Opinion
No. 1719 C.D. 2011
06-28-2012
John P. Jankowski, Appellant v. Scott Township Zoning Hearing Board, Alan Dent, Jr. and Linda Dent, Dave Ashby, Carroll Bowman and Dale Bowman, Amanda Dunne, Anne Everett, Dale E. Hock and Glenda Hock, Grace Jaskiewicz, Sandi Knorr, Tommi Sue Knowles, Helen Laidacker, Patricia Price and Robert Snyder
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this zoning appeal, John P. Jankowski (Applicant) asks whether the Court of Common Pleas of the Twenty-Sixth Judicial District, Columbia County branch (trial court) erred in denying his application for a special exception to allow him to use a residence he owns as a "student housing facility" for eight Bloomsburg University students. Essentially, Applicant asserts the trial court erred in denying the special exception where Objectors did not present evidence to show the proposed student housing facility would generate adverse impacts not normally generated by this type of use.
Objectors are Alan Dent, Jr. and Linda Dent, Dave Ashby, Carroll Bowman and Dale Bowman, Amanda Dunne, Anne Everett, Dale E. Hock and Glenda Hock, Grace Jaskiewicz, Sandi Knorr, Tommi Sue Knowles, Helen Laidacker, Patricia Price and Robert Snyder.
Based on numerous cases that address the governing standards for special exception requests, including our recent, unreported decision in Cellini v. Scott Township Zoning Hearing Board, (Pa. Cmwlth., No. 202 C.D. 2011, filed January 12, 2012), which presented substantially similar facts applied to the same zoning ordinance, we conclude the trial court erred in denying Applicant's special exception request based on the evidence presented by Objectors. The concerns voiced by Objectors are those typically associated with a home for college students and, therefore, did not show Applicant's proposed student housing facility would generate adverse effects not normally generated by this type of use. Thus, we reverse.
I. Factual and Procedural Background
Applicant owns a single-family dwelling located at 1200 Main Street in the Village of Lightstreet, Scott Township, Columbia County (subject property), which lies within the Township's R-U Residential-Urban zoning district.
The subject property, which is comprised of approximately one acre, is improved with a two-story detached dwelling and a detached two-car garage. The dwelling has a total habitable floor space of 2,976 square feet and includes 1.5 bathrooms. Applicant proposes to convert an existing laundry room into an additional bathroom.
Applicant proposes to lease the dwelling on the subject property to eight college students, with one parking space for each student, for a total of eight parking spaces. The subject property has driveway access from South Street, a small, narrow street. The subject property is situated in a "village-type" neighborhood, which includes other single-family detached dwellings, a five-unit apartment building, and several commercial uses, including a photography studio, a towing garage, a used car lot and a bar and restaurant. See Reproduced Record (R.R.) at 91a.
Applicant submitted an application to use his existing dwelling as a "student housing facility" as defined by Section 135-7 of the Scott Township Zoning Ordinance of 1992 (zoning ordinance), which is permitted by special exception in the R-U zoning district. A hearing ensued before the Scott Township Zoning Hearing Board (ZHB).
At the ZHB hearing, Applicant appeared with counsel and testified his proposed use satisfied the specific special exception criteria for a student housing facility.
Several nearby property owners, who were not represented by counsel at that time, voiced general concerns regarding Applicant's proposed use, which the ZHB summarized as follows:
A. That the proposed occupancy of the [subject] property by college students will be a source of excessive noise and other objectionable behavior in an otherwise quiet neighborhood;
B. That the proposed occupancy by eight residents with cars will cause traffic and parking congestion in the vicinity of the [subject] property;ZHB Op., 11/3/10, Finding of Fact (F.F.) No. 12(A)-(C).
C. That student housing is not an appropriate use within this predominately residential neighborhood.
Ultimately, the ZHB determined a "student housing facility" is permitted in the R-U district by special exception in accordance with the use regulations in Section 135-14 of the zoning ordinance, and the supplementary regulations in Section 135-24. The ZHB further determined Applicant's proposal satisfied the specific criteria for a student housing facility set forth in Section 135-24. However, the ZHB stated, in addition to the specific criteria, Applicant had to satisfy the general criteria for a special exception in Section 135-82.D(3)(a)-(f) of the zoning ordinance.
