1. A landowner who, on substantive ground, desires to challenge the vahdity 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 §909.1(a) of the Municipahties Planning Code.
B. To the Borough Council under §909.1(b)(4) of the Municipahties Planning Code together with a request for a curative amendment under §609.1 of the Code. [Ord. 553]
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 shaU first submit their challenge to the Zoning Hearing Board for a decision thereon under §909.1(a)(1) of the Municipahties Planning Code.
3. The submissions referred to in subsections (A) and (B) shall be governed by the following:
A. In chaUenges 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 vahdity of such ordinance and elects to proceed by curative amendment under §609.1 of the Municipahties Planning Code his apphcation 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 prehminary, 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 hght thereof. Nothing herein contained shaU preclude the landowner from first seeking a final approval before submitting his challenge.
B. If the submission is made by the landowner to the Borough Council under § 27-1003(l)(B) above, the request also shall be accompanied by an amendment or amendments to the ordinance proposed by the landowner to cure the alleged defects therein.
C. 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 §909.1(b)(4), of the Municipahties Planning Code.
D. 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.
E. 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 a Borough Council is found to have merit, the Borough Council shall proceed as provided in §609.1 of the Municipahties 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 shah also consider:
(1) The impact of the proposal upon roads, sewer facilities, water supphes, schools and other pubhc service facilities.
(2) 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 Chapter or map.
(3) 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.
(4) 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.
(5) The impact of the proposal on the preservation of agriculture and other land uses which are essential to pubhc health and welfare.
F. 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.
G. If the Borough Council or the Zoning Hearing Board, as the case may be, fails to act on the landowner's request within the time limits referred to in paragraph F above, a denial of the request is deemed to have occurred on the 46th day after the close of the last hearing.
4. The Zoning Hearing Board or Borough 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.
5. Pubhc notice of the hearing shall include notice that the validity of the ordinance or maps 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.
6. The challenge shall be deemed denied when:
A. The Zoning Hearing Board or Borough Council, as the case may be, fails to commence the hearing within the time hmits set forth in subsection 4 above.
B. The Borough Council notifies the landowner that it will not adopt the curative amendment.
C. The Borough Council adopts another curative amendment which is unacceptable to the landowner.
D. 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.
7. A landowner who has challenged on substantive grounds the validity of the ordinance or map either by submission of a curative amendment to Borough Council under § 27-1003(1)(B) above or to the Zoning Hearing Board under §909.1(a) of the Municipahties 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 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 map under § 27-1003(1). [Ord. 553]
(Ord. 462, 8/14/1995, §1002; as amended by Ord. 553, 5/10/2004, §1)