grant of a special exception in Pennsylvania

1987In Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523 , 410 A.2d 909 (1980), we set forth who bears the duty of going forward with evidence and the burden of persuasion (i.e. burden of proof) as to the specific and general conditions for the grant of a special exception.

1987In Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523 , 410 A.2d 909 (1980), we set forth who bears the duty of going forward with evidence and the burden of persuasion (i.e. burden of proof) as to the specific and general conditions for the grant of a special exception.

2017In Greaton Properties v. Lower Merion Township, 796 A.2d 1038 (Pa. Cmwlth. 2002), we similarly explained that an applicant for a proposed special exception use “has both the duty to present evidence and the burden of persuading the board that the proposed use satisfies the objective requirements of the ordinance for the grant of a special exception.” Id. at 1045-46 .

2017In Greaton Properties v. Lower Merion Township, 796 A.2d 1038 (Pa. Cmwlth. 2002), we similarly explained that an applicant for a proposed special exception use “has both the duty to present evidence and the burden of persuading the board that the proposed use satisfies the objective requirements of the ordinance for the grant of a special exception.” Id. at 1045-46 .

1988Maxwell’s argument goes astray, generally, however, in not recognizing that the grant of a special exception is a matter of right, albeit conditioned, see Archbishop O'Haras Appeal, 389 Pa. 35 , 131 A.2d 587 (1957), and specifically in not appreciating that Maxwell was denied a special exception only because he was not entitled to a variance on grounds that had nothing to do with the exercise of free speech or the content of the message that is placed on the sign.

1988Maxwell’s argument goes astray, generally, however, in not recognizing that the grant of a special exception is a matter of right, albeit conditioned, see Archbishop O'Haras Appeal, 389 Pa. 35 , 131 A.2d 587 (1957), and specifically in not appreciating that Maxwell was denied a special exception only because he was not entitled to a variance on grounds that had nothing to do with the exercise of free speech or the content of the message that is placed on the sign.

1972As aptly said by the court below, “. . . applicant, once having shown that his proposed use is within the provisions of the zoning ordinance, is entitled to the grant of a special exception unless there is ‘legally sufficient competent evidence to support a finding that the granting of such exception would be adverse to the public interest.’ Good Fellowship Ambulance Club’s Appeal, 406 Pa. 465, 475 .” An applicant is not required to present “substantial, serious and compelling” reasons in order to obtain a permit.

1972See Pennsylvania Municipalities Planning Code of July 31, 1968, P. L. 805, 55 PS §10913; Good Fellowship Ambulance Club’s Appeal, 406 Pa. 465 (1962).

1960This lack prevents an exception from being validly made: Devereux Foundation, Inc., Zoning Case, 351 Pa. 478 (1945), 41 A. 2d 744 ; Dooling’s Windy Hill v. Springfield Township Zoning Board, 371 Pa. 290 (1952), 89 A. 2d 505 ; Archbishop O’Hara’s Appeal, 389 Pa. 35 (1957), 131 A. 2d 587 . *63 Since the ordinance does not contain even the requirement of the need to promote the health, safety, morals, and general welfare of the borough, such as we held would sustain the grant of a special exception in the Archbishop O’Hara case, we need not consider this phase of the case further.

1960This lack prevents an exception from being validly made: Devereux Foundation, Inc., Zoning Case, 351 Pa. 478 (1945), 41 A. 2d 744 ; Dooling’s Windy Hill v. Springfield Township Zoning Board, 371 Pa. 290 (1952), 89 A. 2d 505 ; Archbishop O’Hara’s Appeal, 389 Pa. 35 (1957), 131 A. 2d 587 . *63 Since the ordinance does not contain even the requirement of the need to promote the health, safety, morals, and general welfare of the borough, such as we held would sustain the grant of a special exception in the Archbishop O’Hara case, we need not consider this phase of the case further.

2019Zoning Hearing Bd. , 176 A.3d 1058 , 1069 (Pa. Cmwlth.), appeal granted in part on other grounds , 190 A.3d 593 (Pa. 2018) (citing Manor HealthCare ).

2018Conditions must be reasonable and must [ have ] support in the record warranting the imposition of such conditions; otherwise, the imposition of conditions constitutes an abuse of discretion. [ 16 ] Sabatine v. Zoning Hearing B [ d. ] of Washington T [ wp. ] , 651 A.2d 649 , 655 (Pa. Cmwlth. 1994). '[T]he Board is not required to support the imposition of conditions; rather, the opposite is true- property owners are required to show that the imposition of conditions was an abuse of discretion .' Leckey v. Lower Southampton T [ wp. ] Zoning Hearing B [ d. ], 864 A.2d 593 , 596 (Pa. Cmwlth. 2004

2018Id. at 596 .

