Marquise Inv., Inc. v. City of Pittsburgh, 11 A.3d 607 (Pa. Commw. Ct. 2010).
Where applicant demonstrates compliance with objective criteria in zoning ordinance, burden shifts to objectors to prove with a high degree of probability that proposed use will have abnormally adverse effects.
Applicant applied for a conditional use to develop a cabaret. Objectors who ran a recovery center eighty feet from the proposed cabaret opposed the application. The City denied the application. On appeal, trial court ruled that the City erred and reversed the decision. The Commonwealth Court affirmed the trial court’s decision. The Commonwealth Court restated long-held case law that because a governing body decided in its zoning ordinance to permit a certain conditional use if the use meets certain criteria, that use is presumed to not be harmful to the public welfare if the objective criteria in the zoning ordinance are met. Unless a zoning ordinances states otherwise, an applicant for a conditional use must provide evidence that it meets the objective criteria of a zoning ordinance, and if it does, the burden shifts to any objector to prove with a high degree of probability that the specific proposed use (Applicant’s proposed cabaret) will adversely affect the public welfare in a way not normally expected by the type of use in general (i.e. cabarets, generally).
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