Old Forge City Zoning Code
ARTICLE X
Zoning Hearing Board; Administrative Proceedings
§ 350-50 Zoning Hearing Board membership; organization; operation.
A.
Creation and membership. There is hereby created, to be appointed by resolution of the Borough Council, a Zoning Hearing Board ("Board") consisting of five residents of the Borough. The terms of office shall be five years and shall be so fixed that the term of one member of the five-member Board shall expire each year. The Board shall promptly notify the Borough Council of any vacancies which occur. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members of the Board shall hold no other office in the Borough.[1]
B.
Alternate members. The Borough Council shall appoint three residents of the Borough to serve as alternate members of the Board. The term of office of an alternate member shall be three years. When seated pursuant to the provisions of Subsection D below, an alternate shall be entitled to participate in all proceedings and discussions of the 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 set forth in this chapter and as otherwise provided by law. Alternates shall hold no other office in the Borough, including membership on the Planning Commission and Zoning Officer, nor shall any alternate be an employee of the municipality. 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 or be compensated pursuant to Subsection E below, unless designated as a voting alternate member pursuant to Subsection D below.[2]
C.
Removal of members. 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 which appointed the member, taken after the member has received 15 days' advance notice of the charges and or 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.
D.
Organization of Board.
(1)
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 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 for in § 350-51.
(2)
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 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. 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.
(3)
The Board may make, alter and rescind rules and forms for its procedure, consistent with the ordinances of the Borough and laws of the commonwealth. The Board shall keep full public records of its business, which records shall be the property of the Borough, and shall submit a report to the Borough Council as requested by it.
E.
Expenditures for services.
(1)
Within the limits of funds appropriated by the Borough Council, the Board may employ or contract for secretaries, clerks, legal counsel, consultants and other technical and clerical services. Members of the Board may receive compensation for the performance of their duties as may be fixed by the Borough Council, but in no case shall it exceed the rate of compensation authorized to be paid to the members of the Borough Council.
(2)
Alternate members of the Board may receive compensation as may be fixed by the Borough Council for the performance of their duties when designated as alternate members pursuant to Subsection D, but in no case shall such compensation exceed the rate of compensation to be paid to the members of the Zoning Hearing Board.
F.
Meetings. Meetings shall be held at the call of the Board Chairman and at such other times as appeals are brought before the Board.
§ 350-51 Hearings.
The Board shall conduct hearings and make decisions in accordance with the following requirements:
A.
Notice of hearings. Public notice shall be given and written notice shall be given to the applicant, the Zoning Officer, such other persons, whether owners or tenants of property located within 200 feet of the property of the application at issue, and to any person who has made timely request for the same.
(1)
Public notice. Public notice of a hearing before the Zoning Hearing Board shall be published once each week for two consecutive weeks in a newspaper of general circulation in the Borough. Such notice shall state the time and place of the hearing and the particular nature of the matter to be considered at the hearing. The first publication shall not be more than 30 days and the second publication shall not be less than seven days from the date of the hearing.
(2)
Written notice. Written notice of a hearing before the Zoning Hearing Board shall be given by direct individual notice, mailed or hand delivered at least seven days prior to the date of the hearing.
(3)
Posting of property. In addition to the written notice provided herein, written notice of said hearing shall be conspicuously posted on the affected tract of land by the Zoning Officer at least one week prior to the hearing.
B.
Hearing fees. Hearing fees, as prescribed in § 350-49, 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 shall not include legal expenses of the Zoning Hearing Board, expenses for engineering, architectural or other technical consultant or expert witness costs.
C.
Hearing schedule. 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.[1]
D.
Hearing officer. The hearings shall be conducted by the 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 Board; however, the appellant or the applicant, as the case may be, in addition to the Borough, may, prior to the decision of the hearing, waive decision or findings by the Board and accept the decision or findings of the hearing officer as final.[2]
E.
Parties to the hearing. The parties to the hearing shall be the Borough, 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 have the power to require that all persons who wish to be considered parties enter appearances in writing on forms provided by the Board for that purpose.
F.
Oaths and subpoenas. The Chairman or Acting Chairman of the Board or the hearing officer presiding shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and documents requested by the parties.
G.
Representation by counsel. 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.
Rules of evidence. Formal rules of evidence shall not apply, but irrelevant, immaterial or unduly repetitious evidence may be excluded.
I.
Stenographic record. The 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(s) and the Board. One original transcript shall be furnished within five calendar days of the original hearing date to the Borough Manager at no additional cost to the Borough or Board, and one original transcript shall be furnished within five calendar days of the original hearing date to the applicant sharing the costs at no additional cost to the applicant. Additional transcripts ordered by the Board or applicant shall be paid by the Board or hearing officer or 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.
