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decided: July 30, 1987.


Appeal from the Order of the Court of Common Pleas of Lancaster County, in case of In Re: Appeal of Eugene K. Martin from decision of Clay Township Zoning Hearing Board, No. 2502-1985.


Peter Schannauer, Law Office of J. Marlin Schreiner, for appellant.

Anthony P. Schimaneck, Morgan, Hallgren, Cross-well & Kane, P.C., for appellees.

Judges MacPhail, and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge MacPhail dissents.

Author: Palladino

[ 108 Pa. Commw. Page 108]

This is an appeal from an order of the Court of Common Pleas of Lancaster County (trial court), entered

[ 108 Pa. Commw. Page 109]

January 14, 1986, affirming the denial by the Zoning Hearing Board of Clay Township (Board) of a special exception requested by Eugene K. Martin and Marvin R. Weaver (Petitioners).

Petitioners own a 67-lot subdivision in Clay Township which is zoned as Residential-2 (R-2). In an R-2 district, single family dwellings are a permitted use while apartments, of a restricted size, are permitted by special exception. Petitioners intend to develop 59 lots as single-family dwellings,*fn1 with the remaining 8 lots to be developed as four six-unit apartment buildings. Petitioners filed a request with the Board for a special exception. After a hearing, the Board denied Petitioner's request concluding that although Petitioners complied with the specific requirements for a special exception, the apartments, as developed, would adversely affect the district. Petitioners appealed the decision to the trial court, which affirmed the decision of the Board.

Petitioners now appeal to this court contending that the Board erred in denying the special exception.*fn2

An applicant, by showing the proposed use is permitted by special exception and that it complies with the specific requirements of the ordinance, identifies the proposal as one which the municipal legislative body has determined to

[ 108 Pa. Commw. Page 110]

    be appropriate in the district and therefore presumptively consistent with the health, safety and general welfare of the community.

Kern v. Zoning Hearing Board of the Township of Tredyffrin, 68 Pa. Commonwealth Ct. 396, 401, 449 A.2d 781, 783 (1982). The Board found that Petitioners complied with all specific requirements for a special exception as delineated by the township zoning ordinance.*fn3 The ordinance also provides, in Section 603, general standards. At issue in the case at bar are the following two general standards: 1) the specific site must be an appropriate location for such use, and 2) the use as developed will not adversely affect the district. In denying the special exception, the Board concluded that Petitioners failed to comply with these two sections.

In Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523, 410 A.2d 909 (1980), we set forth who bears the duty of going forward with evidence and the burden of persuasion (i.e. burden of proof) as to the specific and general conditions for the grant of a special exception. "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." Id. at 526, 410 A.2d at 910. "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." Id. at 526, 410 A.2d at 911. There is

[ 108 Pa. Commw. Page 111]

    no dispute that Petitioners carried both burdens as to the specific requirements of the Clay Township ordinance.

As to general standards, persuasion burden and the duty of going forward with the evidence is on the objector unless the ordinance expressly shifts the persuasion burden to the applicant. The duty of going forward with evidence showing that the proposed use will violate the general requirements of the ordinance cannot be shifted. Id. at 531, 410 A.2d at 911.

In the case at bar, Section 603 of the ordinance does not expressly shift the burden of persuasion as to the general conditions to the applicant. Therefore, the objectors bear a heavy burden. They must provide evidence that there is more than a mere speculation of harm. Foster Grading Co. v. Venango Township Zoning Hearing Board, 49 Pa. Commonwealth Ct. 1, 412 A.2d 647 (1980). The objectors must show that the impact would be greater than would normally be expected from that type of use and that this use will pose a substantial threat to the health, safety and welfare of the community. Kern.

The objectors testified that increased traffic in the area would create a hazard. They further testified that increased water runoff caused by the roof of the building and the paving of the parking lot would cause "ponding" on the land of the neighboring farmer. The Board concluded that the increased volume of water runoff will make the land of Mr. and Mrs. Groff (the neighboring farmer) less productive and will take longer to dry out than at the present time. Petitioners, on the other hand, presented evidence that they will provide a storm drainage detention area which could handle the hundred-year flood, which would be a rain like Hurricane Agnes in '72 and which meets the county and township requirements.

[ 108 Pa. Commw. Page 112]

    high degree of probability that a result not normally generated by this type of use will obtain. Kern. No evidence was presented which could meet this burden or lead to a conclusion that the increased water runoff will pose a substantial threat to the health and safety of the community.*fn4 The objectors failed to meet their persuasion burden as to the issue.

Accordingly, we reverse.


And Now, July 30, 1987, the order of the Court of Common Pleas of Lancaster County in the above-captioned matter is reversed.

Jurisdiction relinquished.

Judge MacPhail dissents.



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