Many times, at hearings to obtain either special exceptions or conditional use approvals, applicants, for one reason or another, are under the impression that they simply have to call one or two witnesses to confirm, in a cursory manner, compliance with the requirements for the requested relief. Unfortunately, that type of “short cut” approach can come back to bite the applicant in the you know what. A recent case, titled Appeal by Grande Land, LP v. Manheim Township Zoning Hearing Board, is good instruction on the subject.
When presenting evidence at a hearing to confirm compliance with the requirements for a special exception or conditional use, it is important to bring the proper witnesses and documentation to confirm compliance with each and every requirements. Simply “saying that you will comply” or pointing to compliance on a plan, is not always the same as proving compliance in the hearing context. In Grande Land, the applicant filed an application for a special exception to construct an apartment complex containing 72 apartment units. At the hearing, the applicant called a surveyor to testify that all of the zoning ordinance requirements were satisfied. The ZHB denied the special exception on the basis that the applicant failed to submit evidence confirming (a) DEP’s approval of the proposed sewage disposal system, (b) the maximum length of each building did not exceed 128 feet, and (c) compliance with the 25% open space requirement. The trial court upheld the ZHB’s decision to deny the special exception and the Commonwealth Court then reviewed the matter. The Commonwealth Court found that the testimony of record did satisfy the requirements for a sewage system in a form to be approved by DEP and that the length of proposed buildings did not exceed 128 feet; however, the Commonwealth Court upheld the ZHB’s denial of the application for the special exception on the basis that the applicant failed to submit proper evidence confirming that the plan complied with the open space requirements. Specifically, the Commonwealth Court pointed to some very poor testimony by the surveyor where he stated that he could not “recall the specific requirements of the Ordinance or whether the detention basins were included as open space in the calculations.” That testimony, in and of itself, was the “kiss of death” to confirm compliance with the open space requirements.
We all know that hindsight is 20/20, but in this case, the applicant should have continued the hearing so that his surveyor, or, better yet, a licensed civil engineer, could have completed an open space plan and all calculations related thereto, then submitted such plan and calculations into the record at the continued hearing.
Interestingly, in reviewing this case, I recall an article that I wrote some eight years back on the same topic following a similar case rendered by the Commonwealth Court. My advice in that article, as in this article, is the same, as counsel for an applicant needs to have the proper witnesses and exhibits to show compliance with each and every requirement with their application for a special exception or conditional use. If at any point during the hearing, there is a question as to whether or not the application is in compliance with any such requirements, an applicant’s counsel should consider requesting a continuance in order to obtain the proper testimony and/or documentation to confirm same. Otherwise, an applicant can waste an awful lot of time and money chasing its tale on an appeal up to the Commonwealth Court and/or filing a new application after a denial is upheld as it was in this case.
If you should have any questions concerning this topic, or other zoning and land use matters, please feel free to contact Rob Gundlach at (215) 918-3636 or email@example.com.