Township of Birmingham, PA Article XXI Zoning Hearing Board

[Amended 6-21-1993 by Ord. No. 93-06; 6-5-1995 by Ord. No. 95-01]

§ 122-121 Appointment; vacancy; removal; alternate members.

[Amended 11-4-1996 by Ord. No. 96-18[1]]

A. Appointment and membership. The membership of the Zoning Hearing Board shall consist of three residents of the Township appointed by resolution of the Board of Supervisors. The terms of office of the individual Board members shall be three years and shall be so fixed that the term of office of one member shall expire each year. The Zoning Hearing Board shall promptly notify the Board of Supervisors of any vacancies which occur on the Zoning Hearing Board, and any such vacancy shall be filled by the Board of Supervisors only for the unexpired portion of the vacated member's term. Members of the Board shall hold no other office in the Township.

B. Appointment of alternate members. The Board of Supervisors may appoint by resolution at least one but no more than three residents of the Township to serve as alternative members of the Zoning Hearing Board. The term of office of an alternate member shall be three years. Whenever seated as a Board member pursuant to § 122-122 hereof, such alternate shall be entitled to participate in all proceedings and discussions of the Zoning Hearing Board to the same and full extent as provided by law for regular 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 of a Board member provided in this article and by law. 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 unless designated as a voting alternate member, as aforesaid. Alternates shall hold no other office in the Township or membership on the Planning Commission or as a Zoning Officer.

C. Removal. Any Board member, including an alternate member, may be removed for malfeasances, misfeasances or nonfeasances in office or for other just cause by a majority vote of the Board of Supervisors, 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.

[1] Editor's Note: This ordinance also provided that references throughout this article to the Pennsylvania Municipalities Planning Code, Act 247 of 1968, as amended by Act 170 of 1988, Act 209 of 1990 and Act 131 of 1992, and to amendments to that Act adopted after the effective date of this article and any amendments hereto are referred to throughout as either the "MPC" or the "Act." Those amendments shall, upon their adoption, become a part of this ordinance without the necessity of further amendment to this ordinance.

§ 122-122 Organization of Board.

A. The Board shall elect from its own membership its officers, who shall serve annual terms as such and may succeed themselves. For the conduct of any hearing and the taking of any action, a quorum shall be not less than a majority of all the members of the Board, but the Board may appoint a hearing officer from its own membership to conduct any hearing on its behalf, and the parties may waive further action by the Board as provided in § 122-124.

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 the Township's ordinances and the laws of the Commonwealth of Pennsylvania. The Board shall keep full public records of its business, which records shall be property of the Township, and shall submit a report of its activities to and as requested by the Board of Supervisors.

[Amended 11-4-1996 by Ord. No. 96-18]

§ 122-123 Expenditures for services.

Within the limits of funds appropriated by the Board of Supervisors, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. Members of the Zoning Hearing Board may receive compensation for the performance of their duties, as may be fixed by the Board of Supervisors, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors. Alternate members of the Zoning Hearing Board may receive compensation as may be fixed by the Board of Supervisors for the performance of their duties when designated as alternate members pursuant to § 122-122, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of the Board of Supervisors.

§ 122-124 Hearings.

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

A. All hearings held by the Zoning Hearing Board shall be public hearings held pursuant to public notice. Written notice shall be given to the applicant, the Zoning Officer and the members of the Zoning Hearing Board. In addition, the applicant shall send a copy of the public notice which the Township prepares for advertisement of the public hearing, as well as a map identifying the location of the property which is the subject of the application, to the last known address of all property owners within a five-hundred-foot radius of the property, regardless of whether a roadway or Township boundary intersects such radius. The public notice and map shall be sent by regular mail and certified mail, return receipt requested, and mailed a minimum of two weeks before the first scheduled public hearing on the application. At the hearing, the applicant shall provide a copy of each notification and map that were sent and the certified mail green cards, if available. The hearing shall not proceed unless the applicant provides such evidence of mailing. In addition to the written notice provided herein, the written notice of the hearing shall be posted on the affected tract of land at least one week prior to the hearing.

