Cogan Properties v. E. Union Twp. Zoning Hearing Bd.

318 A.3d 981

COGAN PROPERTIES, LLC, Appellant

v.EAST UNION TOWNSHIP ZONING HEARING BOARD, Eagle Rock Community Association, Inc., and Eagle Rock Resort, Co.

No. 619 C.D. 2023

Commonwealth Court of Pennsylvania.

Argued May 7, 2024

Decided June 12, 2024

Appealed from No. 1969-2022, Common Pleas Court of the County of Schuylkill, Christopher W. Hobbs, J.

Zachary A. Sivertsen, Blue Bell, for Appellant.

Joseph R. Baranko, Jr., Hazleton, for Appellee East Union Township Zoning Hearing Board.

Sean W. Logsdon, Drums, for Appellees Eagle Rock Community Association, Inc., and Eagle Rock Resort, Co.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE FIZZANO CANNON

Cogan Properties, LLC (Applicant) appeals from the May 31, 2023 Order (Trial Court Order) of the Court of Common Pleas of Schuylkill County (Trial Court) that affirmed the decision of the East Union Township Zoning Hearing Board (Board) denying a special exception for a private recreational facility on Applicant’s property. Upon review, we affirm the Trial Court Order.

I. Background and Procedural Posture

In June of 2022, Applicant filed a special exception use application (Application) with East Union Township (Township) pursuant to Township’s Zoning Ordinance¹ (Ordinance) seeking permission to operate a private recreational facility in the form of a gun range on a 526-acre property (Property)² located in Township’s CR Conservation Residential zoning district (CR District). See Application, Reproduced Record (R.R.) at 77a-87a. Although not a permitted use,³ private recreation facilities are permitted by special exception within Township’s CR District.⁴

Township denied the Application and Applicant appealed to the Board. See Appeal Application dated June 21, 2022 (Appeal), R.R. at 88a-93a. The Board conducted hearings on the Appeal on August 18, 2022, and September 22, 2022. See Notes of Testimony, August 18, 2022 & September 22, 2022 (collectively, N.T.⁵), R.R. at 245a-496a. At the conclusion of the hearing, the Board unanimously voted to deny the Application. See N.T. at 249, R.R. at 494a. In a written decision issued on November 1, 2022, the Board explained that Applicant failed to comply with the requirements of Ordinance Sections 1510.2. See Decision of the East Union Township Zoning Hearing Board issued November 1, 2022 (Board Decision), R.R. at 500a-34a.

Applicant timely appealed to the Trial Court. See R.R. at 869a-917a. Without taking further evidence, the Trial Court issued the Trial Court Order on May 31, 2023, disagreeing with the Board’s evidentiary determinations but ultimately affirming the Board Decision as to Ordinance Section 1510.2(5), which requires a proposed use in a special exception application to be compatible with the adjoining development and the character of the zoning district and neighborhood in which it is to be located. See Trial Court Order, R.R. at 593a-606a; see also Ordinance, Section 1510.2(5), R.R. at 840a. Applicant thereafter timely appealed to this Court.⁶

II. Issues

[1–3] On appeal,⁷ Applicant argues that the Trial Court abused its discretion or erred as a matter of law by affirming the Board’s conclusion that the proposed recreational facility was incompatible with the character of the zoning district and the neighborhood as required by Ordinance Section 1510.2(5), which Applicant argues is not a specific, objective criterion of the Ordinance and not Applicant’s burden to prove. See Applicant’s Br. at 5, 18-27. Applicant also argues that the neighbors who objected to the proposed recreational facility (collectively, Objectors) failed to carry their heavy burden to rebut the presumption that the proposed use is consistent with the health, safety, and welfare of the community. See id.

The Board counters that the determination of whether a proposed special exception is compatible with adjoining development and the character of the zoning district and the neighborhood in which a proposed use is to be situated is within the Board’s discretion, which, considering the record as a whole, it properly exercised in this matter. See Board’s Br. at 5-13. Likewise, intervenors Eagle Rock Community Association, Inc., and Eagle Rock Resort Co. (collectively, Intervenors)⁸ argue that the Trial Court correctly affirmed because the Board’s conclusion regarding the incompatibility of the Property’s proposed use as a gun range with the residential character of the surrounding neighborhood is supported by substantial and credible evidence. See Intervenors’ Br. at 7-18.

