An objector to a special exception application that satisfies the objective criteria for the use must produce more than speculative evidence of harm.
Tennyson v. Zoning Hearing Board of West Bradford Township, 952 A.2d 739 (Pa. Cmwlth. 2008).
The equitable owner (“Landowner”) of 20 acres of property located in an R-1 Residential District filed an application for a special exception to develop a stable and accessory facilities. Landowner planned to operate a horse farm where she would board horses and provide horseback riding lessons. After hearing testimony from engineers that all requirements set forth in the ordinance were met and that this type of facility was typical for the anticipated use, the ZHB granted the special exception.
Objector, a neighbor, appealed to the trial court, which dismissed the appeal. Objector then appealed to the Commonwealth Court and argued that Landowner did not show that the proposed use complied with all of the terms of a zoning ordinance. The Commonwealth Court found that based on the testimony of the engineer, the proposed facility would comply with all area and bulk requirements. Next, Objector argued that the proposed use did not comply with the criteria for open space, which requires that there is a 20 foot separation between accessory buildings. However, the Commonwealth Court found that the stable and arena would not be separate buildings, but one T-shaped structure. Therefore, the 20 foot separation was not needed.
Next, Objector argued that the proposed riding arena was not an accessory use. An accessory use must be subordinate and incidental to the principle use of the land. Objector contended that because the riding arena would be double the size of the proposed stable, it could not be subordinate. The Commonwealth Court found that the size of an accessory use is a factor, but not the controlling factor. The most important factor to consider is the proposed use of the facility. The Commonwealth Court found that the primary purpose of the stable would be to board horses and that the arena would be to exercise the horses. Further, riding arenas are a normal accessory to a stable. Therefore, although the proposed arena was nearly twice the size, it was subordinate to the stable.
Further, Objector claimed that she carried her burden of demonstrating that the proposed use was detrimental to the public health, safety and welfare. A special exception is a permitted use so long as certain standards are met. Once an applicant demonstrates that these standards are met, the burden shifts to an objector to demonstrate that the use would be detrimental to the public. Objector merely speculated about potential harm, and did not offer any evidence to establish a high probability of harm, as required.
Finally, Objector argued that the proposed use was barred by the restrictive covenants in the Land Development Plan. The Commonwealth Court found that use restrictions in instruments of title have no bearing on zoning applications and that they would not interpret or enforce the Plan.
Opinion Date: June 17, 2008
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