicant and Borough, be granted additional hearings to complete their opposition to the application provided the applicant is granted an equal number of additional hearings for rebuttal. At least 30 days prior to said hearing, the Borough Council shall submit one copy of the application, together with the written material and data required by this chapter, to the Borough Planning Commission to provide the Planning Commission the opportunity to submit its recommendations with regard thereto.

(1) The Borough Council shall give written notice of any public hearing upon an application for a conditional use to the applicant to the Zoning Officer, to any person who has made timely request for the same, and shall give public notice of any such public hearing in accordance with the provisions of the Pennsylvania Municipalities Planning Code.[2]

[2] Editor's Note: See 53 P.S. § 10101 et seq.

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

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.

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

(4) The Borough Council shall keep a stenographic record of the proceedings, and a transcript of the proceedings and copies of the graphic or written material received in evidence shall be made available to any party at cost.

(5) The Borough Council shall render a written decision upon application for a conditional use within 45 days after the last public hearing before the Borough Council. In authorizing or approving any such conditional use the Borough Council shall have power to attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter. Where the application is contested or denied, each such written decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Conclusions based on any provisions of the Pennsylvania Municipalities Planning Code[3] or 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. Where the Borough Council has power to render a decision and fails to render the same within the period required by this section, or fails to commence, conduct or complete the required hearing as provided for in this section, within 60 days from the date of the applicant's request for a hearing or fails to complete the hearing no later than 100 days after the completion of the applicant's case in chief, unless extended for good cause upon application to the Court of Common Pleas, 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. Nothing in this subsection shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction. When a decision has been rendered in favor of the applicant because of the failure of the Borough Council to meet or render a decision as hereinabove provided, the Borough Council shall give public notice of the decision within 10 days from the last day it could have met to render a decision in the same manner as required by the public notice requirements of this act. If the Borough Council shall fail to provide such notice, the applicant may do so.

[3] Editor's Note: See 53 P.S. § 10101 et seq.

(6) A copy of the written decision 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 name and address with the Borough Council not later than the date of the last public hearing before the Borough Council, the Borough Council shall provide, by mail or otherwise, brief notice of the decision and the statement of the place at which the full decision may be examined.

§ 295-115 Parties appellant before the Board.

Appeals under § 295-110A(1), (3), (4), (7), (8) or (9) of this article may be filed with the Board in writing by the landowner affected, any officer or agency of the Borough, or any person aggrieved. Requests for a variance under § 295-112 and for special exception under § 295-113 may be filed with the Board for any landowner, any tenant, or proposed tenants with the permission of such landowner.

§ 295-116 Time limitations.

A. No person shall be allowed to file any proceeding with the Board later than 30 days after an application for development, preliminary or final, has been approved by an appropriate Borough 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 planned residential development or from an adverse decision by the Zoning Officer on a challenge to the validity of an ordinance or map pursuant to § 295-114 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.

§ 295-117 Stay of proceedings.

A. Upon filing of any proceeding referred to in § 295-110 and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or of an 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 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.

§ 295-118 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 § 295-110A; or

(2) To the Borough Council under § 295-110B(2), together with a request for a curative amendment under Section 609.1 of the Municipalities Planning Code, Act 170.[1]

[1] Editor's Note: See 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 desire to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a decision thereon under § 295-110A(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 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 Section 609.1 of the Municipalities Planning Code, Act 170,[2] 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 lieu thereof. Nothing herein contained shall preclude the landowner from first seeking a final approval before submitting his challenge.

[2] Editor's Note: See 53 P.S. § 10609.1.

(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 municipal solicitor shall represent and advise it at the hearing or hearings referred to in § 295-110B(2).

(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 Section 609.1 of the Municipalities Planning Code, Act 170. 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, woodlands, wetlands, floodplains, and other natural features;

(d) The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts; and

(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.

(7) If the Borough Council 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 Borough Council, as the case may be, shall commence its 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 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; or

(4) The Zoning Hearing Board or 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 Borough.

G. Where, after the effective date of this chapter, a curative amendment proposal is approved by the grant of a curative amendment application by the Borough Council pursuant to§ 295-110B(2) or a validity challenge is sustained by the Zoning Hearing Board pursuant to § 295-110A(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 Municipalities Planning Code, Act 170. Within the two-year period, no 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 tentative plan, the provisions of Section 504(4) of the Municipalities Planning Code[3] 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.

[3] Editor's Note: See 53 P.S. § 10504(4).

H. A landowner who has challenged substantive grounds the validity of a zoning ordinance or map either by submission of a curative amendment to the Borough Council under Subsection A(2) or to the Zoning Hearing Board under § 295-110A(1) shall not submit any additional substantive challenges involving the same parcel, group of parcels or part thereof until such time as the status of the landowner's original challenge has been finally determined or withdrawn; provided, however, that if after the date of the landowner's original challenge the Borough adopts a substantially new or different zoning ordinance or Zoning Map, the landowner may file a second substantive challenge to the new or different zoning ordinance or Zoning Map under this chapter.

§ 295-119 Procedure to obtain preliminary option.

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 for 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 § 295-112 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 § 295-116 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.

§ 295-120 Expiration of variances and special exceptions.

A variance or special exception granted by the Zoning Hearing Board shall expire if the proposed use or structure contemplated by said variance or special exception has not been commenced within two years of the date of approval and completed in three years, unless such other time period is specified by the Zoning Hearing Board.

§ 295-121 Notification of variances and special exceptions to Borough Planning Commission.

Notices of all applications for special exceptions and variances shall be submitted to the Borough Planning Commission and Borough Council to afford the Planning Commission and Borough Council the opportunity to comment on the applications prior to the Zoning Hearing Board hearing. All decision of the Zoning Hearing Board shall be forwarded to the Planning Commission and Borough Council within five days of the decision.