Anter Assocs. v. Zoning Hearing Bd. of Concord Twp., 17 A.3d 467 (Pa. Commw. Ct. 2011).
Burden on applicant for special exception is to demonstrate compliance with objective criteria in the zoning ordinance.
Applicant applied to erect a 22-foot high, 300-square-foot billboard that was permitted by special exception in the relevant zoning district. The Zoning Hearing Board denied the application because Applicant failed to show that the billboard would not be contrary to the general criteria set forth in the Township’s Zoning Ordinance with respect to special exceptions. The Commonwealth Court affirmed the trial court’s determination that the Board was in error because the Zoning Ordinance only placed the burden of producing evidence indicating the application meets the criteria when such evidence is either requested by the Board or an objector brings up the criteria. Specifically, the Zoning Ordinance stated:
In any case where the [Board] requests that the applicant produce evidence relating to the criteria set forth in [the special exception sub-section] of this section or any other party opposing the application shall have established by evidence the possibility that an allowance of the application will have any of the effects listed in the special exception sub-section] of this section, the applicant’s burden of proof shall include . . . presenting credible evidence sufficient to persuade the [Board] that allowance of a special exception . . . will not violate . . . the criteria so placed in issue.
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