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A special exception cannot be granted with conditions when all the requirements for the special exception are satisfied and there is no evidence of record supporting the imposition of the conditions.
Coal Gas Recovery, L.P. v. Franklin Township ZHB, (Pa. Commw. Ct. 2008).
Appellants owned land located in a Rural Agricultural district on which was located a “gob pipe vent” allowing methane gas to vent from a mine. Appellants wanted to construct a gas compressor over the vent to capture the gas and sell it. Appellants filed an application for a special exception of an “extractive industry” use. The Township gave Appellants temporary permission to install the compressor to test for compliance with noise level restrictions. Readings were taken from different locations and all of the noise levels met acceptable standards under the Zoning Ordinance.
Before the Zoning Hearing Board (ZHB), neighbors expressed concern over the possible noise and aesthetics. Another neighbor complained that they were buying property near the compressor and had concerns that her children or cattle could get too close to the compressor. The ZHB granted the special exception, but, at neighbors’ request, imposed a condition that it be placed within a suitable building.
On cross appeal to the trial court, testimony was presented which indicated that all noise levels satisfied the standards under the Zoning Ordinance; however, the trial court affirmed the imposition of the condition, however, reasoning that the objecting Neighbors had met the burden of proof necessary for the attachment of such a condition.
On appeal to the Commonwealth Court, Appellant owners of the mine argued that the trial court applied an improper standard of review and that the use complied with the express standards for a special exception. The Commonwealth Court agreed that the trial court erred when it failed to make its own findings of facts and conclusions of law because it took new evidence. The Court, however, did not find a remand necessary because the facts were not in dispute. Next, the Court found that there was no basis for imposing a condition because the gas compressor met all the requirements for a grant of special exception and there was no evidence in the record supporting the imposition of the condition--the neighbors’ concerns were purely speculative.
Opinion Date: March 20, 2008
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