THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY SANTARSIERO, FREEMAN, GEORGE, HOUGHTON, McILVAINE SMITH, MELIO, MUNDY, MURT AND YOUNGBLOOD, JUNE 30, 2009

REFERRED TO COMMITTEE ON LOCAL GOVERNMENT, JUNE 30, 2009  

AN ACT

Amending the act of July 31, 1968 (P.L.805, No.247), entitled,

as amended, "An act to empower cities of the second class A,

and third class, boroughs, incorporated towns, townships of

the first and second classes including those within a county

of the second class and counties of the second through eighth

classes, individually or jointly, to plan their development

and to govern the same by zoning, subdivision and land

development ordinances, planned residential development and

other ordinances, by official maps, by the reservation of

certain land for future public purpose and by the acquisition

of such land; to promote the conservation of energy through

the use of planning practices and to promote the effective

utilization of renewable energy sources; providing for the

establishment of planning commissions, planning departments,

planning committees and zoning hearing boards, authorizing

them to charge fees, make inspections and hold public

hearings; providing for mediation; providing for transferable

development rights; providing for appropriations, appeals to

courts and penalties for violations; and repealing acts and

parts of acts," further providing for validity of ordinance

and substantive questions.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 916.1(c) and (g) of the act of July 31,

1968 (P.L.805, No.247), known as the Pennsylvania Municipalities

Planning Code, reenacted and amended December 21, 1988

(P.L.1329, No.170), is amended and the section is amended by

adding subsections to read:

Section 916.1.  Validity of Ordinance; Substantive

Questions.--* * *

(c)  The submissions referred to in subsections (a) and (b)

shall be governed by the following:

(1)  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 section 609.1,

his application to the governing body 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.

(2)  If the submission is made by the landowner to the

governing body under subsection (a)(2), the request also

shall be accompanied by an amendment or amendments to the

ordinance proposed by the landowner to cure the alleged

defects therein.

(2.1)  All challenges submitted to either the governing

body or the zoning hearing board must include a description

of the infrastructure required by the proposal, the

infrastructure currently available and proposals to provide

for the difference between what infrastructure is available

and what is needed, if any. Infrastructure shall include

roads, schools, storm water controls, police, fire, emergency

services, water, wastewater and recreation. No municipality

shall be required by curative amendment or substantive

challenge to provide for a use for which there is not

adequate infrastructure in existence or planned and

reasonably expected to be in place prior to the estimated

completion of the project which is the subject of the action.

The applicant may, at their option, commit to fulfilling

infrastructure needs to meet the requirements of this

section.

(2.2)  All challenges submitted to either the governing

body or the zoning hearing board must describe and quantify

the extent of the identified need for the use and/or housing

types specified in the proposed remedy to the challenged

ordinance. Need shall be construed to mean an existing

shortage or future shortage that is reasonably expected to

occur within ten years of the application for a particular

use or housing type as identified and documented by the

relevant multimunicipal planning agency, regional planning

agency or county planning commission. No municipality shall

be required by substantive challenge or curative amendment to

provide for more of a particular use than for which exists an

identified and documented need.

(2.3)  All challenges submitted to either the governing

body or zoning hearing board must be viable and able to be

constructed within the limits of the natural resource

protections in effect at the time of the application or

accompanied by a separate challenge to those natural resource

protections. Substantive challenges or curative amendments

challenging the natural resource protection standards of a

municipality which are filed in conjunction with a curative

amendment or substantive challenge alleging ordinance

deficiencies relating to a specific use or housing type

shall:

(i)  Be heard and fully adjudicated prior to the

commencement of hearings on use and/or housing type

issues. All relevant requirements and schedules specified

in sections 609 and 916 shall commence on the date that

the decision becomes unappealable by any party to the

proceedings.

(ii)  Not be subject to any additional filing or

application fees if filed at the same time as an action

challenging an ordinance's validity on other grounds. The

applicant and the municipality shall evenly divide the

cost of a court reporter.

(iii)  A municipality's resource protections shall be

considered to be valid and inviolable provided they

reflect current Federal, State or county standards and/or

are generally consistent with the standards of 35% of the

municipalities within the county and/or are supported by

substantial scientific evidence justifying their

existence. The burden of proof that a municipality's

environmental protection standards are unduly restrictive

shall lie with the applicant.

(3)  If the submission is made to the governing body, the

municipal solicitor shall represent and advise it at the

hearing or hearings referred to in section 909.1(b)(4).

(4)  The governing body 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.

