# Siya Real Estate LLC v. Allentown City Zoning Hearing Bd.

> Commonwealth Court of Pennsylvania · May 31, 2019 · 210 A.3d 1152

URL: https://www.frixlaw.com/law-library/cases/4402390

## Case

- **Full name:** SIYA REAL ESTATE LLC, Appellant v. ALLENTOWN CITY ZONING HEARING BOARD
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** May 31, 2019
- **Citations:** 210 A.3d 1152
- **Precedential status:** Published
- **Opinion:** Opinion by Cannon
- **Judges:** Brobson, Cannon, Leadbetter
- **Cited by:** 18 later opinions in the Frix Law Library

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## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Siya Real Estate LLC, :
Appellant :
:
v. :
: No. 1001 C.D. 2018
Allentown City Zoning Hearing Board : Argued: December 13, 2018

BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION
BY JUDGE FIZZANO CANNON FILED: May 31, 2019

Siya Real Estate LLC (Landowner) appeals from an order of the Court
of Common Pleas of Lehigh County (trial court), dated June 21, 2018 and filed June
22, 2018, which affirmed the decision of the Allentown City Zoning Hearing Board
(Board) denying Landowner’s application for a special exception.
Landowner owns property located at 248 North 9th Street, Allentown.
See Board’s Findings of Fact (F.F.) 1. The property is located in a medium high
density residential district as well as a traditional neighborhood development overlay
(TNDO) district. F.F. 3. The neighborhood is primarily residential with commercial
uses located on many corner properties. F.F. 3. The second floor of the property
consists of a four-bedroom dwelling unit and the third floor contains five boarding
rooms. F.F. 4. The property also contains a detached garage with three parking
spaces. Id. For decades, the first floor of the property has been used for various
commercial purposes, most recently a tap room. Id. (The first floor of the property
will be referred to as the Subject Premises). The tap room closed on or about
December 3, 2012. F.F. 6.
Landowner filed an application for a special exception, seeking to
convert the first floor of the property to a retail grocery store and deli. F.F. 1;
Reproduced Record (R.R.) at 1a-6a. Retail use is permitted in the TNDO district as
a special exception. Section 1314.02.C.4 of the Allentown Zoning Ordinance
(Zoning Ordinance).1 Landowner also requested, in the alternative, a variance to
establish the use. R.R. at 6a.
Viral (a.k.a. Sam) Patel (Patel) testified on behalf of Landowner. See
12/18/17 Notes of Testimony (N.T.) at 2 & 6, R.R. at 10a & 11a. Patel testified that
Landowner proposes to use the Subject Premises as a grocery store with a deli
counter for take-out sandwiches. N.T. at 21, R.R. at 14a; see F.F. 7. No tables or
chairs will be provided. F.F. 7; N.T. at 21, R.R. at 14a. The proposed hours of
operation would be Monday through Friday from 7:00 a.m. to 8:00 p.m. and
Saturday and Sunday from 8:00 a.m. to 8:00 p.m. F.F. 8. Patel testified that
approximately 100-150 customers per day would be expected at the Subject
Premises and would be serviced by one to two employees. F.F. 10. Patel also
testified that the primary users of the store will be people from the neighborhood.
N.T. at 25, R.R. at 15a. Patel testified that the maximum number of employees at
any one time would be two during the evening hours. N.T. at 22, R.R. at 15a. Patel
stated that he would dedicate the garages to parking for the employees. F.F. 9; N.T.
at 23, R.R. at 15a. Patel also testified about deliveries to the store. He stated he
would get milk and snacks once per week; he would bring the other materials

