Burdens of Proof in Special Exceptions and Conditional Uses After Cogan Properties LLC v. East Union Township Zoning Hearing Board, et al.
Shifting burdens of proof are hallmarks of special exceptions and conditional uses in Pennsylvania zoning law. To be entitled to a special exception or a conditional use under a zoning ordinance, an applicant carries the initial burden of proof to demonstrate that the applicant’s proposed use satisfies the specific, objective criteria in a zoning ordinance. See, Heisler’s Egg Farm, Inc. v. Walker Township Zoning Hearing Board, 232 A.3d 1024, 1035-36 (Pa. Commw. Ct. 2020); Williams Holding Group, LLC v. Board of Supervisors of West Hanover, 101 A.3d 1202 (Pa. Commw. Ct. 2014).
“In evaluating the nature of a requirement, the clear cut example of a proper, objective requirement is a buffer requirement [. . . ] where the conditional use provisions of the ordinance required that stormwater basins be located at least fifty feet from the defined edge of a watercourse.” Id. at 1213. But, the specific, objective, requirements for special exceptions and conditional uses in a zoning ordinance do not have to be quantifiable. In fact, as illustrated in the Pennsylvania Commonwealth Court’s recent decision in Cogan Properties LLC v. East Union Township Zoning Hearing Board, et al, 318 A.3d 931 (Pa. Commw. Ct. 2024), ordinance requirements that appear to be subjective can actually be considered as specific, objective criteria that an applicant must satisfy.
The Cogan Properties decision case serves an important purpose and should be considered by special exception applicants, conditional use applicants, and any objectors to those applications. Regardless of how subjective or general an ordinance requirement may appear, it could still be considered as a specific, objective criterion by a governing body, zoning board, or court reviewing the application. Accordingly, it seems prudent for all involved to present an exhaustive record showing satisfaction of all ordinance requirements.
The Cogan Properties case originated in East Union Township, Schuylkill County, Pennsylvania. Cogan Properties, LLC (“Cogan”) entered into an agreement to purchase a 526 acre property (the “Property”) in East Union Township’s Conservation-Residential (“CR”) zoning district. The area around the Property was largely residential. Cogan wanted to use the Property as a gun range. That proposed use would involve shooting competitions during approximately a dozen weekends a year, some firearms training sessions throughout the year, and family use for the balance of the year.
The East Union Township zoning ordinance did not provide for gun ranges. But, it did authorize private recreational facilities as special exceptions in the CR zoning district. So, Cogan applied for special exception approval to use the Property as a private recreational facility. The private recreational facility would be a gun range.
As a special exception, a private recreational facility in East Union Township’s CR zoning district, is “ . . . 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.” Cogan Properties at 986. “Because 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 Township Zoning Hearing Board, 166 A.3d 479, 483 (Pa. Commw. Ct. 2017).
The Pennsylvania Municipalities Planning Code vests a municipality’s zoning hearing board with the jurisdiction to consider and approve special exception applications. 53 P.S. 10909.1(a)(6). As part of its special exception presentation before the East Union Township Zoning Hearing Board, Cogan presented studies and called several witnesses to testify about the design of the gun range and the suitability of the Property for a gun range. Cogan Properties at 992.
Cogan’s principal testified that noise impacts from the firearms at the proposed gun range should not be problematic. Cogan’s professional engineer testified that gun ranges were not prohibited within the CR zoning district and that the proposed gun range satisfied setback and height requirements of the zoning ordinance. It was identified that other land uses in the CR zoning district, like mineral extraction, created more noise, fumes and odors than Cogan’s proposed gun range. Id. Problematically, however, for Cogan, its acoustical consultant testified about a sound study which indicated that gun shots on the Property would be heard off the property and that, as impulsive sounds, gunshots could have a bigger sound impact that background noise.
The East Union Township Zoning Hearing Board also heard testimony from objectors to Cogan’s special exception application. The objectors “. . . testified that the Property is surrounded by residential properties, that gunshots from the Property can currently be heard on those surrounding residential properties, and that the gunshots interfere with Objectors’ peaceful enjoyment of their property, that local traffic and infrastructure are already at capacity and expressed concerns that the influx of the competitors and attendees of shooting instruction as envisioned by Cogan would stress these resources beyond capacity.” Cogan Properties at 996-97.
