granting of a special exception in Pennsylvania

2008Simply put, a concept plan is insufficient to warrant the granting of a special exception; rather, to be entitled to receive a special exception, the applicant must come forward with evidence detailing its compliance with the necessary requirements. ‘Evidence is not a “promise” that the applicant will comply because that is a legal conclusion the [ZHB] makes once it hears what the applicant intends to do and then determines whether it matches the requirements set forth in the ordinance.’ Edgmont Township, [ 154 Pa. Commw. 79 ,] 622 A.2d at 419 .

2006In the case of Edgmont Township v. Springton Lake Montessori School Inc., 154 Pa. Commw. 76, 79-80 , 622 A.2d 418, 419-20 (1993), the Commonwealth Court, in reviewing the granting of a special exception on condition that the school applicant bring its plan into compliance prior to occupancy, stated: “To be entitled to receive a special exception it was incumbent on the school to come forward with evidence detailing how it was going to be in compliance with the requirements necessary to obtain a special exception to operate a preschool in aR-1 zoning district.

1979See Devereux Foundation, Inc., Zoning Case, 351 Pa. 478 , 41 A.2d 744 (1945) ; Township of Haverford v. Spica, 16 Pa. Commonwealth Ct. 326 , 328 A.2d 878 (1978).

1979See Devereux Foundation, Inc., Zoning Case, 351 Pa. 478 , 41 A.2d 744 (1945) ; Township of Haverford v. Spica, 16 Pa. Commonwealth Ct. 326 , 328 A.2d 878 (1978).

2026Pikeland Twp., 520 A.2d 922, 924 (Pa. Cmwlth. 1987); accord Heck v. Zoning Hr’g Bd. for Harvey’s Lake Borough, 397 A.2d 15, 19 (Pa. Cmwlth. 1979) (cleaned up) (“While this Court has observed that the concept of general welfare of a community in zoning matters includes a consideration of aesthetics, we have also declared that aesthetics alone cannot support a determination that the general welfare of a community would be adversely affected by the granting of a special exception.”). 6 Common Pleas thus erred by reaching the merits of these arguments in its opinion.

2026Pikeland Twp., 520 A.2d 922, 924 (Pa. Cmwlth. 1987); accord Heck v. Zoning Hr’g Bd. for Harvey’s Lake Borough, 397 A.2d 15, 19 (Pa. Cmwlth. 1979) (cleaned up) (“While this Court has observed that the concept of general welfare of a community in zoning matters includes a consideration of aesthetics, we have also declared that aesthetics alone cannot support a determination that the general welfare of a community would be adversely affected by the granting of a special exception.”). 6 Common Pleas thus erred by reaching the merits of these arguments in its opinion.

2009This Court has established that: “objectors have the burden of production, as well as the burden of persuasion, where the statute does not ... provide otherwise, of establishing the existence of non-specific criteria, such as detriment to the public health, safety, or welfare, which would preclude the granting of a special exception.” Tuckfelt v. Zoning Bd. of Adjustment of City of Pittsburgh, 80 Pa.Cmwlth. 496 , 471 A.2d 1311, 1314 (1984) (citations omitted).

2009This Court has established that: “objectors have the burden of production, as well as the burden of persuasion, where the statute does not ... provide otherwise, of establishing the existence of non-specific criteria, such as detriment to the public health, safety, or welfare, which would preclude the granting of a special exception.” Tuckfelt v. Zoning Bd. of Adjustment of City of Pittsburgh, 80 Pa.Cmwlth. 496 , 471 A.2d 1311, 1314 (1984) (citations omitted).

2009“The objectors cannot meet their burden by merely speculating as to possible harm, but instead must show a high degree of probability that it will substantially affect the health and safety of the community.” Rural Area Concerned Citizens, Inc. v. Fayette County Zoning Hearing Bd., 166 Pa.Cmwlth. 520 , 646 A.2d 717, 722 (1994).

2009“The objectors cannot meet their burden by merely speculating as to possible harm, but instead must show a high degree of probability that it will substantially affect the health and safety of the community.” Rural Area Concerned Citizens, Inc. v. Fayette County Zoning Hearing Bd., 166 Pa.Cmwlth. 520 , 646 A.2d 717, 722 (1994).

1995Schatz v. New Britain Township Zoning Hearing Board of Adjustment, 141 Pa. Commw. 525, 531 , 596 A.2d 294, 297 (1991).

1995Schatz v. New Britain Township Zoning Hearing Board of Adjustment, 141 Pa. Commw. 525, 531 , 596 A.2d 294, 297 (1991).

1991“It is axiomatic ... that comprehensive plans do not have the effect of zoning ordinances but only recommend land uses which may or may not eventually be provided by a legally enforceable zoning ordinance.” FPA Corporation Appeal, 25 Pa.Commonwealth Ct. 221, 225, 360 A.2d 851, 854 (1976). *532 The Township also argues that the proposed use is not consistent with the spirit, purpose, and intent of the Ordinance, because the definition of institutional district implies that the district is to include only public or semi-public associations.

1977Where the City and protesting neighbors seek to prevent the granting of a special exception, when the zoning requirements have been met, they have the burden of proving that the “requested use in its normal operation would be injurious to the public health, safety and welfare.” Zoning Hearing Board v. Konyk, 5 Pa. Commonwealth Ct. 466, 470-71 , 290 A.2d 715, 718 (1972). 4 At the public hearing neighbors expressed their opinions and fears that a fra temity house would create greater parking problems and noise than would a single-family dwelling.' We do not doubt that it will.

1977Where the City and protesting neighbors seek to prevent the granting of a special exception, when the zoning requirements have been met, they have the burden of proving that the “requested use in its normal operation would be injurious to the public health, safety and welfare.” Zoning Hearing Board v. Konyk, 5 Pa. Commonwealth Ct. 466, 470-71 , 290 A.2d 715, 718 (1972). 4 At the public hearing neighbors expressed their opinions and fears that a fra temity house would create greater parking problems and noise than would a single-family dwelling.' We do not doubt that it will.