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decided: January 17, 1980.


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Dana S. Bray and William L. Feeley v. Zoning Board of Adjustment, No. 4340 May Term, 1977.


Steven H. Kitty, Assistant City Solicitor, with him Sheldon L. Albert, City Solicitor and Barbara S. Gilbert, Deputy City Solicitor, for appellant.

Frank M. Jackson, with him Harry Schwartz, Eugene E. Kellis, and Richelle D.R. Hittinger, for appellee.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Craig

[ 48 Pa. Commw. Page 524]

The City of Philadelphia has brought this zoning appeal from a decision of the Court of Common Pleas of Philadelphia County which reversed the Philadelphia Zoning Board of Adjustment's denial of an application to establish a roller-skating rink in an Area Shopping Center District under Section 14-309(2)(j) of the Philadelphia Zoning Code (code). That section allows, by board certificate, a "use of the same general character" as the uses absolutely permitted in that district. There is no dispute that a roller rink, as a kind of use, falls properly within that threshold definition.

[ 48 Pa. Commw. Page 525]

We have recognized that a board certificate in Philadelphia's lexicon is the same as a special exception elsewhere. Marwood Rest Home, Inc. v. Zoning Board Page 525} of Adjustment, 22 Pa. Commonwealth Ct. 567, 349 A.2d 800 (1976); Zoning Board of Adjustment of Philadelphia v. Liberty Bell Medical Center, 17 Pa. Commonwealth Ct. 213, 331 A.2d 242 (1975).

In the Philadelphia code, Section 14-1803(1) states general "criteria" for the granting of all board certificates. In Liberty Bell Medical Center, supra, 17 Pa. Commonwealth Ct. at 215, 331 A.2d at 243, we quoted that subsection in full, reciting items (a) through (h) concerning, in summary: (a) traffic congestion, (b) fire and safety danger, (c) overcrowding or concentration of population, (d) impairment of light and air to adjacent property, (e) adverse effect on transportation or other community facilities, (f) detriment to public health, safety or general welfare, (g) harmony with spirit and purpose of the zoning code, and (h) adverse effect upon redevelopment plan or comprehensive plan.

Because subsection (2) of Section 14-1803 states that "the applicant shall have the duty of presenting evidence relating to the criteria set forth herein," the court below astutely perceived that a proper analysis here depends upon distinguishing between the "burden" of "going forward with evidence" and the burden of proof. We agree that we therefore must take note of Professor Wigmore's rational distinction between the "burden of the risk of non-persuasion" (persuasion burden) as to establishing a fact-in-issue by a preponderance of the weight of evidence, and, on the other hand, the burden or duty of "going forward with the evidence" (evidence presentation duty) with respect to a fact-in-issue. The former burden never shifts because it is operative only after the whole case is in before the trier of fact; it remains where the substantive law places it, conventionally as to a plaintiff's basis of claim or an affirmative defense. The evidence presentation duty, although it usually falls initially

[ 48 Pa. Commw. Page 526]

    upon the party who has the persuasion burden, may nevertheless shift from one party to another through the operation of logic, presumptions and rules of law.*fn1

As to special exceptions, our cases have repeatedly made clear that the applicant has both the persuasion burden and the initial evidence presentation duty to show that the proposal complies with the "terms of the ordinance" which expressly govern such a grant. Lower Merion Township v. Enokay, Inc., 427 Pa. 128, 233 A.2d 883 (1967) and cases cited therein; Sites v. West Goshen Zoning Hearing Board, 5 Pa. Commonwealth Ct. 78, 287 A.2d 909 (1972); Berlant v. Lower Merion Township Zoning Hearing Board, 2 Pa. Commonwealth Ct. 583, 279 A.2d 400 (1971). This rule means the applicant must bring the proposal within the specific requirements expressed in the ordinance for the use (or area, bulk, parking or other approval) sought as a special exception. Those specific requirements, standards or "conditions" can be classified as follows:

1. The kind of use (or area, bulk, parking or other approval) -- i.e., the threshold definition of what is authorized as a special exception;

2. Specific requirements or standards applicable to the special exception -- e.g., special setbacks, size limits; and

3. Specific requirements applicable to such kind of use even when not a special exception -- e.g., setback limits or size maximums or parking requirements applicable to that type of use whenever allowed, as a permitted use or otherwise.

Every special exception will always involve item 1 above and must involve item 2 if it is not to involve an unconstitutional delegation of legislative power.

[ 48 Pa. Commw. Page 527]

    as part of the threshold persuasion burden and presentation duty of the applicant. Judge Kramer stated the reason in In Re: Appeal of George Baker, 19 Pa. Commonwealth Ct. 163, 168, 339 A.2d 131, 135 (1975) as follows:

It is in the nature of a special exception to require that the applicant meet reasonably definite conditions, and it would be manifestly unfair to require him to prove conformity with a policy statement, the precise meaning of which is supposed to be reflected in specific requirements. . . . Any other view would enable the Board to assume the legislative role. . . . (Emphasis in original.)

In Borden Appeal, supra, even though the ordinance expressly called for special exceptions to be decided "in harmony with the general purpose and intent of this ordinance," the Supreme Court made clear that the objectors had the burden of proof -- that is, the persuasion burden -- with respect to detriment to health, safety and general welfare. In City of Pittsburgh v. Herman, supra, the burden as to the requirement that the special exception be found to be "not more detrimental to the neighborhood" was left upon the objectors. Examination of the holdings in those cases show that the objectors, as to general detriment to health, safety and welfare, normally have the persuasion burden (and also the initial ...

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