The Zoning Hearing Board shall carry out the functions described in this Part under the procedures established for the operation of such a Zoning Hearing Board, hereafter called the "Board."
Beaver City Zoning Code
PART 17
ZONING HEARING BOARD
§ 27-1701 Operation.
[Ord. 778, 5/8/2012, § 1]
3.
Removal of Members.
A.
Any Board member may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by a majority vote of the Borough Council, taken after the Board member has received at least 15 days' notice such vote will be taken.
B.
The Board member thus accused may request, by written communication to the Borough no later than seven days prior to the meeting of the Borough Council, at which the vote for removal is to be taken, for a hearing before Borough Council after which they may take a vote for removal of the Board member.
4.
Organization of the Board.
A.
The Board shall elect officers from among its membership to include a Chairman and Vice Chairman.
(1)
The Board shall reorganize at its first meeting in each calendar year. Board members may succeed themselves in their positions.
(2)
The Chairman shall call and chair all meetings of the Board. The Vice Chairman shall act in the absence of the Chairman.
(3)
The Board may appoint one of its members as a Hearing Officer to conduct a hearing on behalf of the Board and parties to such a hearing may waive further action by the Board if satisfied with the Hearing Officer's ruling.
(4)
The Board may make, alter or rescind rules and forms for its procedure consistent with this and other ordinances of the Borough of Beaver and the laws of the Commonwealth.
(5)
The Board, with the assistance of the Borough staff, shall keep full public records of its business and shall submit an annual report of its activities to the Borough Council as requested.
§ 27-1702 Hearings.
[Ord. 778, 5/8/2012, § 1]
1.
The Board shall conduct hearings and make decisions in accordance with the following:
A.
Public notice shall be placed in the classified section of a newspaper of general local circulation once in each of two consecutive weeks, the first notice appearing not more than 30 days or less than seven days prior to the hearing. In addition, written notice of said hearing shall be forwarded to the Planning Commission, all property owners within 300 linear feet of the subject parcel, and other recognized parties, and shall be conspicuously posted on the affected tract of land at least one week prior to the hearing. Notices shall indicate the date, time, and place of the hearing and the particular nature of the matter to be considered, as well as the street address of the specific property involved.
B.
The parties to the hearing shall be the applicant, the municipality, 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 to appear by the Board. The Board shall require all persons who wish to be considered parties to enter such request on an appearance form.
C.
The Chairman of the Board, or the Hearing Officer, shall conduct the hearing and shall have the power to administer oaths and issue subpoenas to compel attendance of witnesses and/or the production of relevant documents and papers, including witnesses and documents requested by the parties. The parties in a hearing shall have the right to be represented by counsel and shall be afforded the opportunity to respond, present evidence and cross examine adverse witnesses on all relevant issues. Formal rules of evidence shall not apply and irrelevant or redundant evidence may be excluded.
D.
The first hearing before the Board or Hearing Officer shall be commenced 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 or hearing officer 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 or hearing officer 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 municipality, be granted additional hearings to complete their opposition to the application provided the applicant is granted an equal number of additional hearings for rebuttal.
E.
The Board, or the Hearing Officer (if he/she is conducting the hearings), shall keep a stenographic record of the proceedings. The appearance fee for a stenographer shall be shared equally by the applicant and the Board. The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board or the Hearing Officer, or shall be paid by the person appealing from the decision of the Board if such an 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. The Board, or the Hearing Officer, shall not communicate, directly or indirectly, with any party, and/or representatives of any party in connection with any issue relevant to the hearing, except upon notice and opportunity for all parties to participate; shall not take notice of any communications, reports or other materials, except advice from the Board legal counsel, unless all parties are afforded an opportunity to contest the material so noticed; and shall not inspect any site or its surroundings with any party and/or representative of any party after the start of hearings unless all parties are given an opportunity to be present.
F.
The Board, or Hearing Officer, shall render a written decision, or, when no decision is required, a written finding on the application within 45 days after the conclusions of the hearing before the Board or Hearing Officer. Decisions shall be based on findings of fact and conclusions based on them together with the reasons therefore. Conclusions based on any provisions of this chapter or any other ordinance or regulation of the Borough shall contain a reference to the provisions relied on and the reasons why the conclusion is deemed appropriate in the light of the facts.
