Article 30
Zoning Hearing Board and Other Administrative Procedures

§14-3001 Zoning Hearing Board Creation and Appointments.

1.    Terms of Office. Pursuant to Article IX of the Pennsylvania Municipalities Planning Code, 53 P.S. §10901 et seq., as amended, the Cornwall Borough Council does hereby create a Zoning Hearing Board. The membership of the Board shall consist of three residents of the Borough appointed by Borough Council. The terms of office of the three-member board shall be 3 years and shall be so fixed that the term of office of one of the members shall expire each year. The Zoning Hearing Board shall promptly notify Borough Council of any vacancies which occur. Vacancies shall be filled by resolution of Borough Council and shall be only for the unexpired term of the member affected. Members of the Zoning Hearing Board shall hold no other office in the Borough.

2.    Alternate Members. Borough Council may appoint by resolution at least one, but no more than three residents, of the Borough to serve as alternate members of the Zoning Hearing Board. The term of office of an alternate member shall be 3 years. When seated in accordance with §14-3002 pursuant to the provisions of this Chapter, an alternate shall be entitled to participate in all proceedings and discussions of the board to the same and full extent as provided by law for Zoning Hearing 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 otherwise provided by law. Alternates shall hold no other office in the Borough, including membership on the Planning Commission and Zoning Officer. 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 nor be compensated pursuant to §14-3003 unless designated as a voting alternate member of the Zoning Hearing Board pursuant to §14-3002 of this Chapter.

3.    Removal of Members. Any member of the Zoning Hearing Board may be removed for malfeasance, misfeasance, or nonfeasance in office or for other just cause by a majority vote of Borough Council taken after the member has received 15 days advance notice of 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.

(Ord. 2008-1, 6/9/2008, §3000)

§14-3002 Organization of Zoning Hearing Board.

1.    The Zoning Hearing Board shall elect from its own membership its officers, who shall serve annual terms and as such may succeed themselves. For the conduct of any hearing and the taking of any action, a quorum shall not be less than a majority of all the 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 of the Board as provided in §14-3004 of this Chapter.

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 to sit on 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 for which the alternate was initially appointed until the Board has made a final determination of 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 Zoning Hearing Board may make, alter and rescind rules and forms for its procedure, consistent with ordinances of the Borough of Cornwall and laws of the Commonwealth of Pennsylvania. The Zoning Hearing Board shall keep full public records of its business, which records shall be the property of the Borough, and shall submit a report of its activities to Borough Council as requested by Borough Council.

(Ord. 2008-1, 6/9/2008, §3001)

§14-3003 Expenditures for Services.

Within the limits of funds appropriated by Borough Council, the Zoning Hearing Board may employ or contract for secretaries, clerks, legal counsel, consultants, and other technical and clerical services. Members of the Zoning Hearing Board may receive compensation for the performance of their duties, as may be fixed by Borough Council, but in no case shall it exceed the rate of compensation authorized to be paid to the members of Borough Council. Alternate members of the Board may receive compensation, as may be fixed by Borough Council, for the performance of their duties when designated as alternate members pursuant to §14-3002, but in no case shall such compensation exceed the rate of compensation authorized to be paid to the members of Borough Council.

(Ord. 2008-1, 6/9/2008, §3002)

§14-3004 Hearings of the Zoning Hearing Board.

The Zoning Hearing Board shall conduct hearings and make decisions in accordance with the following requirements:

A.    Public Notice. Notice shall be given and written notice shall be given to (1) the applicant, (2) the Borough Zoning Officer, (3) the abutting property owners and (4) to any person who has made timely request for same. Written notices shall be given at such time and in such manner as shall be prescribed by rules of the Zoning Hearing Board and by the provisions of this Chapter. In addition to the written notice provided herein, written notice of said hearing shall be conspicuously posted on the affected tract of land at least one week prior to the hearing.

B.    Fees. Borough Council may prescribe reasonable fees with respect to hearings before the Zoning Hearing Board. Fees for said hearings may 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, however, shall not include legal expenses of the Zoning Hearing Board, expenses for engineering, architectural or other technical consultants or expert witness costs.