[Amended 11-17-2003 by Ord. No. 03-05]

B. The Board of Supervisors may prescribe reasonable fees with respect to hearings before the Zoning Hearing Board. Fees for said hearings may include compensation for the Secretary and members of the 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.

C. The Zoning Hearing Board shall schedule and hold a public hearing on the application 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 application within 100 days of the first hearing held after the completion of the applicant's case-in-chief. An 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 application may, upon the written consent or consent on the record by the applicant and the Township, be granted additional hearings to complete their opposition to the application, provided the applicant is granted an equal number of hearings for rebuttal.

[Amended 4-15-2002 by Ord. No. 02-03; 1-20-2003 by Ord. No. 03-01]

D. The hearings shall be conducted by the Zoning Hearing Board, or the Board may appoint any member or an independent attorney as a hearing officer. The decision or, where no decision is called for, the findings shall be made by the Zoning Hearing Board; however, the appellant or the applicant, as the case may be, in addition to the Township, may, prior to the decision of the hearing, waive decision or findings by the Zoning Hearing Board and accept the decision or findings of the hearing officer as final.

[Amended 4-15-2002 by Ord. No. 02-03]

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

F. The chair or acting chair of the Zoning Hearing Board or the hearing officer presiding shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.

G. 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.

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

I. The Zoning Hearing Board or the hearing officer, as the case may be, shall keep a stenographic record of the proceedings. The appearance fee for a stenographer shall be shared equally by the applicant and the Zoning Hearing Board. The cost of the original transcript shall be paid by the Zoning Hearing Board if the transcript is ordered by the Zoning Hearing Board or hearing officer or shall be paid by the person appealing from the decision of the Zoning Hearing Board if such appeal is made, and, in either event, the cost of additional copies shall be paid by the person requesting such copy or copies. In other cases, the party requesting the original transcript shall bear the cost thereof.

J. The Zoning Hearing Board or the hearing officer shall not communicate, directly or indirectly, with any party or 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 representative, unless all parties are given an opportunity to be present.

K. The Zoning Hearing Board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within 45 days after the last hearing before the Zoning Hearing Board or hearing officer. When the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Conclusion based on any provisions of the Municipalities Planning Code[1] 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. If the hearing is conducted by a hearing officer and there has been no stipulation that the decision or findings are final, the Zoning Hearing Board shall make the hearing officer's report and recommendations available to the parties within 45 days, and the parties shall be entitled to make written representations thereon to the Zoning Hearing Board prior to final decision or entry of findings, and the Zoning Hearing Board's decision shall be entered no later than 30 days after the report of the hearing officer. Where the Board fails to render the decision within the period required by this subsection or fails to commence, conduct or complete the required hearing as provided in § 122-124C, 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 Zoning Hearing Board to meet or render a decision as hereinabove provided, the Zoning Hearing 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 Zoning Hearing 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.

[Amended 4-15-2002 by Ord. No. 02-03; 1-20-2003 by Ord. No. 03-01]

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

L. A copy of the final decision or, where no decision is called for, of the findings shall be delivered to the applicant personally or mailed to the applicant not later than the day following its date. To all other persons who have filed their name and address with the Zoning Hearing Board not later than the last day of the hearing, the Zoning Hearing 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.

§ 122-125 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 Board of Supervisors pursuant to §§ 122-137 and 122-132.

(2) (Reserved)[1]

[1] Editor's Note: Former Subsection A(2), concerning challenges raising procedural questions or alleged defects in enactment process, was repealed 12-15-2008 by Ord. No. 08-02.

(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 or lot.

(4) Appeals from a determination of the Township Engineer or the Zoning Officer with reference to the administration of any floodplain ordinance contained within this chapter.