This Section states:
In reviewing requests for special exceptions, the [ZHB] shall take into account ... the following requirements ...Section 135-82.D(3)(a)-(f) of the Scott Township Zoning Ordinance of 1992.
(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;
(d) That adequate landscaping and screening is provided as required herein;
(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; and
(f) That the use conforms to all applicable regulations governing the district where located, except as may otherwise be determined for large-scale developments.
Applying these general criteria, the ZHB determined the location of Applicant's proposed use in the existing neighborhood 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). The ZHB also determined the proposed use would not be compatible with adjoining residential properties in the surrounding neighborhood as required by Section 135-82.D(3)(c). Because Applicant's proposed use did not meet all the general criteria of Section 135-82.D(3), the ZHB determined that Applicant was not entitled to a special exception. Applicant appealed to the trial court.
Before the trial court, 94 landowners filed a petition to intervene in Applicant's land use appeal. Ultimately, the parties entered into a stipulation in which they agreed to permit intervention by 15 of the 94 landowners (Objectors). The trial court approved the stipulation. Objectors then filed a motion seeking an evidentiary hearing so they could present their objections with the aid of counsel as they were unrepresented before the ZHB. Applicant opposed the motion. Ultimately, the trial court granted the motion, and a hearing ensued.
At hearing, the trial court heard testimony from two Objectors as well as the testimony of real estate appraisers for both Objectors and Applicant. The trial court then issued an order, without opinion, affirming the ZHB's denial of the requested special exception. Applicant appealed, and the trial court directed him to file a Pa. R.A.P. 1925(b) Statement, which he did. The trial court then issued an opinion in which it explained its basis for denying the special exception.
At the outset, the trial court rejected Applicant's argument that it erred in allowing the parties to present additional evidence. Specifically, the trial court noted a different trial judge issued the order granting Objectors' motion to present additional evidence, and the trial court lacked authority to disturb that order based on the coordinate jurisdiction rule.
Additionally, the trial court rejected Applicant's contention that it should have excluded Objectors' appraiser's opinion on the ground it was based on speculation rather than fact. However, the trial court stated, it "gave little weight to either [Objectors' or Applicant's] appraisal, as it was not necessary to reach the issue of property devaluation in order to adjudicate this matter." Tr. Ct., Slip Op., 10/3/11, at 4. The trial court then stated:
The more important issue to be addressed here is — whether [O]bjectors sustained their burden. Property values aside, one only has to look at the use to be made of this house.
[Applicant] intends to lease the [subject] property to eight unrelated students. Presumably, there will be a turnover of some tenants on a semester by semester basis. The house is several miles from the University. There is no public transportation. One may, therefore, reasonably expect that most of these tenants will have their own vehicles. [Applicant's]
plan does not provide for adequate parking facilities for the occupants, much less their guests. Even more importantly, the evidence presented was un-refuted [sic] that the street on which this house is located is not two lanes wide. Cars cannot now pass in both directions, although it is a 'two way' street. Adding to the traffic, and considering the inadequacy of the parking, this proposed use would create a hazard to motorists, pedestrians, pets, and particularly the children of the neighborhood.Id. This matter is now before us for disposition.
[O]bjectors are also concerned about noise and potential partying in the home's pool and hot tub. Although a legitimate concern, it is not necessary to address it at length, as the traffic concerns of the [ZHB] are more than sufficient to form a basis for its conclusion that 'the proposed use would not be compatible with the adjoining residential properties ...'. It is clearly a question of public safety.
II. Issue
On appeal, Applicant essentially contends the trial court erred in denying the special exception where Objectors did not present sufficient evidence to show the proposed student housing facility will generate adverse impacts not normally generated by this type of use and that these impacts will, to a high degree of probability, pose a substantial threat to the health and safety of the community.
