B.
Appointment.
(1)
Members of the Board shall be residents of the municipality, appointed
by the governing body. The Zoning Hearing Board shall consist of three
members, one of whom shall be designated to serve until the first
day of January following the adoption of the Zoning Ordinance, one
until the first day of the second January thereafter and one until
the first day of the third January thereafter. Their successors shall
be appointed on the expiration of their respective terms to serve
three years. Members of the Board shall hold no other public office
in the municipality, except that no more than one member of the Board
may also be a member of the Planning Commission.
(2)
Appointment to fill vacancies. The Board shall promptly notify the
governing body of any vacancies which occur. Appointments to fill
vacancies shall be for the unexpired term of the member or members
whose term or terms become vacant and such appointments to fill shall
be made in the same manner as the original appointment.
(3)
Removal. Any Board member may be removed for malfeasance, misfeasance
or nonfeasance in office or for other just cause by majority vote
of the governing body who appointed the member, 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.
(4)
Organization of Board. 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 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 by the Board as provided in Subsection D. The Board may make, alter and rescind rules and forms for its procedure consistent with ordinances of the municipality and laws of the commonwealth. The Board shall keep full public records of its business and shall submit a report of its activities to the governing body once a year.
C.
Compensation. Within the limits of funds appropriated by the governing
body, 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 governing body, but in no case shall
it exceed the rate of compensation authorized to be paid to the members
of the governing body.
D.
Hearings. The Board shall conduct hearings and make decisions in
accordance with the following requirements:
(1)
Notice shall be given to the public, the applicant, the local planning
agency, the Zoning Officer and such other persons as the governing
body shall designate by ordinance and to any person who has made timely
request for the same. Notices shall be given at such time and in such
manner as shall be prescribed by ordinance or, in the absence of ordinance
provision, by rules of the Board. The governing body may establish
reasonable fees, based on cost, to be paid by the applicant and by
persons requesting any notice not required by ordinance. In addition
to the notice provided herein, notice of said hearing shall be conspicuously
posted on the affected tract of land.
(2)
The hearings shall be conducted by the Board, or the 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 Board, but the parties
may waive decision or findings by the Board and accept the decision
or findings of the hearing officer as final.
(3)
The parties to the hearings shall be the municipality, any person
affected by the application who has made timely appearance of record
before the Board and any other person, including civic or community
organizations permitted to appear by the Board. The Board shall 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. 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 the production
of relevant documents and papers, including witnesses and documents
requested by the parties.
(4)
The parties shall have the right to be represented by counsel and
shall be afforded the opportunity to respond and present evidence
and cross-examine adverse witnesses on all relevant issues. Formal
rules of evidence shall not apply, but irrelevant, immaterial or unduly
repetitious evidence may be excluded.
(5)
The Board or the hearing officer, as the case may be, shall keep
a stenographic record of the proceedings and a transcript of the proceedings
and copies of graphic or written material received in evidence shall
be made available to any party at cost.
(6)
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 unless the parties are
afforded an opportunity to contest the material so noticed and shall
not inspect the site or its surroundings after commencement of hearings
with any party or his representative unless all parties are given
an opportunity to be present.
(7)
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. 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 this chapter, rules or regulations shall contain a reference to the provisions 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 Board shall make his report and recommendations available to the parties, 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 45 days after the decision of the hearing officer. Where the Board fails to render the decision within the period required by this subsection or fails to hold the required hearing within 60 days from the date of the applicant's request for a hearing, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant has agreed in writing to an extension of time. When a decision has been rendered in favor of the applicant because of the failure of the Board to meet or render a decision as hereinabove provided, the municipality shall give public notice of said decision within 10 days in the same manner as provided in Subsection D(1) of this section. Nothing in this subsection shall prejudice the right of any party opposing the application to urge that such decision is erroneous.
(8)
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 Board not 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.
E.
Board's functions.
