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Zoning: Special exceptions and conditional uses – what are they?

For our blog post this week, we welcome and thank contributor Bernadette M. Hohenadel, Esq., Partner at Nikolaus & Hohenadel, LLP.

The first, and probably most important, step to take when contemplating either commercial or residential development, is to determine whether what you want to do at a given property is allowed. Reviewing a zoning ordinance will inform you if what you propose to do is a permitted use, and if not, whether it is designated as a special exception or conditional use. If none of these conditions apply, the alternatives are to find another property or obtain a variance from those sections of the ordinance that prohibit or limit the use.

But what do these terms mean and how do you go about obtaining this relief?

A special exception use is often described as neither special nor an exception. The term defines a use that is of a nature similar to a permitted use but requiring some additional review and precautions to protect the health, safety, and welfare of the community. For a special exception, the zoning ordinance will list those uses that are special exceptions in any given zoning district and will define specific criteria that must be met related to that use In addition, the ordinance will also include general criteria that apply to all special exceptions.

As an example, a zoning ordinance may designate day care centers as a special exception in business or commercial districts and may include a list of special criteria to be met, such as number of parking spaces, fencing of play areas, and limits on the number of children.

Applicants for a special exception must prove that each of the special criteria pertaining to the use have been met or why that criteria does not apply to the proposed use at a hearing. A request for a special exception is heard by the zoning hearing board, and in approving such a request, the board may impose conditions on its approval.  For instance, such a condition might limit hours of operation or might require that a special landscape buffer be added to shield the use. Opponents have the opportunity to present evidence against the use. However, unless that evidence rises to the level of a high degree of certainty that the proposed use is going to be detrimental to the health, safety, and welfare of the community, the use most likely will be approved. Generalized concerns about increases in traffic or noise are usually not considered sufficient to defeat the request.

A conditional use is essentially the same as a special exception, but it is heard and decided upon by the governing body of the municipality, such as the commissioners, supervisors, or council members. Such a use is generally one that is not adverse to the public interest but, due to the nature of the proposed use, may require some special review and precautions. For instance, a planned residential or commercial development may be designated as a conditional use requiring special attention and review due to increased traffic, greater residential density, and other such concerns.

In hearing such a request, the commissioners, supervisors, or council members act as a quasi-judicial hearing board and the hearing is conducted much the same as in front of a zoning hearing board—testimony is taken down by a court stenographer, witnesses are presented in favor of and against the proposal, and exhibits are presented for consideration. The applicant is required to prove that it has met the specific criteria in the ordinance. And a conditional use may also have conditions applied to its approval that are in addition to those expressed in the ordinance and must be reasonable and designed to ease the impacts of the proposed use.

Ideally, a request for a special exception or conditional use should only take a few months from the time of initial application to decision. The board does have 45 days following the close of the hearing to render a decision, but many boards will do it at the close of the hearing or at the next meeting of the board, which is usually within 30 days. However, the complexity of the proposed use and the relief sought can lengthen this process, particularly with conditional uses. With either a special exception or a conditional use, the applicant can agree to the decision as made and to any conditions that are imposed. Alternatively, the applicant or any opponents to the application can choose to appeal the entire decision or all or some of the conditions imposed. Such an appeal would be taken to the Court of Common Pleas for the county in which the property is located. And such an appeal will of course lengthen the time before a project is ready to start. Taking into account the time that obtaining relief may require is essential to any development project.

Next time, we will consider what options exist if the use is not a permitted, special exception, or conditional use.

Bernadette M. Hohenadel, Esq., Partner at Nikolaus & Hohenadel, LLP —