1
Allentown, Pa., Ordinance No. 14835 (2015). The requirements for a special exception
for commercial uses in a residential district within the TNDO are set forth in Section 1314.02.C.4
of the Zoning Ordinance.
2
himself. N.T. at 29, R.R. at 16a. Patel testified that there is nothing unusual about
this grocery store and that there would not be any consequences to the neighborhood
that one would not normally anticipate from a typical grocery store. N.T. at 36, R.R.
at 18a. He stated that his store would not attract more people than a typical
neighborhood grocery store. N.T. at 37, R.R. at 18a.
Landowner also offered the expert testimony of a licensed real estate
agent/broker, who is also a licensed appraiser (Realtor). N.T. at 58-59, R.R. at 24a.
The Realtor opined that the proposed use is the most appropriate use for the Subject
Premises. F.F. 11.
Three neighbors testified in opposition to the proposed use. Shane
Fillman (Fillman) testified that he walks his dogs in the neighborhood. N.T. at 75,
R.R. at 28a. He expressed concern about the “number of bodegas/grocery stores,
delis.” N.T. at 76, R.R. at 28a. Fillman also expressed concern about litter. N.T. at
78, R.R. at 29a. He disagreed with Landowner’s implication that a lot of people in
the neighborhood walk and stated he sees a lot of people with vehicles. N.T. at 79-
80, R.R. at 29a. Another neighbor, William Green (Green), expressed concern about
the amount of trash that would be generated from the proposed use, although he
conceded it would not generate any more trash than any other grocery store. N.T. at
83 & 85, R.R. at 30a. He also stated that there was no shortage of grocery stores in
the area. N.T. at 83, R.R. at 30a. Green stated that he was concerned about quality
of life and wanted to see something more aesthetically appropriate, pointing out that
the property is part of the historic district. N.T. at 83, R.R. at 30a. Lastly, Marie
Gehris (Gehris), the neighbor immediately next to the property, testified. N.T. at 86,
R.R. at 31a. She complained about parking. N.T. at 86-87, R.R. at 31a. She also
felt that there were enough grocery stores in the area and expressed concerns that the

3
proposed use would create more trash. N.T. at 88-89, R.R. at 31a. She also testified
about the prior owner, calling him a “riffraff guy,” and stated people would urinate
in front of her sidewalk. N.T. at 95, R.R. at 33a. She stated she has not had any
problems since the Subject Premises was vacant. N.T. at 95, R.R. at 33a. (Fillman,
Green and Gehris are collectively referred to as Objectors).
Subsequently, the Board issued its decision denying Landowner’s
special exception application. Board’s Decision at 4, Order. The Board did not
address Landowner’s alternative request for a variance. With respect to the special
exception, the Board found that Landowner met most of the applicable requirements
for a special exception except for one, namely, the “total impact provision” found in
Subsection (a)(3) of Section 1314.02.C.4 of the Zoning Ordinance. Board’s
Decision at 3. Subsection (a)(3) provides:

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.

Zoning Ordinance § 1314.02.C.4(a)(3). The Board stated,

The Board believes because of the substantial customer
activity expected by Applicant (100-150 customers per
day) the total impact upon the neighborhood and parking
needed for all uses on the lot after the new use would be
in operation would substantially exceed the total impact of
all uses on the lot that existed prior to the application.

Board’s Decision at 3.

4
Landowner appealed to the trial court, which affirmed.2 With respect
to the requirement in Subsection (a)(3) at issue here, the trial court stated that the
subsection does not require the proposed use to be objectively equivalent to or less
than the prior use, but merely directs the Board to consider the total impact. Trial
Court Opinion dated 8/3/18 at 10. The trial court then stated that the language of the
subsection implies that the Board is “to use its discretion to weigh and evaluate the
total impact on a subjective basis in conjunction with the other requirements for the
issuance of a special exception.” Id. The trial court stated that this conclusion is
supported by the fact that Subsection (a)(3) refers to parking and “Subsection (a)(5)
affords the Board the authority to modify off-street parking requirements
‘considering the total impact of the new uses of the lot versus the previous uses, and
considering the number of customers arriving by public transit and/or walking.’” Id.
(quoting Zoning Ordinance § 1314.02.C.4(a)(5)).
The trial court then noted that the question became whether Landowner
presented sufficient evidence to shift the burden to Objectors. Trial Court Opinion
dated 8/3/18 at 10. The trial court stated that Landowner did not present any
evidence indicating what the prior use of the lot as a bar generated in terms of traffic
and how that compared to the proposed use, which Landowner’s witness testified
would generate 100-150 customers per day. Id. The trial court stated that the Board
did not receive any evidence to determine whether this was an increase or decrease
from the prior use. Id. The trial court also stated that neither Landowner nor the
Realtor testified whether the proposed use would have a negative impact on parking.

2
The trial court issued an order and opinion dated June 21, 2018. After Landowner filed
its statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), the trial court issued an additional opinion, dated August 3, 2018, pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).

