Citation:

Marr Dev. Mifflinville, LLC v. Mifflin Twp. Zoning Hearing Bd., 166 A.3d 479 (Pa. Commw. Ct. 2017)

Summary:
There is a presumption the governing body considered the effect of a special exception use when enacting the ordinance and determined that the use is consistent with the health, safety, and welfare of the community, so long as it meets the objective requirements of the ordinance. Provided it does, objectors carry the burden to rebut the presumption by presenting evidence establishing a high degree of probability the proposed use will substantially affect the health and safety of the community and that it will generate adverse effects greater than those normally expected from the relevant type of use.
Case Details:

Applicant sought a special exception to construct multiple duplexes in a suburban residential district that permits single-family detached dwellings and single-family attached dwellings limited to two dwelling units. The Township’s Zoning Hearing Board (ZHB) denied the application, finding Applicant failed to prove the proposed use was in the best interest of the surrounding community. Applicant appealed to the trial court which remanded to the ZHB holding it erred by placing the burden to prove general compatibility with the surrounding area on Applicant instead of Objectors. On remand, the ZHB, without taking additional evidence, found Objectors met their burden of proof with respect to general compatibility because the proposed use was more intense than surrounding uses, as it would double the number of dwelling units in the area. Applicant appealed and the trial court affirmed the decision of the ZHB, stating the ZHB’s decision was supported by substantial evidence. Applicant then appealed to the Commonwealth Court.

The Commonwealth Court first noted that special exceptions are uses expressly permitted by the ordinance. Therefore, it is presumed, because the use is permitted by the ordinance, the municipality “considered the effect of the use when enacting the ordinance and determined that the use is consistent with the health, safety, and welfare of the community so long as it meets the objective requirements of the ordinance.” Once an applicant establishes compliance, the burden shifts to objectors to rebut that presumption by proving the proposed use would detrimentally affect the public health, safety, and welfare of the community, or that it would conflict with the general policy of the ordinance. Objectors must show with “a high degree of probability that the proposed use will substantially affect the health, and safety of the community” by “rais[ing] specific issues concerning the proposal’s general detrimental effect on the community.” More specifically, to rebut the presumption, objectors must establish “the proposed use would generate adverse effects greater than that normally expected from this type of use.”

The stated purpose of the district at issue was “to promote and encourage a suitable and safe environment for family life by providing only for single family residences and residential support land uses.” Single-family attached dwellings such as the proposed duplexes are expressly provided for by the City’s Zoning Ordinance (Ordinance) and are under the definition of single family residences; therefore, the proposed use is in line with the policy behind the Ordinance. Further, Objectors did not present specific issues concerning the proposed use’s detrimental effect on the community. Rather, their challenges were speculative, and did not establish that any effect on the community would be greater on the community at large, than would be normally expected from the specific use. For example, while “an increase in the number of dwellings is going to have a corresponding increase in the amount of traffic, . . . an increase in traffic is generally not grounds for denial of a special exception unless there is a high probability that the proposed use will generate traffic not normally generated by that type of use and that the abnormal traffic threatens safety.”

Date of Decision: 7/3/17

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