[Amended 7-10-2017 by Ord. No. 17-02]

(5) Applications for variances from the terms of this chapter, including floodplain ordinance provisions, or any such provisions within a land use ordinance, pursuant to § 122-127.

[Amended 7-10-2017 by Ord. No. 17-02]

(6) Applications for special exceptions under this chapter, including those provided for, if any, under floodplain ordinance provisions, pursuant to § 122-128.

[Amended 7-10-2017 by Ord. No. 17-02]

(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 chapter.

(8) Appeals from the Zoning Officer's determination under § 122-133.

(9) Appeals from the determination of the Zoning Officer or Township 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 subdivision and land development or planned residential development applications.

B. The Board of Supervisors or, except as to Subsections A(3), (4) and (5), the Planning Commission, if designated, shall have exclusive jurisdiction to hear and render final adjudications in the following matters:

(1) All applications for approvals of planned residential developments under Article VII of the Municipalities Planning Code pursuant to the provisions of 53 P.S. § 10702.

(2) All applications pursuant to 53 P.S. § 10508 for approval of subdivisions or land developments under Article V of the Municipalities Planning Code.

(3) Applications for conditional use under the express provisions of this chapter pursuant to 53 P.S. § 10603(c)(2).

(4) Applications for curative amendment to this chapter pursuant to §§ 122-133 and 122-137.

(5) All petitions for amendments to land use ordinances, pursuant to the procedures set forth in § 122-136. Any action on such petitions shall be deemed legislative acts, provided that nothing contained in this subsection shall be deemed to enlarge or diminish existing law with reference to appeals to court.

(6) Appeals from the determination of the Zoning Officer or the Township Engineer in the administration of any land use ordinance or provisions thereof with reference to sedimentation and erosion control and stormwater management insofar as the same relate to application for land development under Articles V and VII of the Municipalities Planning Code. Where such determination relates only to development not involving an Article V or VII application, the appeal from such determination of the Zoning Officer or the Township Engineer shall be to the Zoning Hearing Board pursuant to Subsection A(9).

(7) Applications for a special encroachment permit pursuant to 53 P.S. § 10405 and applications for a permit pursuant to 53 P.S. § 10406.

§ 122-126 Applicability of 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).

§ 122-127 Variances.

A. The Zoning Hearing Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. The Zoning Hearing Board may by rule prescribe the form of application and may require preliminary application to the Zoning Officer. The Zoning Hearing 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 chapter in the neighborhood or district in which the property is located.

(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this chapter and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.

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

(4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located nor substantially or permanently impair the appropriate use or development of adjacent property nor be detrimental to the public welfare.

(5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

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

C. Unless otherwise specified by the Zoning Hearing Board, a variance which has been authorized by the Board shall expire if the applicant fails to obtain a building permit within six months from the date of authorization thereof or fails to commence a substantial amount of work within six months of issuance of the permit for such work.

[Added 11-20-1995 by Ord. No. 95-14]

D. Where a variance is granted authorizing a specific use or relief from the Zoning Ordinance as described by the applicant, the scope of the variance shall be limited to the specific use or relief from this chapter described during the testimony and in the exhibits presented by the applicant, unless the Zoning Hearing Board, in its order, shall authorize a broader scope of usage or relief described.

[Added 11-20-1995 by Ord. No. 95-14]

§ 122-128 Special exception plans, procedures and conditions.

[Amended 11-20-1995 by Ord. No. 95-14; 1-21-1997 by Ord. No. 97-01]

This section sets forth conditions and procedures which must be met before a special exception use can be approved by the Zoning Hearing Board and be granted a zoning permit.

A. Plan requirements. All applicants for a special exception use must submit six sets of site plans to the Zoning Officer when making application for a zoning permit. If the application is considered a land development or subdivision, it must also meet the requirements outlined in that ordinance for a sketch plan submission which is in addition to the following site plan requirements:

(1) A statement as to the proposed use of the building or land.