5
Id. at 11. The trial court concluded that the Board did not receive any evidence on
the impact of the proposed use on traffic. Id. The trial court stated that in the absence
of the presentation of the evidence, “the Board was left to speculate on the traffic
impact.” Id. at 12. The trial court concluded that Landowner failed to meet its
burden, and therefore, the burden never shifted to Objectors. Id. at 11-12. With
respect to Landowner’s claim for a variance, the trial court acknowledged that the
Board’s decision did not address Landowner’s variance request. Trial Court Opinion
dated 6/21/18 at 13. However, the trial court concluded that because the proposed
use is authorized under the ordinance, subject to Board approval, Landowner’s
variance request was not proper, and therefore, any error is harmless. Id. at 12-13.
Landowner now appeals to this Court.3 Before this Court, Landowner
raises four issues: (1) did the Board and the trial court err in failing to apply the law
pertaining to special exceptions that a zoning applicant has both the duty of
presenting evidence and the burden of persuasion with respect to only the specific
requirements of an ordinance; (2) did the Board and the trial court err in failing to
apply the Zoning Ordinance as drafted, where the ordinance does not place any
burden of proof requirements for nonspecific subjective ordinance criteria on an
applicant for a special exception; (3) did the trial court err in ruling that a zoning
hearing board can convert nonspecific ordinance provisions into specific provisions
under rules of interpretation; and (4) did the trial court and the Board err in failing
to decide Landowner’s alternative claim for a variance? Landowner’s Brief at 4.

3
Where, as here, the trial court does not take additional evidence, our scope of review is
limited to determining whether the zoning board committed an error of law or “a manifest abuse
of discretion.” Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 639 (Pa. 1983).
A zoning board abuses its discretion “only if its findings are not supported by substantial
evidence.” Id. at 640.

6
We begin by addressing the first three questions, all of which relate to
the special exception. Essentially, Landowner’s first three questions can be distilled
to the question of whether Section 1314.02.C.4(a)(3) is an “objective” or
“subjective” requirement. The question involves “statutory interpretation, a
question of law, for which our standard of review is de novo, and our scope is
plenary.” Hoffman Min. Co., Inc. v. Zoning Hearing Bd. of Adams Twp., Cambria
Cty., 32 A.3d 587, 592 (Pa. 2011). As the Board states in its brief, how this question
is answered decides whether an applicant has a duty to address the issue in the first
instance. Board’s Brief at 3. The parties have not cited to any case law interpreting
this provision of the Zoning Ordinance, nor could we find any; it appears the Board
is correct that this is a question of first impression. See id.
“Generally speaking, ‘[a] special exception is not an exception to a
zoning ordinance, but rather a use which is expressly permitted, absent a showing of
a detrimental effect on the community.’” Tower Access Grp., LLC v. S. Union Twp.
Zoning Hearing Bd., 192 A.3d 291, 300 (Pa. Cmwlth. 2018) (quoting Manor
Healthcare Corp. v. Lower Moreland Twp. Zoning Hearing Bd., 590 A.2d 65, 70
(Pa. Cmwlth. 1991)). “The important characteristic of a special exception is that it
is a conditionally permitted use, legislatively allowed if the standards are met.” Bray
v. Zoning Bd. of Adjustment, 410 A.2d 909, 911 (Pa. Cmwlth. 1980). As this Court
has explained, “[a]n applicant for a special exception has both the duty of presenting
evidence and the burden of persuading the [board] that his proposed use satisfies the
objective requirements of the zoning ordinance for the grant of a special exception.”
Berner v. Montour Twp. Zoning Hearing Bd., 176 A.3d 1058, 1069 (Pa. Cmwlth.),
appeal granted in part on other grounds, 190 A.3d 593 (Pa. 2018) (citing Manor
HealthCare). “Once the applicant meets his burden of proof and persuasion, a

7
presumption arises that [the proposed use] is consistent with the health, safety and
general welfare of the community.” Id. “The burden then normally shifts to the
objectors to the application to present evidence and persuade the [board] that the
proposed use will have a generally detrimental effect on health, safety, and welfare.”
Id. “The evidence presented by objectors must show, to a high degree of probability,
that the use will generate adverse impacts not normally generated by this type of use
and that these impacts will pose a substantial threat to the health and safety of the
community.” Id.
In Berner, this Court discussed our seminal case of Bray, which set
forth the presentation and persuasion obligations of the parties in the context of an
application for a special exception. We stated:

In Bray, this Court outlined the rules regarding the “initial
evidence presentation duty (duty) and persuasion burden
(burden) in special exception cases” as follows:

Specific requirements, e.g., categorical definition of
the special exception as a use type or other matter, and
objective standards governing such matter as a special
exception and generally:

The applicant has both the duty and the burden.