The East Union Township Zoning Hearing Board denied Cogan’s special exception application, concluding that Cogan had not satisfied its burden to prove compliance with certain criteria in the zoning ordinance. A special exception applicant, like Cogan, carries the burden of proof to satisfy the specific, objective criteria in a zoning ordinance. Heisler's Egg Farm, Inc., 232 A.3d at 1035–36. “These definite criteria are in contrast to the general, non-specific or non-objective requirements such as health and safety.” Id. If an ordinance requirement is vague or subjective, the “. . . requirement may be either one that may not be enforced or one for which an applicant bears no initial evidentiary burden.” Williams Holding Group, 101 A.3d at 1213. After the special exception 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. at 1035-36.Since Cogan, the applicant, did not satisfy its burden to demonstrate compliance with the zoning ordinance, it was not entitled to the approval of its special exception.
Cogan appealed the zoning hearing board’s determination to the Court of Common Pleas. The court took issue with some of the zoning hearing board’s conclusions but still affirmed the zoning hearing board’s decision. The Court of Common Pleas reasoned that Cogan was not entitled to special exception approval because Cogan did not satisfy Section 1510.2(5) of the East Union Township Zoning Ordinance. That section of the zoning ordinance states that:
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.
In the view of the Court of Common Pleas, Section 1510.2(5) set forth specific, objective, criteria that Cogan was required to satisfy to be entitled to a special exception. Cogan did not meet its burden.
Disagreeing with this conclusion, Cogan appealed to the Pennsylvania Commonwealth Court. There was only a single issue before the Commonwealth Court: whether Cogan complied with “Ordinance Section 1510.2(5), which requires the nature and intensity of a proposed used to be compatible with adjoining development and the character of the zoning district and neighborhood in which it is proposed to be located.” Cogan Properties at 988.
Cogan argued to the Commonwealth Court that Section 1510.2(5) of the zoning ordinance was not a specific, objective requirement for which Cogan carried the burden of proof. Instead, Cogan contended that objectors to its special exception application had the burden of proof on Section 1510.2(5). The Commonwealth Court disagreed with Cogan’s characterization of Section 1510.2(5) as a general, non-specific requirement.
In the Commonwealth Court’s view, Section 1510.2(5) of the zoning ordinance contained sufficient specificity to vest Cogan with the burden to prove compliance with its terms. The Commonwealth Court reasoned that “[t]he measurement of the nature and intensity of the proposed use of the Property as a gun range against the known composition of the adjoining properties as single-family homes and the residential character of the neighborhood and zoning district suffices to allow Applicant to objectively and quantitatively demonstrate Section 1510.2(5)’s required compatibility.” Cogan Properties at 989-90.
Although Cogan presented studies and witness testimony to the zoning hearing board to show that the gun range would have a minimal impact on the community, the Commonwealth Court concluded that “[t]here was not evidence presented by Applicant to demonstrate compatibility of the proposed gun range use with the adjoining developments and the character of the neighborhood and the CR Zoning District. In fact, the evidence presented by the Applicant proves the opposite.” Cogan Properties at 995. From this, the Commonwealth Court concluded that:
the evidence was sufficient for the Board to determine that such a proposed use would be incompatible with adjoining residential communities and properties and that Applicant had therefore failed to establish the express special exception criterion required by Ordinance Section 1520.2(5). The Board's denial of the Application based on Ordinance Section 1510.2(5) represents neither an abuse of discretion nor an error of law.
Cogan Properties at 995-96.
The Commonwealth Court did not end its analysis with its conclusion that Cogan failed to carry its burden to prove compliance with Section 1510.2(5) of the zoning ordinance. The Commonwealth Court considered the alternative posture where Section 1510.2(5) of the zoning ordinance was not a specific, objective ordinance requirement. The Commonwealth Court reasoned that Cogan would still not be entitled to its special exception in that scenario.
