IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marr Development Mifflinville, LLC, :

Appellant :

 :

v. : No. 2681 C.D. 2015

 : Argued: June 7, 2017

Mifflin Township Zoning Hearing :

Board :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY

JUDGE COHN JUBELIRER FILED: July 3, 2017

Marr Development Mifflinville, LLC (Applicant) appeals from an Order of 

the Court of Common Pleas of the 26th Judicial District (Columbia County 

Branch) (common pleas), which affirmed a decision of the Mifflin Township 

Zoning Hearing Board (Board) to deny Applicant’s request for a special exception

to construct 11 single-family attached dwellings, or duplexes. The Board denied 

the application on the grounds the proposed duplexes were not compatible with or 

in the best interest of the surrounding area. Finding the Board’s decision was not 

supported by substantial evidence, we reverse.

Applicant owns a 5.85 acre parcel of land located at 611 Race Street, 

Mifflinville, Mifflin Township, Columbia County, Pennsylvania. The property is 
2

located in the Suburban Residential District (RS District). According to the 

Mifflin Township Zoning Ordinance (Ordinance), the purpose of the RS District is 

“to promote and encourage a suitable and safe environment for family life by 

providing only for single family residences and residential support land uses.” 

(Ordinance, § 431.) Under the Ordinance, single-family detached dwellings1are 

permitted uses in the RS District. (Ordinance, § 432.A.3.) Single-family attached

dwellings2limited to two dwelling units are permitted in the RS District by 

special exception. (Ordinance, § 423.C.3.) 

On July 21, 2014, Applicant filed an application with the Board seeking a 

special exception to construct 11 duplexes. Applicant planned to subdivide the 

5.85-acre parcel into 12 lots, ranging in size from 0.28 acres to 0.53 acres. One of 

the 12 lots would contain an existing single-family detached dwelling. A duplex 

would be constructed on each of the remaining 11 lots. Plans also called for a 

storm water retention basin, and access to the duplexes would be provided from a 

cul-de-sac off a state route. 

On September 16, 2014, the Board held a hearing on the application. The 

zoning officer and Applicant’s vice president/controller provided testimony 

concerning the proposed project. In addition, several residents opposed to the 

project (objectors) testified about their concerns, which included stormwater 

management, flooding, traffic, and the effect on neighborhood aesthetics. 

 

1

Single-family detached dwelling is defined as a “dwelling having only one dwelling 

unit from ground to roof, independent outside access and open space on all sides.” (Ordinance,

§ 232.A.)

2

Single-family attached dwelling is defined as a “dwelling containing only one dwelling 

unit from ground to roof, independent outside access and a portion of one or two walls in 

common with adjoining dwellings.” (Ordinance, § 232.B.)
3

Following the hearing, the Board voted to deny the special exception 

application, concluding Applicant did not satisfy its burden of proving the 

proposed use was in the best interest of the properties in the general area and 

community at large. Applicant appealed to common pleas, which remanded the 

matter after finding the Board improperly placed the burden of establishing general 

compatibility with the surrounding area on the Applicant rather than the objectors. 

On remand, the Board did not take additional evidence. Based on the 

testimony from the original hearing, the Board determined that the objectors met 

their burden of proof with respect to compatibility. The Board concluded that the 

proposed use was “more intense” than surrounding land use. (Board Decision, 

May 6, 2015, at 2.) It noted that the proposed project would create 11 duplexes or 

22 units in an area where only 17 single-family dwellings already exist, thereby 

doubling the number of dwelling units in the area. As a result, the Board found 

“the proposed use presents a project which is not consistent or compatible with the 

existing and adjoining land uses that were and have been developed for single 

family residential structures and not duplex units.” (Id.) 

Applicant again appealed the Board’s decision to common pleas. Common 

pleas did not take additional evidence. Based upon the record developed before 

the Board, common pleas issued an order denying Applicant’s appeal. In an 

opinion filed in support of its order, common pleas concluded that the Board’s 

decision was supported by substantial evidence and, therefore, the Board did not 

abuse its discretion or commit an error of law in denying the special exception 

application. This appeal followed.
4

On appeal,3 Applicant maintains the Board erred in concluding the objectors 

met their burden of showing the proposed duplexes were incompatible with the 

surrounding area. Based upon our review of the record, we agree. 

As a preliminary matter, despite its name, a special exception is not an 

exception to a zoning ordinance; rather, it is a use that is expressly permitted by the 

ordinance unless the board determines, according to standards set forth in the 

ordinance, that the proposed use would adversely affect the community. E.

Manchester Twp. Zoning Hearing Bd. v. Dallmeyer, 609 A.2d 604, 610 (Pa. 