G.
When a hearing is conducted by a Hearing Officer, the parties shall agree in advance that his decision shall be binding, but subject to review by the Board without further presentation by the parties. The Board may concur in the Hearing Officer's decision, overturn it, or order a new hearing.
H.
If the hearing is conducted by a Hearing Officer, and there has been no stipulation that his decision or findings are final, the Board shall make his report and recommendations available to the parties within 45 days and the parties shall be entitled to make written representations thereon to the Board prior to final decision or entry of findings, and the 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 hold the required hearing within 60 days from the date of the applicant's request for a hearing, 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 Board to meet or render a decision as herein above provided, the Board shall give public notice of said decision within 10 days from the last day it could have to render a decision in the same manner as provided in this section. If the 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.
I.
A copy of the final decision, or the findings if no decision is required, shall be mailed to the applicant not later than the day after the date of the decision. All others requesting notice of the decision not later than the last day of the hearing shall receive by mail a summary of the findings or decision and a statement of the place at which the full decision or findings may be examined.
§ 27-1703 Stay of Proceedings.
[Ord. 778, 5/8/2012, § 1]
1.
Upon filing of any proceeding referred to in § 913.3 of the Pennsylvania Municipalities Planning Code, Act 247 of 1968, 53 P.S. § 10913.3, as amended, and during its pendency before the 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 certified to the 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 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 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 Board.
2.
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 him if an appeal is taken from a final decision of the court.
3.
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.
4.
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.
§ 27-1704 Mediation Option.
[Ord. 778, 5/8/2012, § 1]
1.
Parties to proceedings authorized in this Part may utilize mediation as an aid in completing such proceedings. In proceedings before the Zoning Hearing Board, in no case shall the Zoning Hearing Board initiate mediation or participate as a mediating party. Mediation shall supplement, not replace, those procedures in this Part once they have been formally initiated. Nothing in this section shall be interpreted as expanding or limiting municipal police powers or as modifying any principles of substantive law.
2.
Participation in mediation shall be wholly voluntary. The appropriateness of mediation shall be determined by the particulars of each case and the willingness of the parties to negotiate. The Borough of Beaver assures that in each case, the mediating parties, assisted by the mediator as appropriate, will develop terms and conditions for:
A.
Funding Mediation.
(1)
Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation.
(2)
Completing mediation, including time limits for such completion.
(3)
Suspending time limits otherwise authorized in this Part, provided there is written consent by the mediating parties, and by an applicant or municipal decision making body, if either is not a party to the mediation.
(4)
Identifying all parties and affording them the opportunity to participate.
(5)
Subject to legal restraints, determining whether some, or all, of the mediation sessions shall be open or closed to the public.
(6)
Assuring that mediated solutions are in writing and signed by the parties, and become subject to review and approval by the appropriate decision making body pursuant to the authorized procedures set forth in the other sections of this Part.
3.
No offers or statements made in the mediation sessions, excluding the final written mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceedings.
§ 27-1705 Jurisdiction.
[Ord. 778, 5/8/2012, § 1]
1.
The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
A.
Substantive challenges to the validity of any land use ordinance, except those brought before the Borough Council pursuant to Part 18.
B.
Challenges to the validity of a land use ordinance raising procedural questions or alleged defects in the process of enactment or adoption which challenges shall be raised by an appeal taken within 30 days after the effective date of said ordinance.
C.
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 therefore, the issuance of any cease and desist order or the registration or refusal to register any nonconforming use, structure or lot.
D.
Appeals from a determination by a municipal engineer, or the Zoning Officer, with reference to the administration of the Borough of Beaver's Floodplain Management Ordinance, as amended.
E.
Applications for variance from the terms of the this chapter and/or Floodplain Management Ordinance or such provisions within a land use ordinance, pursuant to this section.
F.
Applications for a use by special exception under this chapter or Floodplain Ordinance.
G.
Applications for the extension, expansion or change of a legally existing nonconforming use.
H.
Appeals from the determination of the Zoning Officer or municipal engineer in the administration of any land use ordinance or provision thereof with reference to sedimentation, erosion control and stormwater management, insofar as the same is related to development not involving the subdivision and land development applications.
