What Do I Need to Provide in My Conditional Use Application?

Attorney Andy Miller and I have assisted many clients through the Conditional Use process. It differs from municipality to municipality, but one question keeps popping up. What information, or what level of information, needs to be presented at the Conditional Use stage (prior to any land development process)? Many times it depends on the municipal support or opposition to an application, the public sentiment surrounding the project, or the budget constraints of the project. But many times, it’s our best guess what will be adequate to get the job done and create an adequate public record to withstand any appeal. We tend to err on the side of caution and a recent Commonwealth Court case from a warehouse project provides insight on just how high this threshold may be.

In Mushroom Hill, LLC v. Swatara Twp. Bd. of Commissioners, 2020 WL 678408, slip op. (Pa. Commw. Ct. 2021), Mushroom Hill, LLC (“Mushroom Hill”) submitted a conditional use application to the Swatara Township (the “Township”) Board of Commissioners (the “Board”) to build three warehouses in the Commercial Zoning District. The Board denied Mushroom Hill’s conditional use application on the basis that Mushroom Hill “failed to meet its burden to show that the project would meet all of the Ordinance’s Conditional Use Standards for a warehouse.” Id. at 2 The trial court reversed the Board’s decision, but ultimately the Pennsylvania Commonwealth Court reversed the trial court’s decision (ultimately agreeing with the Board’s original denial). Id. at 13. Where did Mushroom Hill go wrong?

The Township requires the following information for this type of development, “a detailed description of the proposed use with regard to eight enumerated topics: the types of materials to be stored, the general scale of the operation, environmental impacts, site planning, effect on surrounding residential neighborhoods, public health and safety, potential disturbance of slopes and other natural features of the land, and hours of operation (the “Conditional Use Standards”). Id. at 1. To meet this criteria, Mushroom Hill provided a three-page narrative along with the detailed testimony and reports of three witnesses. Id. Why wasn’t this enough?

“First, the applicant must persuade the local governing body [that] the proposed use complies with the requirements in the ordinance for such a conditional use” at the time of submission. Id. at 4. “An applicant is not required to present every detail of the design of the proposed development at the conditional use stage, but merely expressing an intention or promise to comply with all zoning requirements is insufficient to show entitlement to a conditional use.” Id. “If applicants were automatically entitled to conditional use approval based solely on a promise of future compliance, ‘it would make the approval process meaningless.'” In re Thompson, 896 A.2d 659, 680 (Pa. Cmwlth. 2006). “Moreover, compliance at the time of submission is required even though the conditional use inquiry involves only ‘the use of the land, as opposed to the particular design details of the development.'” Joseph v. N. Whitehall Twp. Bd. of Supervisors, 16 A.3d 1209, 1215 (Pa. Cmwlth. 2011).

Based on this standard, Mushroom Hill was required to provide a detailed description of what types of material would be stored in the warehouse. Rather than providing a generic list of materials, Mushroom Hill explained that no tenant has been identified yet, but that Mushroom Hill promised to comply with the Conditional Use Standards. As stated above, the Conditional Use threshold requires more than a promise of compliance. An ordinance may call for developers to provide detail in their applications even if the proposal is at a relatively early stage where full specifications are not yet required. Mushroom Hill, LLC v. Swatara Twp. Bd. of Commissioners, at 6. When it came to environmental impact, Mushroom Hill similarly fell short. Mushroom Hill promised compliance with various noise, light and sewer regulations, but was not able to specifically respond to concerns about diesel exhaust, carbon monoxide, nitrogen, etc. Again, the Board found that Mushroom Hill did not provide adequate information for this factor. Finally, concerning impact to the character of the surrounding community, Mushroom Hill did not meet their threshold.  Specifically, Mushroom Hill did not have any testimony to speak to environmental damage, property value, noise, fumes, etc. If a promise for compliance is not sufficient at the Conditional Use level, what is an example of acceptable testimony?

In Geiselman v. Hellam Twp. Bd. of Supervisors, the applicant submitted a conditional use application to build a winery. Geiselman v. Hellam Twp. Bd. of Supervisors, 266 A.3d 1212 (Pa. Commw. Ct. 2021). In support of the application, the applicant submitted a written plan with

“a detailed description of proposed winery events, sanitation provisions, [a] plan for noise control, an explanation of how amplified sound [would] be addressed, an explanation of how noise complaints [would] be addressed, and provisions for the control of lighting.” On weekdays, the hours of operation would be from noon until 8:00 or 9:00 p.m., with the closing extended to 10:00 p.m. on Fridays and Saturdays. Sunday hours would be from noon until 5:00 p.m. All outdoor winery events would end by 10:00 p.m. and indoor ones by 11:00 p.m.”

Id. at 4.

This conditional use application was approved by Hellam Township and the Board specifically commended the applicant’s written submission. The Mushroom Hill panel also cited Williams Holding Group, LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 1202 (Pa. Commw. 2014), where the applicant secured DEP permits for a stormwater facility prior to a conditional use application.

The Conditional Use Application threshold is difficult to precisely pin down, but it is clear from the caselaw that a promise to comply with Conditional Use Standards risks being insufficient. These cases show that a comprehensive narrative (coupled with competent expert witness testimony) is instrumental in meeting the conditional use application threshold.

The Mushroom Hill decision is an unpublished decision so it is not binding on lower courts. The decision will also likely be appealed. We think the outcome is extreme nevertheless and establishes a nearly impossible burden to meet. The decision reinforces why we prefer the conservative approach to what is needed for a conditional use.

DECOMMISSIONING LEGISLATION UPDATE: On April 12, 2022, Senate Bill 284 (providing for decommissioning of solar energy facilities) passed the Pennsylvania Senate with a vote of 35 to 14. It now moves to the Pennsylvania House of Representatives. For a summary of this bill, click here. We will keep you all updated.

If you have other specific questions about conditional use applications, renewable energy, or anything related or unrelated, please don’t hesitate to call our firm at (717-845-1524) or email Andy Miller (amiller@mpl-law.com) or Cory Dillinger (cdillinger@mpl-law.com) with any questions or comments.