Opinion
No. 202 C.D. 2011
01-12-2012
Francis J. Cellini and Cellini Enterprises, LLC, Appellants v. The Scott Township Zoning Hearing Board
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
This case was assigned to the opinion writer prior to January 7, 2012, when Judge Pellegrini became President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this zoning appeal, Francis J. Cellini and Cellini Enterprises, LLC (collectively, Applicant) ask whether the Scott Township Zoning Hearing Board (ZHB) erred in denying their application for a special exception to allow Applicant to convert an existing residence into a "student housing facility" for seven college students. See Sections 135-7, 135-24 of the Scott Township Zoning Ordinance of 1992 (zoning ordinance).
There is no dispute that Applicant's proposal qualifies as a student housing facility and that its proposal satisfies the specific special exception criteria set forth in the zoning ordinance. However, the ZHB denied Applicant's special exception application on the grounds the proposed use did not comply with four of the zoning ordinance's general special exception criteria. Basically, the ZHB found Applicant's proposal would: increase traffic and cause congestion in a residential area; decrease property values; conflict with its surroundings and not adequately protect the welfare and convenience of the public; and, not be compatible with adjoining residential properties.
Upon review, we conclude the ZHB erred in denying Applicant's special exception application based on the speculative concerns of several neighboring landowners (objectors). The concerns voiced by the objectors are those typically associated with a student housing facility and, therefore, did not show, to a high degree of probability, that Applicant's proposed student housing facility would generate adverse effects not normally expected from this type of use. Therefore, we reverse.
I. Factual and Procedural Background
The ZHB made the following findings. Applicant is the equitable owner of a lot situated at situated at 3439 Old Berwick Road in Scott Township (Township), Columbia County (subject property). The subject property, which consists of .70 acres (or 30,492 square feet), lies within the Township's Residential-Urban (R-U) Zoning District. It is currently improved with a detached dwelling and a detached two-car garage.
Because the parties presented no additional evidence after the ZHB's decision, our review is limited to determining whether the ZHB committed an abuse of discretion or an error of law. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005). The ZHB is the fact-finder here. Id.
Applicant submitted an application to the ZHB to use the existing dwelling as a "student housing facility" as defined by Section 135-7 of the zoning ordinance, which is permitted by special exception in the R-U zoning district. Section 135-14 of the zoning ordinance. Applicant Francis Cellini's plan was to provide housing for his son and six of his son's friends, who are students at Bloomsburg University. A hearing on Applicant's special exception request ensued before the ZHB.
At the hearing, Applicant explained it proposes to lease rooms within the existing dwelling on the subject property to a maximum of seven Bloomsburg University students. The existing two-story dwelling has a total habitable floor space of 2,698 square feet and includes four bedrooms and 1.75 bathrooms, although Applicant expressed its willingness to renovate the partial bathroom to convert it into a full bathroom. The existing dwelling is served by public water and sewer facilities. Applicant proposes off-street parking at the rear of the dwelling for a total of seven vehicles, including use of the existing two-car garage.
The subject property is situated in a residential neighborhood where it is surrounded by other single-family detached dwellings, all of which are occupied by families, including many elderly residents. The subject property has driveway access from Old Berwick Road.
Several objectors who reside near the subject property appeared at the ZHB hearing and raised objections to Applicant's proposal. The ZHB summarized those objections as follows:
A. That the proposed occupancy of the property by college students will be a source of excessive noise and other objectionable behavior in an otherwise quiet neighborhood;ZHB Op., Findings of Fact (F.F.) Nos. 12 (A)-(D).
B. That the proposed occupancy by seven residents with cars will cause traffic congestion in the vicinity of the property;
C. That the proposed use will have a detrimental impact on the value and future marketability of surrounding residential properties;
D. That student housing is not an appropriate use within this family neighborhood.
Additionally, pursuant to Section 135-82.D(2) of the zoning ordinance, Applicant's special exception application was submitted to the Township Planning Commission for review and comment. The Planning Commission recommended denial of the application based on the fact that the dwelling does not have two full bathrooms as required by Section 135-24.B of the zoning ordinance and based on concerns that the proposed use of the existing driveway would not minimize potential interference with traffic on Old Berwick Road as required by Section 135-82.D(3)(e) of the zoning ordinance.