(2) A site layout drawn to a scale of not less than one inch 50 feet showing the location, dimensions and height of proposed buildings, structures or uses and any existing buildings in relation to property and street lines. If the application relates to property which is scheduled to be developed in successive stages, such plans shall show the relationship of the property scheduled for initial development to the proposed layout of the entire property.

(3) The location, dimensions and arrangements of all open spaces and yards and buffer yards, including methods and materials to be employed for screening.

(4) The location, size, arrangement and capacity of all areas to be used for motor vehicle access, off-street parking, off-street loading and unloading and provisions to be made for lighting such areas.

(5) The dimensions, locations and methods of all outdoor lighting, if applicable, as set forth in § 103-40 of Chapter 103, Subdivision and Land Development.

[Amended 2-18-2003 by Ord. No. 03-02]

(6) The location and dimensions of sidewalks and all other areas to be devoted to pedestrian use.

(7) Provisions to be made for treatment and disposal of sewage and industrial wastes, water supply and storm drainage.

(8) The capacity and arrangement of all buildings used or intended to be used for dwelling purposes, including the proposed density in terms of number of dwelling units per acre of land.

(9) A description of any proposed industrial or commercial operations in sufficient detail to indicate effects of those operations in producing noise, glare, air pollution, water pollution, fire hazards, traffic congestion or other safety hazards.

(10) Description of methods to be employed in controlling any excess noise, air pollution, smoke, fumes, water pollution, fire hazards or other safety hazards.

B. Procedure for special exceptions. If the submission is in compliance with the requirements of this chapter, within 15 days of receiving the application and plans, the Zoning Officer or Township Secretary shall forward three copies of the application and plans to the Zoning Hearing Board. The Zoning Hearing Board shall hold a public hearing within the time specified in the Pennsylvania Municipalities Planning Code[1] to consider whether the special exception should be granted or denied.

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

C. Conditions for special exceptions. The Zoning Hearing Board must determine that any application or request for a special exception will meet all of the following general conditions and special conditions, all other applicable provisions of this chapter, Chapter 103, Subdivision and Land Development, and all applicable state and federal regulations, and the Zoning Hearing Board must further determine that the following standards and criteria are met before granting the request:

(1) The size, scope, extent and character of the special exception requested is consistent with the Comprehensive Plan of the Township and promotes the harmonious and orderly development of the zoning district involved.

(2) The proposed special exception use must be:

(a) In the best interests of the Township, the community and the public welfare and be a substantial improvement to property in the immediate vicinity.

(b) Consistent with the character and type of development in the area surrounding the location for which the request is made and will not substantially impair, alter or detract from the use of surrounding property or the character of the neighborhood in light of the zoning classification of the area affected; the effect on other properties in the area; the number, extent and scope of nonconforming uses in the area; and the presence or absence in the same neighborhood of conditions or uses which are the same or similar in character to the conditions or use for which applicant seeks approval.

(c) Suitable for the property in question and designed, constructed, operated and maintained so as to be in harmony with and appropriate in appearance with the existing or intended character of the general vicinity.

(d) Suitable with respect to traffic and highway in the area and provides for adequate access and off-street parking arrangements in order to protect major streets and highways from undue congestion and hazard.

(e) In conformance with all applicable requirements of this chapter.

(f) Reasonable in terms of the logical, efficient and economical extension of public services and facilities, such as public water, sewers, police, fire protection and public schools, and assures adequate arrangements for sanitation in specific instances.

(3) Major street and highway frontage will be developed so as to limit the total number of access points and encourage the frontage of buildings on parallel marginal roads or on roads perpendicular to the major street or highway.

(4) All commercial or industrial parking, loading, access or service areas will be adequately illuminated at night while in use and arranged so as to comply with all requirements dealing with access and highway frontage.

(5) The Board may impose whatever conditions regarding layout, circulation and performance it deems necessary to ensure that any proposed development will substantially secure the objectives of this chapter.