C.    Conduct of Hearing. The hearing shall be held within 60 days from the date of the applicant’s request, unless the applicant has agreed in writing to an extension of time. The hearings shall be conducted by the Zoning Hearing Board or the Zoning Hearing Board may appoint any member as a hearing officer. The decision, or, where no decision is called for, the findings shall be made by the Zoning Hearing 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 Zoning Hearing Board and accept the decision or findings of the hearing officer as final.

D.    The parties to the hearing shall be the Borough of Cornwall, any person affected by the application who has made timely appearance of record before the Zoning Hearing Board, and any other person including civic or community organizations permitted to appear before the Board. The Zoning Hearing 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.

E.    The chairman or acting chairman of the Zoning Hearing Board or the hearing officer presiding shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.

F.    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.

G.    Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.

H.    The Zoning Hearing 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 and the Board. The cost of the original transcript shall be paid by the Board if the transcript is ordered by the Board or hearing officer or shall be paid by the person appealing from the decision of the Board if such 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.

I.    The Zoning Hearing Board or 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, except advice from their Solicitor, unless the parties are afforded an opportunity to contest the material 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.

J.    Decisions. The Zoning Hearing 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 Zoning Hearing Board or hearing officer. Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with reasons therefor. Conclusions based on any provisions of this Chapter or any Borough ordinance, rule, or regulation, or the Pennsylvania Municipalities Planning Code, Act 247, 53 P.S. §10101 et seq., as amended, 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. If the hearing is conducted by a hearing officer, and there has been no stipulation that his decision or findings are final, the Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing 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 failure of the Zoning Hearing Board to meet or render a decision as herein above provided, the Zoning Hearing 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 Section shall prejudice the right of any party opposing the application to appeal the decision to a court of competent jurisdiction.

K.    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 not later than the day following its date. To all other persons who have filed their name and address with the Zoning Hearing Board no later than the last day of the hearing, 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.

(Ord. 2008-1, 6/9/2008, §3003)

§14-3005 Hearings, Appeals, and Notice.

1.    Appeals to the Zoning Hearing Board concerning interpretation or administration of this Chapter may be taken by any person aggrieved or by any office or bureau of the governing body of the Borough affected by any decision of the Zoning Officer. Such appeals shall be taken within a reasonable time, not to exceed 60 days or such lesser period as may be provided by the rules of the board, by filing with the Zoning Officer and with the Zoning Hearing Board a notice of appeal specifying the grounds thereof. The Zoning Officer shall forthwith transmit to the Board all papers constituting the record from which the action appealed was taken.

2.    The Zoning Hearing Board shall fix a reasonable time for the hearing of an appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within 45 days after the hearing. However, where a hearing has been continued (e.g., scheduling further testimony, conducting a site inspection or accepting briefs), the decision shall be rendered within 45 days of the final hearing on the case.

3.    Conduct of the Zoning Hearing Board shall be in accordance with Article IX of the MPC, 53 P.S. §10901 et seq. The concurring vote of two members on a three member Board shall be necessary to reverse any order, requirement, decision, or determination of the Zoning Officer, or to decide in favor of the petitioner on any matter upon which it is required to pass under this Chapter, or to effect any variation in the application of this Chapter.

(Ord. 2008-1, 6/9/2008, §3004)

§14-3006 Jurisdiction.

1.    Zoning Hearing Board’s Jurisdiction. 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 Borough Council pursuant to §§14-3203.1 (Procedure for Landowner Curative Amendments) and 14-3014 (Validity of Ordinance: Substantive Questions).

B.    Challenges to the validity of any 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 therefor, the issuance of any cease and desist order or the registration or refusal to register any nonconforming use, structure, or lot.

D.    Appeals from the determination of the Zoning Officer or Borough Engineer with reference to the administration of any floodplain or flood hazard ordinance or such provisions within a land use ordinance.

E.    Applications for variances from the terms of this Chapter or any floodplain or flood hazard ordinance, or such provisions within a land use ordinance, pursuant to §14-3007.

F.    Applications for special exceptions under this Chapter or any floodplain or flood hazard ordinance or such provisions within a land use ordinance, pursuant to §14-3008.

