Zoning Permits: Substantive Validity Challenges

A substantive validity challenge is a challenge to an aspect of a zoning ordinance, in the hopes of that aspect being changed or eliminated.

What It Is

A substantive validity challenge is when someone challenges an ordinance because they believe it was improperly put in place, lacks a rational basis, or assumes a power not exercisable by the governing body. They could argue it's wrong because it violates the Constitution (state or otherwise), is preempted by existing regulation, or a variety of other reasons. The result of a successful challenge is typically either the elimination of that particular aspect, or the adoption of a change or curative amendment.

What Industry Must Show in Order to Succeed

The challenger will have to present cases for different issues depending on which type of validity challenge they bring.

Some of different types of validity challenges are:

         Spot zoning

         Fair share

         Exclusionary

         Procedural

         Substantive due process

         Irrationality

         Equal protection

They are described more in the resource An Overview of Common Zoning Validity Challenges and Methods for Improving the Sensibility of Zoning Ordinances

Resources

         MPC: Section 916.1 "Validity of Ordinance; Substantive Questions."

         An Overview of Common Zoning Validity Challenges and Methods for Improving the Sensibility of Zoning Ordinances

         Citizen's Guide to the Permitting and Approval Process for Land Development in Pennsylvania(Development Guide)

People Involved

         Zoning Hearing Board

         The person or organization challenging the ordinance

         The public and any others with standing who choose to become a party to the hearing

Timeline

Application Submitted: The challenge is first submitted to the ZHB, if there is one. If it's a procedural challenge it must be brought to the ZHB within 30 days of the enactment of the ordinance.

The ZHB has 60 days to commence a validity hearing.

See also Challenges brought before the Governing Body (the Curative Amendment Process).

Decision/Issuance: The ZHB must issue a decision within 45 days of the hearing.

How to Challenge: This type of action is a challenge in itself. If you wanted to undo the outcome of substantive validity challenge you would likely have to appeal the decision to the Pennsylvania Court of Common Pleas.  

Opportunities for Public Engagement

The public may attend the hearings and parties with standing may participate.

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