The Commonwealth Court of Pennsylvania recently confirmed the standards by which an applicant is entitled to special exception approval, which could help applicant’s in preparing their cases before a zoning board.

In Monroe Land Investments v. Zoning Board of Adjustment and the City of Philadelphia, et al, 2018 WL 1462211, the Commonwealth Court affirmed the decision of the Philadelphia County Court of Common Pleas to reverse the City of Philadelphia Zoning Board of Adjustment’s decision to deny a request for a special exception for a take-out restaurant. In this case, the applicant, Monroe Land Investments (“Monroe”) filed an application with the City of Philadelphia Department of Licenses and Inspections (“L&I”) requesting a zoning/use registration permit to use its property as a Dunkin’ Donuts. Dunkin’ Donuts is classified as a take-out restaurant under the Philadelphia Zoning Code, which requires special exception approval from the Zoning Board of Adjustment (the “ZBA”) under the CMX-2 zoning regulations.

At the hearing before the ZBA, Monroe presented expert witnesses to provide testimony to satisfy the criteria to obtain a special exception. Several interested parties appeared at the hearing and presented testimony in opposition to the proposed Dunkin’ Donuts. The ZBA denied Monroe’s request for the special exception. Monroe appealed the ZBA’s decision to the Court of Common Pleas. The Court of Common Pleas reversed the ZBA’s decision and directed L&I to issue the zoning/use permit for the Dunkin’ Donuts. One of the interested parties appealed the Court of Common Pleas’ decision to the Commonwealth Court. The Commonwealth Court affirmed the Court of Common Pleas’ decision and made the following findings:

  • A special exception is not an exception to the zoning ordinance, but a use permitted conditionally, the application for which is to be granted or denied by the zoning hearing board pursuant to express standards and criteria.
  • The applicant bears the initial burden of proving that the proposed use will not detrimentally impact the neighborhood beyond what is normally expected from the proposed use pursuant to certain criteria.
  • If there are any objectors, they have the burden of proving that the proposed use will detrimentally impact the health, safety and welfare of the neighborhood beyond what is normally expected from the proposed use. In order to meet their burdern, they cannot merely speculate as to possible harm, but must show “a high degree of probability that the proposed use will substantially affect the health, safety and welfare of the community greater than what is normally expected from that type of use”. The burden placed on the objectors is a heavy one.
  • In this case, the applicant provided expert testimony, which was unrebutted; whereas, the objectors only provided speculative comments and opinion, without any expert testimony, which were insufficient to meet their burden.

The Commonwealth Court pointed to the fact that since the objectors only provided their opinion as to the impact the use would have on the neighborhood, without any expert testimony to rebut the applicant’s expert testimony, there was not substantial evidence in the record by which the ZBA could have been persuaded that the project is substantially likely to cause a detrimental impact on the neighborhood’s health, safety and welfare beyond that which might normally be expected from other take-out restaurants.

It is interesting for applicants to note that the standard is not whether the use itself would have a detrimental impact on the neighborhood, but whether the proposed use would have more of an impact compared to what would normally be expected for that type of use. In Monroe, the Commonwealth Court determined that the standard by which the ZBA was to consider the special exception was whether the proposed Dunkin Donuts would have more of an impact compared to other take-out restaurants. This case is helpful in preparing applicants in presenting their case for a special exception from a zoning board

Should you have any questions regarding obtaining special exceptions, or other zoning related questions, please feel free to contact me at cnase-poust@foxrothschild.com.