III. Discussion
A. Standard/Scope of Review
Where, as here, a trial court takes additional evidence on the merits, it must make its own findings of fact based on the record made before the ZHB as supplemented by the additional evidence. See Section 1005-A of the Pennsylvania Municipalities Planning Code (MPC). This Court must then determine on appeal whether the trial court committed an error of law or an abuse of discretion. Newtown Square East, L.P. v. Twp. of Newtown, 38 A.3d 1008 (Pa. Cmwlth. 2011).
Act of July 31, 1968, P.L. 805, as amended, added by Section 101 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §11005-A.
While not specifically raised by the parties, the trial court here did not issue a decision containing its own factual findings. Rather, after receiving additional evidence, the trial court issued an order, without an accompanying opinion, that affirmed the ZHB. This defect could warrant a remand so that the trial court may make its own findings of fact for this Court's proper exercise of appellate review. See De Cray v. Zoning Hearing Bd. of U. Saucon Twp., 599 A.2d 286 (Pa. Cmwlth. 1991).
Nevertheless, a remand is not necessary where the trial court's opinion and the uncontradicted facts provide a sufficient basis for our review. See Mitchell v. Zoning Hearing Bd. of Borough of Mt. Penn, 838 A.2d 819 (Pa. Cmwlth. 2003); De Cray. As discussed more fully below, our review of the uncontradicted facts and the reasoning in the trial court's 1925(a) opinion provide a sufficient basis upon which to conduct appellate review and obviate the need for a remand. See Mitchell. In particular, as set forth in detail below, even if we view the record in a light most favorable to Objectors, they cannot prevail, and Applicant is entitled to the requested special exception.
B. Merits
1. Contentions
Applicant first argues the trial court erred in determining the proposed student housing facility would create parking problems in the neighborhood. Applicant asserts the trial court erred in ignoring the undisputed fact, and the specific ZHB finding, that the proposed use complied with the one parking space per student requirement of Section 135-76.I of the zoning ordinance.
Applicant further maintains the trial court erred in determining that increased traffic created by the proposed use would create a hazard to motorists, pedestrians, pets, and children. To that end, he contends the trial court disregarded the fact that traffic from the proposed student housing facility will traverse only 100 feet of the narrow South Street and will not pass in front of other homes on South Street where children reside.
Applicant also contends the trial court placed undue emphasis on the narrowness of South Street, which, on occasion, may cause one vehicle to wait until another passes, something that would occur no matter who resided in the dwelling on the subject property. Applicant also argues Objectors presented no specific, objective evidence as to the traffic that the student occupants would generate.
More importantly, Applicant maintains the trial court erred in failing to apply this Court's recent decision in Marquise Investment, Inc. v. City of Pittsburgh, 11 A.3d 607 (Pa. Cmwlth. 2010), appeal denied, ___ Pa. ___, 29 A.3d 799 (2011), in which this Court held that protestants must present evidence of a high probability that a proposed use will generate traffic not normally generated by the type of use at issue and that this abnormal traffic threatens public safety. Accord Appeal of Martin, 529 A.2d 582, 584 (Pa. Cmwlth. 1987) (emphasis added) ("As to the traffic issue, the objectors have met their evidence presentation burden by identifying the potential traffic hazards. However, to meet their persuasion burden the objectors had to prove that there is a high probability that the [proposed use] will generate traffic patterns 'not normally generated by that type of use and that this abnormal traffic will pose a substantial threat to the health and safety of the community.'") Applicant argues Objectors here did not present evidence that would satisfy this burden.
In addition, Applicant points out, although the trial court did not appear to base its decision on the testimony of Objectors' real estate appraiser, the appraiser's opinion as to the decrease in value of Objector Alan Dent, Jr.'s property, which lies at a distance from the subject property, was not based on any actual facts or assumed facts in the record.
Further, in his reply brief, 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 that in Sunnyside Up, this Court stated an objector must show, if a decrease in property values were to occur, such a decrease would be greater than that typically expected from the proposed use, and Objectors did not satisfy this burden here.
