Special Exception Application Compatibility Duplexes Speculative Objections

Marr Dev. Mifflinville, LLC v. Mifflin Township Zoning Hearing Bd., PICS Case No. 17-1144 (Pa. Commw. July 3, 2017) Cohn Jubelirer, J. (13 pages.)

Zoning board erred in denying applicant's special exception application to construct 11 duplexes because applicant met the objective requirements for a special exception, the proposed duplexes were consistent with the purpose of the ordinance and objector's expressed fears were speculative at best. Reversed.

Applicant owned property in a suburban residential district and applied for a special exception to construct 11 duplexes. The district permitted single family detached dwellings and limited attached dwellings to two dwelling units. Applicant planned to subdivide the 5.85 acre lot into 12 lots, one of which would contain an existing single-family dwelling, with duplexes on the other lots. The board denied the application, finding that it was not in the best interest of the properties in the general area and the community at large. On remand, the board found that the proposed project would double the number of dwelling units in the area and was not compatible with existing and adjoining land uses. The common pleas court upheld the board decision and applicant appealed.

Applicant contended that the board erred in finding that the objectors met their burden of showing that the duplexes were incompatible with the surrounding area. The court found that applicant met the objective requirements for a special exception and that contrary to the board's determination, the proposed duplexes were consistent with the stated purpose of the ordinance "to promote and encourage family life by providing only for single family residences." The board interpreted this as applying only to single-family detached dwellings without considering that single-family attached dwellings were also expressly provided for by the ordinance.

Additionally, the board's decision was not supported by substantial evidence in the record. The fears that objectors expressed about stormwater management and increased traffic were speculative at best and they presented no evidence that the proposed use would generate adverse effects greater than that normally expected from the type of use. Furthermore, the board's finding that the proposed project would double the number of existing units in a one-block area erroneously concentrated on the impact on the immediate one-block area instead of focusing on the community at large and ignored the 20-unit apartment complex across the street. The court also noted that the ordinance was silent as to density.

Judge Wojcik dissented, arguing that applicant was seeking 11 special exceptions in an area zoned for single-family detached dwellings and that the intensity of the proposed use conflicted with the compatibility requirements of the ordinance.