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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY SANTARSIERO, FREEMAN, GEORGE, HOUGHTON, McILVAINE SMITH, MELIO, MUNDY, MURT AND YOUNGBLOOD, JUNE 30, 2009 |
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| REFERRED TO COMMITTEE ON LOCAL GOVERNMENT, JUNE 30, 2009 |
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| AN ACT |
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1 | Amending the act of July 31, 1968 (P.L.805, No.247), entitled, |
2 | as amended, "An act to empower cities of the second class A, |
3 | and third class, boroughs, incorporated towns, townships of |
4 | the first and second classes including those within a county |
5 | of the second class and counties of the second through eighth |
6 | classes, individually or jointly, to plan their development |
7 | and to govern the same by zoning, subdivision and land |
8 | development ordinances, planned residential development and |
9 | other ordinances, by official maps, by the reservation of |
10 | certain land for future public purpose and by the acquisition |
11 | of such land; to promote the conservation of energy through |
12 | the use of planning practices and to promote the effective |
13 | utilization of renewable energy sources; providing for the |
14 | establishment of planning commissions, planning departments, |
15 | planning committees and zoning hearing boards, authorizing |
16 | them to charge fees, make inspections and hold public |
17 | hearings; providing for mediation; providing for transferable |
18 | development rights; providing for appropriations, appeals to |
19 | courts and penalties for violations; and repealing acts and |
20 | parts of acts," further providing for validity of ordinance |
21 | and substantive questions. |
22 | The General Assembly of the Commonwealth of Pennsylvania |
23 | hereby enacts as follows: |
24 | Section 1. Section 916.1(c) and (g) of the act of July 31, |
25 | 1968 (P.L.805, No.247), known as the Pennsylvania Municipalities |
26 | Planning Code, reenacted and amended December 21, 1988 |
27 | (P.L.1329, No.170), is amended and the section is amended by |
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1 | adding subsections to read: |
2 | Section 916.1. Validity of Ordinance; Substantive |
3 | Questions.--* * * |
4 | (c) The submissions referred to in subsections (a) and (b) |
5 | shall be governed by the following: |
6 | (1) In challenges before the zoning hearing board, the |
7 | challenging party shall make a written request to the board |
8 | that it hold a hearing on its challenge. The request shall |
9 | contain the reasons for the challenge. Where the landowner |
10 | desires to challenge the validity of such ordinance and |
11 | elects to proceed by curative amendment under section 609.1, |
12 | his application to the governing body shall contain, in |
13 | addition to the requirements of the written request hereof, |
14 | the plans and explanatory materials describing the use or |
15 | development proposed by the landowner in lieu of the use or |
16 | development permitted by the challenged ordinance or map. |
17 | Such plans or other materials shall not be required to meet |
18 | the standards prescribed for preliminary, tentative or final |
19 | approval or for the issuance of a permit, so long as they |
20 | provide reasonable notice of the proposed use or development |
21 | and a sufficient basis for evaluating the challenged |
22 | ordinance or map in light thereof. Nothing herein contained |
23 | shall preclude the landowner from first seeking a final |
24 | approval before submitting his challenge. |
25 | (2) If the submission is made by the landowner to the |
26 | governing body under subsection (a)(2), the request also |
27 | shall be accompanied by an amendment or amendments to the |
28 | ordinance proposed by the landowner to cure the alleged |
29 | defects therein. |
30 | (2.1) All challenges submitted to either the governing |
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1 | body or the zoning hearing board must include a description |
2 | of the infrastructure required by the proposal, the |
3 | infrastructure currently available and proposals to provide |
4 | for the difference between what infrastructure is available |
5 | and what is needed, if any. Infrastructure shall include |
6 | roads, schools, storm water controls, police, fire, emergency |
7 | services, water, wastewater and recreation. No municipality |
8 | shall be required by curative amendment or substantive |
9 | challenge to provide for a use for which there is not |
10 | adequate infrastructure in existence or planned and |
11 | reasonably expected to be in place prior to the estimated |
12 | completion of the project which is the subject of the action. |
13 | The applicant may, at their option, commit to fulfilling |
14 | infrastructure needs to meet the requirements of this |
15 | section. |
16 | (2.2) All challenges submitted to either the governing |
17 | body or the zoning hearing board must describe and quantify |
18 | the extent of the identified need for the use and/or housing |
19 | types specified in the proposed remedy to the challenged |
20 | ordinance. Need shall be construed to mean an existing |
21 | shortage or future shortage that is reasonably expected to |
22 | occur within ten years of the application for a particular |
23 | use or housing type as identified and documented by the |
24 | relevant multimunicipal planning agency, regional planning |
25 | agency or county planning commission. No municipality shall |
26 | be required by substantive challenge or curative amendment to |
27 | provide for more of a particular use than for which exists an |
28 | identified and documented need. |
29 | (2.3) All challenges submitted to either the governing |