Objectors respond that Section 135.82.D(3) of the zoning ordinance establishes certain general criteria an applicant must satisfy in order to obtain a special exception. Objectors maintain the ZHB properly denied Applicant's special exception request here based on its determinations that Applicant did not satisfy these requirements. Furthermore, they argue, after an evidentiary hearing, the trial court properly determined the zoning ordinance requirements were not met, and, therefore, appropriately denied the application.
Objectors assert this case relates to the impact of a residence that Applicant wishes to rent to eight unrelated college students on a semester-by-semester basis in a neighborhood that consists primarily of single-family detached dwellings. Objectors opposed the requested special exception because they are well aware that allowing eight unrelated college students to rent a home with an in-ground pool and hot tub would cause excessive noise, traffic and parking problems as well as a reduction in neighboring property values.
Objectors point out that in the face of challenges to the validity of zoning regulations concerning student housing, this Court recognizes students have different hours, work and social habits and frequently cause noise, disturbance and problems in residential neighborhoods. See Farley v. Zoning Hearing Bd. of L. Merion Twp., 636 A.2d 1232 (Pa. Cmwlth. 1994); see also Lantos v. Zoning Hearing Bd. of Haverford Twp., 621 A.2d 1208 (Pa. Cmwlth. 1993).
Objectors highlight the fact that there are approximately 120 households within the Village of Lightstreet, and 82 Lightstreet residents signed a petition indicating their opposition to student housing. Not one Lightstreet resident supported Applicant's application.
For its part, the ZHB argues the trial court, at an evidentiary hearing, heard testimony from an expert witness that Applicant's proposed use would cause substantial injury to property values in the neighborhood. The ZHB also contends the trial court did not err in finding a five percent decrease in property values was a "substantial injury" to the value of the subject property.
In addition, the ZHB argues various witnesses testified to the increased noise, traffic and other problems associated with the introduction of student housing into the neighborhood. It contends the trial court credited Objectors' testimony and affirmed the ZHB. The ZHB contends the trial court's decision is supported by substantial evidence, and this Court cannot substitute its assessment of witness credibility for that of the trial court.
2. Analysis
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 his 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.
Recently, we addressed an applicant's request for a special exception for a proposed student housing facility for seven Bloomsburg University students in the same zoning district in Scott Township, based on the same zoning ordinance. See Cellini. There, we reversed decisions of the ZHB and the trial court that denied the special exception where the applicant's proposal qualified as a "student housing facility," and the applicant satisfied the zoning ordinance's specific special exception criteria. We determined the ZHB erred in denying the special exception based on the speculative concerns of the objectors. We stated the concerns voiced by the objectors were those typically associated with a student housing facility and, therefore, did not show a high degree of probability that the proposed student housing facility would generate adverse effects not normally expected from this type of use. Specifically, we addressed at length the objectors' speculative concerns regarding increases in traffic, decreases in property values, failure to protect public safety and incompatibility with the surrounding area. We held the objectors' speculative testimony could not defeat the special exception request.
The facts presented here are substantially similar to those presented in Cellini. As set forth in greater detail below, like the objectors' testimony in Cellini, Objectors' general concerns here are not sufficient to defeat the grant of the special exception. Therefore, as in Cellini, reversal of the denial of the special exception is proper.
Aside from the fact that the trial court took additional evidence here, the only other notable distinction between this case and Cellini is that, here, before the trial court, Objectors presented the testimony and report of a real estate appraiser who opined a nearby property would experience a five percent decrease in value as a result of the proposed student housing facility. In Cellini, one of the objectors who was a real estate agent offered general testimony that the proposed student housing facility would cause a decrease in property values.
Although in this case Objector's appraiser authored a report and based her opinion on comparable sales research, like the real estate agent in Cellini, the appraiser did not opine that any potential decrease in property value would be greater than that normally expected from a student housing facility. As a result, this testimony is not sufficient for Objectors to carry their burden. See Marquise Inv.; Sunnyside Up.
