[Ord. 3/29/1990A, § 2100]
The following types of appeals are set forth in Articles VI
and IX of the Pennsylvania Municipalities Planning Code (MPC), § 909.1,
53 P.S. § 10909.1 et seq., and each has its own procedures
as noted.
|
Type of Appeal
|
Agency of Jurisdiction
| |
|---|---|---|
|
A.
|
Validity of Ordinance Procedural Question
|
Zoning Hearing Board
|
|
B.
|
Validity of Ordinance Substantive Questions; Landowner Appeals
|
Zoning Hearing Board or Board of Supervisors
|
|
C.
|
Validity of Ordinance Substantive Questions; Person Aggrieved
Appeals
|
Zoning Hearing Board
|
|
D.
|
Appeal of the Zoning Officer's Determination No validity question
involved; Landowner Appeals
|
Zoning Hearing Board
|
|
E.
|
Appeal of the Zoning Officer's Determination, No validity question;
Persons Aggrieved Appeals
|
Zoning Hearing Board
|
[Ord. 3/29/1990A, § 2101]
Questions of an alleged defect in the process of enactment or
adoption of any ordinance or map shall be raised by an appeal taken
directly from the action of the Board of Supervisors to the Montgomery
County Court of Common Pleas not later than 30 days from the effective
date of this chapter or Map.
[Ord. 3/29/1990A, § 2102; as amended by Ord. 93-2,
2/8/1993, §§ 84, 85]
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:
B.
To the Board of Supervisors, together with a request for a curative amendment. The Board of Supervisors shall hold a hearing as provided in this section. The curative amendment shall be referred to the Planning Commission as per § 27-2708.
C.
The submissions referred to in Subsection 1A and B, above, shall be governed by the following (references to "the Board" shall mean Zoning Hearing Board or Board of Supervisors, depending on the type of appeal):
(1)
The landowner shall make a written request to the Board that
it hold a hearing on his 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. Such statement shall contain
a certification that the landowner did not know at the time of the
application that the Township has resolved to consider a particular
scheme or 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 this chapter attached by the substantive challenge.
(2)
The request may be submitted at any time after this chapter
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 Board of Supervisors
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 Board of Supervisors 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 material 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
notices of the proposed use of development and a sufficient basis
for evaluating the challenged ordinance or map in light thereof. The
applicant shall submit all impact statements as specified in Part
24, Impact Statements. Nothing contained herein shall preclude the
landowner from first seeking a final approval before submitting his
challenge.
(4)
If the submission is made to the Board of Supervisors, the request
shall be accompanied by an amendment or amendments to this chapter
proposed by the landowner to cure the alleged defects therein.
(5)
Notice of the hearing required by § 27-2709 shall include notice that the validity of this chapter 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 1C and the proposed amendments, if any, submitted under Subsection 1D may be examined by the public.
(6)
The Board shall hold a hearing upon the landowner's request
commencing not later than 60 days after the request is filed, unless
the landowner requests or consents in writing to an extension of time.
D.
Hearings pursuant to Subsection 1A or B shall be held by the Zoning Hearing Board or the Board of Supervisors, as the case may be. The Board shall conduct hearings and make decisions in accordance with the following requirements:
(1)
The parties to the hearing shall be New Hanover Township, any
persons affected by the application who have made timely appearance
of record before the Board, and any other persons, including representatives
of civic or community organizations permitted to appear by the Board.
The Board may require that all persons who wish to be considered parties
enter appearances in writing on forms provided for that purpose at
least 24 hours in advance of the hearing.
(2)
The Chairman or acting Chairman of the Board 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 required by the parties.
(3)
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 to cross-examine adverse witnesses on all relevant
issues.
(4)
The Board shall keep a stenographic record and transcript of
the proceedings, and copies of graphic or written material received
in evidence shall be made available to any party, at cost.
(5)
The Board shall not communicate, directly or indirectly, with
any party or his representatives in connection with any issue involved,
except upon notice and where all parties have the opportunity to participate.