Cmwlth. 1992). Because the use is contemplated by the ordinance, there is a 

presumption that the governing body considered the effect of the use when 

enacting the ordinance and determined that the use is consistent with the 

health, safety, and welfare of the community so long as it meets the objective 

requirements of the ordinance. Id. Provided it does, the burden then shifts to the 

objectors to rebut this presumption by presenting evidence that, either the proposed 

use would have a detrimental effect on the public health, safety, and welfare of the 

community or that it would conflict with the expressions of general policy 

contained in the ordinance. Id. 

It is important to appreciate that the burden placed on the objectors is a 

heavy one. “They cannot meet their burden by merely speculating as to possible 

harm, but instead must show a high degree of probability that the proposed use will 

substantially affect the health and safety of the community.” Id; Manor 

 

3

In a land use appeal where common pleas does not take additional evidence, such as 

here, our review is limited to determining whether the Board abused its discretion or committed 

an error of law. In re Thompson, 896 A.2d 659, 666 n.4 (Pa. Cmwlth. 2006). The Board abuses 

its discretion when its findings of fact are not supported by substantial evidence. Id. Substantial 

evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Id. 
5

Healthcare Corp. v. Lower Moreland Twp. Zoning Hearing Bd., 590 A.2d 65, 71

(Pa. Cmwlth. 1991).

Here, it is not disputed that Applicant meets the objective requirements for a 

special exception, thereby satisfying its burden. What is at issue is whether the 

objectors have “raise[d] specific issues concerning the proposal’s general 

detrimental effect on the community,” as to satisfy their heavy burden. Manor 

Healthcare, 590 A.2d at 71. The Board and common pleas concluded the 

proposed use was incompatible with the surrounding area. Section 1113.B.2 of the 

Ordinance speaks of compatibility, as follows:

Compatibility – the proposed use shall be in the best interest of 

properties in the general area as well as the community at large. The 

proposed use will be reviewed as to its relationship to and effect on 

surrounding land uses and existing environmental conditions 

regarding the pollution of air, land and water; noise; potential of 

hazards and congestion; illumination and glare; restrictions to natural 

light and circulation of air.

(Ordinance, § 1113.B.2.) The Board focused on the first part of the compatibility 

provision – whether the proposed use is in the best interest of properties in the 

general area and community at large – and reviewed the application as to its 

relationship to and effect on surrounding land uses. (Board Decision, May 6, 2015, 

at 2.) Because the plans call for one duplex with two units and two families on 

each lot, the Board determined “the intensity and proposed scope of the proposed 

use is more intense than the existing surrounding land use patterns that are utilized 

for single family residential structures.” (Id.)

Contrary to the Board’s determination, the proposed duplexes are, in fact, 

consistent with the stated purpose of the Ordinance. Section 431 of the Ordinance 

states that the purpose of the RS District is “to promote and encourage a suitable 

and safe environment for family life by providing only for single family 
6

residences and residential support land uses.” (Ordinance, § 431) (emphasis 

added). The Board interpreted this purpose as applying only to single-family 

detached dwellings, without consideration that single-family attached dwellings, 

such as the proposed duplexes, are also expressly provided by the Ordinance and 

considered single family in nature. Thus, to the extent the Board found the 

proposed use conflicts with the policy behind the Ordinance, this conclusion was in 

error.

In addition, the record does not contain substantial evidence to support the 

Board’s decision. The objectors simply did not present competent, objective

evidence sufficient to carry their heavy burden of rebutting the presumption by 

demonstrating the proposed use is inconsistent with the health, safety, and welfare 

of the community. As stated above, objectors cannot merely speculate 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.” Manor 

Healthcare, 590 A.2d at 71. Here, the fears that objectors expressed about 

stormwater management, flooding, and increased traffic were speculative, at best, 

and inadequate to constitute substantial evidence. Furthermore, the objectors did 

not present evidence that the proposed use would generate adverse effects greater 

than that normally expected from this type of use. Sunnyside Up Corp. v. City of 

Lancaster Zoning Hearing Bd., 739 A.2d 644, 651 (Pa. Cmwlth. 1999). 

Obviously, an increase in the number of dwellings is going to have a 

corresponding increase in the amount of traffic. However, “an increase in traffic is 

generally not grounds for denial of a special exception unless there is a high 

probability that the proposed use will generate traffic not normally generated by 

that type of use and that the abnormal traffic threatens safety.” Accelerated 
7

Enters., Inc. v. The Hazle Twp. Zoning Hearing Bd., 773 A.2d 824, 827 (Pa. 

Cmwlth. 2001) (emphasis added). Here, there was no traffic study presented; 

rather, objectors simply testified as to their opinion that traffic would increase. 

