The trial court adopted the referee's recommendation and sustained the landowners' appeal. Upon the motion of the Board the trial court granted reconsideration of the case for the purpose of examining the applicability of B.A.C., Inc. v. Zoning Hearing Board of Millcreek Township, 89 Pa. Commw. 285, 492 A.2d 477 (1985). Following reconsideration the trial court reaffirmed its earlier decision sustaining the landowners' appeal.
Furthermore, numerous courts have assessed local zoning ordinances containing affirmative language (i.e., using affirmative words such as shall, must, will) that preceded the Ordinance's general requirements and did not reach the conclusion that such language shifted the burden with respect to those general effects to the applicant. See, e.g. , id. (imposing burden on objectors with respect to health, safety, and general welfare criteria, where ordinance contained the following language preceding general requirements, "[t]he Zoning Board shall approve any proposed [special exception] if [it] finds adequate evidence that the proposed use will...."); B.A.C., Inc. v. Zoning Hearing Bd. of Millcreek Twp. , 89 Pa.Cmwlth. 285, 492 A.2d 477, 482 (1985) (imposing burden on objectors where ordinance stated that "the Board shall consider ‘the following standards and criteria’ " and then listed seven criteria which it determined to be general); Marquise Inv., Inc. , 11 A.3d at 612 (imposing burden on objectors where ordinance provided that "City Council shall approve Conditional Uses only if ... the following general criteria are met"). Following the weight of authority, this Court similarly does not find that the plain language under Ordinance Section 705(C) "expressly" places the burden of persuasion with respect to those criteria on the applicant.
Opinion, p. 611. Additionally, any confusion existing between B.A.C., Inc. v. Zoning Hearing Board of Millcreek Township, 89 Pa. Commw. Ct. 285, 492 A.2d 477 (1985), and Bray v. Zoning Board of Adjustment, 48 Pa. Commw. Ct. 523, 410 A.2d 909 (1980), the resolution of which was the purpose for accepting this appeal, has not been addressed.
This Court has found similar requirements to constitute general criteria. SeeB.A.C., Inc. v. Zoning Hearing Board , 89 Pa.Cmwlth. 285, 492 A.2d 477, 482 (1985) (describing as general criteria ordinance requirements that the proposed use not fundamentally alter the character of the neighborhood, not be detrimental to the purpose of an adjacent zoning district, not be inconsistent with the uses permitted as of right, and not place a significant additional burden upon public or sanitary facilities); Warren County Probation Assoc. v. Warren County Zoning Hearing Board , 50 Pa.Cmwlth. 486, 414 A.2d 398, 399 (1980) (placing burden on objectors to establish that the proposed use was not appropriate for the particular lot and location and was unreasonably detrimental to neighboring properties).The only specific criterion that would arguably apply to TAG herein can be found at sections 404.3(a) (relating to setbacks) and 407.1 (relating to special yard regulations) of the Ordinance.