[Amended 9-19-2000 by Ord. No. 2000-8]
J.
Conduct of Board or hearing officer. The Board or the hearing officer shall not communicate, directly or indirectly, with any party or his 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 so noticed and shall not inspect the site or its surroundings after the commencement of hearings with any party or his representative unless all parties are given an opportunity to be present.
K.
Written decision of findings.
(1)
The 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 Board or hearing officer.
(2)
Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon, together with the reasons therefor. Conclusions based on any provisions of the Pennsylvania Municipalities Planning Code (Act 247, as amended)[3] or 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.
[3]
Editor's Note: See 53 P.S. § 10101 et seq.
(3)
If the hearing is conducted by a hearing officer, and there has been no stipulation that his decisions 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 the final decision or entry of findings, and the Board's decision shall be entered no later than 30 days after the decision of the hearing officer.
(4)
If the Board fails to render the decision within the period required by this subsection or fails to hold the required hearing as provided in Subsection C of this section, the decision shall have been deemed to have been rendered in favor of the applicant, unless the applicant has agreed in writing to an extension of time.[4]
(5)
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 hereinabove provided, the 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 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.
L.
Copy of final decision or findings.
(1)
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 him/her not later than the day following its date.
(2)
To all other persons who have filed their name and address with the Board not later than the last day of the meeting, the 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.
§ 350-52 Mediation option.
A.
Parties to proceedings. Parties to proceedings authorized in this article and Article XI, Appeals to Court, 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 mediation party.
B.
Supplemental role of mediation. Mediation shall supplement, not replace, those procedures in this article and Article XI, Appeals to Court, 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.
C.
Rules for mediation. 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 shall assure that, in each case, the mediating parties, assisted by the mediator as appropriate, develop terms and conditions for:
(1)
Funding mediation.
(2)
Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation.
(3)
Completing mediation, including time limits for such completion.
(4)
Suspending time limits otherwise authorized in the Pennsylvania Municipalities Planning Code (Act 247, as amended),[1] provided that there is written consent by the mediating parties, and by an applicant or municipal decisionmaking body if either is not a party to the mediation.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(5)
Identifying all parties and affording them the opportunity to participate.
(6)
Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public.
(7)
Assuring that mediated solutions are in writing and signed by the parties and become subject to review and approval by the appropriate decisionmaking body pursuant to the authorized procedures set forth in other sections of this chapter.
D.
Admissibility as evidence. No offers or statements in the mediating sessions, excluding the final written mediated agreement, shall be admissible as evidence in any subsequent judicial or administrative proceedings.
§ 350-53 Jurisdiction.
A.
Jurisdiction of Zoning Hearing Board. The Zoning Hearing Board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:
(1)
Substantive challenges to validity of land use ordinances: substantive challenges to the validity of any land use ordinance, except those brought before the Borough Council pursuant to § 350-75, Procedures for landowner curative amendments, and § 350-61A(2).[1]
(2)
Appeals from the Zoning Officer: 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.
(3)
Appeals from determinations on floodplain matters: appeals from a determination by the Borough Engineer or the Zoning Officer with reference to the administration of any floodplain or flood hazard ordinance or such provisions within a land use ordinance.
(6)
Appeals from determinations on provisions involving transfers of development rights or performance density: appeals from the determination of any officer or agency charged with the administration of any transfers of development rights or performance density provisions in this chapter presently or by future amendment.
(7)
Appeals from Zoning Officer on procedure to obtain preliminary opinion: appeals from the Zoning Officer's determination under § 350-62, Procedure to obtain preliminary opinion.
(8)
Appeals from determinations on sedimentation and erosion control and stormwater management matters: appeals from the determination of the Zoning Officer or Borough 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 and planned residential development applications. [See also Subsection B(6) below.]
B.
Jurisdiction of the Borough Council. The Borough Council or, except as to Subsection B(1), (2) and (3), the Planning Commission, if designated, shall have exclusive jurisdiction to hear and render final adjudication in the following matters:
(1)
Applications for planned residential developments: all applications for approvals of planned residential developments under the Pennsylvania Municipalities Planning Code (Act 247, as amended), Article VII, pursuant to the provisions of Section 702 thereunder,[2] or under comparable provisions of this chapter presently or by future amendment.
[2]
Editor's Note: See 53 P.S. § 10702.
(2)
Applications for subdivision and land development: all applications pursuant to approval procedures under Chapter 305, Subdivision and Land Development. Any provision in Chapter 305, Subdivision and Land Development, requiring that final action concerning subdivision and land development applications be taken by the Planning Commission rather than the Borough Council shall vest exclusive jurisdiction in the Planning Commission in lieu of the Borough Council for the purposes of the provisions of this subsection.