(1)
Appeals from the Zoning Officer. The Board shall hear and decide
appeals where it is alleged by the appellant that the Zoning Officer
has failed to follow prescribed procedures or has misinterpreted or
misapplied any provision of a valid ordinance or map or any valid
rule or regulation governing the action of the Zoning Officer. Nothing
contained herein shall be construed to deny to the appellant the right
to proceed directly in court, where appropriate, pursuant to Pa.R.C.P.,
Sections 1091 to 1098, relating to mandamus.
(2)
Challenge to the validity of any ordinance or map. The Board shall
hear the challenges to the validity of a Zoning Ordinance or Map except
as indicated in Section 1003 and Subsection (1)(b) of Section 1004
of Act 247, as amended.[2] In all such challenges, the Board shall take evidence and make a record thereon as provided in Subsection D above. At the conclusion of the hearing, the Board shall decide all contested questions and shall make findings on all relevant issued of fact which shall become part of the record on appeal to the court.
[2]
Editor's Note: See now 53 P.S. § 11002-A and § 10916.1,
respectively.
(3)
Variances.
(a)
The Board shall hear requests for variances where it is alleged
that the provisions of the Zoning Ordinance 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
Board may grant a variance, provided that the following findings are
made where relevant in a given case:
[1]
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 the Zoning Ordinance in the neighborhood
or district in which the property is located.
[2]
That, because of such physical circumstances or conditions,
there is no possibility that the property can be developed in strict
conformity with the provisions of the Zoning Ordinance and that the
authorization of a variance is therefore necessary to enable the reasonable
use of the property.
[3]
That such unnecessary hardship has not been created by the appellant.
[4]
That the variance, if authorized, will not alter the essential
character of the neighborhood or district in which the property is
located nor substantially or permanently impair the appropriate use
or development of adjacent property nor be detrimental to the public
welfare.
[5]
That the variance, if authorized, will represent the minimum
variance that will afford relief and will represent the least modification
possible of the regulation in issue.
(b)
In granting any variance, the Board may attach such reasonable
conditions and safeguards as it may deem necessary to implement the
purposes of this Zoning Ordinance.
(4)
Special exceptions. Where this Zoning Ordinance allows for special
exceptions to be granted or denied by the Board pursuant to express
standards and criteria found herein, the Board shall hear and decide
requests for special exceptions in accordance with such standards
and criteria. In granting a special exception, the Board may attach
such reasonable conditions and safeguards, in addition to those expressed
in the ordinance, as it may deem necessary to implement the purpose
of the Pennsylvania Municipalities Planning Code (Act 247, as amended
by Act 93 and subsequent amendments)[3] and this Zoning Ordinance and subsequent amendments.
[3]
Editor's Note: See 53 P.S. § 10101 et seq.
(5)
Unified appeals. Where the Board has jurisdiction over a zoning matter pursuant to Subsection E(1), (2) and (3) above, the Board shall also hear all appeals which an applicant may elect to bring before it with respect to any Towanda Borough ordinance or requirement pertaining to the same development plan or development. In any such case, the Board shall have no power to pass upon the nonzoning issues but shall take evidence and make a record thereon as provided in Subsection D above. At the conclusion of the hearing, the Board shall make findings on all relevant issues of fact which shall become part of the record on appeal to the court.
F.
Parties appellant before board. Appeals under Subsection E(1) and proceedings to challenge an ordinance under Subsection E(2) may be filed with the Board in writing by the landowner affected, any officer or agency of the municipality or any person aggrieved. Requests for variance under Subsection E(3) may be filed with the Board by any landowner or any tenant with the permission of such landowner.
G.
Time limitations; persons aggrieved.
(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 the appropriate municipal officer,
agency or body if such proceeding is designed to secure reversal or
to limit the approval in any manner unless such person alleges and
proves that he had no notice, knowledge or reason to believe that
such approval had been given. If such person has succeeded to his
interest after such approval, he shall be bound by the knowledge of
his predecessor in interest.