There is no dispute that Applicant's proposed use qualifies as a "student housing facility" as defined in Section 135-7 of the zoning ordinance. Further, the ZHB determined Applicant's proposed use satisfied the zoning ordinance's specific criteria for a student housing facility. However, the ZHB determined Applicant's proposed use did not comply with four of the general requirements for a special exception set forth in Sections 135-82.D(3)(a), (b), (c) and (e) of the zoning ordinance, which provide:
(3) In reviewing requests for special exceptions, the [ZHB] shall take into account the comments received from the Township Planning Commission and the following requirements in addition to those found in Article V and in other applicable sections of this chapter:
Section 135-82.D(3)(a)-(c), (e).(a) That the use is so designed, located and proposed to be operated that the public health, safety, welfare and convenience will be protected.
(b) That the use will not cause substantial injury to the value of other property in the neighborhood where it is to be located.
(c) That the use will be compatible with adjoining development and the proposed character of the zoning district where it is to be located.
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(e) That adequate off-street parking and loading is provided, and ingress and egress is designed to cause minimum interference with traffic on abutting streets.
Specifically, the ZHB determined: (1) the location of the proposed use would conflict with its surroundings and would not adequately protect the welfare and convenience of the public as required by Section 135-82.D(3)(a) of the zoning ordinance; (2) the proposed use would be detrimental to the value and marketability of surrounding residential properties in violation of Section 135-82.D(3)(b) of the zoning ordinance; (3) the proposed use would not be compatible with adjoining residential properties as required by Section 135-82.D(3)(c) of the zoning ordinance; and, (4) the proposed driveway access is not designed so as to minimize interference with traffic on Old Berwick Road as required by Section 135-82.D(3)(e) of the zoning ordinance. Thus, the ZHB denied Applicant's special exception application based on its failure to satisfy these general special exception criteria. Applicant appealed to the Court of Common Pleas of the Twenty-Sixth Judicial District, Columbia County branch (trial court).
Without taking additional evidence, the trial court affirmed. Applicant now appeals to this Court.
II. Issues
On appeal, Applicant argues the ZHB erred in determining the objectors met their burden of proving the proposed "student housing facility": (1) would cause an increase in traffic greater than that normally expected from this type of use; (2) would cause a decrease in property values greater than that normally expected from this type of use; and, (3) was inconsistent with adjoining properties and the character of the neighborhood.
III. Discussion
A. Special Exception Principles
At the outset, we note, a special exception is neither special nor an exception, but rather a use expressly contemplated that evidences a legislative decision that the particular type of use is consistent with the zoning plan and presumptively consistent with the health, safety and welfare of the community. Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of L. Heidelberg Twp., 918 A.2d 181 (Pa. Cmwlth. 2007). Further, as Robert S. Ryan explains:
Zoning boards often hear protestants argue that an applicant for a special exception should be required to observe the law as set forth in the zoning ordinance. That argument is appropriate in an application for a variance, but not in a case involving a special exception. The applicant for an exception is following the zoning ordinance. His application is one envisioned by the ordinance and, if the standards established by the ordinance are met, his use is one permitted by its express terms.Robert S. Ryan, PENNSYLVANIA ZONING LAW AND PRACTICE, §5.1.1 (2001) (emphasis in original).
An applicant for a special exception has both the duty of presenting evidence and the burden of persuading the ZHB that its proposed use satisfies the objective requirements of the zoning ordinance for the grant of a special exception. Manor HealthCare Corp. v. L. Moreland Twp. Zoning Hearing Bd., 590 A.2d 65 (Pa. Cmwlth. 1991). Once the applicant meets his burden of proof and persuasion, a presumption arises that it is consistent with the health, safety and general welfare of the community. Id. The burden then normally shifts to the objectors of the application to present evidence and persuade the ZHB that the proposed use will have a generally detrimental effect on health, safety and welfare. Id. The evidence presented by objectors must show, to a high degree of probability, that the use will generate adverse impacts not normally generated by this type of use and that these impacts will pose a substantial threat to the health and safety of the community. Greaton Props., Inc. v. L. Merion Twp., 796 A.2d 1038 (Pa. Cmwlth. 2002).
