Tuesday, February 16, 2016

Appearing before the Planning Commission and the Zoning Hearing Board to object to a Special Exception application

A Special Exception use is a permitted use, but one that comes with reasonable conditions to protect the health, safety and welfare of the community, and ensure that the Comprehensive Plan is not violated.  All the usual objective standards in the Zoning Ordinance must be met as well.

The Special Exception application is reviewed by the Planning Commission (PC), which then makes recommendations to the Zoning Hearing Board (ZHB).  The Planning Commission is advisory only, the ZHB is a quasi-judicial body, whose decision is binding and may be appealed to the Court of Common Pleas.  The ZHB hearings are transcribed, and testimony is under oath.

At the Planning Commission meetings, the Applicant presents their proposal, which is led by their attorney.  One or more engineers will testify, and a representative of the company.  The PC will question those who present, and then the audience is allowed to ask questions.  The PC meeting is more free form than the ZHB, and while not productive, the weakest form of objection is to state something like "I don't want you here."   Much more useful is to argue how the use would affect you personally or the community, whether that is noise, traffic, property value, wear and tear of public roads, etc.  The objective of the PC meeting(s) is to obtain recommendations for the ZHB - recommendation to grant or deny the application, and conditions to be placed on the Applicant.

At the ZHB, testimony is more controlled.  If you state "I don't want you here," you will likely be admonished to state a clear objection to the proposed use - again, how it impacts you.  At the ZHB, having "standing" is crucial to the weight of your testimony, and perhaps if you can testify at all.  The best standing is to have an adjacent property.  If you live 1/2 mile away, but are concerned about pollution, traffic, etc, your testimony should be allowed and given appropriate weight by the ZHB.  The Applicant's attorney may request your testimony be ignored, but most often that objection is overruled.  The strongest (and possibly only) objective testimony by Objectors is if an expert is hired to rebut the Applicant's experts, but remember there are subjective criteria that may lead to conditions being placed as a result of the testimony.

Be prepared at the ZHB for cross examination.  It sounds bad, but it simply gives the Applicant's attorney a chance to challenge you.  Similarly, you have the opportunity to cross examine witnesses for the Applicant.

The Comprehensive Plan, which is advisory but is considered when identifying conditions, is here
Look at Subsection A of 1208.4 at the link below to see how the Comprehensive Plan fits in to the Special Exception evaluation.
The subjective criteria for a Special Exception, which you can speak to as an Objector, are here.
Look at Subsection C of 1208.4 for the list of items separated by commas.

Note that anything that negatively impacts you or the community falls into the category of subjective criteria.

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