Yet, it bears emphasis that the duplexes would be accessed from a cul-de-sac off a 

state route, not a township roadway. Simply put, there is no substantial evidence to 

support the Board’s conclusion. 

The Board also claimed the project would double the number of existing 

units in a one-block area and, therefore, is “more intense.” (Board Decision, May 

6, 2015, at 2.) This conclusion improperly concentrates solely on the impact on the 

immediate one-block area,4 without regard for the “community at large” or any of 

the other factors expressed in Section 1113.B.2 of the Ordinance. It also does not 

address that across the street from the proposed project are an operating mill, a fire 

hall, a cemetery, and a 20-unit apartment complex. Moreover, the Board’s 

contention that the proposed use is “more intense” is undercut by the fact that the 

12 proposed lots all meet the setback and lot dimension requirements. In Zajac v. 

Zoning Hearing Board of Mifflin Township, 398 A.2d 244 (Pa. Cmwlth. 1979), a 

case involving the same Board, we reversed its denial of a special exception for a 

mobile home court. Like here, we said the force of the Board’s and objectors’ 

density concerns was “weakened” by the fact that the application complied with 

the Ordinance’s requirements. Id. at 247. 

The Ordinance is silent as to density. Similarly, the Ordinance places no 

limit on the number of duplexes permitted.5 Yet, the Board is attempting to write 

 

4

It cannot go unnoticed that the “block” at issue exceeds six acres, as Applicant’s 

property alone is that size, and there are a number of other lots located within the block. 

5 Because the development proposal calls for construction of 11 duplexes, the dissent 

maintains this case is unique and atypical and, therefore, special rules should apply, even though 

(Footnote continued on next page...)
8

in a density provision to bar this project from moving forward.6 While the Board 

claims the proposed use is inconsistent with the character of the neighborhood, 

duplexes, a form of single-family residences, are permitted by special exception in 

the RS District. “[T]here is a ‘presumption’ that the use is a ‘conditionally 

permitted use, legislatively allowed if the [objective] standards are met.” JoJo Oil 

Co., Inc. v. Dingman Twp. Zoning Hearing Bd., 77 A.3d 679, 686 (Pa. Cmwlth. 

2013) (quoting Bray v. Zoning Bd. of Adjustment of City of Phila., 410 A.2d 909, 

911 (Pa. Cmwlth. 1980)). The objectors failed to present sufficient evidence to 

rebut this presumption. Because common pleas erred in finding that the Board’s 

decision was supported by substantial evidence, we reverse.

_____________________________________

RENÉE COHN JUBELIRER, Judge

_____________________________

(continued...)

the Ordinance contains no such limitation. However, if the subject property was comprised of 12 

smaller lots, each separately owned, and the property owners individually sought a special 

exception to construct a duplex on their respective lots, would the number of duplexes support 

the Board in denying some, but not all, of the applications? 

6

The dissent similarly attempts to include a density requirement where none exists. The 

analysis is not altered by the fact that the Applicant here seeks to subdivide one large parcel of 

property into smaller lots, which otherwise conform to all setback and lot dimension 

requirements, to develop one duplex on each of those lots.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marr Development Mifflinville, LLC, :

Appellant :

 :

v. : No. 2681 C.D. 2015

 :

Mifflin Township Zoning Hearing :

Board :

O R D E R

NOW, July 3, 2017, the Order of the Court of Common Pleas of the 26th 

Judicial District (Columbia County Branch), dated December 11, 2015, is 

REVERSED. 

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marr Development Mifflinville, LLC, :

: No. 2681 C.D. 2015

Appellant : Argued: June 7, 2017

:

v. :

:

Mifflin Township Zoning Hearing Board :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

DISSENTING OPINION 

BY JUDGE WOJCIK FILED: July 3, 2017

I respectfully dissent. 

This is not a typical special exception case. What makes this case 

unique is that Marr Development Mifflinville, LLC (Applicant) filed a single 

application requesting not one, but 11 special exceptions to build 11 two-family 

attached dwelling units or duplexes in a district that is zoned for “[s]ingle family 

detached dwellings” under the Mifflin Township Zoning Ordinance (Ordinance).

1

 

Section 432.A.3 of the Ordinance (emphasis added). Although the Ordinance 

permits “single family attached dwellings, limited to two dwelling units” by 

special exception under Section 432.C.3 of the Ordinance, the intensity of the 

proposed use conflicts with the compatibility requirements of the Ordinance. 

 

1

The Ordinance was enacted January 18, 1973. 
MHW - 2

It is an objector’s burden to show that the proposed use will 

substantially affect the health, safety and welfare of the community “or will 

conflict with the expressions of general policy contained in the ordinance.” JoJo

Oil Co., Inc. v. Dingman Township Zoning Hearing Board, 77 A.3d 679, 688 (Pa. 