2.
The Borough Council shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
A.
Applications for conditional use under the express provisions of this chapter pursuant to Part 15.
C.
All petitions for amendments to any land use ordinance, pursuant to the procedures set forth in Part 18. Any action on such petitions shall be deemed legislative acts, provided that nothing contained in this clause shall be deemed to enlarge or diminish existing law with reference to appeals to court.
D.
Appeals from the determination of the Zoning Officer, or the municipal engineer, in the administration of any land use ordinance, or provisions thereof, with reference to sedimentation, erosion control and stormwater management, insofar as the same is related to application for land development under the Borough's Subdivision and Land Development Ordinance [Chapter 22]. Where such determination relates only to development not involving a land development application, the appeal from such determination of the Zoning Officer or the municipal engineer shall be to the Zoning Hearing Board pursuant to this section.
3.
Applicability of judicial remedies. Nothing contained in this Part 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).
§ 27-1706 Functions of the Board.
[Ord. 778, 5/8/2012, § 1]
1.
Variances.
A.
The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. Variance from the terms of this chapter shall not be granted by the Board unless a written application for a variance is submitted to the Borough office. The 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, but not limited to, 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 or 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 Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this chapter.
C.
Construction which has been approved by variance shall be completed within two years from the date of approval, or such variance shall become null and void.
§ 27-1707 Nonconforming Uses, Structures and Lots.
[Ord. 778, 5/8/2012, § 1]
1.
The provisions of this section shall apply to buildings, structures, signs, lands, and uses which become nonconforming as the result of the application of this chapter to them or from reclassification of the property under any subsequent amendments to this chapter.
A.
Nonconforming Lots of Record.
(1)
Regardless of the size of a lot of record prior to the passage of this chapter, such lot may be developed for any use permitted in the district in which the lot is located, provided that where setback, width, density, or other requirements make development impractical, the Zoning Hearing Board may permit development to occur after granting specific variances.
(2)
If two or more abutting lots of record in one ownership occur prior to passage of this chapter and if one or all of these lots are less than the requirements of lot width and area as established in this chapter, the total area of all of the lots shall be considered as undivided and no portion of the area of lots shall be used or sold unless such portion equals or exceeds the lot width and area requirements of this chapter; nor shall any division of the parcel be made which leaves remaining any lot width or area less than the requirements of this chapter.
B.
Nonconforming Uses of Lands and Structures.
(1)
Where a lawful use of a structure and/or its premises existed on the date of adoption or amendment of this chapter, and becomes nonconforming as a result of adoption of this chapter or its amendment, such structure and/or its premises may remain in the same use subject to the following condition:
(a)
A nonconforming use may be enlarged, increased, or extended beyond the area and/or volume it occupied at the time of adoption of this chapter provided that such increase does not exceed 30% of the area and/or volume the use occupied at the time of adoption of this chapter. Any enlargement, increase, or extension of a nonconforming use beyond the limits set forth in this subsection shall be permitted only upon a finding by the Zoning Hearing Board that the enlargement or extension is necessary by the natural expansion and growth in trade of the nonconforming use.
(b)
If a nonconforming use is discontinued for a period of at least one year for any reason, any use of the property thereafter shall be in conformance with the development regulations for the zoning district containing the property. Discontinuance of a nonconforming use and the intention of abandonment shall be indicated by the removal of stock-in-trade and/or permanent equipment or furniture needed to operate the use, in which case a notice of abandonment shall be issued by the Borough. If the use is reopened within the one-year period, a certificate of occupancy shall be required. Appeal of receipt of a notice of abandonment shall be filed with the Zoning Hearing Board within 90 days of receipt and shall be heard as an appeal from the determination of the Zoning Officer.
(c)
A nonconforming use which occupies all or a portion of a structure or premises may be extended within such structure or premises as they existed when the prohibitory provision took effect, but not in violation of the area and yard requirements of the district in which such structures or premises are located. No change of a nonconforming use shall entail structural alterations or any additions other than those required by law for the purpose of safety and health.
(d)
The Zoning Hearing Board may impose such conditions as it deems necessary for the protection of adjacent property and the public health and safety.
