[Ord. No. 5-2005, 10/11/2005]
The procedures set forth in this Part shall constitute the exclusive mode for securing review of any decision rendered pursuant to Part 7 or deemed to have been made under this chapter.
[Ord. No. 5-2005, 10/11/2005]
All appeals from all land use decisions rendered pursuant to Part 7 shall be taken to the Court of Common Pleas of the Judicial District wherein the land is located and shall be filed within 30 days after entry of the decision as provided as in 42 Pa.C.S.A. § 5572 (relating to time of entry of order) or in the case of deemed decision within 30 days after the date upon which notice of said deemed decision is given as set forth in § 27-704, Subsection 1A(10), of this chapter.
[Ord. No. 5-2005, 10/11/2005]
1.
Land use appeals shall be entered as of course by the Prothonotary
or Clerk upon filing of a land use appeal notice which concisely sets
forth the grounds on which the appellant relies. The appeal notice
need not be verified. The land use appeal notice shall be accompanied
by a true copy thereof.
2.
Upon filing of a land use appeal, the Prothonotary or Clerk shall
forthwith, as of course, send to the Board of Supervisors, Zoning
Hearing Board or agency whose decision has been appealed, by registered
or certified mail, the copy of the land use appeal notice, together
with a writ of certiorari commanding said Board of Supervisors, Zoning
Hearing Board or agency, within 20 days after receipt thereof, to
certify to the Court its entire record in the matter in which the
land use appeal has been taken, or a true and complete copy thereof,
including any transcript of testimony in existence and available to
the Board of Supervisors, Zoning Hearing 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 land use appeal is filed, shall serve
a true copy of the land use 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 Township
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 land use 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 in proceeding with
the appeal. After the petition for posting bond 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 landowners 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 posting 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. The question of 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 respondent
to the petition for posting a bond to post a bond shall be interlocutory.
If an appeal is taken by a respondent to the petition for posting
a bond from an order of the court dismissing a land use appeal for
refusal to post a bond, such responding party, upon motion of petitioner
and after hearing in the court having jurisdiction of land use appeals,
shall be liable for all reasonable costs, expenses and attorney fees
incurred by the petitioner.
[Ord. No. 5-2005, 10/11/2005]
Within the 30 days first following the filing of a land use
appeal, if the appeal is from a board or agency of the Township, the
Township 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 Pennsylvania Rules of Civil Procedure.
[Ord. No. 5-2005, 10/11/2005]
If, upon motion, it is shown that proper consideration of the land use appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, 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 § 27-710 shall not be remanded for further hearings before any body, agency or officer of the Township. If the record below includes findings of fact made by the Board of Supervisors, Zoning Hearing 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 Board of Supervisors, Zoning Hearing 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 shall make its own findings of fact based on the record below as supplemented by the additional evidence, it any.
[Ord. No. 5-2005, 10/11/2005]
1.
In a land use 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 Board of Supervisors, agency or officer of the Township brought
upon on appeal.
2.
If the court 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 Board
of Supervisors, agency or officer of the Township 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 Board
of Supervisors, agency or officer having jurisdiction thereof for
further proceedings, including the adoption of alternative restrictions,
in accordance with the court' opinion and order.
3.
Upon motion by 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.
4.
The fact that the plans and other materials are not in 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. The court may act upon preliminary or sketch plans
by framing its decree to take into account the need for further submissions
before the final approval is granted.