G.    Appeals from the determination of any officer or agency charged with the administration of any transfers of development rights or performance density provisions of this Chapter.

H.    Appeals from the Zoning Officer’s determination of preliminary opinion pursuant to the requirements of §14-3015.

I.    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 storm water management insofar as the same relate to development not involving subdivision/land development ordinance or planned residential development applications.

2.    Borough Council’s Jurisdiction. Borough Council shall have exclusive jurisdiction to hear and render final adjudications in the following matters:

A.    All applications for approvals of planned residential and planned business developments under Article 17.

B.    All applications for approval of subdivisions or land developments in accordance with the requirements of the Cornwall Borough Subdivision and Land Development Ordinance [Chapter 13].

C.    Applications for conditional use under the express provisions of this Chapter.

D.    Applications for curative amendment to this Chapter pursuant to §§14-3014 and 14-3203.1.

E.    All petitions for amendments to land use ordinances, pursuant to the procedures set forth in §14-3203. Any action on such petitions shall be deemed to be legislative acts, provided that nothing contained in this paragraph shall be deemed to enlarge or diminish existing law with reference to appeals to court.

F.    Appeals from the determination of the Zoning Officer or Borough Engineer in the administration of any provision 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 development involving subdivision/land development ordinance or planned residential development applications. Where such determination relates only to development not involving an application for subdivision/land development or planned residential development, the appeal from such determination of the Zoning Officer or Borough Engineer shall be to the Zoning Hearing Board pursuant to §14-3006.1.E.

G.    Applications for a special encroachment permit and applications for a permit when an official map has been adopted in accordance with Article IV of the MPC, 53 P.S. §10401 et seq.

3.    Applicability of Judicial Remedies. Nothing contained in this article shall be construed to deny the applicant the right to proceed directly to court where appropriate, pursuant to the Pennsylvania Rules of Civil Procedure No. 1091 (relating to action in mandamus).

(Ord. 2008-1, 6/9/2008, §3005)

§14-3007 Zoning Hearing Board’s Functions–Variances.

1.    The Zoning Hearing 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. The Zoning Hearing Board may grant a variance, provided that all of the following findings are made where relevant in a given case:

A.    That there are 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 the provisions of this Chapter and that the authorization of 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, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.

E.    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.

2.    In granting any variance, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this Chapter and the Municipalities Planning Code, 53 P.S. §10101 et seq.

(Ord. 2008-1, 6/9/2008, §3006)

§14-3008 Zoning Hearing Board’s Functions–Special Exceptions.

The Zoning Hearing Board shall hear and decide requests for special exceptions in accordance with the standards and criteria set forth in this Chapter. In granting a special exception, the Zoning Hearing 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 this Chapter and of the Pennsylvania Municipalities Planning Code, 53 P.S. §10101 et seq.

(Ord. 2008-1, 6/9/2008, §3007)

§14-3009 Borough Council’s Functions–Conditional Uses.

Borough Council of the Borough of Cornwall shall hear and decide petitions for conditional uses specifically authorized in this Chapter. Decisions to grant or deny the petition shall be subject to the following:

A.    General Criteria.

(1)    The proposed use shall be consistent with the purpose and intent of the ordinance and shall be a use specifically permitted as a conditional use.

(2)    The proposed use shall comply with those criteria specifically listed in Article 26 of this Chapter. In addition, the proposed use must comply with all other applicable regulations of this Chapter.

B.    Conditional Use Application. A conditional use application must include all the plan requirements listed in §14-2603 of this Chapter.

C.    Conditions. The Borough Council in approving conditional use applications, may attach reasonable conditions considered necessary to protect the public welfare and the purposes listed above, including conditions which are more restrictive than those established for other uses in the same zone. These conditions shall be enforceable by the Zoning Officer and failure to comply with such conditions shall constitute a violation of this Chapter and be subject to the penalties described in this Chapter.

