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decided: May 12, 1982.


Appeal from the Order of the Court of Common Pleas of Delaware County in case of Alexander Yarnell v. Dr. Samuel D. Allen, Jr. and Radnor Township Zoning Hearing Board, No. 812418.


Henry B. Fitzpatrick, Jr., Liebert, Short, Fitzpatrick & Lavin, for appellant.

Joseph A. Damico, Jr., Petriken, Wellman, Damico & Carney, for appellee, Dr. Samuel D. Allen, Jr.

Charles B. Burr, II, for appellee, Radnor Township Zoning Hearing Board.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the resignation of Judge Mencer.

Author: Craig

[ 66 Pa. Commw. Page 472]

Alexander Yarnell (objector) appeals from an order of the Court of Common Pleas of Delaware County which affirmed a decision by the Radnor Township Zoning Hearing Board granting a special exception for the establishment of an alcoholic rehabilitation center at a site formerly used as a junior college.

The applicant has an option to purchase the land, zoned "Institutional." The use regulations for that classification, found at Section 135-72(D) of the township's ordinance, allow:

Any institutional use similar to a use specifically permitted above, such as a museum or art gallery or an institution or home for children, the aged, the indigent or the handicapped, or a hospital (general, medical or surgical), sanatorium, medical or health center, convalescent home, nursing home or similar health facility, when authorized as a special exception by the Zoning Hearing Board, subject to the general standards prescribed in § 135-123. (Emphasis supplied.)

[ 66 Pa. Commw. Page 473]

Section 135-123*fn1 requires the board to determine that eight lettered "standards and criteria are met before granting" a request for a special exception or variance.

[ 66 Pa. Commw. Page 474]

After finding that the applicant's intended use of the premises was a "sanatorium," authorized by special exception, the board determined that "no proof" existed that the proposed use "would in anyway be contrary to the standards" set forth in the ordinance, or that the special exception would be detrimental to the public health, safety, morals and general welfare of the township. The board granted the application, subject to ten conditions governing the use of the premises as a rehabilitation center.

The common pleas court reviewed the testimony and concluded that the applicant met "his only burden of proof in a special exception case . . . that the proposed use is within those uses permitted by special exception," citing Sites v. West Goshen Township, 5 Pa. Commonwealth Ct. 78, 287 A.2d 909 (1972) and Berlant v. Lower Merion Township, 2 Pa. Commonwealth Ct. 583, 279 A.2d 400 (1971).

The objector now claims that the applicant had the burden of going forward with the evidence and proving that the proposed use complied with all the standards found in Section 135-123, except the general health, safety and welfare requirement of subsection

[ 66 Pa. Commw. Page 475]

H. Bray v. Zoning Board of Adjustment and Somerton Civil Association, 48 Pa. Commonwealth Ct. 523, 410 A.2d 909 (1980).

Close scrutiny of the ordinance reveals that the applicant fulfilled his initial evidence presentation duty and persuasion burden with respect to the specific "categorical definition of the special exception as a use type," Bray at 530, 410 A.2d at 913.

Of the eight criteria outlined in Section 135-123, which we have reproduced in the footnote to this opinion, the terms of all but one obviously relate to general policy concerns as to harmony with the purposes of the ordinance or to general detrimental effect upon the neighborhood; thus, as to those seven criteria (all but F) the objector had both the duty to go forward with evidence and the burden of persuasion to establish a case sufficient to warrant denial of the application. Bray at 531, 410 A.2d at 913.

Subsection 135-123 F, however, is clearly a specific requirement as to which the applicant had the burden of proving compliance because that subsection incorporates the objective standards governing the use as a special exception found in Section 135-103 -- "Access and highway frontage regulations -- relating to illumination (§ 135-103 D, E) and parking layout (§ 135-103 A, F).

The objector, appellant here, has failed to include in the record the plans for the project, which would confirm to us whether the applicant complied with those provisions. However, because the applicant plans to use the existing structures of the junior college for the rehabilitation center, and because the criteria in Section 135-103 A, D, E and F deal straightforwardly with outside illumination and parking arrangement areas, we must view the applicant's satisfaction of the burden as embodied in the board's broad but definite finding of compliance with the ordinance.

[ 66 Pa. Commw. Page 476]

The objector also attacks as erroneous the board's "misinterpretation of the ordinance," claiming that Section 135-75 mandates review of the application by the Planning Commission:

§ 135-75. Future use of institutional lands.

It is the intent of this Article that provision be made to ensure a reasonable choice of appropriate uses in the case of the nonuse, abandonment or sale of property presently zoned for institutional use. In such an event, the Planning Commission shall consider the suitability of such tract for continued institutional use or for uses permitted in Agricultural, Planned Laboratory-Office, Planned Business, Planned Apartment or Residence Districts and shall, where deemed appropriate, recommend that the Zoning Map be amended to accommodate such uses.

The general wording of the provision appears to place the initiative for any consideration upon the commission, rather than upon the applicant; in addition, the qualification is not identified as any part of the special exception procedure, but merely appears at the end of Article XVII establishing general regulations for I-Institutional Districts. Therefore, we cannot conclude that the board erred in proceeding as it did.

Finally, the objector claims that he was denied an opportunity to ascertain the facts necessary to carry his burden of proving that the use would have an adverse effect on the health, safety, morals and welfare of the community, thus depriving him of due process of law. His contention is that the board required him to go forward with his case immediately at the conclusion of the applicant's case without granting a later hearing, a procedure he labels as "needlessly oppressive."

[ 66 Pa. Commw. Page 477]

This court's holding in Bray clearly establishes that the objector must come forward first with evidence as to general policy concerns or detrimental effect; the opportunity to consult with witnesses after the applicant presents his case has never been a requirement for due process in the context of hearings before the board.

Because the objectors thus were not "rebutting" the testimony of the applicant's witnesses on those general concerns, the objector was not entitled to a delayed hearing. Counsel for several other objectors had expressed readiness at the first hearing to present testimony on the merits of the attack; the board heard testimony in the second hearing only because of time constraints which arose from the length of the first meeting.

Finding no error of law or abuse of discretion, we affirm. Timber Place Association v. Plymouth Township Zoning Hearing Board, 59 Pa. Commonwealth Ct. 582, 430 A.2d 403 (1981).


Now, May 12, 1982, the order of the Court of Common Pleas of Delaware County, No. 81-2418, dated July 16, 1981, is affirmed.

This decision was reached prior to the resignation of Judge Mencer.



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