EDF Renewable Energy v. Foster Twp. Zoning Hearing Bd., 150 A.3d 538 (Pa. Commw. Ct. 2016)

When faced with a special exception application, zoning hearing boards are to determine whether specific facts, circumstances and conditions exist which demonstrate compliance with the objective criteria for the special exception as set forth in the zoning ordinance.
Case Details:

Applicant applied for a permit to construct a number of wind turbines, roads, collection cables, and a substation on properties in a three different zoning districts within the Township. The Township’s Zoning Officer denied the request because wind turbines were not permitted in those districts. Applicant then applied for a special exception. A hearing on the special exception was held by the Township’s Zoning Hearing Board (ZHB). The ZHB denied the proposed use because it was not similar or compatible to the permitted uses in the districts.  Applicant appealed to the trial court, which denied the appeal because Applicant failed to establish compliance with the special exception requirements under the zoning ordinance. Specifically, Applicant failed to submit a plan depicting and labeling many of the features required to establish compliance with the objective criteria of the Township’s Zoning Ordinance (Ordinance). Applicant appealed to the Commonwealth Court.

The Commonwealth Court found Applicant failed to comply with the requirements of the Ordinance. Applicant had not submitted a site plan as required by the Ordinance and the evidence and testimony provided at the hearing was insufficient to establish compliance with the objective criteria of the Ordinance.  For example, while Applicant “referred to a map during the hearing, neither the map nor the testimony of [Applicant’s] witnesses satisfie[d] the Ordinance’s requirement for a site plan that reflects the location of all structures, existing and proposed; all open space areas; means of traffic access and all streets; contours of the site for each five feet of change of elevation; and the location of any residential structure within 200 feet of any property boundary line of the subject site.”

Date of Decision: 11/22/16

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