D.    Hearing Procedures. Before voting on the approval of a conditional use, the Borough Council shall hold a public hearing thereon, pursuant to public notice. The Borough Council shall submit each such application to the Planning Commission at least 30 days prior to the hearing on such application to provide the Planning Commission an opportunity to submit recommendations. If, after any public hearing held upon an application, the proposed application is substantially revised, the Borough Council shall hold another public hearing, pursuant to public notice, before proceeding to vote on the application.

(Ord. 2008-1, 6/9/2008, §3008)

§14-3010 Expiration or Revocation of a Zoning Hearing Board or Borough Council Decision.

1.    The granting or approval of a special exception or variance by the Zoning Hearing Board, or a conditional use by the Borough Council shall be valid only for the petitioner and the property specified in the petition. Alterations or changes to the use or building authorized by the Zoning Hearing Board, or Borough Council in the case of a conditional use, shall require re-application to the Board (or to Borough Council in the case of a conditional use). If a special exception, variance, or conditional use is granted, the necessary permit shall be secured within 2 years after the date when such approval is finally granted; provided that, if the necessary permit is not secured within the aforesaid time period due to reasons beyond the applicant’s control (such as ongoing appeals), failure of governmental bodies other than Cornwall to issue permits which are a condition precedent to the issuance of the permit, or the failure of Cornwall or its agencies to proceed diligently and in good faith in the consideration of the permit application, the 2-year period shall not apply. If the special exception, variance or conditional use has not been implemented within 2 years of the date of the Zoning Hearing Board (or Borough Council in the case of a conditional use), said approval shall expire and become null and void. If the property affected by the variance, special exception, or conditional use is transferred in ownership prior to the implementation of the variance, special exception, or conditional use, said approval shall immediately become invalid upon such transfer of ownership.

2.    The Zoning Hearing Board may revoke approval of a variance or special exception, and the Borough Council may revoke approval of a conditional use where:

A.    The petitioner repeatedly violates conditions or safeguards specified in the Zoning Hearing Board’s (Borough Council’s) decision.

B.    The petitioner initiates use or construction contrary to the Zoning Hearing Board’s (Borough Council’s) decision.

C.    The petitioner is found to have misrepresented or falsified information pertinent to the Zoning Hearing Board’s (Borough Council’s) decision.

D.    The Zoning Hearing Board’s (Borough Council’s) decision was in error and the revocation is instituted within 30 days of the original decision or prior to substantial reliance thereon by the petitioner.

3.    Violation of the conditions or safeguards or use or construction contrary to that specified by the Zoning Hearing Board’s (Borough Council’s) decision shall be deemed a violation of this Chapter, punishable under Article 29 of this Chapter. Revocation of the Zoning hearing Board’s (Borough Council’s) approval shall not preclude the Zoning Officer from instituting civil enforcement procedures or the Borough from proceeding in a court of law or equity to prevent or remedy violations of this Chapter.

(Ord. 2008-1, 6/9/2008, §3009)

§14-3011 Parties Appellant Before Zoning Hearing Board or Borough Council.

Appeals under §14-3006.1 may be filed with the Zoning Hearing Board in writing by the landowner affected, any officer or agency of the Borough, or any person aggrieved. Requests for a variance under §14-3007, for special exception under §14-3008 or for conditional use under §14-3009 may be filed with the Zoning Hearing Board or Borough Council, as appropriate, by any landowner or any tenant with the permission of such landowner.

(Ord. 2008-1, 6/9/2008, §3010)

§14-3012 Time Limitations.

1.    No person shall be allowed to file any proceeding with the Zoning Hearing Board later than 30 days after any application for development, preliminary or final, has been approved by an appropriate Borough 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 on a tentative plan pursuant to Article 17, or from an adverse decision by the Zoning Officer on a challenge to the validity of this Chapter or Zoning Map pursuant to §14-3014 shall preclude an appeal from the final approval except in the case where the final submission substantially deviates from the approved tentative approval.

2.    All appeals from determinations adverse to the landowners shall be filed by the landowner within 30 days after notice of the determination is issued.

(Ord. 2008-1, 6/9/2008, §3011)

§14-3013 Stay of Proceedings.

1.    Upon filing of any proceeding referred to in §14-3011 and during its pendency before the Zoning Hearing 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 there under shall be stayed unless the Zoning Officer or any other appropriate agency or body certifies to the Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing 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 Zoning Hearing 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.

