Monroe Land Invs. v. Zoning Bd. of Adjustment, 2018 Pa. Commw. LEXIS 97
Applicants have both the burden of proof and persuasion to convince a zoning hearing board that the proposed use satisfies the zoning ordinance’s objective requirements for special exceptions. Once satisfied, the burden shifts to objectors to prove the specific use has greater detrimental effects than those normally expected from the particular use, and that those impacts will pose a substantial threat to the health and safety of the community. Testimony by objectors cannot be merely speculative.
Applicant wished to open a Dunkin’ Donuts on property he owned (Property) that was located approximately three blocks from another Dunkin’ Donuts owned by Applicant. Under the City of Philadelphia’s Zoning Code (Zoning Code), the proposed use was considered a take-out restaurant and permitted by special exception in the relevant zoning district. Accordingly, Applicant sought a special exception, and the application was opposed by residents (Objectors) living in the surrounding neighborhood. Applicant’s expert testified that the use would not increase traffic congestion along the Property’s already busy five-lane arterial street. The expert’s testimony was not rebutted by Objectors. Instead, Objectors complained about the general traffic conditions in the area based on what they saw day-to-day and that traffic would worsen if the use was permitted. Objectors also argued that two nearby schools and nearby residences made the location a poor fit. The Philadelphia Zoning Board of Adjustment (ZBA) denied the special exception but the Court of Common Pleas reversed. On appeal, the Commonwealth Court upheld the lower court’s decision.
Per the Commonwealth Court, “[a] special exception is a conditionally permitted use, allowed by the legislature if specifically listed standards are met.” The initial burden of proof and persuasion is “on the applicant to prove that the proposed use meets all of the Zoning Code’s criteria and conditions applicable to the proposed use.” If that burden is met, the burden shifts to objectors to prove, without relying on “mere speculation as to possible harm,” the proposed use “does not conform with the purpose, spirit, and intent of the Zoning Code” and that “a high degree of probability [exists] that the proposed use will substantially affect the health, safety, and welfare of the community greater than what is normally expected from that type of use.” Here, Applicant’s expert offered scientific data and real traffic counts to prove the use would not substantially increase traffic. Objectors’ rebuttal, however, was mere speculation. Further, despite Objectors’ opinions that the location was poor for the take-out restaurant, City Council had already determined that the location was appropriate when it permitted take-out restaurants by special exception.
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