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.
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.
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.
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.
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.
A.
The Zoning Hearing Board shall have exclusive jurisdiction to hear
and render final adjudications in the following matters:
(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.
(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.
(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.
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).
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.
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.
(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.
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.
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.
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.
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.
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.
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:
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.
(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.
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.
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.
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.
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.