In Bray v. Zoning Board of Adjustment, 410 A.2d 909 (Pa. Cmwlth. 1980), this Court outlined the rules concerning the "initial evidence presentation duty (duty) and persuasion burden (burden) in special exception cases" as follows:
Specific requirements, e. g., categorical definition of the special exception as a use type or other matter, and objective standards governing such matter as a special exception and generally:
The applicant has both the duty and the burden.
Id. at 912-13 (emphasis added).
General detrimental effect, e. g., to the health, safety and welfare of the neighborhood:
Objectors have both the duty and the burden; the ordinance terms can place the burden on the applicant but cannot shift the duty.
General policy concern, e. g., as to harmony with the spirit, intent or purpose of the ordinance:
Objectors have both the duty and the burden; the ordinance terms cannot place the burden on the applicant or shift the duty to the applicant.
B. Traffic Concerns
Applicant first argues the ZHB erred in determining the objectors sustained their burden of proving the proposed student housing facility would generate adverse impacts greater than that normally expected from such a use. Applicant points out that a review of the 82-page transcript of the ZHB hearing reveals the objectors provided only scant, speculative testimony concerning the alleged increase in traffic the proposed use would generate. Applicant notes the trial court pointed to the fact that a large number of vehicles would be parked on the subject property, and the proposed use would likely generate traffic at unusual hours. In so doing, however, the trial court overlooked the fact that the zoning ordinance permits up to 10 students in the house on the subject property, and, by enacting the zoning ordinance, the local governing body determined the neighborhood roads could handle the additional vehicles. Further, Applicant contends, if the home on the subject property was occupied by a large, intact family with teenage children old enough to drive, it is likely that there would be at least four or five cars parked at the subject property.
Moreover, Applicant argues case law requires the objectors to present evidence that the traffic caused by a proposed special exception use would, to a high degree of probability, be greater than that normally expected from the proposed use and that speculation as to possible harm is insufficient. It asserts that here the objectors presented no evidence that the expected traffic from the seven students occupying the home would be greater than what would normally be expected from a student housing facility. Applicant points out that while the trial court noted there would be an unusual number of vehicles on a relatively small residential lot, it is clear the proposal satisfies the zoning ordinance's minimum lot size and off-street parking requirements.
Applicant further points out the ZHB denied the special exception application based on the fact the proposed driveway access is not designed to minimize interference with traffic on Old Berwick Road. However, it asserts, the only reference to this issue at the ZHB hearing was the Planning Commission's statement (voiced through the Township Zoning Officer) that there was a "concern" about the driveway being narrow and not allowing cars to pass one another if one was leaving and one was entering at the same time. Reproduced Record (R.R.) at 274a. Applicant argues this is no different than any other single-family dwelling in the R-U district that has multiple vehicles at one residence. It contends that on the rare occasion where one vehicle is entering the driveway while one is leaving, it is obvious the entering vehicle would wait until the exiting vehicle pulled onto the street. Further, Applicant asserts, the ZHB found the subject property, which exceeds 30,000 square feet, was sufficient to accommodate seven cars, and Applicant Francis Cellini explained he would add stone to the driveway and parking areas to create more space.
With regard to concerns over increased traffic in the context of a special exception request, in Marquise Investment, Inc. v. City of Pittsburgh, 11 A.3d 607 (Pa. Cmwlth. 2010), appeal denied, ___ Pa. ___, 29 A.3d 799 (2011) this Court explained:
'[A]n increase in traffic is generally not grounds for denial of a [special exception] unless there is a high probability that the proposed use will generate traffic not normally generated by that type of use and that the abnormal traffic threatens safety.' Accelerated Enters., Inc. v. The Hazle Twp. Zoning Hearing Bd., 773 A.2d 824, 827 (Pa. Cmwlth. 2001).
The Pennsylvania Supreme Court has stated:
The anticipated increase in traffic must be of such character that it bears a substantial relation to the health and safety of the community. A prevision of the effect of such an increase in traffic must indicate that not only is there a likelihood but a high degree of probability that it will affect the safety and health of the community, and such prevision must be based on evidence sufficient for the purpose. Until such strong degree of probability is evidenced by legally sufficient testimony no court should act in such a way as to deprive a landowner of the otherwise legitimate use of his land.