2018Conditions must be reasonable and must [ have ] support in the record warranting the imposition of such conditions; otherwise, the imposition of conditions constitutes an abuse of discretion. [ 16 ] Sabatine v. Zoning Hearing B [ d. ] of Washington T [ wp. ] , 651 A.2d 649 , 655 (Pa. Cmwlth. 1994). '[T]he Board is not required to support the imposition of conditions; rather, the opposite is true- property owners are required to show that the imposition of conditions was an abuse of discretion .' Leckey v. Lower Southampton T [ wp. ] Zoning Hearing B [ d. ], 864 A.2d 593 , 596 (Pa. Cmwlth. 2004

2018Co., LLC. , 17 A.3d 434 (Pa. Cmwlth. 2011) (objectors, who lived within a half-mile of a proposed windfarm consisting of 27 wind turbines, presented sufficient evidence to establish standing to appeal zoning officer's issuance of a permit for the project; because of their close proximity to the wind turbines, objectors would experience constant noise and potential dangers from ice throwing and shedding in freezing conditions); Grant (in addition to their procedural participation in the proceedings before the zoning hearing board, intervening property owners living within 6,600 feet of a propos

2016Tinicum Twp. v. Nowicki, 99 A.3d 586 , 589 n.6 (Pa. Cmwlth. 2014) (emphasis added). 3 Objectors’ first argument heading in their brief describes Objectors’ first issue as a challenge to the ZHB’s finding that Applicants provided sufficient evidence of statutory compliance for the grant of a special exception.

2010(Emphasis added.) Id. at 1099 .

2008Id. at 596 .

1998He refers to Nollan v. California Coastal Commission, 483 U.S. 825 , 107 S.Ct. 3141 , 97 L.Ed.2d 677 (1987), where a state commission regulating use of and access to beaches approved an application to tear down a small bungalow and replace it with a much larger residence but conditioned approval on the owners’ granting an easement for the public to pass along the beach, which would facilitate access to public beaches nearby.

1998He refers to Nollan v. California Coastal Commission, 483 U.S. 825 , 107 S.Ct. 3141 , 97 L.Ed.2d 677 (1987), where a state commission regulating use of and access to beaches approved an application to tear down a small bungalow and replace it with a much larger residence but conditioned approval on the owners’ granting an easement for the public to pass along the beach, which would facilitate access to public beaches nearby.

1998The Board relied on our decision in Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550 , 462 A.2d 637 (1983), where we reversed the Commonwealth Court’s decision reversing the zoning board’s grant of a use variance to a property owner who sought approval to change her existing three-story structure into a take-out shop on the first floor with a residence on the second and third floors.

1998The Board relied on our decision in Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550 , 462 A.2d 637 (1983), where we reversed the Commonwealth Court’s decision reversing the zoning board’s grant of a use variance to a property owner who sought approval to change her existing three-story structure into a take-out shop on the first floor with a residence on the second and third floors.

1994The *618 power to grant a special exception is vested in the local zoning hearing board, Hawk v. Zoning Hearing Board of Butler Township, 152 Pa.Commonwealth Ct. 48, 618 A.2d 1087 (1992), appeal denied, 535 Pa. 625 , 629 A.2d 1385 (1993); and the grant of a special exception is not an exception to a zoning ordinance but is a use permitted conditionally, one which is stated in the zoning ordinance to be granted or denied by the Board pursuant to express standards and criteria.

1993Shohola Township Board of Supervisors v. Bishop, 279 Pa.Superior Ct. 313, 421 A.2d 215 (1980) (conditions attached to grant of a variance); Babin v. City of Lancaster, 89 Pa.Commonwealth Ct. 527, 493 A.2d 141 (1985) (specifically stating that the municipality's authority to seek equitable relief extends to restraining noncompliance with conditions attached to the grant of a special exception).

1993Shohola Township Board of Supervisors v. Bishop, 279 Pa.Superior Ct. 313, 421 A.2d 215 (1980) (conditions attached to grant of a variance); Babin v. City of Lancaster, 89 Pa.Commonwealth Ct. 527, 493 A.2d 141 (1985) (specifically stating that the municipality’s authority to seek equitable relief extends to restraining noncompliance with conditions attached to the grant of a special exception).

1993Shohola Township Board of Supervisors v. Bishop, 279 Pa.Superior Ct. 313, 421 A.2d 215 (1980) (conditions attached to grant of a variance); Babin v. City of Lancaster, 89 Pa.Commonwealth Ct. 527, 493 A.2d 141 (1985) (specifically stating that the municipality's authority to seek equitable relief extends to restraining noncompliance with conditions attached to the grant of a special exception).

1993Shohola Township Board of Supervisors v. Bishop, 279 Pa.Superior Ct. 313, 421 A.2d 215 (1980) (conditions attached to grant of a variance); Babin v. City of Lancaster, 89 Pa.Commonwealth Ct. 527, 493 A.2d 141 (1985) (specifically stating that the municipality’s authority to seek equitable relief extends to restraining noncompliance with conditions attached to the grant of a special exception).

1991In Lower Merion Township v. Enokay, Inc., 427 Pa. 128 , 233 A.2d 883 (1967), the grant of a special exception for a place of public assembly was approved where the court of common pleas computed the square footage of the relevant assembly areas and the required number of parking spaces, excluding areas that were not places of assembly.

1991In Lower Merion Township v. Enokay, Inc., 427 Pa. 128 , 233 A.2d 883 (1967), the grant of a special exception for a place of public assembly was approved where the court of common pleas computed the square footage of the relevant assembly areas and the required number of parking spaces, excluding areas that were not places of assembly.