Shaler Township City Zoning Code
ARTICLE XIX
Miscellaneous Provisions
§ 225-205 Validity challenge; substantive questions.
A landowner who, on substantive grounds, desires to challenge the validity of this chapter or map or any provision hereof which prohibits or restricts the use or development of land in which he has an interest shall submit the challenge either:
Persons aggrieved by a use or development permitted on the land of another by this chapter or map or any provision hereof, who desires to challenge its validity on substantive grounds, shall first submit their challenge to the Zoning Hearing Board for a decision thereon under Section 909.1(a)(1) of the Municipalities Planning Code.[3]
[3]
Editor's Note: See 53 P.S. § 10909.1(a)(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 this chapter and elects to proceed by curative amendment under Section 609.1 of the Municipalities Planning Code,[4] his application to the Board of Commissioners 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 explanatory materials shall not be required to meet the standards prescribed for preliminary, tentative or final approval or for the issuance of a permit, so long as they provide reasonable notice of the proposed use or development and a sufficient basis for evaluating the challenged ordinance or map in light thereof. Nothing herein contained shall preclude the landowner from first seeking a final approval before submitting his challenge.
[4]
Editor's Note: See 53 P.S. § 10609.1.
If the submission is made by the landowner to the Board of Commissioners under Subsection A(2), the request also shall be accompanied by an amendment or amendments to the ordinance proposed by the landowner to cure the alleged defects therein.
The Board of Commissioners 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.
Based upon the testimony presented at the hearing or hearings, the Board of Commissioners 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 Board of Commissioners is found to have merit, the Board of Commissioners shall proceed as provided in Section 609.1 of the Municipalities Planning Code.[6] 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. In reaching its decision, the Zoning Hearing Board shall consider the amendments, plans and explanatory material submitted by the landowner and shall also consider:
The impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities;
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;
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;
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
The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.
[6]
Editor's Note: See 53 P.S. § 10609.1.
The Board of Commissioners or the Zoning Hearing Board, as the case may be, shall render its decision within 45 days after the conclusion of the last hearing.
The Zoning Hearing Board or Board of Commissioners, 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.
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.
The challenge shall be deemed denied when:
The Zoning Hearing Board or Board of Commissioners, as the case may be, fails to commence the hearing within the time limits set forth in Subsection D;
The Board of Commissioners notifies the landowner that it will not adopt the curative amendment;
The Board of Commissioners adopts another curative amendment which is unacceptable to the landowner; or
The Zoning Hearing Board or Board of Commissioners, as the case may be, fails to act on the request 45 days after the close of the last hearing on the request, unless the time is extended by mutual consent by the landowner and Township.
Where after the effective date of the Municipalities Planning Code a curative amendment proposal is approved by the grant of a curative amendment application by the Board of Commissioners pursuant to Section 909.1(b)(4) of the Municipalities Planning Code[7] or a validity challenge is sustained by the Zoning Hearing Board pursuant to Section 909.1(a)(1) of the Municipalities Planning Code[8] or the court acts finally on appeal from denial of a curative amendment proposal or a validity challenge, and the proposal or challenge so approved requires a further application for subdivision or land development, the developer shall have two years from the date of such approval to file an application for preliminary or tentative approval pursuant to Article V or VII of the Municipalities Planning Code. Within the two-year period, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied in any manner which adversely affects the rights of the applicant as granted in the curative amendment or the sustained validity challenge. Upon the filing of the preliminary or tentative plan, the provisions of Section 508(4) of the Municipalities Planning Code[9] 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 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 applicants 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.
§ 225-206 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 Section 914.1 of the Municipalities Planning Code[1] by the following procedure:
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 ordinances and maps. 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 building 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.
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 Township. 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. The favorable preliminary approval under Section 914.1 of the Municipalities Planning Code[2] 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.
[2]
Editor's Note: See 53 P.S. § 10914.1.
[1]
Editor's Note: See 53 P.S. § 10914.1.
§ 225-207 Mediation option.
Parties to proceedings authorized in Articles IX and X-A of the Municipalities Planning Code 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 Articles IX and X-A 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.
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 Township shall assure that, in each case, the mediating parties, assisted by the mediator as appropriate, develop terms and conditions for:
Funding mediation.
Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation.
Completing mediation, including time limits for such completion.
Suspending time limits otherwise authorized in the Municipalities Planning Code, 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.
Identifying all parties and affording them the opportunity to participate.
Subject to legal restraints, determining whether some or all of the mediation sessions shall be open or closed to the public.
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 the Municipalities Planning Code.
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.