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Marr Development Mifflinville, LLC v. Mifflin Township Zoning Hearing Board

Commonwealth Court of Pennsylvania

July 3, 2017

Marr Development Mifflinville, LLC, Appellant
v.
Mifflin Township Zoning Hearing Board

          Argued: June 7, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge.

          OPINION

          RENÉE COHN JUBELIRER, Judge.

         Marr Development Mifflinville, LLC (Applicant) appeals from an Order of the Court of Common Pleas of the 26th Judicial District (Columbia County Branch) (common pleas), which affirmed a decision of the Mifflin Township Zoning Hearing Board (Board) to deny Applicant's request for a special exception to construct 11 single-family attached dwellings, or duplexes. The Board denied the application on the grounds the proposed duplexes were not compatible with or in the best interest of the surrounding area. Finding the Board's decision was not supported by substantial evidence, we reverse.

         Applicant owns a 5.85 acre parcel of land located at 611 Race Street, Mifflinville, Mifflin Township, Columbia County, Pennsylvania. The property is located in the Suburban Residential District (RS District). According to the Mifflin Township Zoning Ordinance (Ordinance), the purpose of the RS District is "to promote and encourage a suitable and safe environment for family life by providing only for single family residences and residential support land uses." (Ordinance, § 431.) Under the Ordinance, single-family detached dwellings[1] are permitted uses in the RS District. (Ordinance, § 432.A.3.) Single-family attached dwellings[2] limited to two dwelling units are permitted in the RS District by special exception. (Ordinance, § 423.C.3.)

         On July 21, 2014, Applicant filed an application with the Board seeking a special exception to construct 11 duplexes. Applicant planned to subdivide the 5.85-acre parcel into 12 lots, ranging in size from 0.28 acres to 0.53 acres. One of the 12 lots would contain an existing single-family detached dwelling. A duplex would be constructed on each of the remaining 11 lots. Plans also called for a storm water retention basin, and access to the duplexes would be provided from a cul-de-sac off a state route.

         On September 16, 2014, the Board held a hearing on the application. The zoning officer and Applicant's vice president/controller provided testimony concerning the proposed project. In addition, several residents opposed to the project (objectors) testified about their concerns, which included stormwater management, flooding, traffic, and the effect on neighborhood aesthetics.

         Following the hearing, the Board voted to deny the special exception application, concluding Applicant did not satisfy its burden of proving the proposed use was in the best interest of the properties in the general area and community at large. Applicant appealed to common pleas, which remanded the matter after finding the Board improperly placed the burden of establishing general compatibility with the surrounding area on the Applicant rather than the objectors.

         On remand, the Board did not take additional evidence. Based on the testimony from the original hearing, the Board determined that the objectors met their burden of proof with respect to compatibility. The Board concluded that the proposed use was "more intense" than surrounding land use. (Board Decision, May 6, 2015, at 2.) It noted that the proposed project would create 11 duplexes or 22 units in an area where only 17 single-family dwellings already exist, thereby doubling the number of dwelling units in the area. As a result, the Board found "the proposed use presents a project which is not consistent or compatible with the existing and adjoining land uses that were and have been developed for single family residential structures and not duplex units." (Id.)

         Applicant again appealed the Board's decision to common pleas. Common pleas did not take additional evidence. Based upon the record developed before the Board, common pleas issued an order denying Applicant's appeal. In an opinion filed in support of its order, common pleas concluded that the Board's decision was supported by substantial evidence and, therefore, the Board did not abuse its discretion or commit an error of law in denying the special exception application. This appeal followed.

         On appeal, [3] Applicant maintains the Board erred in concluding the objectors met their burden of showing the proposed duplexes were incompatible with the surrounding area. Based upon our review of the record, we agree.

         As a preliminary matter, despite its name, a special exception is not an exception to a zoning ordinance; rather, it is a use that is expressly permitted by the ordinance unless the board determines, according to standards set forth in the ordinance, that the proposed use would adversely affect the community. E. Manchester Twp. Zoning Hearing Bd. v. Dallmeyer, 609 A.2d 604, 610 (Pa. Cmwlth. 1992). Because the use is contemplated by the ordinance, there is a presumption that the governing body considered the effect of the use when enacting the ordinance and determined that the use is consistent with the health, safety, and welfare of the community so long as it meets the objective requirements of the ordinance. Id. Provided it does, the burden then shifts to the objectors to rebut this presumption by presenting evidence that, either the proposed use would have a detrimental effect on the public health, safety, and welfare of the community or that it would conflict with the expressions of general policy contained in the ordinance. Id.

         It is important to appreciate that the burden placed on the objectors is a heavy one. "They cannot meet their burden by merely speculating as to possible harm, but instead must show a high degree of probability that the proposed use will substantially affect the health and safety of the community." Id; Manor Healthcare Corp. v. Lower Moreland Twp. Zoning Hearing Bd., 590 A.2d 65, 71 (Pa. Cmwlth. 1991).

         Here, it is not disputed that Applicant meets the objective requirements for a special exception, thereby satisfying its burden. What is at issue is whether the objectors have "raise[d] specific issues concerning the proposal's general detrimental effect on the community, " as to satisfy their heavy burden. Manor Healthcare, 590 A.2d at 71. The Board and common pleas concluded the proposed use was ...


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