Posted by: Patricia Salkin | April 12, 2014

PA Appeals Court Upholds Denial of Special Permit for Canine Training and Explosives Storage Facility

Ryan J. Morris owns approximately eight acres of real property that is “rural, heavily-wooded and hilly, with several small clearings interconnected by a series of gravel roads.” Morris submitted an application for a special exception to use the property as a “law enforcement canine training facility and explosives storage facility.” There are four structures on the property known as storage magazines, which are authorized to hold approximately 4,000 pounds of explosives. Although the board found that proposed canine training facility was not a nuisance it still denied Morris’ application the grounds that he failed to establish certain requirements under the ordinance. Some of these requirements related to parking, loading spaces, driveway access, and intersections. The board also found that Morris “failed to prove that the proposed use ha[d] adequate storm drainage, sewage disposal or emergency plans in accordance . . .” with the ordinance. Finally, the board found that because the storage and distribution of explosives constituted a separate business that was permitted as a special exception in commercially zoned areas that could not be folded into the permit for the canine training facility as a permitted use.

On appeal, Morris argued that the board “erred in placing the burden of proof for general, non-objective special exception standards of the Ordinance on him.” The court disagreed finding that the ordinance clearly states that it is the applicant’s burden of proof to present evidence and persuade the board on all questions of fact, such as showing adequate storm drainage, sewage disposal and emergency plans. The court also stated that placing this burden of proof in the applicant is not surprising because the “applicant is the only one who knows exactly what is going to occur on the property and how he plans to address those requirements.” The court found that the board did abuse its discretion in denying the application with respect to he sewage requirements because its “determination was based on the fact that numerous customers and trainers utilizing the Property necessitated sewage disposal” thus Morris’ blank assertion that sewage disposal was not required was not credible. Lastly, the court found that the use storage magazines was a separate use from the canine training facility because the storage magazines fell within the ordinance’s definition of warehouse, and because warehouses were permitted only in certain districts they were thus prohibited in other districts where not expressively permitted. The court affirmed the board’s denial of the special exception permit.

Morris v Franklin Township Zoning Hearing Board, 2014 WL 1273899 (PA Commwlth 3/28/2014)

The opinion can be accessed at:

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