(4)
Applications for curative amendment: applications for curative amendment to this chapter pursuant to § 350-75, Procedures for landowner curative amendments, and § 350-61A(2).
(5)
Petitions for amendments to land use ordinances: all petitions for amendments to land use ordinances, pursuant to procedures set forth in § 350-73, Procedures of Borough Council. 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 determinations on sedimentation and erosion control and stormwater management matters:
(a)
Appeals from the determination of the Zoning Officer or the Borough 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 Chapter 305, Subdivision and Land Development, and planned residential development provisions of this chapter presently or by future amendment.
(b)
Where such determination relates only to development not involving a subdivision and land development or planned residential development application, the appeal from such determination of the Zoning Officer or the Borough Engineer shall be to the Zoning Hearing Board pursuant to § 350-53 above.
(c)
Where the applicable land use ordinance vests jurisdiction for final administration of subdivision and land development applications in the Planning Commission, all appeals from determinations under this subsection shall be to the Planning Commission, and all appeals from the decision of the Planning Commission shall be to court.
(7)
Applications for special encroachment permit: applications for a special encroachment permit pursuant to the Pennsylvania Municipalities Planning Code (Act 247, as amended), Article IV, Official Map, Section 405, and applications for a permit pursuant to Section 406,[4] provided that the Borough has adopted an Official Map.
[4]
Editor's Note: See 53 P.S. §§ 10405 and 10406, respectively.
§ 350-54 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 (relation to action in mandamus).
§ 350-55 Variances.
A.
Hear requests for and grant variances.
(1)
The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. The Board may, by rule, prescribe the form of application and may require preliminary application to the Zoning Officer.
(2)
The Board may grant a variance, provided that all of the following findings are made where relevant in a given case:
(a)
That there were 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.
(b)
That, because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with provisions of this chapter and that the authorization or a variance is therefore necessary to enable the reasonable use of the property.
(c)
That such unnecessary hardship has not been created by the appellant.
(d)
That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, or substantially or permanently impair the appropriate use or development of adjacent property, or be detrimental to the public welfare.
B.
Attach reasonable conditions and safeguards. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the Pennsylvania Municipalities Planning Code (Act 247, as amended) and this chapter.
§ 350-56 Special exception uses.
A.
Where the Borough Council, in this chapter, has stated special exception uses to be granted or denied by the Zoning Hearing Board pursuant to express standards and criteria, the Board shall hear and decide requests for such special exception uses in accordance with such standards and criteria.
B.
In granting a special exception use, the Board may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of the Pennsylvania Municipalities Planning Code (Act 247, as amended) and this chapter.
§ 350-57 Conditional uses.
A.
Where the Borough Council, in this chapter, has stated conditional uses to be granted or denied by the Borough Council pursuant to express standards and criteria, the Borough Council shall hold hearings on and decide requests for such conditional uses in accordance with such standards and criteria.
B.
Attach reasonable conditions and safeguards. In granting a conditional use, the Borough Council may attach such reasonable conditions and safeguards, in addition to those expressed in this chapter, as it may deem necessary to implement the purposes of the Pennsylvania Municipalities Planning Code (Act 247, as amended) and this chapter.
§ 350-58 Parties appellant before Board.
Appeals under the jurisdiction of the Zoning Hearing Board by § 350-53A(1), (2), (3), (6), (7) and (8) may be filed with the Board in writing by the landowner affected, any officer or agency of the Borough or any person aggrieved. Requests for a variance under § 350-55 and for special exception uses under § 350-56 may be filed with the Board by any landowner or any tenant with the permission of such landowner.
§ 350-59 Time limitations.
A.
Time limitations for filing by any person.
(1)
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/she 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/she shall be bound by the knowledge of his predecessor in interest.
(2)
The failure of anyone, other than the landowner, to appeal from an adverse decision on a tentative plan pursuant to chapter provisions for planned residential development findings or from an adverse decision by the Zoning Officer on a challenge to the validity of an ordinance or map pursuant to § 350-62, Procedure to obtain preliminary opinion, shall preclude an appeal from the final approval, except in the case where the final submission substantially deviates from the approved tentative approval.
B.
Time limitations for filing by landowners. All appeals from determinations adverse to the landowner shall be filed by the landowner within 30 days after notice of the determination is issued.
§ 350-60 Stay of proceedings.
A.
Conditions for stay of proceedings during appeal.
(1)
Exceptions to stay of land development proceedings. Upon filing of any proceeding referred to in § 350-58 and during its pendency before the Board, all land development pursuant to the challenged ordinance, order or approval of the Zoning Officer or 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 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 for zoning appeals, on petition, after notice to the Zoning Officer or other appropriate agency or body.