General detrimental effect, e.g., to the health, safety
and welfare of the neighborhood:

Objectors have both the duty and the burden; the
ordinance terms can place the burden on the applicant
but cannot shift the duty.

General policy concern, e.g., as to harmony with the
spirit, intent or purpose of the ordinance:

Objectors have both the duty and the burden; the
ordinance terms cannot place the burden on the
applicant or shift the duty to the applicant.
8
Berner, 176 A.3d at 1069 (quoting Bray, 410 A.2d at 912–13) (emphasis omitted).

This Court has classified specific requirements as follows:

1. The kind of use (or area, bulk, parking or other
approval)[,] i.e., the threshold definition of what is
authorized as a special exception;

2. Specific requirements or standards applicable to the
special exception[,] e.g., special setbacks, size limits; and

3. Specific requirements applicable to such kind of use
even when not a special exception[,] e.g., setback limits or
size maximums or parking requirements applicable to that
type of use whenever allowed, as a permitted use or
otherwise.

Bray, 410 A.2d at 911.

Here, Landowner argues that Subsection (a)(3) states a nonspecific,
subjective standard. Landowner maintains that the phrase “impact upon the
neighborhood” is not a defined standard and that it involves the evaluation of many
characteristics incapable of objective measurement. Landowner’s Brief at 18.
Landowner contends that the trial court seemingly acknowledged the subjective
nature of this provision by stating the provision implies the Board is to use its
discretion to weigh and evaluate the total impact on a subjective basis. Id. at 18.
Landowner argues that the Zoning Ordinance does not place a burden on the
applicant. Id. at 20. Landowner points out that the Zoning Ordinance says “the
Board shall consider” and maintains that this instruction is directed to the Board, not
the applicant. Id.
In response, the Board argues that Landowner did not present any
evidence from which the Board could perform a comparative analysis regarding the
9
intensity of the use. Board’s Brief at 5-6. The Board points out that Landowner
could have engaged a planner or some other professional to compare the proposed
use with the prior use. Id. at 5. The Board states that, without evidence, it was put
in the impossible position of having to guess. Id. at 6. The Board further argues that
whether Objectors presented sufficient evidence to establish that the proposed use
would be detrimental to the health, safety or welfare of the community is irrelevant
because Landowner did not first go forward with its duty. See id. at 5. The Board
argues that Subsection (a)(3) is not a subjective requirement akin to the detriment to
the health, safety and welfare of the neighborhood requirement because that
requirement is found in a separate section of the Zoning Ordinance, namely Section
1307.10.C.4 Id. at 4. Alternatively, the Board argues that if this Court overturns the

4
Section 1307.10 of the Zoning Ordinance, entitled Special Exception Procedures, is
“intended to provide the Board with a guide for the purpose of reviewing certain uses not otherwise
permitted in specified districts except under restrictions of this Ordinance.” Zoning Ordinance §
1307.10.A. Section 1307.10.C provides:

Zoning Hearing Board Approval.

1. Special exceptions may be authorized by the Zoning Hearing Board only in
accordance with the requirements of this Ordinance. The Zoning Hearing Board
may place reasonable conditions upon any approval under this Ordinance. Such
conditions may be intended to: protect the public health and safety, protect
existing residential neighborhoods, provide for compatible development,
minimize traffic congestion and safety problems, and serve other purposes and
objectives of this Ordinance.

2. The Zoning Hearing Board shall not approve a special exception application if
evidence is presented that:

a. The use would result in a significant traffic safety hazard;
b. The use would create a significant public health and/or safety
hazard; and/or
c. The use would cause substantial negative impacts upon the
desirable character of an established residential neighborhood.