The Board shall not take notice of any communication, report, staff
memoranda or other materials so noticed, and shall not inspect the
site or its surroundings after the commencement of hearings with any
party unless all parties are given an opportunity to be present.
(6)
The Board shall render a written decision, or render its findings
on the application, within 45 days after the last hearing before the
Board or hearing officer. Conclusions based on the provision of any
Act of the commonwealth, or ordinance, rule or regulation, shall contain
a reference to the provision relied upon and the reasons why the conclusion
is deemed appropriate in light of the facts found. Where the Board
fails to render its decision within 45 days, 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.
(7)
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
prior to the close of the hearings, the Board shall make a brief notice
of the decision or findings and a notice of the place where they may
examine the full decision or findings.
E.
After submitting a challenge to the Zoning Hearing Board or Board of Supervisors as provided in Subsection 1A and B, of this section, the landowner may appeal to court by filing same within 30 days after notice of the report of the Zoning Hearing Board is issued, or after the Board of Supervisors has denied the landowner's request for a curative amendment. Failure to appeal the denial of a request for a curative amendment shall not preclude the landowner from thereafter presenting the same validity questions by commencing a proceeding as provided in Subsection 1A of this section.
F.
For purposes of Subsection 1D(6), the landowner's request of a curative amendment is denied when the Board of Supervisors notifies the landowner that it will not adopt the amendment; or the Board of Supervisors adopts another amendment which is unacceptable to the landowner; or the Board of Supervisors fails to act on the landowner's request, in which event the denial is deemed to have occurred on the 45th day after the close of the last hearing on the request unless the time is extended by mutual consent between the landowner and the Township.
[Ord. 3/29/1990A, § 2103]
1.
Persons aggrieved by a use or development permitted on the land of another, by an ordinance or map or any provisions thereof, who desire to challenge its validity on substantive grounds shall submit their challenge to the Zoning Hearing Board as "Challenge to the Validity of Ordinance or Map," § 27-2608 of this chapter. The submission shall be governed by the following:
A.
A written request shall be submitted 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 in issue and the grounds
for the challenge.
B.
No person shall be allowed to file any proceeding with the Board
later than 30 days after an application for development, preliminary
or final, has been approved by an appropriate Township officer, agency
or body, if such proceeding is designed to secure reversal or to limit
the approval in any manner.
C.
The Zoning Hearing Board shall hold a hearing in accordance with
§ 27-2703.D.
D.
After submitting his challenge to the Board as provided in this section,
any party aggrieved may take the same to the Montgomery County Court
of Common Pleas, by appeal filed not later than 30 days after written
notice of the report of the Board is issued.
[Ord. 3/29/1990A, § 2104]
1.
A landowner who desires to file a zoning application or to secure
review or correction of a decision or order of the Board of Supervisors
or of any officer or agency of the Township 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 ordinance or map shall proceed as follows:
A.
From a decision of the Board of Supervisors or planning agency under a subdivision or land development ordinance, the landowner may appeal directly to court or to the Zoning Hearing Board under § 27-2609, Unified Appeals, in cases where that section is applicable.
B.
To the extent that the Board has jurisdiction of the same under § 27-2605, Interpretation of Zoning Officer's Decisions, all other appeals shall lie exclusively to the Zoning Hearing Board.
C.
Applications for variances or special exceptions shall be made exclusively
to the Zoning Hearing Board.
2.
All appeals to the Zoning Hearing Board pursuant to this section
shall be filed within 30 days after notice of the decision is issued;
or if no decision is made, within 30 days after it is deemed to have
been made under the provisions of this chapter and the Municipalities
Planning Code, 53 P.S. § 10101 et seq.
3.
The Zoning Hearing Board shall hold a hearing in accordance with
§ 27-2703.D.
[Ord. 3/29/1990A, § 2105]
Application shall be made directly to the Zoning Hearing Board under the provisions of § 27-2704, where such action involves a question of a determination by the Zoning Officer, Planning Commission or other Township official.
