Conditional Uses and Special Exceptions

Tower Access Grp., LLC v. S. Union Twp. Zoning Hearing Bd., 192 A.3d 291, (Pa. Commw. Ct. 2018), appeal denied 2019 Pa. LEXIS 1392.

When an applicant for a special exception provides sufficient evidence establishing that the application complies with an ordinance’s general requirements, an objector opposing the application has the burden to establish, to a high degree of probability, that the proposed use would be detrimental to the public health, safety, or welfare

Tower Access Grp., LLC v. S. Union Twp. Zoning Hearing Bd., 192 A.3d 291, (Pa. Commw. Ct. 2018), appeal denied 2019 Pa. LEXIS 1392.

Date of Decision: 7/30/18


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Gorsline v. Board of Supervisors of Fairfield Township, Pa. Commw. (2018)

Where a “savings clause” in a zoning ordinance permits a proposed use as a conditional use or special exception if it is similar to and compatible with other uses permitted in the zoning district, there must be sufficient findings of fact establishing that similarity and compatibility. Additionally, a proposed use is not similar to nor “of the same general character” of a “public service facility” use or an “essential services” use if the proposed use does not provide services to residents of the municipality.

Gorsline v. Bd. of Supervisors of Fairfield Twp., 186 A.3d 375 (Pa. Commw. Ct. 2018)

Date of Decision: 6/1/18


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Monroe Land Invs. v. Zoning Board of Adjustment, Pa. Commw. (2018)

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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SBA Towers IX, LLC v. Unity Township Zoning Hearing Board, Pa. Commw. (2018)

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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Berner v. Montour Township Zoning Hearing Board, Pa. Commw., (2018)

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., 120 A.3d 433 (Pa. Commw. Ct. 2015).

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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Marr Dev. Mifflinville, LLC v. Mifflin Township Zoning Hearing Board, Pa. Commw. (2017)

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 Board, Pa. Commw. (2017)

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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