(5)  Based upon the testimony presented at the hearing or

hearings, the governing body or the zoning board, as the case

may be, shall determine whether the challenged ordinance or

map is defective, as alleged by the landowner. If a challenge

heard by a governing body is found to have merit, the

governing body shall proceed as provided in section 609.1. If

a challenge heard by a zoning hearing board is found to have

merit, the decision of the zoning hearing board shall include

recommended amendments to the challenged ordinance which will

cure the defects found. In reaching its decision, the zoning

hearing board shall consider the amendments, plans and

explanatory material submitted by the landowner and shall

also consider:

(i)  the impact of the proposal upon roads, sewer

facilities, water supplies, schools and other public

service facilities;

(ii)  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;

(iii)  the suitability of the site for the intensity

of use proposed by the site's soils, slopes, woodlands,

wetlands, flood plains, aquifers, natural resources and

other natural features;

(iv)  the impact of the proposed use on the site's

soils, slopes, woodlands, wetlands, flood plains, 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; and

(v)  the impact of the proposal on the preservation

of agriculture and other land uses which are essential to

public health and welfare.

(6)  The governing body or the zoning hearing board, as

the case may be, shall render its decision within 45 days

after the conclusion of the last hearing.

(7)  If the governing body or the zoning board, as the

case may be, fails to act on the landowner's request within

the time limits referred to in paragraph (6), a denial of the

request is deemed to have occurred on the 46th day after the

close of the last hearing.

* * *

[(g)  Where, after the effective date of this act, a curative

amendment proposal is approved by the grant of a curative

amendment application by the governing body pursuant to section

909.1(b)(4) or a validity challenge is sustained by the zoning

hearing board pursuant to section 909.1(a)(1) or the court acts

finally on appeal from denial of a curative amendment proposal

or a validity challenge, and the proposal or challenge so

approved requires a further application for subdivision or land

development, the developer shall have two years from the date of

such approval to file an application for preliminary or

tentative approval pursuant to Article V or VII. Within the two-

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 section 508(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 one year within

which to file for a building permit. Within the one-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.]

(g)  Where, after the effective date of this act, a curative

amendment proposal is approved by the grant of a curative

amendment application by the governing body pursuant to section

909.1(b)(4) or a validity challenge is sustained by the zoning

hearing board pursuant to section 909.1(a)(1) or the court acts

finally on appeal from denial of a curative amendment proposal

or a validity challenge, and the proposal or challenge so

approved requires a further application for subdivision or land

development, the developer shall have two years from the date of

such approval to file an application for preliminary or

tentative approval pursuant to Article V or VII. The application

for preliminary or tentative approval must reflect, in all

substantial regards, the curative amendment granted, sustained

or awarded by the governing body, zoning hearing board or the

courts inclusive of the use or housing types, location, site

layout, roads, number and/or size of units purposed and source

of utilities. A substantial change shall be deemed to have

occurred if there is any change in use or in the proposed

housing types, if the project location changes or additional tax

parcels are incorporated, if the site layout changes or roads

are altered in more than a de minimus manner to account for

field conditions, if the number of units to be built changes, if

the size of any proposed nonresidential buildings are altered by

5% or more or if the proposed source of water and/or sewage

treatment is altered.

(g.1)  Within the two-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 to proceed to complete the

proposed project as granted in the curative amendment or the

sustained validity challenge. Preliminary or tentative plans

submitted within the two-year period that do not correspond in

all substantial regards to the curative amendment awarded or

otherwise implemented shall be reviewed based on the zoning and/

or other ordinances and regulations in effect as of the date of

the preliminary plan application and the curative shall be

considered as abandoned by the applicant upon the filing of the

application for the nonconforming plans. If the curative is

abandoned, no additional curative or substantive challenges

involved the same parcel, group of parcels or part thereof may

be submitted for a period of 36 months from the abandonment. The

municipality shall:

(1)  Retain the right to correct any defects in

ordinances identified in an abandoned curative or substantive

challenge in a manner consistent with the municipal

comprehensive plan.

(2)  Not enter into agreements or stipulated settlements

or revise ordinances, specifically or ostensibly, to allow

for the approval of preliminary or final plans which vary in

any substantial regard per the standards of subsection (g)

from a granted or awarded curative or substantive challenge.

Legal challenges to the actions of a municipality alleging

noncompliance with this section may be brought by any

resident of the municipality or any person or entity impacted

by the plan and shall be brought to the court of common

pleas. The municipality and the applicant shall be equally

responsible for all of the reasonable legal expenses of the

challenger if the challenge is found to be valid.

(g.2)  Upon the filing of the preliminary or tentative plan,

the provisions of section 508(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 one year within which to file for a

building permit. Within the one-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.

* * *

Section 2.  This act shall take effect in 60 days.