(e)
A nonconforming use may be changed to a second nonconforming use provided that an application for the second use is filed with the Zoning Hearing Board and the Board finds that the proposed use is more compatible, in terms of noise, lighting, traffic, environmental and other impacts, with the uses permitted in the zoning district than the preceding nonconforming use.
(f)
A nonconforming use may be sold, but each succeeding owner of a nonconforming commercial or industrial use shall receive the approval of the Borough Council through the issuance of a certificate of occupancy, pursuant to § 27-1901, Subsection 2, of this chapter, before commencing operation to assure that the use will be operated in the same manner as formerly or, if there are to be any changes in such use or scope of use, that such changes are in accordance with the conditions of this section.
(g)
Once a nonconforming use is changed to a conforming use it may not thereafter revert to nonconforming status. If a nonconforming use occupies a building and is discontinued, any nonconforming use of the property shall also cease. Nonconformity as to parking or loading does not render a use subject to the conditions of this section.
(h)
A use that is nonconforming as to parking or loading shall not be enlarged or changed to another use requiring more off-street parking or loading unless the additional required parking or loading are both provided.
(i)
The Zoning Hearing Board may permit a nonconforming use to provide off-street parking or loading on a lot other than the lot on which the use is located.
(j)
Upon receipt from the Borough of Beaver of a notice of abandonment, the property owner may submit such documentation as necessary to demonstrate non-abandonment.
C.
Nonconforming Structures. Where a structure existed on a property at the effective date of this chapter or any amendment to it and does not conform to the requirements of this chapter regarding all applicable dimensional standards including, but not limited to, height, setbacks from street rights-of-way or lot boundary lines and lot coverage, such structures may remain on the property subject to the following provisions:
(1)
No structure shall be enlarged or altered to create a nonconformity or increase an existing nonconformity.
(2)
Replacement of a nonconforming structure shall be done subject to all applicable dimensional standards as stated in this chapter for the zoning district containing the property, except that if the owner alleges a hardship he may petition the Zoning Hearing Board to grant approval of replacement on the foundation of the building to be replaced but in no case in a location more nonconforming than the original location.
(3)
The maintaining or strengthening to a safe condition of any nonconforming structure shall not be interpreted as being prohibited by any provision of this Part.
D.
Reconstruction. Any nonconforming structure, damaged by fire, flood, explosion or other casualty may be reconstructed and used as before given the following conditions:
(1)
Such reconstruction is started within 12 months of the casualty.
(2)
Such construction is completed within 12 months of commencement.
(3)
The restored structure has no greater coverage and contains no greater cubic content than before such casualty or as otherwise permitted.
(4)
Where a structure is made nonconforming for use and dimension, through a change in zoning classification, the following shall apply:
(a)
Where a nonconforming commercial or industrial use is situated in a commercial or service zoning district, the nonconforming structure accommodating the use may be replaced following a casualty, with no restriction on the cost of replacement.
(b)
Where a nonconforming residential use is situated in a residential zoning district, the nonconforming structure accommodating the use may be replaced following a casualty, with no restriction on the cost of replacement.
(c)
For all other nonconforming structures or structures accommodating nonconforming uses, the cost of replacement shall not exceed 100% of the fair market value as determined by a certified real estate appraiser, at the time of the casualty. In the alternative, a market value as determined by the Beaver County Assessor's office, adjusted by the current common-level ratio, exclusive of land value, may be used.
(d)
One twelve-month construction extension may be granted by the Borough, upon written request showing reasonable cause for delay.
E.
Record of Nonconforming Uses.
(1)
The Zoning Officer shall at the discretion of the Borough Council, identify and record all lots and uses of land and buildings in the Borough made nonconforming by adoption of this chapter and previous versions of this chapter.
(2)
The Zoning Officer shall keep the record current as amendments to this chapter create new nonconforming uses, and as removal of buildings and uses eliminates nonconforming uses.
(3)
The record may be kept by map or written documentation.
§ 27-1708 Parties Appellant Before the Board and Time Limitations.
[Ord. 778, 5/8/2012, § 1]
1.