10
Board’s decision, a remand is necessary so that the Board may impose conditions.
Id. at 7-8.
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 weighing the evidence, and therefore, the
requirement is not objective; and (3) the nature of Subsection (a)(3), in essence, deals
with the health, safety and welfare of the community. We will address each factor.
First, the “total impact upon the neighborhood” is not a defined
standard and can involve the evaluation of many characteristics that are not
specifically enumerated. In contrast, in Berner, this Court determined that a disputed
ordinance provision which addressed “adverse impacts” was a specific requirement
because the provision required the applicant to make certain clearly identified
submissions and it expressly enumerated categories of adverse impacts that it was
aimed at avoiding. Berner, 176 A.3d at 1072. Additionally, the Court in Berner
noted that the types of items required to be submitted would be in the primary control
of the applicant. Id. at 1073. Here, we acknowledge that Subsection (a)(3) requires
the Board to consider parking, something specific, but that is not the only
consideration. It is clear that in addition to parking, the ordinance requires the Board
to consider “the total impact upon the neighborhood.” See Zoning Ordinance §
1314.02.C.4(a)(3) (“the Board shall consider whether the total impact on the

d. The application does not meet the criteria for approval found in
Section 1327 of this ordinance.

Zoning Ordinance § 1307.10.C.
11
neighborhood and the parking needed . . .”) (emphasis added). Unlike Berner, the
applicant here is left to guess at the categories of impact the ordinance aims to avoid.
“Specificity is the essential characteristic of operative special exception
requirements in an ordinance.” Bray, 410 A.2d at 911. When something is specific,
it is “[c]learly defined or identified.” Specific, English by Oxford Dictionaries,
https://en.oxforddictionaries.com/definition/specific (last visited May 30, 2019).
That is not the case here.
Second, as the trial court aptly noted, the language of the subsection,
including the direction that the Board “consider” the total impact, “implies that the
Board is to use its discretion to weigh and evaluate the total impact on a subjective
basis” in conjunction with other requirements. Trial Court Opinion dated 8/3/18 at
10. When a board is weighing evidence, this is subjective. Even if the Board is
weighing evidence regarding something that could be objectively determined, such
as knowing that the use will generate a larger number of customers than a prior use,
or knowing the number of dwelling units on the lot, the fact remains that the Board
is still engaging in weighing, which is a subjective determination. By requiring the
Board to “consider” the total impact, and necessarily incorporating an evidentiary
weighing element, two different factfinders could come up with two different results.
When this is possible, the requirement cannot be said to be objective. Additionally,
as the trial court pointed out, Subsection (a)(3) does not require the total impact upon
the neighborhood of the proposed use to be objectively equivalent to or less than the
prior use. Id. Indeed, the disputed provision does not say what should happen with
the application if the number or “impact” under the proposed use is more (or less)
than all prior uses, only that the Board shall “consider” the total impact. See
generally Zoning Ordinance § 1314.02.C.4(a)(3). For a special exception, however,

12
if an applicant meets the specific criteria set forth, the applicant is entitled to a special
exception. See Bray.
Lastly, and importantly, the essence of Section 1314.02.C.4(a)(3) is to
address detrimental effects, i.e., the health, safety and welfare on the community.
The objectors bear the evidence presentation duty on general detrimental effects; the
ordinance cannot shift the duty. Berner, 176 A.3d at 1069 (quoting Bray).
Additionally, where, as here, the terms of the ordinance have not expressly placed
the persuasion burden regarding general detrimental effects on the applicant, the
objectors bear the burden of persuasion as to all general detrimental effects. See
Tower Access Grp., 192 A.3d at 302 (stating where ordinance does not expressly
place burden of persuasion regarding detrimental effects to health, safety and welfare
on applicant, applicant has burden of persuasion only as to specific requirements,
while objectors have burden as to all detrimental effects).
Further, we reject the Board’s argument that because another provision
of the zoning ordinance, namely Section 1307.10.C, addresses the detrimental
impact on the health, safety and welfare of the community, the requirement in
Section 1314.02.C.4(a)(3) has to be a specific requirement, the duty and burden of
which are on the applicant. The Board’s acknowledgment that the types of
detrimental effects addressed in Section 1307.10.C are those for which the burden is
on Objectors actually supports our conclusion. The essence of the requirement to
consider the “total impact upon the neighborhood” in Section 1314.02.C.4(a)(3) is
of the same genre as that set forth in Section 1307.10.C. The only difference
between the Sections is that Section 1307.10.C evaluates the effects by comparing
them to the impact not normally generated by the same type of use, consistent with
our case law, whereas Section 1314.02.C.4(a)(3) of the Zoning Ordinance evaluates