Appeal of O'Hara, 389 Pa. 35, 54, 131 A.2d 587, 596 (1957). When what is presented by objectors is a mere 'speculation of possible harms,' they have failed to meet their burden.Marquise Investment, 11 A.3d at 617-18 (italicized emphasis in original, underlined emphasis added). Thus, a special exception application may be denied on traffic grounds only: (1) where there is a high probability that the proposed use will generate traffic not normally generated by the type of use; and (2) that the abnormal traffic threatens safety. Bailey v. U. Southampton Twp., 690 A.2d 1324 (Pa. Cmwlth. 1997). Proof of abnormal and hazardous traffic effects usually requires evidence in the form of traffic counts, accident records and expert evidence. In Re Brickstone Realty Corp., 789 A.2d 333 (Pa. Cmwlth. 2001).
Here, our review of the transcript of the ZHB hearing reveals that, although a few of the objectors mentioned concerns about increased traffic, their testimony was speculative. See R.R. at 221a, 222a, 272a. The objectors did not present evidence that any anticipated increase in traffic associated with the proposed student housing facility would be greater than that normally associated with this type of use. Nor did the objectors present evidence that any anticipated increase in traffic would, to a high degree of probability, affect the safety and health of the community. As such, the objectors did not meet their burden on this issue. Marquise Investment.
Nevertheless, the ZHB followed the Planning Commission's recommendation to deny the special exception based on a concern (voiced through the Township's zoning officer at the ZHB hearing) that, "the driveway [on the subject property] was very narrow pulling out onto Old Berwick Road and would not allow for cars that were parked up by the driveway to pass by other cars without leaving the driving area." R.R. at 274a. Based on this concern, the ZHB determined, "[t]he proposed driveway access is not designed so as to minimize interference with traffic on Old Berwick Road as required by Section 135-82.D(3)(e) of the [zoning ordinance]." ZHB Op., Concl. of Law. No. 11. That Section states (with emphasis added):
(3) In reviewing requests for special exceptions, the [ZHB] shall take into account the comments received from the Township Planning Commission and the following requirements in addition to those found in Article V and in other applicable sections of this chapter:
Section 135-82.D(3)(e) of the zoning ordinance.
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(e) That adequate off-street parking and loading is provided, and ingress and egress is designed to cause minimum interference with traffic on abutting streets. ...
Here, the ZHB found that Applicant's proposed use satisfied the zoning ordinance's off-street parking requirement. ZHB Op., Concl. of Law No. 6. Thus, the issue is whether the ZHB properly found that ingress and egress to the subject property is designed to cause minimum interference with traffic on Old Berwick Road, the abutting street.
To that end, the general criterion set forth in Section 135-82.D(3)(e) of the zoning ordinance, lacks the specificity required for Applicant to bear the burden of proof. Yarnall v. Allen, 444 A.2d 1335 (Pa. Cmwlth. 1982) (objector bore the burden of proof as to special exception criterion concerning whether proposed use was suitable with regard to traffic and highways in the area and provided for adequate access and off-street parking arrangements in order to protect major streets and highways from undue congestion and hazard); Bray. Thus, the objectors here had both the duty to go forward with evidence and the burden of persuasion to establish a case sufficient to warrant denial of the application. Id. As explained above, the objectors' concerns over undue traffic congestion were speculative and, therefore, insufficient to defeat Applicant's special exception request. Marquise Investment.
Further, while the ZHB noted the Planning Commission's concern about the narrowness of the driveway and the resultant impact on Old Berwick Road, the ZHB made no findings to support its conclusion that Applicant's proposed use of the driveway would interfere with traffic on Old Berwick Road. This is not surprising given that the Planning Commission did not provide any specific explanation or evidence at the ZHB hearing in support of its concern regarding the design of the driveway or the anticipated impact of the design on traffic on Old Berwick Road.
Additionally, no expert testimony or traffic counts were presented that would indicate the design of the driveway would interfere with traffic on the abutting road. Also, Applicant Francis Cellini testified he planned on "re-stoning" the driveway, and he explained that "there is another 18 feet back there that can be used for driveway, also, to make it a lot more comfortable for cars in there." R.R. at 220a. He also stated his intent to enlarge the parking area. R.R. at 224a. The ZHB made no findings regarding this testimony.
There is also some force to Applicant's argument that if a large, intact family with several vehicles occupied the subject property, the impact on traffic would be the same as that anticipated from Applicant's proposed student housing facility for seven college students.