The Cogan Properties court wrote that “. . .even if Ordinance Section 1510.2(5) was to be viewed as a subjective factor, a general policy concern, the burden for which would rest with Objectors, the totality of the evidence presented in this matter sufficed for the Board to determine that Objectors had carried their burden.” Cogan Properties at 996. Taking the objectors’ testimony and Cogan’s testimony together (including the Cogan witness who testified that impulsive sounds like gunshots could be heard above background noise), the Commonwealth Court concluded that “[t]hus, even if compatibility is viewed as a subjective criterion, a general policy concern, shifting the burden to Objectors to prove incompatibility, the entirety of this evidence viewed together sufficed for the Board to find as it did.” Cogan Properties at 997.
The Cogan Properties court’s decision that Section 1510.2(5) was a specific, objective requirement contrasts with the Commonwealth Court’s 2019 decision in Siya Real Estate LLC v. Allentown City Zoning Hearing Board, 210 A.3d 1152 (Pa. Commw. Ct. 2019). In that case, decided a few years ago, the Commonwealth Court found that a broad, “total impact” requirement imposed on special exception applicants was a general, subjective ordinance requirement that the applicant did not have the burden to prove compliance with. The Siya Real Estate ordinance provision under review stated that:
In considering whether to approve the special exception use, the Board shall consider whether the total impact upon the neighborhood and parking needed for all uses on the lot after the new use would be in operation would exceed the total impact of all uses on the lot that existed prior to the application. For example, this decision may consider whether the applicant proposes to reduce the number of dwelling units on the lot.
Siya Real Estate at 1155. The zoning board in Siya Real Estate denied the special exception application and was affirmed on appeal by the Court of Common Pleas.
On further appeal to the Commonwealth Court, the Siya Real Estate applicant claimed that the “total impact” special exception criterion was a general, subjective, requirement that the applicant did not carry the burden of proof to satisfy. The Commonwealth Court agreed. The Siya Real Estate court wrote that:
We conclude that the ordinance provision here is not a specific, objective requirement, and therefore, the trial court and the Board erred in placing the duty and the burden on the Landowner. Three factors lead us to this conclusion: (1) the ‘total impact’ is not sufficiently defined to be considered a specific requirement; (2) as recognized by the trial court, the Board is directed to ‘consider’ the total impact and, in doing so, is weighting the evidence, and therefore, the requirement is not objective; and (3) the nature of [the ordinance section in question], in essence, deals with the health, safety and welfare of the community.
Id. at 1159. This conclusion, on its face, seems to conflict with the Cogan Properties reasoning. Because of this, the Cogan Properties court attempted to distinguish its decision from Siya Real Estate.
In a lengthy footnote, the Cogan Properties court wrote that the Siya Real Estate court “found that ‘total impact’ was ‘not sufficiently defined to be considered a specific requirement’ as it can involve the evaluation of many characteristics that are not specifically enumerated.” Cogan Properties, 318 A.3d at 989, n.12. In contrast to the ordinance in Siya Real Estate, the Cogan Properties court wrote that “[h]ere, the comparison required is more concrete. This is not a request for the general detrimental impact or effect and it is not a general policy concern, both of which would be Objectors’ duty and burden to establish.” Id. The Cogan Properties court further reasoned that “. . . the requirement that ‘[t]he 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’ to be sufficiently specific in that it requires comparison of the nature and intensity of the proposed private recreational gun range to known residential adjoining properties and the Conservation Residential District, which is defined in the Zoning Ordinance.” Id.
Regardless of whether one believes that the ordinance provision in Cogan Properties is materially different from the ordinance provision in Siya Real Estate is mostly immaterial. The important point is that two different zoning ordinances contained fairly broad and unquantifiable requirements for special exception applicants to satisfy. One of those ordinance requirements was general and subjective and the other ordinance requirement was specific and objective. The take home message from Cogan Properties, particularly compared to Siya Real Estate, is that neither a special exception applicant, nor a conditional use applicant, nor an objector to those applications can conclusively determine “what” constitutes a specific, objective ordinance requirement versus a general, non-specific ordinance requirement. That materially impacts the burdens of proof in special exception and conditional use proceedings. In light of this, the best course of action for applicants, and for objectors, is to operate and develop a record as if each side carries the burden of proof on each ordinance requirement.