13
the effects by comparing them to the impact generated by all prior uses on the lot.
Objectors have the evidence presentation duty and burden as to all general
detrimental effects of the proposed use. See Tower Access Grp., 192 A.3d at 302.
Thus, we reject the Board’s argument that Landowner did not sustain its duty with
respect to the total impact provision. The duty to present such evidence was on
Objectors, not Landowner. See Berner, 176 A.3d at 1069 (quoting Bray).
Accordingly, the trial court erred as a matter of law when it affirmed
the Board’s decision placing the duty and burden under Subsection (a)(3) on the
Landowner. While normally we would remand the matter to the Board to consider
the evidence, placing the burden on the appropriate party, because Objectors’
evidence is insufficient as a matter of law to constitute substantial evidence which
could support a finding in Objectors’ favor, in the interest of judicial economy, we
will address the matter.
We are mindful that “the burden placed on the objectors is a heavy
one.” Marr Dev. Mifflinville, LLC v. Mifflin Twp. Zoning Hearing Bd., 166 A.3d
479, 483 (Pa. Cmwlth. 2017). Objectors “must demonstrate more than
unsubstantiated concerns or vague generalities, and [m]ere speculation as to possible
harm is insufficient.” Dunbar v. Zoning Hearing Bd. of City of Bethlehem, 144 A.3d
219, 226 (Pa. Cmwlth. 2016) (internal quotation marks omitted); see Marr Dev., 166
A.3d at 483 (stating that objectors “cannot meet their burden by merely speculating
as to possible harm; they must show a high degree of probability that the proposed
use will substantially affect the health and safety of the community”) (internal
quotation marks and brackets omitted). “Further, mere lay testimony of concerns
regarding increased traffic . . . is insufficient to support the denial of a special
exception.” Dunbar, 144 A.3d at 226; see Marr Development, 166 A.3d at 484

14
(finding objectors’ evidence insufficient to establish that proposed use would
generate traffic not normally generated by that type of use where no traffic study
was presented and objectors simply testified as to their opinion that traffic would
increase). Here, Objectors expressed concerns about litter, the fact that there are
already grocery stores in the area, traffic, parking, and the quality of life. With
respect to the testimony regarding the fact that there are grocery stores in the area,
this is irrelevant as it ignores the fact that this type of use, as a special exception, is
expressly permitted, absent a showing of a detrimental effect on the community. See
Tower Access Grp., 192 A.3d at 300. Objectors’ remaining testimony was
speculative, at best, and, therefore, would not constitute competent evidence that
would be sufficient to carry Objectors’ heavy burden. See Marr Development, 166
A.3d at 484 (finding that fears expressed by objectors concerning stormwater
management, flooding and increased traffic were speculative and inadequate to
constitute substantial evidence).
Accordingly, for the foregoing reasons, we reverse the trial court’s
order affirming the Board’s decision, and we remand this matter to the trial court to
remand to the Board with instructions to the Board to grant Landowner’s application
for a special exception, subject to the Board imposing conditions.5

__________________________________
CHRISTINE FIZZANO CANNON, Judge
5
See Section 912.1 of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805,
as amended, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10912.1 (permitting a
zoning hearing board to attach reasonable conditions and safeguards when granting a special
exception); Zoning Ordinance § 1314.02.C.4(a)(4) (concerning special exception for commercial
use in a residential district and stating Board shall have authority to place reasonable conditions
upon use).
Because of our disposition, we need not address Landowner’s argument regarding its
request, in the alternative, for a variance.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Siya Real Estate LLC, :
Appellant :
:
v. :
: No. 1001 C.D. 2018
Allentown City Zoning Hearing Board :

ORDER

AND NOW, this 31st day of May, 2019, the order of the Court of
Common Pleas of Lehigh County (trial court), dated June 21, 2018 and filed June
22, 2018, is REVERSED, and the matter is REMANDED to the trial court with
instructions for the trial court to remand the matter to the Allentown City Zoning
Hearing Board (Board) with instructions to grant Siya Real Estate LLC’s application
for a special exception, subject to the Board imposing conditions in accordance with
the foregoing opinion.
Jurisdiction relinquished.

__________________________________
CHRISTINE FIZZANO CANNON, Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4402390. Public record. Not legal advice.