Based on the above considerations, the ZHB erred in denying Applicant's special exception request on the ground that ingress and egress was not designed to cause minimum interference with traffic on abutting streets. See, e.g., Brickstone Realty (zoning board erred in denying special exception based on, among other things, concerns over undue traffic congestion and danger of access onto major road where only evidence regarding such concerns was speculative); Bailey (local governing body's finding that proposed conditional use would increase traffic was not supported by substantial evidence where it was based solely on neighbors' speculative testimony).
Of further note, while the objectors voiced numerous, general concerns over placing a home for college students in their neighborhood, the zoning ordinance permits, both by right and by special exception, some fairly intense uses in the R-U zoning district in which the subject property lies. Specifically, the zoning ordinance permits by right, among other things: townhouses; two-family dwellings; conversion apartments; mobile homes on individual lots; boarding or rooming houses; churches or other places of worship; libraries, museums or other cultural facilities; municipal buildings; police or fire stations; public or semipublic parks or playgrounds; medical, dental or other professional offices; daycare centers; clubs, lodges and fraternal organization facilities; and, public utility services and/or buildings. R.R. at 133a.
In addition, the R-U District permits, by special exception: apartments; multifamily housing developments; mobile home parks; bed and breakfast establishments; student housing facilities; group homes; personal care or nursing homes; public or semipublic recreation facilities; neighborhood commercial activities; and, public or private schools. Id.
The zoning ordinance also sets forth the following purpose of the R-U district:
This district is designed to provide an area where moderate-density residential development and associated institutional, recreational and compatible neighborhood commercial uses can peacefully coexist. The zone includes the urban or developed areas of the township and a portion of the immediately adjacent areas. The intent of the zone is to protect and enhance, as much as possible, the residential and nonresidential investment of the past and to provide an area where higher density residential development could be located without creating conflicts with noncompatible uses. ...R.R. at 31a (emphasis added). Our review of the record here reveals the objectors' concerns were aimed largely at the fact that the zoning ordinance permits a student housing facility by special exception in the R-U district rather than at Applicant's specific, proposed use.
C. Property Values
Applicant next argues the ZHB erred in denying its special exception application based on the ZHB's determination that the objectors satisfied their burden of proving the proposed student housing facility would cause a decrease in property values in the area. Applicant points out the ZHB based this determination on the testimony of one of the objectors, who is a realtor with more than 20 years of experience. However, Applicant contends, the general criterion in the zoning ordinance requires a proposed use not cause "substantial" injury to property values in the neighborhood in which it is located. Section 135-82.D(3)(b) of the zoning ordinance. Here, it asserts, the testimony of the realtor only indicated a student housing facility would "impact the marketability" and "affect our property values"; she did not testify there would be a "substantial" decrease in property values. R.R. at 264a-65a.
Applicant maintains this Court holds the burden of showing a proposed use has a greater than normal impact on the community is not satisfied by proof that neighboring property values may decrease. See, e.g., Sunnyside Up Corp. v. City of Lancaster Zoning Hearing Bd., 739 A.2d 644 (Pa. Cmwlth. 1999); Soble Constr. Co. v. Zoning Hearing Bd. of Borough of E. Stroudsburg, 329 A.2d 912, 917 (Pa. Cmwlth. 1974). Applicant notes in Sunnyside Up Corporation, this Court stated an objector must show that, if a decrease in property values were to occur, such decrease would be greater than that typically expected from the proposed special exception use.
Here, Applicant argues, even assuming the objectors presented evidence of a potential decrease in property values, this evidence cannot defeat the grant of the requested special exception unless the decrease would be greater than that associated with student housing facilities generally. See Marquise Investment; Sunnyside Up Corp. Applicant contends the objectors did not present any such evidence, and the speculative evidence presented by the objectors is not sufficient to warrant denial of the special exception.
