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Special Exceptions under Pennsylvania law

Written by Daniel P. Dalton on July 30, 2016 Category: Constitutional Law, Land Use and Zoning, Religious Institutions
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Servant’s Oasis (“Plaintiff”) is a non-denominational ministry “that exists to rescue, refresh and grow God’s people.” Servant’s Oasis sought to develop a religious retreat that would sit on three contiguous parcels of land located in Lebanon County, Pennsylvania (the “Property”), of which approximately 153 acres were located in the Rural Residential District of South Annville Township (“Defendant”). The original owners had developed the Property to include a single-family home and several accessory buildings. In 1999, Servant’s Oasis entered into a lease with the Property owners for a term of 20 years, which was later extended an additional 20 years. The sole access to the Property is from Wild Apple Drive, which is a public road that intersects Route 322 and terminates in a cul-de-sac in the northeast corner of the Property. The closest main road is Route 322, which is approximately 5,000 feet from the property.

On March 4, 2011, Servant’s Oasis filed an application with the local Zoning Board requesting a special exception to develop a religious retreat. The application stated that the maximum occupancy of the Property would be 297 persons at full build-out. The application explained that Servant’s Oasis planned to construct a building with overnight facilities for up to 93 guests. The application also included a water sewer feasibility study for construction of a single community-on-lot sewage disposal system to accommodate the additional visitors. The study reported that a packaged wastewater treatment plan would be too costly. In response to questions from the Township engineer about the feasibility of on-lot sewage treatment, Servant’s Oasis did additional testing and submitted a revised sewer feasibility study on February 23, 2012. This study reported that testing did not produce a suitable place on the Property for an on-lot treatment system, as proposed in the application. The study also indicated that a packaged wastewater treatment facility would be feasible for discharge into Buckholder Run, a stream that runs through the property. The February study also stated that the packaged wastewater treatment system would meet DEP’s effluent discharge but not “the effluent mass loading limitations for Total Nitrogen and Total Phosphorus for this site.” Accordingly, the February study acknowledged that Servant’s Oasis would need to purchase nutrient trading credits.

On April 13, 2012, Servant’s Oasis submitted a final sewer feasibility study. In the April study, Servant’s Oasis indicated that there were several spots on the Property that “may be suitable for installation of several elevated sand mound beds.” Consequently, Servant’s Oasis proposed to construct multiple on-lot sewage disposal systems instead of a single packaged treatment facility. In conclusion, the April study stated:

During the initial phase of the project the existing on-lot sewage treatment system can be utilized [to accommodate 40 to 50 visitors], as previously permitted and approved. Subsequent phases will require the construction of additional on-lot sewage treatment systems in order to accommodate the sewage flow from each development phase . . . . The next most feasible and economic option for treating sewage flows from this project is the construction of an on-site packaged wastewater treatment facility . . . . It is anticipated that the sanitary sewage flows from the proposed use can be safely treated on the project site.

Public hearings were then held before the Board on nine separate occasions. At the April 26, 2012, hearing, Servant’s Oasis’ engineer testified about the final sewer feasibility study, stating that in order to design, permit, and obtain approval for an on-lot disposal system, Servant’s Oasis would need to perform additional testing and obtain the County Planning Department’s approval. Further, in the event that the on-lot system could not be built, a packaged wastewater treatment plant would be constructed. At the next hearing, the engineer acknowledged that if Buckholder Run ran dry, DEP would establish different effluent discharge limits. Further, if DEP lowered the effluent discharge limits, the packaged wastewater treatment plant could be designed to meet those limits. At the September 2012 hearing, Servant’s Oasis’ president testified that “[o]ur preferred scenario and how we have approached this project is that a full build-out [the retreat] would use a package treatment plant.”

During the hearings, several adjacent landowners raised concerns about the proposed retreat. These concerns included the retreat’s impact on property values and the character of the neighborhood, whether emergency responders would be able to assist persons at the retreat, the increase in traffic, and the fact that Buckholder Run has occasionally run dry. The Chief of the Annville Fire Department also testified that the existing single access road to the Property was narrow, and had previously been blocked for multiple days due to tornadoes. The Chief therefore suggested the creation of a second access route to the Property, considering the retreat guests would have multiple campfires and limited access to water. Thus, on December 13, 2012, the Zoning Board denied Servant’s Oasis’ application for a special exception. The Zoning Board stated that Servant’s Oasis had not satisfied the specific and objective requirements for a special exception, and further that the proposed retreat would be detrimental to public health, safety, and welfare. The Lebanon County Court of Common Plea’s affirmed the decision of the Zoning Board, and thus, Servant’s Oasis appealed to the Commonwealth Court of Pennsylvania.

