Conditional Uses and Special Exceptions

Berner v. Montour Twp. Zoning Hearing Bd.

The language of a provision of a zoning ordinance is objective and specific if it requires an applicant to make certain identified submissions. The relevant section of the Nutrient Management Act only preempts a provision of a zoning ordinance if the operation requires a Nutrient Management Plan.

Berner v. Montour Twp. Zoning Hearing Bd., 176 A.3d 1058 (Pa. Commw. Ct. 2018)

Date of Decision: 1/4/18


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SBA Towers IX, LLC v. Unity Twp. Zoning Hearing Bd

In certain circumstances, the holder of an option to lease is a “landowner” with standing to be an applicant for zoning approvals and relief. A person may intervene in a land use appeal at the court’s discretion where such person is “situated as to be adversely affected” by a decision of the court. Where it is claimed that an applicant did not make a good faith effort to find towers for collocation of antennas, comments by an objector’s attorney that other towers existed for collocation and that applicant did not analyze them are insufficient evidence that the applicant failed to act in good faith. For purposes of zoning approvals or relief where an ordinance requires that the applicant be licensed by the Federal Communications Commission (FCC), a licensed issued by the FCC for the party that will use the tower but that is not the applicant is not sufficient to prove the applicant is licensed by the FCC. Where an ordinance requires an applicant to demonstrate that a proposed tower or antenna comply with FCC standards governing human exposure to electromagnetic radiation, a conclusory letter from an employee associated with an applicant is insufficient evidence of compliance. Where the purpose of an application for a telecommunications tower and antennas is to fill a coverage gap, if expert testimony establishes that the antenna must be at a certain height to fill the coverage gap, evidence form objectors that a tower of the height required is unsafe from some other perspective (e.g., flight paths for planes) does not refute the evidence provided.

SBA Towers IX, LLC v. Unity Twp. Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 70

Date of Decision: 2/16/18


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Monroe Land Invs. v. Zoning Bd. of Adjustment

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.

Monroe Land Invs. v. Zoning Bd. of Adjustment, 2018 Pa. Commw. LEXIS 97

Date of Decision: 3/26/18


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Dunbar v. Zoning Hearing Bd.

Once an applicant proves the proposed use satisfies the zoning ordinance’s objective requirements for special exceptions, the burden shifts to objectors to prove the specific use will have greater detrimental effects than those normally expected from the particular use, and that these impacts will pose a substantial threat to the health and safety of the community. Objectors must present more than unsubstantiated concerns or concerns that are merely vague generalities. In addition, doctrine of natural expansion permits a nonconforming use to be expanded in scope as the business increases in magnitude over the ground occupied by the business owner at the time the zoning ordinance was enacted.

Dunbar v. Zoning Hearing Bd., 144 A.3d 219 (Pa. Commw. Ct. 2016)

Date of Decision: 7/18/16


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EQT Prod. Co. v. Borough of Jefferson Hills

Where an applicant satisfies the objective requirements for a conditional use, such applicant is generally entitled to conditional use approval. Once the applicant meets these requirements, the burden shifts to objectors to prove detrimental effects to the public’s health, safety and welfare with “credible and sufficient evidence.” Further, if one is to justify the denial of a conditional use that meets the objective requirements of the ordinance, “the degree of harm . . . must be greater than that which normally flows from the proposed use.”

EQT Prod. Co. v. Borough of Jefferson Hills, 162 A.3d 554 (Pa. Commw. Ct. 2017)

Date of Decision: 5/18/17


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Marr Dev. Mifflinville, LLC v. Mifflin Twp. Zoning Hearing Bd.

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.

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

Date of Decision: 7/3/17


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Allegheny Tower Assocs., LLC v. City of Scranton Zoning Hearing Bd.

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 these impacts will pose a substantial threat to the health and safety of the community. Testimony concerning potential decline in property values is not, by itself, enough to meet this burden.

Allegheny Tower Assocs., LLC v. City of Scranton Zoning Hearing Bd., 152 A.3d 1118 (Pa. Commw. Ct. 2017)

Date of Decision: 1/10/17


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EDF Renewable Energy v. Foster Twp. Zoning Hearing Bd.

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.

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

Date of Decision: 11/22/16


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In re AMA/Am. Mktg. Ass’n

Where an ordinance requires a conceptual conditional use plan that indicates recorded easements, actions that meet such a requirement include, but are not limited to: (1) submitting a declaration that describes the easement and its placement; (2) submitting a copy of a subdivision plan that indicates the presence of an easement; or (3) submitting a document showing where the easement will be in relation to the proposed use. Title concerns or private property right issues are not zoning or land development matters and, therefore, must be heard by the courts.

In re AMA/Am. Mktg. Ass’n, 142 A.3d 923 (Pa. Commw. Ct. 2016)

Date of Decision: 6/14/16


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