Cmwlth. 2013) (citing Bray v. Zoning Board of Adjustment of City of Philadelphia, 

410 A.2d 909, 913 (Pa. Cmwlth. 1980)) (objectors have both the duty and burden 

regarding “general policy concern, e.g., as to harmony with the spirit, intent or 

purpose of the ordinance”)) (emphasis added). “[T]he impact of a use on the 

character of the neighborhood is a relevant area of inquiry in a special exception 

case . . . .” Robert S. Ryan, PENNSYLVANIA ZONING LAWS AND PRACTICE, at §5.3.4 

(2012 ed.). 

Accordingly, if a zoning ordinance is drawn rationally, a 

decision to permit a use by special exception reflects at 

the least a legislative judgment that the degree of impact 

which necessarily flows from the use does not materially 

affect the public interest, and will not justify a denial of 

the use. The most common error of protestants and of the 

zoning boards in special exception cases is the failure to 

recognize that the existence of the special exception itself 

represents a legislative determination that the degree of 

impact is permissible.’ 

Board of Supervisors of Lower Providence Township v. Ford, 283 A.2d 731, 733 

(Pa. Cmwlth. 1971) (quoting Ryan, PENNSYLVANIA ZONING, §5.2.6 (1970 ed.))

(emphasis added). To justify the denial of a special exception, the impact from the 

proposed use must be greater than the impact that normally results from such use. 

Id. (citing Archbishop O’Hara’s Appeal, 131 A.2d 587 (Pa. 1957)). 

The Ordinance is designed to “promote proper density of population.” 

Section 121 of the Ordinance. The Ordinance allows for “[s]ingle family detached 

dwelling” as a permitted principal use in the Suburban Residential District (RS
MHW - 3

District). Section 432.A.3 of the Ordinance. It also allows for a “[s]ingle family 

attached dwelling, limited to two dwelling units” as a use permitted by special 

exception. Section 432.C.3 of the Ordinance. However, duplexes and multiduplex developments, such as the one proposed here, are permitted principal uses 

in higher density districts, such as the Urban Residential Districts and 

Neighborhood Commercial Districts. Sections 442.A.2 and 452.A.2 of the 

Ordinance. 

In addition, the framers of the Ordinance determined that a special 

exception must be compatible, meaning “in the best interest of properties in the 

general area as well as the community at large.” Section 1113.B.2 of the 

Ordinance. “The proposed use will be reviewed as to its relationship to and effect 

on surrounding land uses . . . .” Id. 

Here, the Board found that the objectors met their burden of proving 

the proposed use will conflict with expressions of general policy in the Ordinance 

because it is incompatible with the surrounding area and community at large. 

More particularly, the proposed multi-duplex use is not consistent or compatible 

with the existing and adjoining land uses or the development goals of the RS 

District. The proposed use is “more intense” than the surrounding area. Board 

Opinion, at 2. 

Indeed, it is the scope of the application and the number of duplexes 

proposed in this single application that are of concern here. Applicant did not 

request a special exception to erect one “single family attached dwelling, limited to 

two dwelling units.” Rather, Applicant requested permission to erect 11 duplexes 

on one lot, for a total of 22 new dwelling units. The block on which the Property is 

located contains 17 single-family detached dwelling units. N.T. at 86. The 
MHW - 4

proposed 22-unit complex would more than double the number of dwelling units in 

just that block and outnumber the 17 single-family detached dwelling units. N.T. 

at 86. Such an increase in the number of duplexes will significantly alter the 

character and composition of the surrounding neighborhood from predominantly 

single detached dwelling units to predominantly duplexes. See Blair v. Board of 

Adjustment of Borough of Hatboro, 169 A.2d 49, 50-51 (Pa. 1961) (holding the 

“accumulation of five [gasoline] service stations within a radius of 350 feet has a 

definite effect on the ‘character’ of the immediate neighborhood, . . . zoned 

primarily for retail business.”). Such an immediate alteration in the composition of 

the community is not in the best interest of the properties in the general area or the 

community at large. 

It is the degree of impact that is at odds with the Ordinance, not the 

use itself. The proposed scope of the project runs counter to what the drafters 

contemplated for the RS District and far exceeds the expected impacts normally 

contemplated for a single-family attached dwelling, limited to two units. See Ford, 

283 A.2d at 733. Applicant’s request is akin to using a special exception 

permitting a single retail store use to justify the construction of a multi-store strip 

mall. Thus, I believe the Board did not err in determining that objectors met their 

burden of proving that a multi-duplex development is not consistent with the RS 

District’s development objectives for single-family detached dwelling units or in 

the best interests of the surrounding community. For these reasons, I would affirm. 

MICHAEL H. WOJCIK, Judge