All zoning appeals are statutory and shall be pursuant to Article X-A of the Pennsylvania Municipal Planning Code. That Code is the exclusive mode of appeal. (Ord. 87-8, 12/10/1987; as amended by

Ord. 97-3A, 3/3/1997)

   1.   A landowner who, on substantive grounds, desires to challenge the validity of the ordinance or map or any provision thereof which prohibit or restricts the use or development of land in which he has an interest shall submit a challenge either:

      A.   To the Zoning Hearing Board under §909.1(a) of the Municipal Planning Act.

      B.   To the Borough Council under §909.1(b)(4) of the Municipal Planning Act, together with a request for a curative amendment under § 609.1 of the Municipal Planning Act.

   2.   Persons aggrieved by a use or development permitted on the land of another by an ordinance or map, or any provision thereof, who desires to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a decision thereon un §909.1(a)(1) of the Municipal Planning Act.

   3.   The submissions referred to in subsections (1) and (2), above, shall be governed by the following:

      A.   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. Where the landowner desires to challenge the validity of such ordinance and elects to proceed by curative amendment un §609.1 of the Municipal Planning Act, 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. 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 challenge.

      B.   If the submission is made by the landowner to the Borough Council under §909.1(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.

      C.   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 §909.1(b)(4) of the Municipal Planning Act.

      D.   The Borough Council may retain an independent attorney to present the defense of the challenged ordinance or map on its behalf and to present their witness on its behalf.

      E.   Based on the testimony presented at the hearing or hearings, the Borough Council 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 the Borough Council is found to have merit, the Borough Council shall proceed as provide in § 609.1 of the Municipal Planning Act. 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:

         (1)   The impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities.

         (2)   If the proposal is for 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.

         (3)   The suitability of the site for the intensity of use proposed by the site's soils, slopes, woodlands, floodplains, aquifers, natural resources and other natural features.

         (4)   The impact of the proposed use on the site's soils, slopes, woodlands, wetlands, floodplains, natural resources and natural features, the degree to which these are protected or destroyed, the tolerance of the resources to development and any adverse environmental impacts.

         (5)   The impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.

      F.   The Borough Council or the Zoning Hearing Board, as the case may be, shall render its decision within forty-five (45) days after conclusion of the last hearing.

      G.   If the Borough Council or the Zoning Board, as the case may be, fails to act on the landowner's request within the time limits referred to in subsection (3)(F), a denial of the request is deemed to have occurred on the 46 th day after the close of the last hearing.

   4.   The Zoning Hearing Board or Borough Council, as the case may be, shall commence its hearings within sixty (60) days after the request is filed unless the landowner requests or consents to an extension of time.

   5.   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 when the times when copy of the request, including any plans, explanatory material or proposed amendments may be examined by the public.

   6.   The challenge shall be deemed denied when:

      A.   The Zoning Hearing Board or Borough Council, as the case may be, fails to commence the hearing within the time limits set forth in subsection (4).

      B.   The Borough Council notifies the landowner that it will not adopt the curative amendment.

      C.   The Borough Council adopts another curative amendment which is acceptable to the landowner.

      D.   The Zoning Hearing Board or Borough Council, as the case may be, fails to act on the request forty-five (45) days after the close of the last hearing on the request, unless the time is extended by mutual consent by the landowner and the Borough.

   7.   Where, after the effective date of this act, a curative amendment proposal is approved by the grant of a curative amendment application by the Borough Council pursuant to §909.1(b)(4) of the Municipal Planning Act or a validity challenge sustained by the Zoning Hearing Board pursuant to § 909.1(a)(1) of the Municipal Planning Act 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 (2) years from the date of such approval to file an application for preliminary or tentative approval pursuant to Article V or VII of the Municipal Planning Act. Within the two (2) 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 filing of the preliminary or tentative plan, the provisions of §508(4) of the Municipal Planning Act 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 (1) year within which to file for a building permit. Within the one (1) 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.

(Ord. 87-8, 12/10/1987; as amended by Ord. 97-3A, 3/3/1997)

   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 § 914.1 of the Municipal Planning Act by the following procedure:

   1.   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.

   2.   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 (2) successive weeks in a newspaper of general circulation in the Borough. 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 § 914.1 of the Municipal Planning Act 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.

(Ord. 87-8, 12/10/1987; as amended by Ord. 97-3A, 3/3/1997)