Siya Real Estate LLC v. Allentown City Zoning Hearing Bd., 2019 Pa. Commw. LEXIS 495 (May 31, 2019)
Evidence that a conditional use requirement is not objective includes (1) it requires a landowner to guess at what the ordinance aims to avoid, (2) the board can use its discretion in weighing all of the evidence presented, and (3) it concerns the general health, safety, and welfare of the community.
Landowner owned a three-story building (Property), where the first floor was historically used for commercial purposes (most recently, a tap room). The Property was in a residential district that permitted retail uses by special exception. Landowner filed an application for a special exception, seeking to convert the first floor of the Property into a retail store. At the Hearing, Landowner provided expert testimony regarding the limited total impact of the retail store compared to prior uses. Multiple residents (Objectors) testified about the increased traffic and limited parking that would result from the retail store. The Zoning Hearing Board (ZHB) denied Landowner’s special exception application, concluding that Landowner failed to satisfy the total impact provision in the zoning ordinance. According to the ZHB, the total impact provision required it to consider “whether the total impact upon the neighborhood and parking needed for all uses on the lot after the new use would be in operation would exceed the total impact of all uses on the lot that existed prior to the application.” The ZHB reasoned that the total impact from the proposed use would substantially exceed the total impact of prior uses on the lot because of the estimated customer activity.
Landowner appealed and the Trial Court affirmed the ZHB decision, holding that Landowner did not satisfy the total impact provision. The Court noted that Landowner did not present any evidence to show that the proposed use was either an increase or decrease in impact from prior uses, which in turn did not shift the burden to prove the total impact provision from Landowner to Objectors.
On further appeal, the Commonwealth Court stressed the importance of the issue, as a special exception applicant is required only to prove initially all specific, objective requirements. If the objective standards are proven, the objectors must show, to a high degree of probability, that the use will generate adverse impacts which are abnormal for the proposed use and which pose a substantial threat to the community. The Court concluded that the ZHB erred in placing the initial duty and burden to satisfy the total impact provision on Landowner because the “total impact” provision was not a specific, objective requirement for three reasons. First, “total impact” was not sufficiently defined to be considered a specific requirement, as it left Landowner to guess at the categories of impact the ordinance aimed to avoid. Second, the language of the total impact provision, specifically the direction that the board “consider” the total impact, implied that the Board was to use its discretion to weigh and evaluate the total impact on a subjective basis in conjunction with other requirements. Two different factfinders could come up with two different results after weighing the evidence; when this is possible, a requirement is not objective. Third, the nature of the provision dealt with general detrimental effects such as the health, safety, and welfare of the community. “The objectors bear the evidence presentation duty on general detrimental effects; the ordinance cannot shift that duty.” Because the total impact provision was not a specific, objective requirement, the initial burden to prove it could not be placed on Landowner.
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