1. 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:
A. To the Zoning Hearing Board under § 27-1403(1), or
B. To the Township Council under § 27-1403(2)(c), together with a request for a curative amendment under 609.1 of the Municipalities Planning Code.
2. 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 § 27-1403(1)(A).
A. A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provision thereof which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge either:
(1) To the Zoning Hearing Board under § 27-1403(1), or
(2) To the Township Council under § 27-1403(2)(c), together with a request for a curative amendment under § 609.1 of the Municipalities Planning Code.
B. The submissions referred to in Subsections (1) and (2) shall be governed by the following:
(1) In challenges before the Zoning Hearing Board, the challenging party shall make a written request to the Board that it hold a hearing on this 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 § 609.1 of the Municipalities Planning Code, his application to the Township 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 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 Township Council under Subsection (1)(B), 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 Township Council, the Township Attorney shall represent and advise it at the hearing or hearings.
(4) The Township Council may retain in 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 Township Council or the Zoning 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 Township Council is found to have merit, the Township Council shall proceed as provided in § 609.1 of the Municipalities Planning Code. 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 not 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 afordable 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, woodland, wetlands, floodplains, aquifers, natural resources and other natural features;
(d) The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, natural resources and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts; 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 Township Council or the Zoning Hearing Board, as the case may be, shall render its decision within 45 days after the conclusion of the last hearing.
(7) If the Township Council or the Zoning Board, as the case may be, fails to act on the landowner's request within the time limits referred to in Subsection (F), a denial of the request is deemed to have occurrred on the 46 day after the close of the last hearing.
C. The Zoning Hearing Board or Township Council, as the case may be, shall commence its hearing within 60 days after the request is filed unless the landowner requests or consents to an extension of time.
D. 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.
E. The challenge shall be deemed denied when:
(1) the Zoning Hearing Board or governing body, as the case may be, fails to commence the hearing within the time limits set forth in Subsection (C);
(2) The Township Council notifies the landowner that it will not adopt the curative amendment;
(3) The Township Council adopts another curative amendment which is unacceptable to the landowner; or,
(4) The Zoning Hearing Board or Township 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 Township.
F. Where, after the effective date of this act, a curative amendment proposal is approved by the grant of a curative amendment application by the governing body pursuant to § 909.1(b)(4) of the Municipalities Planning Code or a validity challenge is sustained by the Zoning Hearing Board pursuant to § 909.1(a)(1) of the Municipalities Planning Code 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 WI 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 § 508(4) of the Municipalities Planning Code shall apply. Where the proposed 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.
G. A landowner who has challenged on substantive grounds the validity of a zoning ordinance or map either by submission of a curative amendment to the governing body under § 909.1(a)(1) of the Municipalities Planning Code 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 municipality 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 Subsection (a) thereof.
(Ord. 269, 10/16/1991, § 13; as amended by Ord. 451, 10/20/2004, § 9)