(Ord. 2008-1, 6/9/2008, §3012)

§14-3014 Validity of Ordinance; Substantive Questions.

1.    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:

A.    To the Zoning Hearing Board under §§14-3006.1.A and .1.B.

B.    To Borough Council under §14-3006.2.B, together with a request for a curative amendment under §14-3203.

2.    Persons aggrieved by a use or development permitted on the land of another by an ordinance or map, or any provision thereof, who desire to challenge its validity on substantive grounds shall first submit their challenge to the Zoning Hearing Board for a decision thereon under §14-3006.1.A.

3.    The submissions referred to in subsections .1 and .2 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. 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 §14-3203, his application to 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 Borough Council under subsection .1.B, 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 Borough Council, the Borough Solicitor shall represent and advise it at the hearing or hearings referred to in §14-3006.2.B.

D.    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.

E.    Based on the testimony presented at the hearing or hearings, 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 Borough Council is found to have merit, Borough Council shall proceed as provided in §14-3203. 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:

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

(2)    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.

(3)    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.

(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.    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.

G.    If 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 subsection .3.F, a denial of the request is deemed to have occurred on the 46th 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 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 the times when a 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.    Borough Council notifies the landowner that it will not adopt the curative amendment.

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

D.    The Zoning Hearing Board or 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 is extended by mutual consent by the landowner and the Borough.

7.    Where a curative amendment proposal is approved by the grant of a curative amendment application by Borough Council pursuant to §14-3006.1.B or a validity challenge is sustained by the Zoning Hearing Board pursuant to §14-3006.1.A 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 2 years from the date of such approval to file an application for preliminary or tentative approval pursuant to the requirements for subdivision/land development or planned residential development. Within the 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 the filing of the preliminary or tentative plan, the provisions of §508(4) of the Pennsylvania Municipalities Planning Code, 53 P.S. §10508(4), 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 1 year within which to file for a building permit. Within the 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.

8.    A landowner who has challenged on substantive grounds the validity of a zoning ordinance or map either by submission of a curative amendment to Borough Council under §14-3006.2.B or to the Zoning Hearing Board under §14-3006.1.A shall not submit any additional substantive challenges involving the same parcel, group of parcels or part thereof until such time as the status of the landowner’s original challenge has been finally determined or withdrawn; provided, however, that if after the date of the landowner’s original challenge the Borough adopts a substantially new or different zoning ordinance or zoning map, the landowner may file a second substantive challenge to the new or different zoning ordinance or zoning map under subsection .1.

(Ord. 2008-1, 6/9/2008, §3013)

§14-3015 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 §14-3012 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 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.

B.    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 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 times where the plans and other materials may be examined by the public. The favorable preliminary approval under §14-3012 and the time therein specified for commencing a proceeding with the Zoning Hearing Board shall run from the time when the second notice thereof has been published.

(Ord. 2008-1, 6/9/2008, §3014)

§14-3016 Applicability of Ordinance Amendments.

When an application for either a special exception or conditional use has been filed with either the Zoning Hearing Board or Borough Council, as relevant, and the subject matter of such application would ultimately constitute either a “land development” or a “subdivision,” no change or amendment of the zoning, subdivision or other governing ordinance or plans shall affect the decision on such application adversely to the applicant and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed. Provided, further, should such an application be approved by either the Zoning Hearing Board or Borough Council, as relevant, the applicant shall be entitled to proceed with the submission of either land development or subdivision plans within a period of 6 months or longer or as may be approved by either the Zoning Hearing Board or Borough Council following the date of such approval in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed before either the Zoning Hearing Board or Borough Council, as relevant. If either a land development or subdivision plan is so filed within said period, such plan shall be subject to the provisions of §§508(1) through 508(4) of Act 247, the Municipalities Planning Code, §§10508(1), (4), as amended, and specifically to the time limitations of §508(4), 53 P.S. §10508(4), which shall commence as of the date of filing such land development or subdivision plan.

(Ord. 2008-1, 6/9/2008, §3015)