(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 or she has an interest shall submit the challenge either:
(1) To the Zoning Hearing Board; or
(2) To the governing body, together with a request for a curative amendment under § 155.250.
(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.
(C) The submissions referred to in divisions (A) and (B) above 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 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 § 155.250, his or her application to the governing body 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 or her challenge.
(2) If the submission is made by the landowner to the governing body under division (A)(2) 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.
(3) If the submission is made to the governing body, the Municipal Solicitor shall represent and advise it at the hearing or hearings.
(4) The governing body may retain an independent attorney to present the defense of the challenged ordinance or map on its behalf and to present witnesses on its behalf.
(5) Based upon the testimony presented at the hearing or hearings, the governing body 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 a governing body is found to have merit, the governing body shall proceed as provided in Pa. Mun. Plan Code, 53 P.S. § 10609.1. 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; 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 governing body 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 governing body or the Zoning Board, as the case may be, fails to act on the landowner’s request within the time limits referred to in division (C)(6) above, a denial of the request is deemed to have occurred on the forty-sixth day after the close of the last hearing.
(D) The Zoning Hearing Board or governing body, 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 governing body, as the case may be, fails to commence the hearing within the time limits set forth in division (D) above;
(2) The governing body notifies the landowner that it will not adopt the curative amendment;
(3) The governing body adopts another curative amendment which is unacceptable to the landowner; or
(4) The Zoning Hearing Board or governing body, 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 act, a curative amendment proposal is approved by the grant of a curative amendment application by the governing body or a validity challenge is sustained by the Zoning Hearing Board 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. 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. 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.
(H) Where municipalities have adopted a multi-municipal comprehensive plan but have not adopted a joint municipal ordinance and all municipalities participating in the multi-municipal comprehensive plan have adopted and are administering zoning ordinances generally consistent with the provisions of the multi-municipal comprehensive plan, and a challenge is brought to the validity of a zoning ordinance of a participating borough involving a proposed use, then the Zoning Hearing Board or governing body, as the case may be, shall consider the availability of uses under zoning ordinances within the municipalities participating in the multi-municipal comprehensive plan within a reasonable geographic area and shall not limit its consideration to the application of the zoning ordinance on the borough whose zoning ordinance is being challenged.
(I) 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 or to the Zoning Hearing Board, 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 division (A) above.
(Ord. 1089, passed 5-19-2014)