For a variety of reasons, a property owner, or prospective property owner, may find themselves in a zoning hearing to apply for permission to do something to or with their property. Depending on the type of application, these hearings either take place in front of the Zoning Hearing Board or the governing body (e.g., the Board of Supervisors) in the local municipality where the property lies. Often, applicants misunderstand the purpose of the hearing, thinking that they must simply go to the hearing and ask for permission to do what they want to do. While this may work on occasion, the applicant should be doing much more than just asking for permission. Applicants need to understand how to meet their burden of proof; that is, proving that they deserve permission from the municipality. This burden can be met by knowing the criteria that needs to be established and building a complete record before the hearing body.
In Pennsylvania, land use is governed in part by the Municipalities Planning Code (“MPC”), which governs how municipalities can regulate zoning, as well as how the hearing should be conducted. The MPC dictates how a municipality’s zoning ordinance can regulate land use in the various districts designated by the municipality’s zoning map. While some uses may be permitted by right, the zoning ordinance will set forth the minimum, required criteria that must be met for certain types of uses. One common scenario where minimum criteria is set forth by the zoning ordinance is when a type of use is permissible only by “special exception” or “conditional use.” Another reason that property owners need to apply for a specific type of use is if the property owner requires a variance from the zoning ordinance in order to use their property as desired. In these three scenarios, the burden of proof is on the applicant to show the hearing body (either the Zoning Hearing Board or the governing body, depending on the type of application) how the applicant will meet each of the criteria in the ordinance, or in the case of variances, how the applicant suffers an unnecessary hardship due to the condition of the property, and why the applicant cannot reasonably use the property without a variance.
The applicant should be familiar with the specific terms set forth in the zoning ordinance for what the applicant is trying to achieve. The applicant should then be prepared to testify, under oath, as to how the applicant will comply with or satisfy each of the criteria in the ordinance if the applicant is applying for a conditional use or special exception. If the applicant is applying for a variance, the applicant must be prepared to demonstrate how they will suffer an unnecessary hardship and why they cannot reasonably use their property without the variance (among other criteria). By providing as much detail as possible as to how the criteria in the ordinance will be met through the applicant’s testimony, written plans, photographs, and in some cases, the testimony of experts, the applicant can build a record before the hearing body to persuade the decision-maker that they have met the burden of proof.
Building a detailed, favorable record is not just important for the hearing body to make its decision, however. If the decision of the hearing body is appealed to the courts by the applicant or a neighbor or neighbors who object to the proposed use, the record made before the hearing body is generally the only information the court can rely upon when rendering a decision to uphold or overturn the decision. As such, the applicant should be doubly concerned when building their record that they are satisfying their burden of proof; not only must the applicant convince the hearing body, but also potentially the court in the event an appeal is filed.
The Real Estate Group at Stock and Leader has unique depth of knowledge when representing land owners and developers in front of municipal hearing bodies because many of the Stock and Leader Real Estate Attorneys have experience representing municipalities in such hearings. As a result, we thoroughly understand the burden of proof that applicants face and can leverage our depth of knowledge in your favor. Please do not hesitate to contact an attorney in our Real Estate Group if you need to appear before a municipality in a zoning hearing.