More importantly, as to the evidence regarding a potential decrease in property values, the trial court, who is the fact-finder here, stated: "This court gave little weight to either [Applicant's or Objectors'] appraisal, as it was not necessary to reach the issue of property devaluation in order to adjudicate this matter." Tr. Ct., Slip Op. at 4 (emphasis added). Because the fact-finder did not decide this matter on the basis of a purported decrease in property values, this alleged adverse effect cannot justify denial of the special exception.
The trial court's denial of the special exception rested on its determination that Applicant's proposal did not provide adequate parking facilities for the occupants of the student housing facility or their guests. Additionally, the trial court determined the unrefuted evidence showed the street on which the subject property is located is not a "two-way" street, and the addition of the proposed use would create hazards to motorists, pedestrians, pets and particularly the children of the neighborhood. The trial court erred in denying the special exception on these grounds.
First, contrary to the trial court's determination, Applicant satisfied the zoning ordinance's off-street parking requirement. More specifically, the zoning ordinance requires one off-street parking space for each resident, with 270 square feet of usable area per vehicle. See Section 135-76.I of the zoning ordinance. Thus, Applicant's proposed student housing facility requires eight off-street parking spaces, with a total of 2,160 square feet of usable area for the vehicles. Before the ZHB, Applicant testified his proposal contemplated eight parking spaces. ZHB Hearing, Notes of Testimony (N.T.), 9/27/10, at 10-11. Applicant further testified his proposed parking area would be large enough to accommodate 12 to 14 parking spaces based on the zoning ordinance's square footage requirement. Id. at 11. This testimony was not refuted. Indeed, the ZHB specifically found Applicant satisfied the off-street parking requirement. F.F. No. 9, Concl. of Law No. 6. Therefore, the trial court erred in denying the special exception based on a purported lack of parking.
As to the trial court's determination that the proposed student housing facility poses an undue traffic hazard, in Cellini, we stated:
[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. ...
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.
When what is presented by objectors is a mere 'speculation of possible harms,' they have failed to meet their burden.Cellini, Slip Op. at 10-11 (emphasis added) (citations and quotations omitted).
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. Proof of abnormal and hazardous traffic effects usually requires evidence in the form of traffic counts, accident records and expert evidence.
Here, Objectors testified as to their concerns over traffic, particularly in light of the fact that the subject property has driveway access from South Street, a small, narrow street. N.T. 42-43, 51, 52, 54-55; R.R. at 8a-14a, 24a, 26a. Objectors also presented three photographs of vehicles traveling in opposite directions on South Street to further illustrate its narrowness. R.R. at 131a-33a. This evidence was insufficient for Objectors to carry their burden. More specifically, despite Objectors' testimony as to their general, speculative concerns over increased traffic, Objectors did not present evidence that any anticipated increase in traffic would be greater than that normally associated with a student housing facility or that any abnormal traffic condition threatens safety.
Further, as to the trial court's statement regarding the impact of traffic on the already narrow South Street, a special exception cannot be denied simply because a proposed use would contribute to an already dangerous traffic condition where the dangerous condition is caused primarily by other sources, including existing road conditions. See In re Cutler Grp., Inc., 880 A.2d 39, 43 (Pa. Cmwlth. 2005) (citing Manor HealthCare; Appeal of Martin ("the [local governing body] could not deny [the applicant's] conditional use application simply because the proposed use would contribute to the already dangerous traffic condition because the dangerous condition is caused primarily by the ninety-degree approach to the one-lane bridge.")
Also, although the trial court stated the increase in the number of vehicles associated with the proposed use would create a hazard, the trial court did not discuss case law defining the relevant considerations for evaluating traffic issues in the context of a special exception. Further, the trial court's determination is based on Objectors' speculative lay testimony, which is insufficient to satisfy Objectors' burden.
To that end, Objectors presented no expert testimony or traffic counts that would indicate the addition of the vehicles associated with the proposed use would create an abnormal or hazardous traffic effect or that any increase in traffic exceeds that normally expected from this type of use. As such, the trial court erred in determining the purported increase in traffic warranted denial of the special exception. See, e.g., In Re Brickstone Realty Corp., 789 A.2d 333 (Pa. Cmwlth. 2001) (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 v. U. Southampton Twp., 690 A.2d 1324 (Pa. Cmwlth. 1997) (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); Manor HealthCare (testimony of nine neighbors as to possibility that traffic problems could result from increased traffic generated by proposed use was insufficient to defeat grant of special exception).
