Appeal from the Order of the Court of Common Pleas of Montgomery County in case of William J. Mulligan v. Zoning Board of Adjustment of East Norriton Township, No. 81-06301.
William J. Moran, III, for appellant.
Thomas M. Delricci, with him, Jeremiah J. Cardamone and David R. Weyl, Timoney, Knox, Hasson & Weand, for appellee.
Judges MacPhail, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Doyle.
[ 90 Pa. Commw. Page 395]
William J. Mulligan (Appellant) appeals from the order of the Montgomery County Court of Common Pleas which affirmed the decision of the East Norriton Township Zoning Hearing Board (Board) denying Appellant's request for a special exception.
Appellant is the owner and occupant of a two-story house and garage located in a commercial district on Swede Street, East Norriton Township. On October 31, 1980, Appellant applied to the Board to use his property as an automobile sales and repair shop under Section 1201(10) of the East Norriton Township Zoning Ordinance (Ordinance), which permits such uses in commercial districts only when authorized as a special exception.*fn1 Appellant's application included
[ 90 Pa. Commw. Page 396]
a proposed forty foot extension to the existing garage, which resulted in a side yard setback of two feet, instead of the sixty feet required under Section 1202(D) of the Ordinance.*fn2
After a hearing, the Board denied the special exception, concluding that Appellant's proposed use was contrary to the health, safety and welfare of the community. The Board noted that although a variance had not been requested, one was required to accommodate Appellant's proposed garage extension. The Board concluded that Appellant had not shown the requisite hardship necessary for the granting of a variance, nor had he shown that the proposed extension would be the minimum variance necessary. The court of common pleas affirmed the decision of the Board without taking additional evidence, and this appeal followed.*fn3
Appellant first argues that there was insufficient evidence that the proposed use would be contrary to the health, safety, and welfare of the community. Usually, once an applicant establishes that he meets the specific requirements for a special exception under a zoning ordinance, the burden is upon protestors to prove that the proposed use will have an adverse effect on the general public. Sunnyside Garage Appeal, 84 Pa. Commonwealth Ct. 286, 479 A.2d 47 (1984). An ordinance may, however, shift this burden
[ 90 Pa. Commw. Page 397]
by specific language to that effect. Derr Flooring Co., Inc. v. Whitemarsh Township Zoning Board of Adjustment, 4 Pa. Commonwealth Ct. 341, 285 A.2d 538 (1971). In this case Section 2007 of the Ordinance places upon the applicant the burden to prove both that the use is one which is permitted by ...