(2)
Developer's petition for appellant to post bond. 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.
B.
Hearing to determine if filing or appeal is frivolous. 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/her if an appeal is taken from a final decision of the court.
C.
Petition granting bond if petition is frivolous. 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 directing the responding party to post a bond shall be interlocutory.
D.
Appeal by respondent to petition for granting bond. 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.
§ 350-61 Validity; substantive questions.
A.
Submission or challenge by landowner. A landowner who, on substantive grounds, desires to challenge the validity of an ordinance or map or any provisions thereof which prohibits or restricts the use or development of land in which he/she has an interest shall submit the challenge either:
(2)
To the Borough Council under § 350-53B(4), Jurisdiction of the Borough Council: applications for curative amendment, together with a request for a curative amendment under § 350-75, Procedures for landowner curative amendments.
B.
Submission of challenge by persons aggrieved. Persons aggrieved by a use or development permitted on the land of another by an ordinance or map or any provisions thereof, who desires to challenge its validity on substantive grounds, shall submit their challenge to the Zoning Hearing Board for a decision thereon under § 350-53A(1), Jurisdiction of Zoning Hearing Board: substantive challenges to validity of land use ordinances.
C.
Rules governing submission of challenges. The submission referred to in Subsections 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 reason for the challenge.
(a)
Where the landowner desires to challenge the validity of such ordinance and elects to proceed by curative amendment under § 350-75, Procedures for landowner curative amendments, his application 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.
(b)
Such plans or other materials shall not be required to meet the standards required for preliminary, tentative or final approval or for the issuance or 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.
(c)
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 Subsection A(2) above, the request also shall be accompanied by an amendment or amendments to this chapter proposed by the landowner to cure the alleged defects therein.
(3)
If the submission is made to the Borough Council, the Borough Solicitor shall represent and advise it at the hearing or hearings referred to in § 350-53B(4), Jurisdiction of the Borough Council: applications for curative amendment.
(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 the 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 the Borough Council is found to have merit, the Borough Council shall proceed as provided in § 350-75.
(a)
Procedures for landowner curative amendments.
[1]
If a challenge heard by the 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.
[2]
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 this chapter 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 agricultural and other land uses which are essential to public health and welfare.
(6)
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.
D.
Hearing schedule. The Zoning Hearing Board or the Borough Council, 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 content. Public notice of the hearing shall include notice that the validity of this chapter or map is in question and shall give the place where and time when a copy of the request, including any plans, explanatory material or proposed amendments, may be examined by the public.
F.
Deemed denials of challenge. The challenge shall be deemed denied when:
(1)
The Zoning Hearing Board or Borough Council, as the case may be, fails to commence the hearing within the time limits set forth in Subsection D above;
(2)
The Borough Council notifies the landowner that it will not adopt the curative amendment;
(3)
The Borough Council adopts another curative amendment which is unacceptable to the landowner; or
(4)
The Zoning Hearing Board or the 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 limit is extended by mutual consent of the landowner and Borough.
G.
Period for filing application for preliminary or tentative plan approval or for zoning permit.
(1)
Where, after the effective date of this chapter, a curative amendment proposal is approved by the grant of a curative amendment application by the Borough Council pursuant to § 350-53B(4), Jurisdiction of the Borough Council: applications for curative amendment, or a validity challenge is sustained by the Zoning Hearing Board pursuant to § 350-53A(1), Jurisdiction of Zoning Hearing Board: substantive challenges to validity of land use ordinances, 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, Subdivision and Land Development, or Article VII, Planned Residential Development, of the Pennsylvania Municipalities Planning Code (Act 247, as amended).[1] Within the two-year period, no subsequent change or amendment in 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 Section 508(4) of the Pennsylvania Municipalities Planning Code (Act 247, as amended)[2] shall apply.
(2)
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 zoning permit. Within the one-year period, no subsequent change or amendment to 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.
§ 350-62 Procedure to obtain preliminary opinion.
A.
In order not to unreasonably delay the time when a landowner my secure assurance that this chapter or map under which he/she 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 this chapter or map will run under § 350-59, Time limitations, by the following procedure:
(1)
Submission of plans and other materials.
(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.
(b)
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 zoning permit so long as they provide reasonable notice of the proposed use or development and a sufficient basis or for a preliminary opinion as to its compliance.
(2)
Public notice of compliance.
(a)
If the Zoning Officer's preliminary opinion is that the use or development complies with this chapter or map, notice thereof shall be published once each week for two successive weeks in a newspaper of general circulation in the Borough.
(b)
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.