III. Discussion

[4, 5] Initially, we observe that,

[d]ue to their expertise and experience, a zoning hearing board’s interpretation of its own zoning ordinance is entitled to great weight and deference. The general principle that zoning ordinances must be construed, so as to give landowners the broadest possible use of their property-gives way where the ordinance, read rationally and as a whole, clearly' signals that a more restrictive meaning was intended.

Hamilton Hills Grp., LLC v. Hamilton Twp. Zoning Hearing Bd., 4 A.3d 788, 793 (Pa. Cmwlth. 2010) (internal quotation marks and citations omitted).

[6–11] The Ordinance empowers the Board to grant special exceptions in the Township. See Ordinance, Sections 602 & 1510, R.R. at 692a & 839a-840. As this Court has explained,

[g]enerally speaking, a special exception is not an exception to a zoning ordinance, but rather a use which is expressly permitted, absent a showing of a detrimental effect on the community. The important characteristic of a special exception is that it is a conditionally permitted use, legislatively allowed if the standards are met.

Siya Real Est. LLC v. Allentown City Zoning Hearing Bd., 210 A.3d 1152, 1157 (Pa. Cmwlth. 2019) (internal citations, brackets, and quotation marks omitted). Further,

[b]ecause the use is contemplated by the ordinance, there is a presumption that the governing body considered the effect of the use when enacting the ordinance and determined that the use is consistent with the health, safety, and welfare of the community so long as it meets the objective requirements of the ordinance.

Marr Dev. Mifflinville, LLC v. Mifflin Twp. Zoning Hearing Bd., 166 A.3d 479, 483 (Pa. Cmwlth. 2017) (emphasis omitted).

To satisfy its burden for a special exception, an applicant must establish that the proposed use meets the specific objective criteria of the [z]oning [o]rdinance. These definite criteria are in contrast to the general, non-specific or non-objective requirements such as health and safety. Once the applicant establishes compliance with the specific criteria, it is presumed that the use is consistent with the promotion of the public health, safety, and welfare. The burden then shifts to the objectors to prove to a high degree of probability that the impact from the proposed use will substantially affect the health, safety, and welfare of the community to a greater extent than would be expected normally from that type of use.

Heisler’s Egg Farm, Inc. v. Walker Twp. Zoning Hearing Bd., 232 A.3d 1024, 1035-36 (Pa. Cmwlth. 2020) (internal citations, quotation marks, and brackets omitted).

It is important to appreciate that the burden placed on the objectors is a heavy one. They cannot meet their burden by merely speculating as to possible harm, but instead must show a high degree of probability that the proposed use will substantially affect the health and safety of the community.

Marr, 166 A.3d at 483 (quoting E. Manchester Twp. Zoning Hearing Bd. v. Dallmeyer, 609 A.2d 604, 610 (Pa. Cmwlth. 1992)) (internal quotation marks omitted); see also Tower Access Grp., LLC v. S. Union Twp. Zoning Hearing Bd., 192 A.3d 291, 300 (Pa. Cmwlth. 2018) ("an objector cannot meet his burden with speculation").

Here, per the Ordinance, an applicant for a special exception in the Township bears the initial burden of putting forth evidence

that the proposed use and/or development conforms with all applicable standards and provisions within this Ordi- nance and the following expressed standards and criteria:

1. The proposed use shall not jeopardize the Community Development Objectives of this Ordinance nor shall it adversely affect the health, safety[,] and welfare of the public and/or the environment.

2. Public services and facilities such as streets, sewers, water, police, and fire protection shall be adequate for the proposed use and/or development.

3. Existing streets and proposed access to the site shall be adequate regarding the width and pavement for emergency service vehicles.

4. Existing streets and proposed access to the site shall be adequate to accommodate anticipated traffic volumes in a manner that avoids undue traffic congestion, and provides for the safety and convenience of pedestrian and vehicular traffic. The proposed use shall not result in unsafe or dangerous traffic conditions.

5. The proposed use shall be compatible with adjoining development and the character of the zoning district and neighborhood in which it is proposed to be located. The nature and intensity of the operation of the proposed use shall be considered regarding its compatibility or lack thereof.

6. The proposed use shall not substantially impair the value of other property in the neighborhood where it is proposed to be located.

7. The proposed use and/or development shall not be more objectionable in its operations in terms of noise, fumes, odors, vibration, or lights than would be the operations of any permitted use in the subject Zoning District.

8. The submission of any reports and/or studies, required by the [ ] Board within the context of the definition "Impact Analysis" as contained defined [sic] in Article 2 of this Ordinance, which conclusively demonstrates that the proposed use or development will not have a negative impact upon the particular subject or subjects as defined by the [ ] Board, in...