Agenda - Planning Commission - 12/02/2010

Home

October 25, 2010 I Volume 4 I No. 20 Zoning Bulletin They maintained that the Board could not use conditions to cure an application that did not satisfy the objective standards of the Code. . T-Mobile and the city intervened in the appeal. The trial court affirmed the Board's decision. It found that the con- ditions imposed by the Board cured T-Mobile's deficiencies. The Blancett-Maddocks again appealed. DECISION: Reversed. The Commonwealth Court of Pennsylvania held that the Board could not use conditions to cure T-Mobile's violations of the Code. • In so holding, the court explained that a special exception is a per- mitted use to which the applicant is entitled if: (1) "the applicant dem- onstrates compliance with the specific, objective requirements con- tained in a zoning ordinance"; and (2) "the zoning board determines that the use would not adversely affect the community." Here, T-Mobile did not meet two of the specific, objective criteria of the Code. Those failures could not be cured by conditions imposed by the Board because "[t]he proper function of conditions is to reduce the adverse impact of a use allowed under a special exception," Conditions are not meant to "enable the applicant to meet his burden of showing that the use which he seeks is one allowed by special exception." In other words, emphasized the court, "a condition is not to be used as a fudge factor by which to correct any legal shortcomings in an applica- tion for a special exception." In conclusion, the court noted that the Code allowed a special ex- ception to be granted only if the proposed use was determined to com- ply with all applicable requirements of the Code. Since T-Mobile's spe- cial exception application failed to demonstrate full compliance with requirements of the Code, the court concluded that the Board should not have granted it. See also: Elizabethtown/Mt. Joy Associates, L.P. v. Mount Joy Tp. Zoning Hearing Bd., 934 A.2d 759 (Pa. Commw. Ct. 2007), appeal denied, 598 Pa. 743, 953 A.2d 542 (2008). See also: Broussard v. Zoning Bd. of Adjustment of City of Pittsburgh, 589 Pa. 71, 907 A.2d 494 (2006). Case Note: T-Mobile had pointed to prior case law in which the court had upheld a zoning board grant of a special exception subject to conditions curing a code defect. In that case, the court had held that: [W]here an application "addresses all of the ordinance's prerequisites for the special exception sought, and reason- ably shows that the property owner is able to fulfill them 10 © 2010 Thomson Reuters ) 64