With regard to a potential decrease in property values in the context of a special exception application, in Soble Construction, this Court explained:
Neither aesthetic reasons nor the conservation of property values nor the stabilization of economic values in a township are, singly, or combined, sufficient to promote the health or the morals or the safety or the general welfare of the township or its inhabitants or property owners, within the meaning of the enabling act or under the Constitution of Pennsylvania. The Legislature in providing for special exceptions in zoning ordinances has determined that the impact of such a use of property does not, of itself, adversely affect the public interest to any material extent in normal circumstances, so that a special exception should not be denied unless it is proved that the impact upon the public interest is greater than that which might be expected in normal circumstances. ... The burden is on the township and the protesting neighbors, if there are any, to [p]rove by evidence that the impact of the requested use in its normal operation would be injurious to the public health, safety and welfare. The protestants cannot sustain that burden by merely introducing evidence to the effect that property values in the neighborhood may decrease.Id. at 917 (citations and quotations omitted) (emphasis added). See also Marquise Investment (testimony by objectors as to reduced property values, without more, is insufficient); Sunnyside Up Corp. (objectors' speculative testimony regarding alleged decrease in property values fell short of the "high degree of probability" required to defeat special exception request); Shamah v. Hellam Twp. Zoning Hearing Bd., 648 A.2d 1299, 1304 (Pa. Cmwlth. 1994) (citing Achey Appeal, 484 A.2d 874 (Pa. Cmwlth. 1984), aff'd, 509 Pa. 163, 501 A.2d 249 (1985)); Soble Constr. Co.) ("[O]bjectors to a special exception cannot meet their burden of proving an adverse impact by merely introducing evidence to the effect that property values in the neighborhood may decrease.")
Here, the ZHB determined the proposed use would be detrimental to the value and marketability of surrounding residential properties in violation of Section 135-82.D(3)(b) (requiring ZHB to consider "[t]hat the use will not cause substantial injury to the value of other property in the neighborhood where it is to be located.") R.R. at 101a (emphasis added). While the objectors offered mostly speculative testimony concerning the effect of the proposed student housing facility on nearby property values, one of the objectors, an experienced real estate agent, generally testified that college student housing facilities adversely affect marketability and property values of nearby homes. The real estate agent's testimony was based on her experience and knowledge of the Bloomsburg area. R.R. at 264a-65a.
Regardless of this testimony, however, the objectors could not sustain their burden by merely presenting evidence that property values may decrease, and by not presenting evidence that if a decrease in property values did occur, it would be greater than that normally expected from a student housing facility. Marquise Investment; Sunnyside Up Corp.; Shamah; Soble Constr. This is particularly true given that the zoning ordinance requires the ZHB to consider whether "substantial" injury to property values will occur. R.R. at 101a. Further, the neighboring real estate agent offered no specific, objective data to support her general testimony that student housing decreases marketability and property values. See, e.g., Rexrode v. Zoning Hearing Bd. of N. Coventry Twp., 36 Pa. D. & C.3d 521 (C.P. Chester 1984), aff'd, 502 A.2d 325 (Pa. Cmwlth. 1986) (testimony of real estate agent that proposed special education school, which was permitted by special exception, would cause a decline in property values was insufficient to defeat special exception request). As such, the ZHB's determination regarding the alleged decrease in property values is not sufficient to warrant denial of the special exception.
Moreover, contrary to the ZHB's assertions, our decision in Pennsy Supply, Inc. v. Zoning Hearing Board of Dorrance Township, 987 A.2d 1243 (Pa. Cmwlth. 2009), does not compel a different result. There, an applicant sought a special exception to expand an existing quarry. The zoning board denied the request based on the nearby protestants' testimony concerning the detriment the proposed expansion would have on them and their community. On appeal to this Court, the applicant asserted the zoning board erred in denying the special exception request because the protestants' testimony was insufficient to satisfy their burden of proof. We disagreed, stating:
In this case, the [protestants] raised several issues concerning the detriment Pennsy's proposed expansion would have on them and their community. Specifically, they presented evidence, subject to Pennsy's cross-examination, about the impact current blasting operations have on their
residential wells, and the quality of their water as a result of the blasting. They also testified about the noise from blasting, how the accompanying dust and vibrations affect their quality of life. One [protestant] discussed the negative impact the quarry has had on her property value. Others related that the Balliet Run stream has been destroyed by sediment from the quarry. ...Id. at 1250 (emphasis added) (citations omitted).
Pennsy characterizes the testimony of the [protestants] as speculative, since they are not experts on the subject matter about which they testified, and they did not verify their experiences with objective tests. Certainly, if Pennsy's special exception was for a new use, the [protestants'] testimony would be more likely to be speculative, and demonstrating detriment to a high degree of probability would be more difficult. As we see it, however, the [protestants'] testimony can hardly be considered speculative when it was based upon the experiences they have had with Pennsy's current operations. Thus, under the circumstances, demonstrating a detriment to the community to a high degree of probability is a much easier task. Moreover, the mere fact that the [protestants] are lay witnesses does not make their testimony less valuable than the 'expert' evidence proffered by Pennsy.