Further, as Applicant asserts in his brief, based on an aerial view of the area, it appears students would only travel a short distance on South Street (either prior to entering or upon exiting the driveway on the subject property) in order to gain access to Main Street. See Reproduced Record at 91a.
In addition, as explained in Cellini, if a large, intact family with several vehicles occupied the dwelling on the subject property (which is nearly 3,000 square feet), the impact on traffic would be the same as that anticipated from Applicant's proposed student housing facility for eight college students. See Joseph v. N. Whitehall Twp. Bd. of Supervisors, 16 A.3d 1209 (Pa. Cmwlth. 2011) (evidence that other permitted uses may generate as much or more traffic as the proposed use is relevant in reviewing conditional use request). Also, under the zoning ordinance Applicant could house up to 10 residents in a student housing facility; here, he seeks to house eight students. Section 135-24.A of the zoning ordinance.
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: townhouses; two-family dwellings; conversion apartments; mobile homes on individual lots; boarding or rooming houses; churches or 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; day-care centers; clubs, lodges and fraternal organization facilities; and, public utility services and/or buildings.
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.
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. ...Section 135-9.C of the zoning ordinance (emphasis added). As in Cellini, our review of the record here reveals Objectors' concerns were directed 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.
While not entirely clear, it appears the Township amended the zoning ordinance after the special exception applications for student housing facilities in Cellini and this case.
While the trial court based its denial of the special exception on traffic concerns, the ZHB also determined the location of the proposed use would conflict with its surroundings, would not adequately protect the public welfare and was not compatible with adjoining residential properties.
As we explained in Cellini, where a particular use is permitted in a zone by special exception, it is presumed 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.
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. Id.; Bray; Yarnall v. Allen, 444 A.2d 1335 (Pa. Cmwlth. 1982). Pursuant to Yarnall and Bray, Objectors bore both the initial evidence presentation duty and the burden of persuasion on issues relating to protection of the public welfare and the compatibility of the proposed use with adjoining residential properties 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 with the concerns addressed above, Objectors offered general testimony regarding the purported adverse effects of living near a home rented by college students. 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. Also, while Objectors point to a petition signed by Lightstreet residents in opposition to the student housing facility, the trial court expressly declined to consider this petition. See Tr. Ct. Hearing, 8/11/11, Notes of Testimony at 7. In any event, this evidence does not demonstrate a high degree of probability that substantial injury will occur. See Abbey v. Zoning Hearing Bd. of Borough of E. Stroudsburg, 559 A.2d 107 (Pa. Cmwlth. 1989) (petition signed by 700 residents in opposition to proposed special exception use was insufficient to show a strong degree of probability that substantial injury would occur).
Further, while Objectors testified Applicant's proposed use was inconsistent with the character of the neighborhood, 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. Objectors' 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 Objectors was not sufficient to defeat Applicant's special exception application. Cellini.
Finally, Objectors briefly cite Farley and Lantos, noting that in those cases this Court recognized college students have different hours, work and social habits and frequently cause noise and disturbance in residential neighborhoods. However, Farley and Lantos are not helpful here as those cases addressed challenges to the validity of zoning restrictions on student homes. Here, we are not confronted with a validity challenge to student home regulations; rather, this case concerns the standards applicable in evaluating a special exception request.
Applicant also argues the trial court erred in failing to exclude the testimony of Objectors' real estate appraiser because her testimony was based on speculation.
Based on our decision to grant Applicant's special exception request, we need not address this argument. In any event, as stated above, the trial court, as factfinder here, did not deny Applicant's special exception request based on a purported decrease in property values.
For all the foregoing reasons, we reverse the order of the trial court that denied Applicant's special request.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 28th day of June, 2012, the order of the Court of Common Pleas of the Twenty-Sixth Judicial District, Columbia County branch is REVERSED.
/s/_________
ROBERT SIMPSON, Judge