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 email@example.com or by phone at 412-288-2226.
Trusted and Cost-Effective Business Law, Business Litigation and Estate Planning Attorneys and Counselors; Building Client Confidence™ with Businesses and Individuals Since 1975
Our firm offers individualized solutions and the highest quality, client-driven and cost effective legal services. Houston Harbaugh, P.C., is a well-known law firm in Pittsburgh, serving Pennsylvania, West Virginia and Ohio. Our diverse practice areas include Business Law, Business Litigation, Estate and Succession Planning, Intellectual Property Litigation and Prosecution, Employment and Labor, Employee Benefits, Oil and Gas, Landowner and Property Dispute Counseling and Litigation, Health Care, Environmental, Real Estate, Construction, Complex Tort and Catastrophic Injury Litigation, Insurance coverage and Bad Faith Law, Mediation, Arbitration and Special Master appointment work. As one of the 20 largest law firms in Pittsburgh, our lawyers serve clients on a regional and national basis.
We regularly represent regional, national and international insurance carriers in defense, insurance coverage, unfair trade practices and bad faith matters, and we issue opinions letters and coverage analyses for insurers. We defend designers, manufacturers and sellers in pharmaceutical, products and medical products liability matters and we litigate and try cases involving catastrophic injuries, industrial accidents, toxic torts, professional, engineering and architectural negligence, and agent and broker claims and lawsuits.
Why Houston Harbaugh, P.C.? The Answer Is Clear.
We are accomplished litigators with a strong track record of success in the courtroom and in jury trials. We design and manage business transactions, succession planning, banking and regulatory issues. Our firm has regularly been featured in the U.S. News “Best Lawyers”® rankings of Pittsburgh’s “Best Law Firms.” Our attorneys are also regularly nominated as “Best Lawyers” in this publication. In addition, many of our attorneys are consistently recognized in the annual national Super Lawyers peer review rankings, and our corporate practice has been selected as the winner of The Legal Intelligencer’s Best Law Firm Corporate Practices contest for the Midsize Firm category. Our property and landowner counseling and litigation practice in Oil and Gas and Real Estate is ranked at the top on a regional basis. We help clients to apply for, prosecute, audit, manage and protect intellectual property rights in patent, trademark, copyright and trade secrets. We are admitted to the USPTO and have experience in the TTAB. Some of our firm’s shareholders are Adjunct Professors of Law at the Duquesne University School of Law in litigation and intellectual property courses.
Helping You Achieve Your Goals For Over 40 Years
Since our inception as a health care practice in 1975, our attorneys have represented clients in state and federal courts in Pennsylvania, West Virginia, Ohio and throughout the nation. We have grown into a multi-disciplinary practice with the ability to handle complex business transactional and litigation matters. We counsel on estate and succession planning and on trust and guardianship matters. We have a strong employment and labor practice. We represent clients in trade secret counseling and federal Defend Trade Secret Act (DTSA) counseling and litigation. Our DTSALaw® practice group is well versed in this federal body of trade secret law. We counsel, draft, litigate and defend claims involving employment non-compete, restrictive covenants, non-disclosure agreements and breach of contract matters. We service clients in the collection of debts and in bankruptcy creditor matters. Houston Harbaugh litigates in Orphans and Probate courts for matters involving estates and trusts. We also provide mediation and arbitration services to parties involved in litigation and our lawyers are currently serving as court appointed special masters in the Federal Courts.
Contact us and Learn How We Can Help You and Your Business
For more information on how we can help you, call our Pittsburgh office at 412-281-5060. You can also reach us online.
DTSALaw®; Business Litigation; PSMN®; and PSMNLaw® are federally registered trademarks of Houston Harbaugh, P.C. and this website is copyright protected. All rights Reserved to Houston Harbaugh, P.C.. Building Client Confidence™. www.dtsalaw.com www.psmnlaw.com www.psmn.com