Unlike Pennsy Supply, the case presently before us involves a special exception for a new use. Although the objectors here testified about general concerns over traffic, noise and a potential decrease in property values, there is no student housing facility or similar use currently operating on the subject property. The objectors' general and speculative testimony here simply does not show any specific adverse effects that Applicant's proposed use will have on the neighborhood, including the alleged effect on property values. Thus, Pennsy Supply is distinguishable. See In re Jones, 29 A.3d 60 (Pa. Cmwlth. 2011) (distinguishing Pennsy Supply, albeit in the context of a variance request, where neighboring landowners presented only speculative testimony; reversing zoning board's decision that neighboring objectors met their burden of proving detriment to the community).
D. Compatibility with Surrounding Area
Applicant also asserts the ZHB improperly denied its special exception application on the basis that the student housing facility would be in conflict with the surrounding area and would not be compatible with adjoining residential properties. Applicant argues the evidence presented by the objectors upon which the ZHB relied in reaching this conclusion consists of speculative and anecdotal stories of the failings of college students in general. Specifically, the objectors complained about the potential for friends coming and going to the subject property, loud parties and the subject property being littered with garbage. Applicant argues this testimony was speculative.
Applicant maintains that in Marquise Investment, objectors presented similar speculative testimony, and this Court held such testimony was insufficient to meet the objector's burden. Further, Applicant asserts neither the trial court nor the ZHB considered the fact that the local governing body zoned this area Residential-Urban with student housing facilities permitted by special exception. Applicant points out student housing facilities are not permitted in any other zoning district in the Township. Thus, Applicant contends the local governing body recognized there would be some impact in permitting student housing facilities, and it deemed that impact acceptable in the R-U District.
Where a particular use is permitted in a zone by special exception, it is presumed that the local legislature already considered that such use satisfies local concerns for the general health, safety, and welfare and such use comports with the intent of the zoning ordinance. Brickstone Realty. Further, when municipalities place general, non-specific or non-objective requirements into an ordinance with regard to special exceptions, this Court generally does not view such general provisions as part of the threshold persuasion burden and presentation duty of the applicant. Yarnall; Bray.
Here, the ZHB determined Applicant's proposed student housing facility was neither "so designed, located and proposed to be operated that the public health, safety, welfare and convenience will be protected," nor "compatible with adjoining development and the proposed character of the zoning district where it is to be located." ZHB Op., Concls. of Law Nos. 8, 10; Sections 135-82.D(3)(a), (c) of the zoning ordinance. Pursuant to Yarnall and Bray, the objectors bore both the initial evidence presentation duty and the burden of persuasion on these issues as the zoning ordinance does not attempt to shift the burden or the duty to the applicant on these criteria. See Section 135-82.D(3).
As explained throughout, the objectors here offered speculative testimony regarding the alleged adverse effects of Applicant's proposed student housing facility. The objectors did not present evidence that Applicant's proposed student housing facility would generate adverse effects greater than that normally expected from this type of use. Further, while the objectors testified Applicant's proposed use was inconsistent with the character of the neighborhood, which is comprised mostly of elderly residents and young families, the fact is that student housing facilities (and a wide array of other fairly intense uses) are permitted by special exception in the R-U district. The objector's general concerns were directed more at the language of the zoning ordinance, which permits a student housing facility by special exception in the R-U district, rather than Applicant's specific proposed use. Thus, the testimony offered by the objectors was not sufficient to defeat Applicant's special exception application.
Based on the foregoing, we reverse the denial of Applicant's special exception application.
As a final point, the parties address the trial court's characterizations of the area in which the proposed student housing facility is located. Regardless of the accuracy of the trial court's characterizations, however, because the trial court received no additional evidence here, we review the decision of the ZHB, not the trial court. Taliaferro. Thus, to the extent the parties' arguments focus on the trial court's decision, these arguments need not be addressed. --------
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 12th day of January, 2012, the order of the Court of Common Pleas of the Twenty-Sixth Judicial District, Columbia County branch is REVERSED.
/s/_________
ROBERT SIMPSON, Judge