(2)
The failure of anyone other than the landowner to appeal from any
adverse decision on a tentative or preliminary plan pursuant to Section
709 of Act 247, as amended,[4] or from an adverse decision by a Zoning Officer on a challenge
to the validity of an ordinance or map pursuant to Section 1005(b)
of Act 247, as amended,[5] shall preclude an appeal from a final approval, except
in the case where the final submission substantially deviates from
the approved tentative or preliminary approval.
H.
Stay of proceedings. Upon filing of any proceeding referred to in Subsection F and during its pendency before the Board, all land development pursuant to any challenged ordinance, order or approval of the Zoning Officer or of any agency or body and all official action thereunder shall be stayed unless the Zoning Officer or any other appropriate agency or body 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 of zoning appeals on petition after notice to the Zoning Officer or other appropriate agency or body. When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the Board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continue the proceedings before the Board. After the petition is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous and is for the purpose of delay. At the hearing, evidence may be presented on the merits of the case. After consideration of all evidence presented, if the court determines that the appeal is frivolous and is for the purpose of delay, it shall grant the petition. The right to petition the court to order 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. 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.
I.
General grant of power. The Zoning Hearing Board shall perform all
duties and have all the powers prescribed by the Pennsylvania Municipalities
Planning Code and as herein more particularly provided.
A.
Landowner. 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 a curative amendment to the governing
body together with a request for a curative amendment under Section
609.1 of the Pennsylvania Municipalities Planning Code, Act 247 of
1972, as amended.[1]
[1]
Editor's Note: See 53 P.S. § 10609.1.
B.
The submissions referred to in Subsection A shall be governed by the following:
(1)
The landowner shall make written request to the governing body that
it hold a hearing on his challenge. The request shall contain a short
statement reasonably informing the Board or the governing body of
the matters that are in issue and the grounds for the challenge. Such
statement shall contain a certification that the landowner did not
know at the time of the application that the municipality had resolved
to consider a particular scheme of rezoning by publication of notice
of hearings on a proposed Comprehensive Plan or proposed Zoning Ordinance
or otherwise or that the scheme of rezoning would be inconsistent
with the landowner's proposed use, provided that this rezoning scheme
had reached sufficient particularity to disclose that, if adopted,
it would cure the defect in the Zoning Ordinance attacked by the substantive
challenge.
(2)
The request may be submitted at any time after the ordinance or map
takes effect, but, if an application for a permit or approval is denied
thereunder, the request shall be made not later than the time provided
for appeal from the denial thereof. In such case, if the landowner
elects to make the request to the governing body and the request is
timely, the time within which he may seek review of the denial of
the permit or approval on other issues shall not begin to run until
the request to the governing body is finally disposed of.
(3)
The request shall be accompanied by plans and other 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 and 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 the light thereof. Nothing contained
herein shall preclude the landowner from first seeking a final permit
or approval before submitting his challenge to the Board or governing
body.
(4)
If the submission is made to the governing body under Subsection B(2) above, the request shall be accompanied by an amendment or amendments to the ordinance proposed by the landowner to cure the alleged defects therein.
(5)
Notice of the hearing required by Sections 609.1, 910 and 913.1 of
the Pennsylvania Municipalities Planning Code, Act 247 of 1972, as
amended,[2] whichever is applicable, 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 landowner's request, including the plans submitted pursuant to Subsection B(3) above and the proposed amendments, if any, submitted under Subsection B(4) above, may be examined by the public.
[2]
Editor's Note: See now 53 P.S. §§ 10609.1 and
10909.1. Section 913.1 was repealed 12-21-1988 by P.L. 1329, No. 170.
(6)
The Board or the governing body, as the case may be, shall hold a
hearing upon the landowner's request pursuant to Sections 609.1, 910
and 913.1 of the Pennsylvania Municipalities Planning Code, Act 247
of 1972, as amended, whichever is applicable, commencing not later
than 60 days after the request is filed, unless the landowner requests
or consents to an extension of time.