Parties Appellant Before the Board. Appeals from actions required by this chapter may be filed with the Board in writing by the landowner affected, any officer or agency of the municipality, or any person aggrieved. Requests for a variance under § 27-1706 may be filed with the Board by any landowner or any tenant with the permission of such landowner.
2.
Time Limitations. No person shall be allowed to file any proceeding with the 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 he had no notice, knowledge, or reason to believe that such approval had been given. If such person has succeeded to his interest after such approval, he shall be bound by the knowledge of his predecessor in interest. The failure of anyone other than the landowner to appeal from an adverse decision by a Zoning Officer on a challenge to the validity of an ordinance or map pursuant to the procedure to obtain a preliminary opinion (§ 27-1709, Subsection 10) shall preclude an appeal from a final approval except in the case where the final submission substantially deviates from the approved tentative approval.
3.
All appeals from determinations adverse to the landowners shall be filed by the landowner within 30 days after notice of the determination is issued, or as directed by the Pennsylvania Municipalities Planning Code, 53 P.S. § 10101 et seq., as amended.
§ 27-1709 Zoning Appeals to Court and Rehearings.
[Ord. 778, 5/8/2012, § 1]
1.
Zoning Appeals to Court. Zoning appeals shall include any appeals from the decisions of the Board.
A.
The court having jurisdiction shall be the Beaver County Court of Common Pleas.
B.
Zoning appeals may be taken to court by any party before the Board or any officer or agency of the Borough of Beaver.
C.
All zoning appeals shall be filed not later than 30 days after entry of the decision or of notice of the decision or report of the Board. In the case of a deemed decision appeals must be filed within 30 days of the date upon which notice of said decision is given.
D.
All appeals shall follow the procedures set forth in this section and Article VI of the Pennsylvania Municipalities Planning Code, Act 247 of 1968, 53 P.S. § 10601 et seq., as amended.
2.
Rehearing. If any application for a variance, use by special exception or appeal from the Zoning Officer is denied by the Board, another application for the same request shall not be filed within a period of one year from the date of denial.
3.
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 he has an interest, shall submit the challenge either:
(1)
To the Zoning Hearing Board under this section.
(2)
To the Borough Council under § 27-1806, together with a request for a curative amendment under Part 18.
(a)
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 this section.
(b)
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 the 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 Part 18, his/her application to the Borough Council shall contain, in addition to the requirements of the written request thereof, 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 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 Borough Council under § 27-1806, 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 Borough Council, the municipal solicitor shall represent and advise it at the hearing or hearings referred to in § 27-1802.
4)
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.
5)
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 governing body is found to have merit, the governing body shall proceed as provided in this section. If a challenge heard by a Zoning Hearing Board is found to have merit, the decision of the Zoning Hearing Board shall include recommending 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 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 agricultural and other land uses which are essential to public health, safety and welfare.
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.
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.
6.
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 this section, a denial of the request is deemed to have occurred on the forty-sixth day after the close of the last hearing.
7.
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.
8.
The challenge shall be deemed denied when:
A.
The Zoning Hearing Board or governing body, as the case may be, fails to commence the hearing within the time limits set forth in § 27-1702.
B.
The governing body notifies the landowner that it will not adopt the curative amendment.
C.
The governing body adopts another curative amendment which is unacceptable to the landowner.
D.
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 municipality.
9.
Where a curative amendment proposal is approved by the grant of a curative amendment application by the governing body pursuant to § 27-1807, or a validity challenge is sustained by the Zoning Hearing Board pursuant to § 27-1709 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 approval pursuant the Subdivision and Land Development Ordinance [Chapter 22]. 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 effects 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 the Subdivision and Land Development Ordinance [Chapter 22] 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/zoning 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.
10.
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 he 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 this section by the following procedure:
A.
The landowner may submit plans and other materials describing his proposed use or development to the Zoning Officer for a preliminary opinion as to their compliance with the applicable ordinance and maps. Such plans and other materials shall not be required to meet the standards prescribed for preliminary final approval or for the issuance of a building/zoning 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.
(1)
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 time where the plans and other materials may be examined by the public. The favorable preliminary approval under this section and the time therein specified for commencing a proceeding with the Board shall run from the time when the second notice thereof has been published.