Land & Renewables Connection

A conditional use is a type of land use under Pennsylvania law. While its name may suggest a level of uncertainty about whether that land use is allowed, that is not the case. There is an established process for conditional uses under the law. Lack of familiarity with the conditional use process can have a negative impact on those seeking a conditional use or opposing a conditional use.

A conditional use is a land use that has been approved for a particular zoning district, as long as the specific proposal satisfies the standards that are contained in the zoning ordinance. Ligo v. Slippery Rock Township, 936 A.2d 1236, 1242 (Pa.Commw. Ct. 2007). In fact "a conditional use is nothing more than a special exception which falls within the jurisdiction of the municipal legislative body, rather than the zoning hearing board.” Bailey v. Upper Southampton Township, 690 A.2d 1324, 1326 (Pa. Commw. Ct. 1997).

Like a special exception, the first step when addressing a conditional use is to look to the zoning ordinance to see if the land use in question is identified in the particular zoning district where it is being proposed. The zoning ordinance will contain criteria for the conditional use that the applicant must satisfy. Ligo, 936 A.2d at 1242.

A conditional use application is considered by the governing body of the municipality - for example, township supervisors or borough council. There must be at least one public hearing regarding the conditional use. 53 P.S. § 10913.2; Luke v. Cataldi, 932 A.2d 45 (Pa. 2007). A "record" is created at the conditional use public hearing(s) where witnesses testify and evidence is received. 53 P.S. § 10908. At conditional use public hearings, the chairman of the governing body has the authority to administer oaths and a stenographic transcript of the hearing must be kept. 53 P.S. § 10908; Nowak v. Zoning Hrg. Bd. of Bridgeville Borough, 445 A.2d 1350, 1351 (Pa. Cmmw. Ct. 1982). Parties at conditional use hearings have the right to be represented by counsel and witnesses are subject to examination and cross-examination. 53 P.S. § 10908.

Based on the record presented to it, if the municipal governing body concludes that the conditional use applicant met its burden to demonstrate that the proposed conditional use satisfies the ordinance requirements, the conditional use applicant is entitled to the conditional use, and the burden shifts to the objectors. HHI Trucking & Supply, Inc. v. Borough of Oakmont, 990 A.2d 152 (Pa. Commw. Ct. 2010). Objectors to a conditional use must prove, to a high degree of probability, that aspects of the proposed conditional use will adversely impact the health, safety and welfare of the community in ways not expected by the legislative body when it established its list of approved, conditional uses.East Manchester Zoning Hearing Board v. Dallmeyer, 609 A.2d 604, 610 (Pa. Commw. Ct. 1992). Conditional use determinations can be appealed to the court of common pleas after a decision is rendered. 53 P.S. § 11002-A. Unless the court of common pleas decides to receive new evidence, a court considering an appeal from a municipal governing body’s approval/denial of a conditional use is limited to considering what is in the "record" created at the hearing(s) before the governing body. Alridge v. Jackson Township, 983 A.2d 247, 260 (Pa. Commw. Ct. 2009).

It is important that property owners seeking approval for a conditional use, or opposing a conditional use, recognize the formal nature of the conditional use process. Even though conditional use hearings occur at the municipal building, and before an elected body that residents may be familiar with from attending meetings, the conditional use process does not function like the bi-weekly or monthly meetings where the governing body addresses residents’ concerns regarding matters like the budget, road paving and snow plowing.

When reviewing conditional use applications, a municipal governing body functions as a quasi-judicial body, acting in a different role than its legislative function. See, In re Arnold, 984 A.2d 1 (Pa. Commw. Ct. 2009). At conditional use hearings before the governing body, “the board cannot simultaneously fulfill both of its roles as an adjudicator and as the governing body representing the municipality” so “the board and the municipality must be treated as separate entities, because the board must avoid even the appearance of bias or impropriety.” Marshall v. Charlestown Township Board of Supervisors, 169 A.3d 162, 166 (Pa. Commw. Ct. 2017). Accordingly, a governing body functions differently when considering conditional use hearings versus its day-to-day legislative role and those participating in conditional use hearings should prepare for something more akin to a court proceeding than a standard municipal meeting.

Whether you are seeking conditional use approval, opposing a proposed conditional use, or appealing from a conditional use determination, the zoning and land use attorneys at Houston Harbaugh can help. Call attorney Brendan A. O'Donnell by phone at 412-288-2226 or by email at odonnellba@hh-law.com.