Established Evidentiary Standards for Special Exception Applications

The Legal Intelligencer

The Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101, et seq., (MPC), the state law establishing the framework for zoning and land use development regulations in Pennsylvania, authorizes a municipality to adopt a zoning ordinance containing provisions permitting uses of land by special exception administered by the zoning hearing board. Pennsylvania courts have consistently explained that a “special exception is neither special nor an exception,” but rather a use of property expressly contemplated by a local governing body to be consistent with the overall zoning plan and the health, safety and welfare of the community, as in Freedom Healthcare Services v. Zoning Hearing Board of New Castle, 983 A.2d 1286 (Pa. 2009).

The law in Pennsylvania concerning the evidentiary standards applicable to special exception applications is well-settled. An applicant for a special exception has both the initial presentation duty and the ultimate persuasion burden as to whether the application: falls within the special exception provision of the zoning ordinance; and satisfies the specific objective criteria set forth in the zoning ordinance, as in Bray v. Zoning Board of Adjustment, 410 A.2d 909 (Pa. 1980).

Once the applicant establishes that the objective criteria of the zoning ordinance have been met, “a presumption arises that the use is consistent with the health, safety and general welfare of the community,” as in MarkWest Liberty Midstream & Resources v. Cecil Township Zoning Hearing Board, 102 A.3d 549 (Pa. Commw. Ct. 2014). At this point, the burden shifts to objectors to present evidence and persuade the zoning hearing board that there is a high degree of probability that the proposed use will have a detrimental impact on the surrounding community above and beyond that which is normally generated by the type of use proposed. Thus, an applicant does not have the burden of establishing “general, nonspecific or nonobjective requirements,” an objector does. Although the ordinance terms can place the ultimate persuasion burden for these general requirements on the applicant, it cannot shift the initial presentation duty.

An objector’s burden cannot be met by a showing of mere speculation of possible harm, potential problems, or generalized fear, as in Manor Health Care v. Lower Moreland Township Zoning Hearing Board, 590 A.2d 65 (Pa. Commw. Ct. 1991). Thus, an objector’s own bald assertions, personal opinions, and perceptions are insufficient, as in Commonwealth v. Pittsburgh, 532 A.2d 12 (Pa. 1987).

The Commonwealth Court most recently reiterated this burden-shifting standard in Allegheny Tower Associates v. City of Scranton Zoning Hearing Board, 2017 Pa. Commw. LEXIS 4 (Pa. Commw. Ct. 2017), where it reversed a zoning hearing board’s denial of a special exception application for a communication tower. There, Allegheny Tower Association applied to the Scranton Zoning Hearing Board for a special exception to construct a 140-foot-high monopole communications tower in the city’s I-L Light Industrial District. The city’s zoning ordinance authorized commercial communications towers in the I-L district by special exception, subject to the satisfaction of specific objective and general standards and criteria. The board held a public hearing on the application, during which Allegheny Tower’s representative testified that the proposed tower would replace an existing 120-foot guy tower, the subject property is surrounded by commercial and industrial uses, and the proposed tower would meet all applicable setback and screening requirements, not disturb the surrounding neighborhood, and comply with all Federal Communications Commission regulations.

Once Allegheny Tower rested its case-in-chief, two objectors testified in opposition to the proposed tower. The objectors raised concerns related to the width of the proposed tower, noting that the existing guy tower is only two feet wide while the proposed tower will be approximately eight feet wide. Additionally, the objectors testified that the proposed tower may lead to increased flooding in the area, be unsightly to residential neighbors located in a near-by zoning district, cause a decline in property values, and fall on an adjacent gas station.

At the conclusion of the public hearing, the four-member board reached a split decision, resulting in a denial of the special exception application, as in Giant Food Stores v. Zoning Hearing Board of Whitehall Township, 501 A.2d. 353 (Pa Commw. Ct. 1985). In its written decision, the board explained that under the city’s zoning ordinance the tower is only permitted if the board finds adequate evidence in the hearing record that the zoning ordinance’s specific objective and general standards and criteria were met. The board concluded that Allegheny Tower did not satisfy one of the zoning ordinance’s general standards because it failed to prove that the proposed tower will not “significantly negatively affect the desirable character of an existing residential neighborhood.”

Allegheny Tower appealed the board’s denial to the trial court, which, without taking new evidence, affirmed. Allegheny Tower then appealed to the Commonwealth Court, arguing that the board improperly placed upon it the burden of proving that the proposed tower will not have a generally detrimental effect on the surrounding neighborhood, a burden that is to be borne by objectors, and the objectors, relying solely upon speculation and unfounded personal opinions, failed to satisfy their burden.

Agreeing with Allegheny Tower, the Commonwealth Court reversed. In doing so, the Commonwealth Court found that the board erred in concluding that Allegheny Tower bore the burden of proving a general standard—that the proposed tower will not significantly negatively affect the desirable character of the existing residential neighborhood—because the objector bore both the initial evidence presentation duty and the persuasion burden regard this general standard. The Commonwealth Court explained that “where a zoning ordinance has not expressly placed the burden of persuasion regarding general detrimental effects to the health, safety and welfare on an applicant, the applicant only has the burden of persuasion as to specific, objective requirements, while objectors have the burden as to all general detrimental effects.”

The Commonwealth Court concluded that the board’s reliance on the objectors’ testimony was insufficient to justify denial of Allegheny Tower’s special exception application. The court explained that objectors’ lay testimony, based solely on their personal opinions, bald assertions and speculation regarding the alleged adverse effects of the proposed tower—increased flooding risk, aesthetic concerns, decreased property values, fall risk—was insufficient to prove that the proposed tower would generate adverse effects greater than those normally expected from this type of use. The court concluded that the protection of aesthetics and property values alone cannot serve as the basis for a zoning hearing board to deny a special exception application, and the objectors offered no clear explanation as to how the proposed tower would exacerbate the pre-existing flooding issues or attempt to substantiate its concerns regarding the tower’s fall risk.

The Commonwealth Court’s decision in Allegheny Tower Associates is an excellent reminder for local governing bodies, zoning hearing boards and landowners with regard to the parties’ respective evidentiary burdens in special exception proceedings. These same principles apply to conditional-use applications heard by municipal governing bodies.

*Reprinted with permission from the 2/16/17 issue of The Legal Intelligencer. © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.

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