C.
The landowner's request for a curative amendment is denied when the
governing body notifies the landowner that it will not adopt the amendment
or when the governing body adopts another amendment which is unacceptable
to the landowner or when the governing body fails to act on the landowner's
request, in which event the denial is deemed to have occurred on the
30th day after the close of the last hearing on the request, unless
the time is extended by mutual consent between the landowner and the
municipality.
D.
Judicial relief.
(1)
In a zoning appeal, the court shall have power to declare any ordinance
or map invalid and set aside or modify any action, decision or order
of the governing body, agency or officer of the municipality brought
up on appeal, only if it determines that:
(a)
The municipality has not acted in good faith or made a bona
fide attempt in the adoption of its ordinances or maps, or any amendments
thereto, to meet the statutory and constitutional requirements for
nonexclusionary zoning; or
(b)
The ordinance imposes limitations that are not reasonably related
to the municipality's authority to determine its physical growth pattern,
protect the commonwealth's public natural resources, coordinate development
with the provision of public services or protect the character of
the community.
(2)
Court order.
(a)
If the court, in accordance with the standards provided in Subsection D(1) above, finds that an ordinance or map or a decision or order thereunder which has been brought up for review unlawfully prevents or restricts a development or use which has been described by the landowner through plans and other materials submitted to the governing body, agency or officer of the municipality whose action or failure to act is in question on the appeal, it may order the described development or use approved as to all elements or it may order it approved as to some elements and refer other elements to the governing body, agency or officer having jurisdiction thereof for further proceedings, including the adoption of alternative restrictions, in accordance with the court's opinion and order. In issuing its order, the court shall consider the following:
[1]
The location suitability of the site for the uses proposed,
including the general location of the site with regard to major roads,
sewer facilities, water supplies, schools and other public service
facilities or the Comprehensive Plan and Zoning Ordinance of the municipality
and the county, if they exist.
[2]
The impact of the proposal on regional housing needs, the transportation
network and other public services and facilities.
[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.
(b)
Upon motion by any of the parties or upon motion by the court,
the judge of the court may hold a hearing or hearings to receive additional
evidence or employ experts to aid the court to frame an appropriate
order. If the court employs an expert, the report or evidence of such
expert shall be available to any party, and he shall be subject to
examination or cross-examination by any party. He shall be paid reasonable
compensation for his services, which may be assessed against any or
all of the parties as determined by the court. The court shall retain
jurisdiction of the appeal during the pendency of any such further
proceedings and may, upon motion of the landowner, issue such supplementary
orders as it deems necessary to protect the rights of the landowner
as declared in its opinion and order.
(3)
The fact that the plans and other materials referred to in Subsection D(2) above are not in a form or are not accompanied by other submissions which are required for final approval of the development or use in question or for the issuance of permits shall not prevent the court from granting the definitive relief authorized in Subsection D(2), and the court may act upon preliminary or sketch plans by framing its decree to take into account the need for further submissions before final approval is granted.
(4)
No court shall grant or enforce relief with respect to a substantive
challenge without first making an affirmative finding of fact that
the landowner's certification required by Section 1004(2)(a) of Act
247 of 1972, as amended,[3] has in fact been made and is true and correct.
[3]
Editor's Note: See now 53 P.S. § 10916.1.
A.
Persons aggrieved by a use or development permitted on 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 report thereon under Section 910
of Act 247 of 1972, as amended.[1] The submission to the Board shall be governed by the following:
(1)
The aggrieved person shall submit a written request to the Board
that it hold a hearing on the challenge. The request shall contain
a short statement reasonably informing the Board of the matters that
are in issue and the grounds for the challenge.
