Hoppe v. ZHB of the Borough of Portland,
910 A.2d 756 (Pa. Commw. 2006).
An applicant for a special exception permit has the burden of demonstrating that the proposed use satisfies the objective criteria for the permit under the applicable zoning ordinance.
A resident homeowner in a medium density residential zone applied for a home occupation special exception in order to breed the sixteen dogs she kept in her home, after being cited for not having the required permit. At a hearing before the Board, Resident testified that the dogs were allowed throughout the house, but that the puppies were kept strictly in the downstairs basement where the breeding took place. Resident also testified that she did not employ anyone in her business, although the Board determined that Resident employed two non-family members to clean and disinfect the home and to let the dogs outside. Ultimately, the Board concluded that Resident failed to qualify for a home occupation special exception, and denied the application. The trial court denied Resident’s appeal, which was then appealed to the Commonwealth Court.
Pennsylvania law provides that a special exception is a use to which an applicant is entitled as a matter of right unless the zoning hearing board determines that the use would adversely affect the community. However, an applicant must first establish that the proposed use meets the requirements of the special exception. Under the Borough Zoning Ordinance, in relevant part, a home business was permitted if not more than one-half of the area of one floor, or an entire basement, was used for business purposes, and if not more than two non-family members were employed in the main building only.
The Commonwealth Court held that Resident’s home occupation used more space than was permitted, and that non-family members were not employed solely in the main building. The Court rejected Resident’s contention that breeding was confined to the basement, by noting that the dogs found on the first floor of the house contributed at different times to breeding activities. Also, the Court agreed with the trial court’s conclusion that non-family member employees that let dogs outside of the house are not limiting themselves to working in the main building. Accordingly, the Commonwealth Court affirmed the trial court’s decision.
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