D. Scope of special exception. Where a special exception is granted authorizing a specific use described by the applicant, the scope of the special exception shall be limited to the specific use and type of use as described during testimony and in the exhibits presented by the applicant, unless the Zoning Hearing Board, in its order, shall authorize a broader scope of usage. (By way of example, if an applicant's testimony and exhibits describe an antique store, any grant of the special exception shall be limited to an antique store and not a general retail use unless authorized.)

E. Character of special exception. The special exception, if authorized, will not alter the essential character of the neighborhood or district in which the property is located nor substantially or permanently impact the health, safety and/or welfare of the residents of the Township.

F. Standards and criteria of special exception. Where the Board of Supervisors, in this chapter, has stated special exceptions to be granted or denied by the Zoning Hearing Board pursuant to express standards and criteria, the Zoning Hearing Board shall hear and decide requests for such special exceptions in accordance with such standards and criteria. In granting special exceptions, the Zoning Hearing Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purpose of the Municipalities Planning Code[2] and this chapter.

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

G. Expiration of special exception. Unless otherwise specified by the Zoning Hearing Board, a special exception which has been authorized by the Board shall expire if the applicant fails to obtain a building permit within six months from the date of authorization thereof or fails to commence a substantial amount of work within six months from the date of issuance of the permit for such work.

§ 122-129 Parties appellant before the board.

Appeals under § 122-125A(1), (2), (3), (4), (7), (8) and (9) may be filed with the Zoning Hearing Board in writing by the landowner affected, any officer or agency of the Township or any person aggrieved. Requests for a variance under § 122-127 and for special exception under § 122-128 may be filed with the Zoning Hearing Board by any landowner or any tenant with the permission of such landowner.

A. Procedures for appeal. All appeals from a decision of the Zoning Officer and applications to the Zoning Hearing Board shall be in writing on forms prescribed by the Zoning Hearing Board. Every appeal or application shall include the following:

[Added 1-21-1997 by Ord. No. 97-01]

(1) The name and address of the applicant or appellant.

(2) The name and address of the owner of the property to be affected by such proposed change or appeal.

(3) A brief description and location of the property to be affected by such proposed change or appeal.

(4) A statement of the present zoning classification of the property in question, the improvements thereon and the present use thereof.

(5) A statement of the section of this chapter under which the appeal is made and reasons why it should be granted, or a statement of the section of this chapter governing the situation in which the alleged erroneous ruling is being appealed and the reasons for this appeal.

(6) A reasonably accurate description of the additions or changes intended to be made under this application, indicating the size, material and general construction of such proposed improvements. A plot plan of the property to be affected, indicating the location and size of the lot and the size of existing and intended improvements, shall be attached to the description.

B. Time limit. Unless otherwise specified by the Zoning Hearing Board, a decision on any appeal shall expire if the applicant fails to obtain any necessary zoning permit or comply with the conditions of said authorized permit within six months from the date of authorization thereof.

[Added 1-21-1997 by Ord. No. 97-01]

C. In any appeal of an enforcement notice to the Zoning Hearing Board, the Township shall have the responsibility of presenting its evidence first.

[Added 6-18-2001 by Ord. No. 01-08[1]]

[1] Editor's Note: This ordinance also provided for the redesignation of former Subsection C as Subsection E.

D. Any filing fee paid by a party to appeal an enforcement notice to the Zoning Hearing Board shall be returned to the appealing party by the Township if the Zoning Hearing Board or any court in a subsequent appeal rules in the appealing party's favor.

[Added 6-18-2001 by Ord. No. 01-08]

E. Appeal from the Zoning Hearing Board. In the case of an appeal from the Zoning Hearing Board to the Court of Common Pleas, the Zoning Hearing Board shall make the return required by law and shall promptly notify the Township Solicitor of such appeal and furnish the Township Solicitor with a copy of the return including the transcript of testimony. Any decision of the Zoning Hearing Board not appealed within 30 days after notice thereof shall be final.