30 | body or zoning hearing board must be viable and able to be |
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1 | constructed within the limits of the natural resource |
2 | protections in effect at the time of the application or |
3 | accompanied by a separate challenge to those natural resource |
4 | protections. Substantive challenges or curative amendments |
5 | challenging the natural resource protection standards of a |
6 | municipality which are filed in conjunction with a curative |
7 | amendment or substantive challenge alleging ordinance |
8 | deficiencies relating to a specific use or housing type |
9 | shall: |
10 | (i) Be heard and fully adjudicated prior to the |
11 | commencement of hearings on use and/or housing type |
12 | issues. All relevant requirements and schedules specified |
13 | in sections 609 and 916 shall commence on the date that |
14 | the decision becomes unappealable by any party to the |
15 | proceedings. |
16 | (ii) Not be subject to any additional filing or |
17 | application fees if filed at the same time as an action |
18 | challenging an ordinance's validity on other grounds. The |
19 | applicant and the municipality shall evenly divide the |
20 | cost of a court reporter. |
21 | (iii) A municipality's resource protections shall be |
22 | considered to be valid and inviolable provided they |
23 | reflect current Federal, State or county standards and/or |
24 | are generally consistent with the standards of 35% of the |
25 | municipalities within the county and/or are supported by |
26 | substantial scientific evidence justifying their |
27 | existence. The burden of proof that a municipality's |
28 | environmental protection standards are unduly restrictive |
29 | shall lie with the applicant. |
30 | (3) If the submission is made to the governing body, the |
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1 | municipal solicitor shall represent and advise it at the |
2 | hearing or hearings referred to in section 909.1(b)(4). |
3 | (4) The governing body may retain an independent |
4 | attorney to present the defense of the challenged ordinance |
5 | or map on its behalf and to present their witnesses on its |
6 | behalf. |
7 | (5) Based upon the testimony presented at the hearing or |
8 | hearings, the governing body or the zoning board, as the case |
9 | may be, shall determine whether the challenged ordinance or |
10 | map is defective, as alleged by the landowner. If a challenge |
11 | heard by a governing body is found to have merit, the |
12 | governing body shall proceed as provided in section 609.1. If |
13 | a challenge heard by a zoning hearing board is found to have |
14 | merit, the decision of the zoning hearing board shall include |
15 | recommended amendments to the challenged ordinance which will |
16 | cure the defects found. In reaching its decision, the zoning |
17 | hearing board shall consider the amendments, plans and |
18 | explanatory material submitted by the landowner and shall |
19 | also consider: |
20 | (i) the impact of the proposal upon roads, sewer |
21 | facilities, water supplies, schools and other public |
22 | service facilities; |
23 | (ii) if the proposal is for a residential use, the |
24 | impact of the proposal upon regional housing needs and |
25 | the effectiveness of the proposal in providing housing |
26 | units of a type actually available to and affordable by |
27 | classes of persons otherwise unlawfully excluded by the |
28 | challenged provisions of the ordinance or map; |
29 | (iii) the suitability of the site for the intensity |
30 | of use proposed by the site's soils, slopes, woodlands, |
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1 | wetlands, flood plains, aquifers, natural resources and |
2 | other natural features; |
3 | (iv) the impact of the proposed use on the site's |
4 | soils, slopes, woodlands, wetlands, flood plains, natural |
5 | resources and natural features, the degree to which these |
6 | are protected or destroyed, the tolerance of the |
7 | resources to development and any adverse environmental |
8 | impacts; and |
9 | (v) the impact of the proposal on the preservation |
10 | of agriculture and other land uses which are essential to |
11 | public health and welfare. |
12 | (6) The governing body or the zoning hearing board, as |
13 | the case may be, shall render its decision within 45 days |
14 | after the conclusion of the last hearing. |
15 | (7) If the governing body or the zoning board, as the |
16 | case may be, fails to act on the landowner's request within |
17 | the time limits referred to in paragraph (6), a denial of the |
18 | request is deemed to have occurred on the 46th day after the |
19 | close of the last hearing. |
20 | * * * |
21 | [(g) Where, after the effective date of this act, a curative |
22 | amendment proposal is approved by the grant of a curative |
23 | amendment application by the governing body pursuant to section |
24 | 909.1(b)(4) or a validity challenge is sustained by the zoning |
25 | hearing board pursuant to section 909.1(a)(1) or the court acts |
26 | finally on appeal from denial of a curative amendment proposal |
27 | or a validity challenge, and the proposal or challenge so |
28 | approved requires a further application for subdivision or land |
29 | development, the developer shall have two years from the date of |
30 | such approval to file an application for preliminary or |
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1 | tentative approval pursuant to Article V or VII. Within the two- |
2 | year period, no subsequent change or amendment in the zoning, |
3 | subdivision or other governing ordinance or plan shall be |
4 | applied in any manner which adversely affects the rights of the |
5 | applicant as granted in the curative amendment or the sustained |