(2)
The request shall be submitted within the time limitations prescribed
by Section 915 of Act 247, as amended.[2] In order not to unreasonably delay the time when a landowner
may secure assurance that the ordinance or map under which he proposes
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 said
Section 915 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 municipality. Such notice shall include a general
description of the proposed use or development and its location, by
some readily identifiable directive, and the place and times where
the plans and other materials may be examined by the public. The favorable
preliminary opinion of the Zoning Officer shall be deemed to be a
preliminary approval under Section 915 of Act 247, as amended, 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 now 53 P.S. § 10904.1.
(3)
The Board shall hold a hearing upon the aggrieved person's request
pursuant to Section 910 of Act 247 of 1972, as amended,[3] commencing not later than 60 days after the request is
filed. If a hearing has been held by the governing body covering the
same matters, at which a stenographic record has been taken, the Board
shall, upon motion of any party, accept said record as the record
in the case before the Board, but the Board shall not be precluded
from taking additional evidence, unless such evidence ought to be
excluded under Section 908(6) of Act 247, as amended.[4]
[1]
Editor's Note: See now 53 P.S. § 10909.1.
A.
A landowner who desires to file a zoning application or to secure
review or correction of a decision or order of the governing body
or of any officer or agency of the municipality which prohibits or
restricts the use or development of land in which he has an interest
on the grounds that such decision or order is not authorized by or
is contrary to the provisions of any ordinances or map shall proceed
as follows:
(1)
From a decision of the governing body or planning agency under a
subdivision or land development ordinance, the landowner may appeal
directly to court or to the Zoning Hearing Board under Section 913.1[1] in cases where that section is applicable. If the municipality
provides a procedure, formal or informal, for the submission of preliminary
or tentative plans, an adverse decision thereon shall, at the landowner's
election, be treated as final and appealable.
[1]
Editor's Note: Said section was repealed 12-21-1988 by P.L.
1329, No. 170.
(2)
From the decision of the governing body or planning agency denying
tentative approval of a development plan under Section 709(3) of Act
247, as amended,[2] or, if tentative approval has been granted from any adverse
decision on an application for final approval, the landowner may appeal
directly to court or to the Zoning Hearing Board under Section 913.1
of Act 247, as amended, in cases where that section is applicable.
[2]
Editor's Note: See 53 P.S. § 10709(a)(3).
C.
D.
Decisions and orders not involving the validity of an ordinance;
appeals by persons aggrieved.
(1)
Persons aggrieved by a use or development permitted on the land of
another who desire to secure review or correction of a decision or
order of the governing body or of any officer or agency of the municipality
which has permitted the same on the grounds that such decision or
order is not authorized by or is contrary to the provisions of an
ordinance or map shall first submit their objections to the Zoning
Hearing Board under Sections 909 and 915 of Act 247, as amended.[5] The submission shall be governed by the provisions of
Section 1005 of Act 247, as amended.[6]
(2)
Appeals to the court from the decision of the Zoning Hearing Board
may be taken by any party aggrieved.
A.
Zoning appeals. Zoning appeals shall include appeals from the decisions
of the Zoning Hearing Board and appeals upon reports of the Board
in proceedings to challenge the validity of the ordinance or map.
B.
Courts having jurisdiction. As used in this article, "Court" means
the Common Pleas Court of Bradford County.
C.
Who may appeal. Zoning appeals may be taken to Court by any party
before the Board or any officer or agency of the municipality.
D.
Time limitation upon appeal. All zoning appeals shall be filed not
later than 30 days after issuance of notice of the decision or report
of the Board.
E.
Commencement of zoning appeals.
(1)
Zoning appeals shall be entered as of course by the Prothonotary
or Clerk upon the filing of a zoning appeal notice which concisely
sets forth the grounds on which the appellant relies. The appeal notice
need not be verified. The zoning appeal notice shall be accompanied
by a true copy thereof.
