The Environmental Rights Amendment does not impose duties or obligations on private parties. The Eminent Domain Code is the exclusive procedure for challenging an entity’s condemnation power and public utility status.
Clean Air Council v. Sunoco Pipeline L.P., 2018 Pa. Commw. LEXIS 145 (April 30, 2018)
An objector waives the issue of an applicant’s standing to apply for zoning relief if the objector does not raise the issue at a zoning board hearing. A zoning board can conclude that an applicant is the equitable owner of the property based on the applicant’s testimony that he or she is the equitable owner of the property.
Liberties Lofts LLC v. Zoning Bd. of Adjustment, 2018 Pa. Commw. LEXIS 106 (April 2, 2018)
The language of a provision of a zoning ordinance is objective and specific if it requires an applicant to make certain identified submissions. The relevant section of the Nutrient Management Act only preempts a provision of a zoning ordinance if the operation requires a Nutrient Management Plan.
Berner v. Montour Twp. Zoning Hearing Bd., 176 A.3d 1058 (Pa. Commw. Ct. 2018)
Where there is a change in theory regarding a zoning application, the doctrine of res judicata and collateral estoppel do not apply. Additionally, seeking to convert a conforming use to a nonconforming use is inconsistent with the burden to show that property cannot be used for a permitted purpose.
Fowler v. City of Bethlehem Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 171 (May 22, 2018)
A property owner has standing to object to a land use decision if he or she has a substantial, direct and immediate interest in the decision. An association has standing, “even in the absence of injury to itself, if the association alleges that at least one of its members is suffering immediate or threatened injury as a result of the action challenged.” In addition, a notice of land use appeal should not be dismissed for not being concise, pursuant to Section 1003-A(a) of the Pennsylvania Municipalities Planning Code, where its factual background section is voluminous but it still clearly and concisely sets forth the grounds on which the appeal is based.
Friends of Lackawanna v. Dunmore Borough Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 157 (May 7, 2018)
The Pennsylvania Municipalities Planning Code permits municipalities to recover “all costs and attorney fees incurred as a result of the violation, which may encompass appeals from the enforcement notice.” Once the municipality establishes the relatedness of the fees, the burden shifts to the party contesting the fees to provide evidence establishing “a basis for segregating the hours spent on successful and unsuccessful claims.”
Bd. of Supervisors of Willistown Twp. v. Main Line Gardens, Inc., 2018 Pa. Commw. LEXIS 160 (May 9, 2018)
A variance may be granted under the de minimis doctrine when (1) only a minor deviation from the zoning ordinance is sought and (2) rigid compliance with the ordinance is not necessary for the preservation of the public interests sought to be protected by the ordinance. Where the de minimis doctrine applies, “there is no need to resort to any other theory of relief.” In addition, a dimensional variance that would create a nonconformity is distinguished from dimensional variances that would bring a property into conformance with a zoning ordinance.
Pequa Twp. v. Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 102
In certain circumstances, the holder of an option to lease is a “landowner” with standing to be an applicant for zoning approvals and relief. A person may intervene in a land use appeal at the court’s discretion where such person is “situated as to be adversely affected” by a decision of the court. Where it is claimed that an applicant did not make a good faith effort to find towers for collocation of antennas, comments by an objector’s attorney that other towers existed for collocation and that applicant did not analyze them are insufficient evidence that the applicant failed to act in good faith. For purposes of zoning approvals or relief where an ordinance requires that the applicant be licensed by the Federal Communications Commission (FCC), a licensed issued by the FCC for the party that will use the tower but that is not the applicant is not sufficient to prove the applicant is licensed by the FCC. Where an ordinance requires an applicant to demonstrate that a proposed tower or antenna comply with FCC standards governing human exposure to electromagnetic radiation, a conclusory letter from an employee associated with an applicant is insufficient evidence of compliance. Where the purpose of an application for a telecommunications tower and antennas is to fill a coverage gap, if expert testimony establishes that the antenna must be at a certain height to fill the coverage gap, evidence form objectors that a tower of the height required is unsafe from some other perspective (e.g., flight paths for planes) does not refute the evidence provided.
SBA Towers IX, LLC v. Unity Twp. Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 70
Applicants have both the burden of proof and persuasion to convince a zoning hearing board that the proposed use satisfies the zoning ordinance’s objective requirements for special exceptions. Once satisfied, the burden shifts to objectors to prove the specific use has greater detrimental effects than those normally expected from the particular use, and that those impacts will pose a substantial threat to the health and safety of the community. Testimony by objectors cannot be merely speculative.
Monroe Land Invs. v. Zoning Bd. of Adjustment, 2018 Pa. Commw. LEXIS 97
A claim that zoning restrictions render development of some use economically infeasible is a claim of de facto exclusion, not de jure exclusion. Where de facto exclusionary claims exist, analysis under Surrick is appropriate. In addition, where a zoning ordinance defines the term “apartment,” and other uses are individually restricted so as to preclude inclusion as an apartment nor included in the definition of apartment, the other uses are not apartments. However, a use permitting residential multifamily/apartment dwelling on upper floors and commercial uses on the first floor is an apartment use.
KS Dev. Co., L.P. v. Lower Nazareth Twp., 149 A.3d 105 (Pa. Commw. Ct. 2016)