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A school district may be subject to municipal zoning regulation by requiring submission and approval of a special exception. Council Rock School District v Wrightstown Township Zoning Hearing Board, 709 A. 2d 453, Pa. Cmwlth. 1998. Cross Reference: MPC Section 912.1. Also, the Public School Code of 1949, as amended, 24 P.S. 1-101 et. seq. The courts have now clearly held that a municipality can not "zone out" public schools. In Pemberton Appeal, 434 Pa. 249, 252 A. 2d 597 (1969) the Supreme Court held that a municipality may not zone-out construction of a school in any District. The Commonwealth Court in Pemberton and a number of other cases has concluded that a municipality may regulate school construction via the standards and conditions in a zoning and/or subdivision and land development ordinance, but may not exclude schools in any given district. This case raises the issue of whether a school district may be required to go through the special exception process under a zoning ordinance in order to construct a school. Council Rock School District did apply for a special exception to build the school. The District, however, chose to provide the ZHB with little of the construction or use details as required by the zoning ordinance such as elevations, footprint of buildings, access roads, landscaping, method of sewage disposal, etc. As a result the zoning hearing board turned down the special exception application and the School District appealed. The School Board relied on the Pennsylvania School Code of 1949
to support its contention that it was entitled to approval without
compliance with the special exception provisions of the zoning
ordinance. The Board argued that since the zoning hearing board
is precluded from deciding "where" a school may go,
it had no discretion to deny the application. After a long discussion
on the history of questions of "pre-eminence" between
zoning and statutes authorizing state and local agencies to construct
facilities, the court concluded that the items regulated under
special exception did not "zone out" the school and
under MPC Section 912.1 the zoning hearing board is mandated to
"hear and decide requests for special exceptions in accordance
with the express standards and criteria set forth in the zoning
ordinance. Thus, the court held that the application and evidence
presented to the zoning hearing board "failed to demonstrate
compliance with the standards and criteria applicable to its request.
459.
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