Conditional Use Applications in Pennsylvania: The Burden Shifts

Why this is the better route

With a variance you are asking permission for something the ordinance forbids, and carrying a demanding hardship standard throughout.

With a conditional use the legislative body has already decided the use is acceptable in that district in principle. Your job is to show you meet the stated criteria. Once you do, objectors have to establish that the use would generate harm to health, safety or welfare greater than would normally be expected from that use.

That is a substantial burden for objectors, and generalised opposition does not meet it.

Who decides

Conditional use applications are typically decided by the governing body, the board of supervisors or borough council, after a hearing. Special exceptions, which work on a similar burden shifting basis, are decided by the zoning hearing board. The distinction matters because you are presenting to a different audience with a different character.

Meet the criteria explicitly

The commonest avoidable failure is presenting a general case for the project rather than walking through the ordinance criteria one by one.

Take the ordinance section, list each criterion, and put evidence against each. Where a criterion concerns traffic, bring a traffic study. Where it concerns buffering, bring a landscape plan. A record organised against the criteria is also the record that survives an appeal.

Conditions attached to approval

Approval frequently comes with conditions: hours of operation, lighting, screening, access arrangements, traffic improvements. Reasonable conditions related to the criteria are generally permissible.

Conditions that are unrelated, or so onerous that they effectively deny the application, are challengeable. Read them carefully before celebrating, because an approval with unworkable conditions is a refusal in a better mood.

What objectors actually have to show

Not that they would prefer the use elsewhere. They must show, with evidence rather than assertion, a high degree of probability that the use will generate adverse impacts greater than normally expected from that use in that district.

Neighbor testimony about traffic and character is common and it enters the record. Where it is unanswered at the hearing it is very difficult to answer on appeal, which is the practical reason to have expert evidence ready rather than reactive.