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Municipal Planning Code & Conditional Use: Navigating Zoning Issues in Municipalities

Zoning ordinances give municipalities the ability to regulate how property is used by residents or landowners within the municipality. Within most zoning ordinances are provisions for “conditional uses” and “special exceptions.” These categories of uses are allowable with permission from the municipality; specifically, conditional uses require approval from the municipal governing body and special exceptions require approval from the zoning hearing board. This article will focus on conditional uses, though the process for applying for special exceptions is similar.

The Municipal Planning Code regulates conditional uses. Section 913.2 provides for the process by which conditional uses are considered by the governing body. Zoning ordinances that allow for conditional uses are required to state the standards and criteria that must be met by the applicant when applying for conditional use approval. For example, say Developer Dan would like to build a convalescent home in Township X’s residential zone that allows for convalescent homes by conditional use. Developer Dan needs to show that he can meet the criteria for conditional use approval of a convalescent home in Township X. The Township X zoning ordinance states in its conditional use criteria that sidewalks need to be constructed around the convalescent home. This means that Developer Dan should be able to demonstrate in his application that he will build sidewalks around his proposed convalescent home.

After the applicant submits an application for conditional use approval to the governing body, such as the Board of Supervisors or Commissioners, the governing body then must hold a hearing open to the public on the application. At the hearing, the applicant may be asked to present his or her case to the governing body. Typically the applicant will explain the details of the conditional use, why they would like to receive permission for the use, and how the applicant has met or will meet the criteria required under the zoning ordinance for the particular use. The governing body may ask questions. Also, members of the public may comment, or they may present a case for why the use should not be approved. Members of the public who oppose the granting of a conditional use are known as “objectors.”

After the hearing, the governing body will either render a decision or provide findings on the application. If the conditional use is approved, the governing body may grant the use outright or attach reasonable conditions and safeguards as it may deem necessary to implement the criteria in the zoning ordinance. If the conditional use is contested or denied, the governing body must provide findings of fact or conclusions based on facts as well as reasons for the approval or denial. The losing party (the applicant or the objectors) has thirty (30) days to appeal the governing body’s decision to the Court of Common Pleas.

The Court of Common Pleas will determine whether or not the governing body committed an abuse of discretion or error of law when it came to its conclusions. Importantly, the court will determine if the proper burden was placed on the applicant and/or the objectors, and if substantial evidence was used as the basis for the governing body’s decision. This process can be lengthy, as there is no time limit on how long the court has to review the appeal.

If your clients are considering applying for a conditional use, it would be wise to research what the specific criteria are under the zoning ordinance to determine if you can meet them before submitting an application to the municipality. Additionally, it is recommended that you seek the assistance of an experienced attorney when presenting your case to the governing body, especially if the proposed use is complex or controversial. Attorneys from our Real Estate and Municipal Groups are very familiar with zoning issues and can provide the advocacy needed to bolster your case.

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