6 | validity challenge. Upon the filing of the preliminary or |
7 | tentative plan, the provisions of section 508(4) shall apply. |
8 | Where the proposal appended to the curative amendment |
9 | application or the validity challenge is approved but does not |
10 | require further application under any subdivision or land |
11 | development ordinance, the developer shall have one year within |
12 | which to file for a building permit. Within the one-year period, |
13 | no subsequent change or amendment in the zoning, subdivision or |
14 | other governing ordinance or plan shall be applied in any manner |
15 | which adversely affects the rights of the applicant as granted |
16 | in the curative amendment or the sustained validity challenge. |
17 | During these protected periods, the court shall retain or assume |
18 | jurisdiction for the purpose of awarding such supplemental |
19 | relief as may be necessary.] |
20 | (g) Where, after the effective date of this act, a curative |
21 | amendment proposal is approved by the grant of a curative |
22 | amendment application by the governing body pursuant to section |
23 | 909.1(b)(4) or a validity challenge is sustained by the zoning |
24 | hearing board pursuant to section 909.1(a)(1) or the court acts |
25 | finally on appeal from denial of a curative amendment proposal |
26 | or a validity challenge, and the proposal or challenge so |
27 | approved requires a further application for subdivision or land |
28 | development, the developer shall have two years from the date of |
29 | such approval to file an application for preliminary or |
30 | tentative approval pursuant to Article V or VII. The application |
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1 | for preliminary or tentative approval must reflect, in all |
2 | substantial regards, the curative amendment granted, sustained |
3 | or awarded by the governing body, zoning hearing board or the |
4 | courts inclusive of the use or housing types, location, site |
5 | layout, roads, number and/or size of units purposed and source |
6 | of utilities. A substantial change shall be deemed to have |
7 | occurred if there is any change in use or in the proposed |
8 | housing types, if the project location changes or additional tax |
9 | parcels are incorporated, if the site layout changes or roads |
10 | are altered in more than a de minimus manner to account for |
11 | field conditions, if the number of units to be built changes, if |
12 | the size of any proposed nonresidential buildings are altered by |
13 | 5% or more or if the proposed source of water and/or sewage |
14 | treatment is altered. |
15 | (g.1) Within the two-year period, no subsequent change or |
16 | amendment in the zoning, subdivision or other governing |
17 | ordinance or plan shall be applied in any manner which adversely |
18 | affects the rights of the applicant to proceed to complete the |
19 | proposed project as granted in the curative amendment or the |
20 | sustained validity challenge. Preliminary or tentative plans |
21 | submitted within the two-year period that do not correspond in |
22 | all substantial regards to the curative amendment awarded or |
23 | otherwise implemented shall be reviewed based on the zoning and/ |
24 | or other ordinances and regulations in effect as of the date of |
25 | the preliminary plan application and the curative shall be |
26 | considered as abandoned by the applicant upon the filing of the |
27 | application for the nonconforming plans. If the curative is |
28 | abandoned, no additional curative or substantive challenges |
29 | involved the same parcel, group of parcels or part thereof may |
30 | be submitted for a period of 36 months from the abandonment. The |
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1 | municipality shall: |
2 | (1) Retain the right to correct any defects in |
3 | ordinances identified in an abandoned curative or substantive |
4 | challenge in a manner consistent with the municipal |
5 | comprehensive plan. |
6 | (2) Not enter into agreements or stipulated settlements |
7 | or revise ordinances, specifically or ostensibly, to allow |
8 | for the approval of preliminary or final plans which vary in |
9 | any substantial regard per the standards of subsection (g) |
10 | from a granted or awarded curative or substantive challenge. |
11 | Legal challenges to the actions of a municipality alleging |
12 | noncompliance with this section may be brought by any |
13 | resident of the municipality or any person or entity impacted |
14 | by the plan and shall be brought to the court of common |
15 | pleas. The municipality and the applicant shall be equally |
16 | responsible for all of the reasonable legal expenses of the |
17 | challenger if the challenge is found to be valid. |
18 | (g.2) Upon the filing of the preliminary or tentative plan, |
19 | the provisions of section 508(4) shall apply. Where the proposal |
20 | appended to the curative amendment application or the validity |
21 | challenge is approved but does not require further application |
22 | under any subdivision or land development ordinance, the |
23 | developer shall have one year within which to file for a |
24 | building permit. Within the one-year period, no subsequent |
25 | change or amendment in the zoning, subdivision or other |
26 | governing ordinance or plan shall be applied in any manner which |
27 | adversely affects the rights of the applicant as granted in the |
28 | curative amendment or the sustained validity challenge. During |
29 | these protected periods, the court shall retain or assume |
30 | jurisdiction for the purpose of awarding such supplemental |
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1 | relief as may be necessary. |
2 | * * * |
3 | Section 2. This act shall take effect in 60 days. |
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