Agenda - Planning Commission - 05/04/2017

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March 25, 2017 I Volume 11 I Issue 6 Zoning Bulletin via a generator (that was to run up to 45 minutes twice monthly and during power outages). Ultimately, the ZHB denied Verizon's request for a special exception. The ZHB noted that the Property was surrounded by residential neighborhoods and found that "the height of the proposed structure would not be in line with the character of those adjoining neighborhoods." The ZHB also recognized the concerns of the neighbors with regard to noise from an on -site generator. Verizon appealed. A trial court affirmed the ZHB's decision denying Verizon's Application. Verizon again appealed. On appeal, Verizon argued that substantial evi- dence did not support the ZHB's decision that Verizon's proposed use would substantially affect the community's health, safety, and welfare (a necessary finding to overcome a special exception use which is presumptively consistent with the health, safety and welfare of the community). DECISION: Judgment of trial court reversed, and matter remanded. The Commonwealth Court of Pennsylvania agreed with Verizon, holding that substantial evidence did not support the ZHB's decision that Verizon's proposed use would substantially affect the community's health, safety, and welfare. Accordingly, the court found that the ZHB erred in denying Verizon's special exception request. In so holding, the court noted that "[a] special exception is neither special nor an exception, but a use expressly contemplated that evidences a legislative decision that the particular type of use is consistent with the zoning plan and presumptively consistent with the health, safety and welfare of the community." "A special exception is a permitted use, to which the applicant is entitled if the applicant demonstrates compliance with the specific, objective requirements contained in a zoning ordinance and if the [ZHB] determines that the use would not adversely affect the community." Once the applicant (i.e., here, Verizon) shows that its application complies with the specific criteria delineated in the ordinance, it thus establishes that the proposal is presumptively consistent with the promotion of the public health, safety, and welfare, said the court. The burden, explained the court, then shifts to the objector (i.e., here, the Objectors) to overcome that presumption. "[A]n objec- tor must prove to a high degree of probability that the impact from the proposed use will substantially affect the health, safety and welfare of the community to a greater extent than would be expected normally from that type of use," said the court. Here, the court found that the Borough's Zoning Ordinance required that the ZHB grant an approval for a special exception if adequate evidence showed that the proposed use met both general and specific requirements (outlined in the Ordinance) for such use. "Although the ZHB did not expressly conclude that Verizon met its burden of proving that the proposed Facility would meet [the Zoning Ordinance's specific requirements related to fencing and bound- ary line setbacks,]" the court found that the ZHB must have so concluded "since the ZHB's conclusion was based solely upon the Facility's effect on the neighborhood, which is only relevant after the ZHB determined that Verizon met the Ordinance's objective special exception criteria." The court said that 6 © 2017 Thomson Reuters