In Servant’s Oasis v. Zoning Hearing Board of South Annville Township, PA, the appellate court held that a special exception is a permitted use to which an applicant is entitled if it meets the objective standards of the zoning ordinance.

The applicant bears the burden of production and persuasion to prove that the proposed use meets the special exception requirements. Once the applicant’s burden is satisfied, a presumption arises that the use is consistent with the health, safety and welfare of the community. The burden then shifts to the objectors to prove that the proposed use will have a generally detrimental effect on the public health, safety and welfare.

Pursuant to the local zoning code, a retreat is one of the enumerated special exception uses that can be located in the Rural Residential District of South Annville Township. However, a proposed special exception use may not have “an adverse effect on the welfare of the area due to noise, odor, dust, glare, lighting, traffic circulation or design.” Additionally, the application must present a water and sewer feasibility study that specifies the method of sewage disposal. Further, the applicant must submit a traffic impact study, and an emergency plan of evacuation. Finally, the applicant must present a detailed site plan, address the method for the treatment and disposal of sewage and provide the Zoning Board with a plan, studies, or other data to demonstrate compliance with all applicable regulations.

On appeal, Servant’s Oasis first argued that the Zoning Board erred in finding that it did not identify the proposed method of sewage disposal for the retreat. South Annville Township and the Zoning Board countered, arguing that Servant’s Oasis’ witnesses did not precisely address the sewage treatment methodology. Specifically, the Zoning Board argues that Servant’s Oasis did not verify that the expansion of the existing disposal system of the construction of a packaged wastewater treatment facility was technically viable. Further, it was possible that neither option would be approved by the DEP. Additionally, Servants Oasis did not prove that it can purchase the nutrient trading credits necessary for a packaged wastewater treatment facility. However, according to Plaintiff, the April study clearly explained that Servants Oasis intended to install a packaged wastewater treatment system at full build-out of the retreat, but until full build-out, the retreat would use the existing on lot system and expand upon that system to several small on-lot disposal systems. The April study was in compliance with the Zoning Ordinance because the ordinance requires the applicable to identify its method of sewage disposal, not to certify that the proposal had been approved by DEP. Plaintiff further argued that, if the Zoning Board was concerned that Plaintiff would develop the retreat without viable means of sewage disposal, it should have approved the special exception with conditions.

The court concluded that the Zoning Board had held Servant’s Oasis to a higher standard of proof than that prescribed by law. According to In re: Appeal of Drunmore Crossings, L.P., 984 A.2d 589 (Pa.Cmwlth.2009), an applicant for a special exception is not required to prove that it will be able to obtain the requisite DEP permit during the earlier stages of the zoning process. In fact, this requirement would be impossible to satisfy, as an applicant must secure zoning approval before DEP will establish the effluent discharge limits and review the proposed system. Thus, the Zoning Board’s authority is limited to ensuring that the proposed system is an accepted method for waste management by DEP. Because Servant’s Oasis indicated its willingness to pursue the alternative of a packaged wastewater treatment facility to meet the preliminary effluent discharge limits, the facility is an approved method of sewage disposal. According to the court, “DEP may reduce the effluent discharge limits or impose other requirements that will require revisions . . . but these are decisions for DEP to make. The Zoning Board’s only concern should have been whether Servant’s Oasis has identified a means of sewage disposal, not whether the method would be approved by DEP.”

Further, the court agreed with Plaintiff that, had the Zoning Board been concerned that Servant’s Oasis would develop the retreat without viable means of sewage disposal, it should have approved a special exception with conditions. The court acknowledged that Section 912.1 of the Pennsylvania Municipalities Planning Code specifically authorizes the Zoning Board to “attach such reasonable conditions and safeguards, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of this act and the zoning ordinance.” The court instructed that “[a] reasonable condition would require any expanded development of the Property to be conditioned on obtaining the requisite approvals from DEP for sewage treatment.” See Kohr v. Lower Windsor Township Board of Supervisors, 910 A.2d 152, 159 (Pa.Cmwlth.2006) (holding that township should have approved preliminary subdivision plan conditioned on applicant obtaining necessary permits from DEP). Thus, the court held that the Zoning Board erred in withholding its approval based upon concerns that neither system would be permitted.

