Citation:

Bray v. Zoning Board of Adjustment of Philadelphia,
410 A.2d 909 (Pa. Commw. 1980)

Case Details:

Philadelphia appealed to the Commonwealth Court after the lower court reversed the Philadelphia Board of Adjustment’s denial of a board certificate application–known elsewhere as a special exception application—to establish a roller-skating rink in a shopping center district. The Commonwealth Court affirmed the lower court, stating that the Board of Adjustment had committed an error of law and abused its discretion in denying the application. In reaching its decision, the Commonwealth Court clarified prior precedent relating to evidentiary “burdens of proof” associated with an application for a special exception.

The Commonwealth Court explained that an applicant for a special exception has both the duty of presenting evidence (duty) as well as the burden of persuasion (burden) in proving that its application meets the specific requirements for a special exception under the municipality’s zoning ordinance, including: 1) the threshold question whether the proposed use is classified as a use permitted as a special exception; 2) objective requirements generally applicable to any use or to uses within the district, e.g. parking, setbacks, etc.; and 3) objective requirements specifically applicable to the proposed use as a special exception.

As to the potential detrimental effects of the use (health, safety, welfare of the community), the objecting party has both the duty and the burden; however, an express ordinance provision shifting the burden (but not the duty) to the applicant is allowed. Finally, as to “general policy concerns,” such as ordinance provisions that require the use be in “harmony with the spirit, intent or purpose of the evidence,” the objector has both the duty and the burden. With respect to such concerns, an ordinance cannot shift the duty or the burden to the applicant.

In this case, the Board of Adjustment erred by requiring the applicant to prove that the intended use would not have a detrimental effect on the community’s traffic. To the contrary, the objector must demonstrate that the use would create “not only a likelihood, but a high degree of probability that the traffic increase would pose a substantial threat to the health and safety of the community.”

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