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An appellate court is unlikely to disturb the granting of a variance where an objector offers no expert testimony or other evidence in rebuttal of an applicant’s evidence.
Candela v. Millcreek Twp. Zoning Hearing Board,
887 A.2d 335 (Pa. Cmwlth. 2005)
Amusement park owners applied for a building permit to construct a roller coaster on a site previously used for a roller coaster on Presque Isle next to Lake Erie. The township’s code enforcement officer denied the permit because the plan did not comply with setback requirements imposed by the Bluff Recession and Setback Act of 1980. Owners then applied for a “reasonable use” variance as provided for by the Act. Owner, together with a hydrologist and several engineers, testified in support of the variance; an adjacent landowner testified in opposition to the variance, but offered no expert testimony and no evidence directly rebutting owner’s evidence. Thus, the zoning hearing board granted the variance subject to several conditions. The objecting landowner appealed to the court of common pleas, which affirmed, and then to the Commonwealth Court, which also affirmed.
On appeal, the Commonwealth Court first found that the setback ordinance was a type of zoning ordinance, subject to the procedural safeguards of the MPC. However, because the Bluff Recession and Setback Act contained its own specific variance requirements, the Court concluded that the MPC’s general variance requirements were not applicable here.
Second, the Commonwealth Court declined to overturn the decisions because the objector failed to provide expert testimony or other evidence rebutting owner’s evidence that the lot had no economic viability other than the proposed use and that the roller coaster was a movable structure. In addition, the Court held, the Bluff Recession and Setback Act does not prohibit development on a bluff face; rather, the Act regulates development on the landward side of a bluff only.
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