Next, Servant’s Oasis argued that the Zoning Board erred in finding that it did not submit an adequate “emergency plan of access.” Servant’s Oasis insisted that it applied with this “vague guidance” requirement, and further that nothing in the Zoning Ordinance requires an applicant to submit an “emergency evacuation plan” or “emergency management plan.” The court agreed that the emergency plan of access in Plaintiff’s application satisfied the requirements of the Zoning Ordinance. Zoning Ordinance states that “[t]he applicant shall submit an emergency plan of access with its application to the Zoning Hearing Board meeting the requirements of § 1420.21 of this Chapter.” Section 1420.21 states that “[a] written plan of emergency access must be provided by the owner in the event of emergency conditions such as fire, assuming the worst condition.” Servant’s Oasis’ application stated it would prepare an emergency evacuation plan, train its employees and volunteers, provide a suitable entrance for first responders, and improve existing roadways. The court concluded that this plan complied with what little guidance is provided in Section 1420.21 of the Zoning Ordinance, and that nothing in the Zoning Ordinance required a second means of access to the property. Thus, the Zoning Board erred in holding that Servant’s Oasis did not satisfy the objective requirements of the Zoning Ordinance regarding an emergency plan of access.

Finally, Servant’s Oasis argued that the Zoning Board erred in finding that the proposed retreat would be detrimental to public health, safety and welfare based upon the subjective and speculative objections of the objectors. Servant’s Oasis asserts that because it had satisfied the objective requirements for a special exception, a presumption arose that the proposed use was consistent with the health, safety and general welfare of the community. The burden then shifted to the objectors to present evidence to support their speculative concerns. Although the objector’s primary concern was an increase in traffic, courts have often held this concern is insufficient to deny a special exception. See, e.g., Accelerated Enterprises, Inc. v. Hazle Township Zoning Hearing Board, 773 A.2d 824, 827 (Pa .Cmwlth.2001). In response, the Zoning Board argued that it made specific findings of fact that collectively constitute substantial evidence that the proposed retreat would be detrimental to public health, safety and welfare. Specifically, the Zoning Board points to the fact that the existing access road is narrow and was recently blocked for two days by tornado damage. This evidence, the Zoning Board argued, was not speculative.

The court stated that, to satisfy the burden, the objectors were required to show a high 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. Testimony based on specific past experiences can satisfy this burden, but bald assertions, personal opinions and speculation will not. Visionquest National, Ltd. v. Board of Supervisors of Honey Brook Township, Chester County, 569 A.2d 915, 917–18 (Pa.1990). Thus, the objector’s concern about increased traffic was not a sufficient ground to deny a special exception unless it was highly probable that the proposed use would generate traffic “not normally generated by that type of use and that the abnormal traffic threatens safety.” Accelerated Enterprises, 773 A.2d at 827. The court noted that the objectors offered no evidence that the proposed retreat will generate higher traffic than any retreat, which is a permissible use. Further, the Zoning Board’s contention that Hogan, Lepore & Hogan v. Pequea Township Zoning Board is controlling was not substantiated. 638 A.2d 464 (Pa.Cmwlth.1994), overruled in part by Wistuk v. Lower Mt. Bethel Township Zoning Hearing Board, 925 A .2d 768 (Pa.2007). In Hogan, the zoning board found that the proposed use would harm the public health, safety and welfare because there was a “virtually certainty” that the use in question would have an adverse effect on neighboring watering wells and wetlands. Analogizing the instant case to Hogan, the Zoning Board argued that the sole means of access to the Property is by narrow roads with poor sight distances that have been blocked by storm damage in the recent past. This “limited access” is a unique feature that, combined with Servant’s Oasis’ one-page emergency plan of access, “sufficiently demonstrates a detrimental effect on public health, safety and welfare.” However, unlike in Hogan, there was no testimony in the present case that a danger to the public health, safety or welfare is “a virtual certainty” to occur.

Therefore, the court held that the Zoning Board erred in holding that Servant’s Oasis’ emergency plan of access was not sufficiently detailed and that a second means of access to the Property was necessary. Further, the evidence did not establish a high degree of probability that Servant’s Oasis’ proposed use presents a substantial threat to the public health, safety and welfare.

Do you have questions about planning for an overnight stay facility for a religious use?  Contact a professional at Dalton & Tomich PLC to assist you with your plans. We are ready to serve.

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