Land & Renewables Connection

Municipal zoning codes in Pennsylvania often identify particular land uses as special exceptions in certain zoning districts. Although sometimes incorrectly called a “special exemption”, “[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.” Allegheny Tower Associates, LLC v. City of Scranton Zoning Hearing Board, 152 A.3d 1118, 1123 (Pa. Commw. Ct. 2017); Evans v. Zoning Hearing Board of Easttown Township, 396 A.2d 889, 891 (Pa. Cmmw. Ct. 1979).

In other words, a special exception is an allowed land use. But, in order to be entitled to a special exception, the party seeking special exception approval must go before the municipal zoning board. Nowicki v. Zoning Hearing Board of Borough of Monaca, 91 A. 3d 287 (Pa. Commw. Ct. 2014). At the municipal zoning hearing board, a special exception applicant must do two things. First, a special exception applicant has the duty to present evidence to the zoning board that the proposed special exception meets the zoning ordinance’s objective requirements for that land use. Greaton Properties v. Lower Merion Township, 796 A.2d 1038, 1045 (Pa. Commw. Ct. 2002). Second, the special exception applicant has the burden to persuade the municipal zoning board that the proposed special exception meets the zoning ordinance’s objective requirements for that land use. Greaton Properties at 1045.

If the special exception applicant satisfies its duty of presentation and burden of persuasion before the municipal zoning hearing board for its proposed special exception, a presumption arises that the use is consistent with the health, safety and general welfare of the community. Greaton Properties at 1045-46; Bray v. Zoning Board of Adjustment, 410 A.2d 909(Pa. Commw. Ct. 1980). At that point, “the burden then normally shifts to the objectors of the application to present evidence and persuade the [zoning hearing b]oard that the proposed use will have a generally detrimental effect.” Greaton Properties at 1046. “The evidence presented by objectors must show a high probability that the use will generate adverse impacts not normally generated by this type of use and that these impacts will pose a substantial threat to the health and safety of the community.” Greaton Properties at 1046.

A municipal ordinance can specifically place a burden on the special exception applicant to show that its proposed use will not have a detrimental effect on the community. Greaton Properties at 1046. But, in that case, objectors to the proposed special exception have the “initial presentation burden with respect to the general matter of the detriment to health safety, and general welfare” and the burden to persuade the zoning hearing board that the proposed special exception will not have a detrimental effect on the community. Greaton Properties at 1046. The record must still establish, to a high degree of probability that the use will generate adverse impacts not normally generated by this type of use and that these impacts will pose a substantial threat to the health and safety of the community. Greaton Properties at 1046.

The procedure to obtain, or to oppose, special exception approval is very similar to the procedure for conditional uses, which we have discussed before. In fact, “[a] conditional use is nothing more than a special exception which falls within the jurisdiction of the municipal governing body (here, the Board) rather than the zoning hearing board.”  Collier Stone Co. v. Township of Collier Board of Commissioners, 735 A.2d 768, 770 (Pa. Commw. Ct. 1999); Bailey v. Upper Southampton Township, 690 A.2d 1324 (Pa. Commw. Ct. 1997). As a result, special exception proceedings involve at least one public hearing and the presentation of testimony and evidence. 53 P.S. § 10908. But, unlike conditional uses which are considered by the governing body of the municipality, zoning boards have no legislative authority - zoning hearing boards only have quasi-judicial authority. Kennedy v. Upper Milford Township Zoning Hearing Board, 834 A.2d 1104, 1114–15 (Pa. 2003).

Special exceptions present unique considerations for property owners both seeking and opposing such approval. Property owners may be familiar with members of a municipal governing body through elections or participation at municipal meetings. Property owners often do not have the same experience with zoning boards because municipal zoning hearing board members are not elected, they are appointed by the governing body. 53 P.S. § 10903.

Although a zoning board is not a court, “it is nevertheless a governmental body charged with applying the law to zoning matters arising in its purview, and the principles of due process apply with the same force.” Pascal v. City of Pittsburgh Zoning Board of Adjustment, 259 A.3d 375, 385 (Pa. 2021). Zoning boards “perform formal fact-finding and deliberative functions in a manner similar to that of a court.” Kennedy at 1114. Indeed, Pennsylvania law contains provisions which “require zoning boards to function in the manner of a court, including the issuance of written final adjudications (with factual findings, legal conclusions, and express reasoning) based on public evidentiary hearings held on published and posted notice, in which all parties have the right to be represented by counsel and to present evidence and argument and to cross-examine adverse witnesses.” Kennedy at 1115.

Given the nature of special exception proceedings before municipal zoning hearing boards, it is important that property owners seeking special exception approval - or opposing such approval - are prepared to participate in the process in order to most effectively advance their positions. If you are seeking special exception approval, or opposing a special exception, Houston Harbaugh’s zoning and land use attorneys can assist. Contact Brendan A. O’Donnell by email at odonnellba@hh-law.com or by phone at 412-288-2226.