Before reviewing today’s case, it is important to define terms since common land use terms sometimes have different legal definitions in some jurisdictions.  For example, Professor Kurt Paulsen of the University of Wisconsin explains that in Pennsylvania a “special exception” is exactly the same as a “conditional use,” the only difference being that it is heard and decided by the zoning board rather than the governing body.  The zoning ordinance in Pennsylvania sets forth whether a particular use is subject to special exception review or to conditional use review.              

Following an application to the zoning hearing board (ZHB) for a special exception to site a shopping center and eight hearings on the application, the ZHB made 98 findings of fact and concluded that the proposed plan failed to meet the specific requirements for shopping centers in the local ordinance, failed to demonstrate compliance with the general requirements for special exceptions as set forth in the ordinance, and failed to comply with other sections in the ordinance dealing with architectural style, signage, traffic and road improvements, and lighting. The Board determined that the applicant had not provided a sufficiently detailed plan, containing necessary studies or other data, as required by the zoning ordinance so that the board could honestly determine whether the application complied with the local law.             

In upholding the board’s denial, the Court noted that a special exception application is to be granted or denied pursuant to the express standards and criteria set forth in the particular zoning ordinance.  The applicant has the initial burden to demonstrate compliance with all of the objective requirements of the zoning ordinance, and in this case, the developer failed to satisfy this burden.  Further, the Court held that “there simply is no duty on a zoning hearing board to grant a special exception with conditions,” and therefore the board was well within its authority to deny the application outright.             

Prof. Paulsen explains that this case is significant in terms of the land use applications process in Pennsylvania because it clarifies that applications for special exceptions are different from regular land development applications.  He explains that with regards to regular land development application, the general principle is that if a board received a “completed” application, to approve with conditions, and to impose conditions such that the developer complies with any deficiencies in the plan.  Instead, this case helps give ZHBs authority to deny a development plan outright for failure to comply with conditions enumerated in the ordinance.  

Elizabethtown/Mt. Joy Associates, L.P. v. Mount Joy Township Zoning Hearing Board, 2007 WL 2819874 (Pa. Cmwlth. 10/1/07).  

Thanks to Professor Kurt Paulsen for bringing this case to my attention and for providing background information and context of Pennsylvania land use law.