(2)
Upon filing of a zoning appeal, the Prothonotary or Clerk shall forthwith
as of course send to the governing body, board or agency whose decision
or action has been appealed, by registered or certified mail, the
copy of the zoning appeal notice together with a writ of certiorari
commanding said governing body, board or agency, within 20 days after
receipt thereof, to certify to the Court its entire record in the
matter in which the zoning appeal has been taken, or a true and complete
copy thereof, including any transcript of testimony in existence and
available to the governing body, board or agency at the time it received
the writ of certiorari.
(3)
If the appellant is a person other than the landowner of the land
directly involved in the decision or action appealed from, the appellant,
within seven days after the zoning appeal is filed, shall serve a
true copy of the zoning appeal notice by mailing said notice to the
landowner or his attorney at his last known address. For identification
of such landowner, the appellant may rely upon the record of the municipality
and, in the event of good faith mistakes as to such identity, may
make such service nunc pro tunc by leave of court.
(4)
The filing of an appeal in court under this section shall not stay
the action appealed from, but the appellants may petition the court
having jurisdiction of zoning appeals for a stay. If the appellants
are persons who are seeking to prevent a use or development of the
land of another, whether or not a stay is sought by them, the landowner
whose use or development is in question may petition the court to
order the appellants to post bond as a condition to proceeding with
the appeal.
F.
Intervention. Within the 30 days first following the filing of a
zoning appeal, if the appeal is from a board or agency of the municipality,
the municipality and any owner or tenant of property directly involved
in the action appealed from may intervene as of course by filing a
notice of intervention, accompanied by proof of service of the same
upon each appellant or each appellant's counsel of record. All other
interventions shall be governed by the Rules of Civil Procedure.
G.
Transcript of board testimony. The appellant, before proceeding to
hearing or argument upon the zoning appeal, shall obtain and file
with the court a transcript thereof.
H.
Supersedeas. At any time during the pendency of a zoning appeal,
the court or a judge thereof may grant an order of supersedeas upon
such terms and conditions, including the filing of security, as the
court or judge thereof may prescribe.
I.
Hearing and argument of zoning appeal. If upon motion it is shown
that proper consideration of the zoning appeal requires the presentation
of additional evidence, a judge of the court may hold a hearing to
receive additional evidence or may remand the case to the body, agency
or officer whose decision or order has been brought up for review
or may refer the case to a referee to receive additional evidence
provided that appeals brought before the court pursuant to Sections
1004 and 1005 of Act 247, as amended,[1] shall not be remanded for further hearings before any
body, agency or officer of the municipality. If the record below includes
findings of fact made by the governing body, board or agency whose
decision or action is brought up for review and the court does not
take additional evidence or appoint a referee to take additional evidence
the findings of the governing body, board or agency shall not be disturbed
by the court if supported by substantial evidence. If the record does
not include findings of fact or if additional evidence is taken by
the court or by a referee, the court may make its own findings of
fact based on the record below as supplemented by the additional evidence,
if any.
(1)
Where the appeal is from the decision of the Board, the court may
reverse, affirm or modify the decision appealed.
(2)
Where the appeal involves a challenge to the validity of any ordinance or map, the court shall have power to declare the ordinance, map or any provisions thereof invalid and, in addition thereto, shall have power to enter judgment in favor of the landowner as provided in § 325-61 or to stay the effect of its judgment for a limited time to give the governing body an opportunity to modify or amend the ordinance or map in accordance with the opinion of the court.
[1]
Editor's Note: See now 53 P.S. § 10916.1.
J.
Costs. No costs shall be allowed against the Board unless it shall
appear to the court that the Board acted with gross negligence or
in bad faith or with malice.
K.
Appellate review. Appeals from decisions of courts made under this
chapter shall be taken to the Supreme Court of Pennsylvania in the
manner provided for other civil cases, but no such appeal shall be
entertained unless it is filed within 30 days after the date of entry
of the decision of the lower court.
