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.
RENÉE COHN JUBELIRER, Judge.
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
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 are permitted uses in the RS District.
(Ordinance, § 432.A.3.) Single-family attached
dwellings limited to two dwelling units are
permitted in the RS District by special exception.
(Ordinance, § 423.C.3.)
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.
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.
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.
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.)
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.
appeal,  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.
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.
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).
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 ...