Curative Amendment (General)

• The curative amendment allows a land owner to challenge a municipality's zoning ordinance, on the basis that it does not provide for all uses or for a reasonable share or mix of a specific use or uses, and suggest a "cure" as an amendment to the zoning ordinance.
• The cure may be accepted, revised, or rejected.
The developer or landowner with standing may appeal the municipality's decision to the County Court of Common Pleas. If the county court may grant the developer site specific relief that permits the developer to use the land for the purpose that the curative amendment requested despite the municipality's zoning ordinance.

Landowner curative amendment:

• A landowner who desires to challenge on substantive grounds the validity of a zoning ordinance or map may submit in writing a curative amendment
• The governing body shall consider the curative amendment in accord with procedures specified in Section 609.1 [Pennsylvania Municipalities Planning Code] and other sections referenced therein
• The governing body may accept the curative amendment, with or without revision, or may adopt an alternative amendment to cure the defect(s)

Municipal curative amendment

• If a municipality determines its zoning ordinance is substantively invalid, it shall declare such invalidity and prepare and enact a curative amendment in accord with procedures specified in Section 609.2 [Pennsylvania Municipalities Planning Code]
• Upon initiation of a municipal curative amendment, the municipality is not required to entertain any landowner curative amendment
• After enactment, a municipality may not again use these procedures for 36 months (there are exceptions)

Why Curative Amendments

• The Municipalities Planning Code, enacted in 1968, included a "curative" amendment to ensure that municipalities did not use zoning to exclude people and land uses.
  • Assembly was worried that zoning might be used to provide for large-lot housing and exclude denser, less expensive units, as well as various commercial and industrial uses.
• the Pennsylvania courts have ruled that every municipality must provide its "fair share" of all uses, and more of them if the town is in the "path of growth."
  • This helped foster the rampant conversion of rural lands into sprawling, traffic-congested suburbs
  • The law has failed to serve its original purpose: to provide housing for all income levels in every community.
• Successful challengers under the curative amendment don't have to build what they propose
  • Developers often use favorable curative rulings to negotiate with townships for denser and more profitable upscale housing.
• Pennsylvania's rules are often absurd as applied to commercial and industrial uses.
  • They require every municipality to have a landfill, quarry, mall and industrial park, even if such uses are provided nearby.
• Various cures to the curative process have passed e.g., Senate Bill 300that:
  • Amend the code to clarify the authority of counties and municipalities to create Locally Designated Growth Areas as part of their comprehensive land-use plans;
  • Amend the code to encourage and enhance “Transferable Development Rights” as a tool to preserve open space and farmland, and to drive growth to areas where it is wanted. This voluntary program would empower property owners to realize the full value of their land by selling development rights to another owner;
  • Amend the code to give local governments greater ability to withstand legal challenges while effectively planning for growth in their communities;
  • Amend the code to facilitate consistent planning at the local, county and regional levels while retaining local control.
• There is hope that property owners rights and concerns will prevail. The Land Use and Zoning Practice Group are finding a trend of PA Courts denying curative amendments. However it takes courage of local government to persevere.

What Can be Considered by Supervisors

The governing body shall consider the curative amendments, plans and explanatory material submitted by the landowner and shall also consider:

• the impact of the proposal upon roads, sewer facilities, water supplies, schools and other public service facilities;
• 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;
• 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;
• 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
• the impact of the proposal on the preservation of agriculture and other land uses which are essential to public health and welfare.

Taken from

Pennsylvania Municipalities Planning Code Act of 1968, P.L.805, No.247 as reenacted and amended, Section 609.1(c)