[Added 1-21-1997 by Ord. No. 97-01]

§ 122-130 Time limitations.

A. No person shall be allowed to file any proceeding with the Zoning Hearing Board later than 30 days after an application for development, preliminary or final, has been approved by an appropriate municipal 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 such person had no notice, knowledge or reason to believe that such approval had been given. If such person has succeeded to such person's interest after such approval, such person shall be bound by the knowledge of such predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision on a tentative plan pursuant to 53 P.S. § 10709 or from an adverse decision by a Zoning Officer on a challenge to the validity of an ordinance or map pursuant to § 122-133 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.

§ 122-131 Stay of proceedings.

A. Upon filing of any proceeding referred to in § 122-129 and during its pendency before the Zoning Hearing Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or of any agency or body and all official action thereunder shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies to the Zoning Hearing 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 by a restraining order, which may be granted by the Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing 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 the appellant 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.

§ 122-132 Challenge to 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 such landowner has an interest shall submit the challenge either:

(1) To the Zoning Hearing Board under § 122-125A; or

(2) To the Board of Supervisors under § 122-125B(4), together with a request for a curative amendment under § 122-137.

B. Persons aggrieved by a use or development permitted on the land of another by an ordinance or map or any provision thereof who desires to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a decision thereon under § 122-125A(1).

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

(1) In challenges before the Zoning Hearing Board, the challenging party shall make a written request to the Zoning Hearing Board that it hold a hearing on its challenge. The request shall contain the reasons for the challenge. Where the landowner desires to challenge the validity of such ordinance and elects to proceed by curative amendment under § 122-137, the application to the Board of Supervisors shall contain, in addition to the requirements of the written request hereof, the plans and explanatory materials describing the use or development proposed by the landowner in lieu of the use or development permitted by the challenged ordinance or map. Such plans or other materials shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a permit, so long as they provide reasonable notice of the proposed use or development and a sufficient basis for evaluating the challenged ordinance or map in light thereof. Nothing herein contained shall preclude the landowner from first seeking a final approval before submitting his challenge.

(2) If the submission is made by the landowner to the Board of Supervisors 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 Board of Supervisors, the Township Solicitor shall represent and advise it at the hearing or hearings referred to in § 122-125B(4).

(4) The Board of Supervisors 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 Board of Supervisors 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 Board of Supervisors is found to have merit, the Board of Supervisors shall proceed as provided in § 122-137. If a challenge heard by a 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, aquifers, natural resources and other natural features.

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

(e) The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.

(6) The Board of Supervisors 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 Board of Supervisors 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 the Board of Supervisors, 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 the Board of Supervisors, as the case may be, fails to commence the hearing within the time limits set forth in Subsection D;

(2) The Board of Supervisors notifies the landowner that it will not adopt the curative amendment;

(3) The Board of Supervisors adopts another curative amendment which is unacceptable to the landowner; or

(4) The Zoning Hearing Board or the Board of Supervisors, 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 municipality.

G. Where, after the effective date of Municipalities Planning Code, a curative amendment proposal is approved by the grant of a curative amendment application by the Board of Supervisors pursuant to § 122-125B(4) or a validity challenge is sustained by the Zoning Hearing Board pursuant to § 122-125A(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. Within the two-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. Upon the filing of the preliminary or tentative plan, the provisions of 53 P.S. § 10508(4) 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.

§ 122-133 Procedure to obtain preliminary opinion.

In order not to unreasonably delay the time when a landowner may secure assurance that the ordinance or map under which the landowner proposed to build is free from challenge and recognizing that the procedure for preliminary approval of his development may be too cumbersome or may be unavailable, the landowner may advance the date from which time for any challenge to the ordinance or map will run under § 122-130 by the following procedure:

A. The landowner may submit plans and other materials describing the 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 municipality. 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 § 122-130 and the time therein specified for commencing a proceeding with the Zoning Hearing Board shall run from the time when the second notice thereof has been published.