[Ord. 3/29/1990A, § 2106]
The Board of Supervisors may, from time to time, amend, supplement,
change, modify or repeal this chapter, including the Zoning Map. When
doing so, the Board of Supervisors shall proceed in the manner prescribed
in this chapter.
[Ord. 3/29/1990A, § 2107]
1.
Proposals for amendment, supplement, change, modification or repeal
may be initiated by the Board of Supervisors on its own motion, by
the Planning Commission or by petition of one or more owners of property
to be affected by the proposed amendment, subject to the following
provisions:
A.
Proposals Originated by the Board of Supervisors. The Board of Supervisors
shall refer every proposed amendment, supplement, change, modification
or repeal originated by the Board to the Township and County Planning
Commissions.
B.
Proposals Originated by the Planning Commission. The Planning Commission
may at any time transmit to the Board of Supervisors any proposal
for the amendment, supplement, change, modification or repeal of this
chapter.
C.
Proposals Originated by a Citizen's Petition. Each petition by one or more owners of property to be affected by a proposal for amendment, supplement, change or modification shall be signed and acknowledged, and submitted in writing to the Secretary of the Board of Supervisors. On receipt of said petition, the Board of Supervisors shall transmit a copy of the petition to the Planning Commission. The applicant shall submit the information required in Part 24, Impact Statement. For the purposes of this section, the area wherein a change of zoning is sought shall be not less than five acres or 1,000 feet of lineal frontage, whichever is less. This procedure is not intended to apply to the circumstances specifically provided for in § 27-306.
[Ord. 3/29/1990A, § 2209]
1.
No such amendment, supplement, change, modification or repealer shall
become effective until after a public hearing in relation thereto
at which parties in interest and citizens shall have an opportunity
to be heard. Public notice of each hearing to consider amendments
(except continued hearings) shall be given not more than 30 days and
the second publication shall not be less than seven days from the
date of the hearing. Such notice shall be published once each week
for two successive weeks in a newspaper of general circulation within
the Township. Such notice shall state the time and place of the hearing
and the particular nature of the proposed amendment, and shall reference
a place within the Township where copies of the proposed amendment
may be examined without charge or obtained for a charge not greater
than the cost thereof.
2.
If the proposed amendment involves a Zoning Map change, notice of
said public hearing shall be conspicuously posted by the Township
at points deemed sufficient by the Township along the perimeter of
the tract to notify potentially interested citizens. The affected
tract or area shall be posted at least one week prior to the date
of the hearing.
3.
The Board of Supervisors shall publish the proposed amendment once
in one newspaper of general circulation in the Township not more than
60 days nor less than seven days prior to passage. Publication of
the proposed amendment shall include either the full text thereof
or the title and a brief summary, prepared by the Township Solicitor
and setting forth all the provisions in reasonable detail.
4.
In the event substantial amendments are made in the proposed amendment,
before voting upon enactment, the Board of Supervisors shall, at least
10 days prior to enactment, readvertise in one newspaper of general
circulation in the Township, a brief summary setting forth all the
provisions in reasonable detail together with a summary of amendments.
[Ord. 3/29/1990A, § 2210]
1.
In the case of an amendment other than prepared by the Township Planning
Commission, the Board of Supervisors shall submit such amendment to
the Township Planning Commission and the Montgomery County Planning
Commission at least 30 days prior to the hearing on such proposed
amendment to provide the Planning Commissions an opportunity to submit
recommendations.
2.
In the case of an amendment prepared by the Township Planning Commission,
the Board of Supervisors shall submit such amendment to the Montgomery
County Planning Commission at least 30 days prior to the hearing on
such proposed amendment to provide the County Planning Commission
an opportunity to submit recommendations.
3.
The recommendations of the Planning Commission shall be made to the
Board of Supervisors within 45 days and action on the proposed amendment
shall not be taken until such recommendations are made. If, however,
the Planning Commission fails to act within 45 days, the Board of
Supervisors shall proceed without the recommendations. The recommendations
of the Township Planning Commission shall include a specific statement
as to whether or not the proposed amendment is in accordance with
the objectives of the New Hanover Township Comprehensive Plan.
