Conditional Uses and Special Exceptions

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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Marquise Inv., Inc. v. City of Pittsburgh (2010)

Where applicant demonstrates compliance with objective criteria in zoning ordinance, burden shifts to objectors to prove with a high degree of probability that proposed use will have abnormally adverse effects.

Marquise Inv., Inc. v. City of Pittsburgh, 11 A.3d 607 (Pa. Commw. Ct. 2010).


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