IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Republic First Bank d/b/a :

Republic Bank, :

Appellant :

 :

v. : No. 205 C.D. 2020

 : Argued: November 9, 2020

Marple Township Zoning Hearing :

Board and Marple Township :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge (P.)

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: December 14, 2020

Republic First Bank d/b/a Republic Bank (Republic) appeals from an Order 

of the Court of Common Pleas of Delaware County (common pleas) that affirmed 

in part and reversed in part a decision by the Marple Township Zoning Hearing 

Board (Board) to deny Republic a special exception to construct a bank in the 

Township.1 Common pleas reversed the Board’s determination that the proposed 

project did not meet most of the requirements for a special exception but affirmed 

the Board’s determination that the proposed bank would not be “less objectionable 

1 Republic also sought use and dimensional variances, which the Board denied. Common 

pleas affirmed the Board’s denial of the use variance and reversed the Board’s Decision as to the 

dimensional variances. Neither party challenges that determination. We will, therefore, limit our 

discussion to the special exception request. 
2

in external effects than the existing nonconforming use with respect to . . . 

[a]ppearance.” (Marple Township Zoning Code § 300-124.C(4).) Marple Township 

(Township) has not cross-appealed from common pleas’ Order. On appeal, Republic 

claims it was an error of law or an abuse of discretion to conclude the proposed bank, 

which would be a steel and glass structure, is “less objectionable in external effects 

than the existing nonconforming use,” a two-story funeral home, “with respect to 

. . . [a]ppearance.” (Marple Township Zoning Code § 300-124.C(4).) Because the 

sole remaining basis for denying the special exception is aesthetics, which precedent 

establishes cannot alone be the basis for denying zoning relief, we are constrained 

to reverse. 

I. BACKGROUND

The facts are not in dispute. Republic is the equitable owner of property 

located at 1998 Sproul Road, Broomall, Marple Township, Delaware County, 

Pennsylvania, which is zoned R-C Residential. Republic plans to demolish a vacant, 

2-story funeral home and construct a 1-story, 2,971-square-foot bank. Also 

proposed is a drive-through lane, 24 parking spaces, fencing, landscaping, signage, 

and various other site improvements. The property is surrounded by a professional 

office building to the north, a dental office to the south, a shopping center to the east, 

and residential properties to the west. 

Because Republic proposes to replace the funeral home, which is a preexisting 

nonconforming use, with another nonconforming use, on February 26, 2018, 

Republic filed an application seeking a special exception pursuant to Section 300-

124 of the Marple Township Zoning Code, which provides as follows:

Once changed to a conforming use, no building, structure or land shall 

be permitted to revert to a nonconforming use. A nonconforming use 
3

may be changed to another nonconforming use only if all of the 

following conditions are met:

A. Such change shall be permitted only as a special exception.

B. The applicant shall show that the nonconforming use cannot 

reasonably be changed to a permitted use.

C. The applicant shall show that the proposed change will be less 

objectionable in external effects than the existing nonconforming 

use, with respect to:

(1) Traffic generation and congestion, including truck, 

passenger car and pedestrian traffic;

(2) Noise, smoke, dust, fumes, vapors, gases, heat, glare or 

vibration;

(3) Storage, including storage of solid waste for disposal; and

(4) Appearance. 

(Marple Township Zoning Code § 300-124.) 

A hearing was held on April 3, 2018, at which Republic called various 

witnesses. Joseph S. Russella, an expert in site design and land development, 

testified, in relevant part, as follows:

[T]he existing facility was a home that was turned into a commercial 

use as a funeral home.

The bank is more attractive. It’s a more modern look. It has a unique 

aesthetic character.

It does not have as high of a peak of a roof as the previous building did, 

but in general[,] it’s just a more modern look to the property and more 

commercial, and it fits in with the commercial surrounding character[]

along Sproul Road.

(Reproduced Record (R.R.) at 78a.) 
4

When asked her opinion about the appearance of the bank, Lisa Thomas, an 

expert in land planning and landscape design, responded as follows:

The site will be cohesively designed with more cohesive aesthetics.

The plan is carefully thought out.

The architecture is carefully considered.

We are going from a two-and-a-half story building to a height of 

twenty-two feet which is significantly less than two-and-a-half stories.

(Id. at 92a.)2 

Following the presentation of Republic’s case and questions from the Board, 

the Board invited members of the public to speak on the proposal. The audience was 

advised that it could request party status, which would provide it with certain rights, 

or it would “merely mak[e] a comment[] in favor or against the project.” (Id. at 

155a.) Two residents voiced their opposition to the proposal.3 The first expressed 

concern over traffic, lighting, and the number of banks already in the area. The 

resident also stated:

I ask that the Board take a look at the picture of the bank that is 

proposed . . . .

It is an extremely modern design.

I love modern. I love contemporary.

It is well-suited to Manhattan.

2

In addition to Mr. Russella and Ms. Thomas, Republic also called Nicole R. Kline, an 

expert in traffic engineering, who testified about the impact on traffic; Robin Liggins, who testified 

about proposed signage; and Sharon Hammel, senior vice-president and chief retail officer of 

Republic, who testified about Republic’s business plan and operations. 

3 One audience member, who serves on the Tree Commission, stated he was neutral on the 

project and asked questions about landscaping. 
5

It might even be suited to Philadelphia.

It is not suited to this street and the community.

It does not look anything like the bank in Media[, where Republic 

operated another bank,] which actually kind of fits in.

(Id. at 161a.) 

Another resident, whose property abuts the subject property, echoed her 

sentiments and added that the existing structure is “one of the nicest looking 

buildings” along Route 320, which would be torn down and replaced by “this glass 

structure, because it’s all glass,” and if Republic went out of business, it would be 

difficult to find a new occupant for such a building. (Id. at 167a.) The second 

resident continued:

We went to [its] Media site. It’s pretty. It’s an all-brick building with 

columns. 

It looks like [another bank] that [Republic] just built near us a little 

further up.

[Republic] said no, [it is] not willing to put that there.

This building is basically plate glass. A glass tower. Stainless steel 

trim.

How does that resemble [another nearby building, which is] all brick 

with colonial windows[?]

(Id. at 168a.)

Following the residents’ statements, the Board did not ask Republic whether 

it had any questions for the residents, nor did Republic seek to ask the residents any 

questions. Instead it adjourned for executive session. When it reconvened, the 

Board announced it would not be voting on Republic’s application that evening. 
6

The Board met again on April 18, 2018,4 at which time it voted 4-0 to deny 

the application. Thereafter, the Board issued a written decision that contained 81 

findings of fact and 37 conclusions of law. The Board summarized the testimony of 

Republic’s witnesses and the comments of the residents before concluding Republic 

did “not satisf[y] all [the] objective requirements of the ordinance.” (Board 

Decision, Conclusion of Law (COL) ¶ 6.) Addressing the special exception request, 

the Board concluded Republic failed to demonstrate that the property cannot 

reasonably be changed to a permitted use as required by Section 300-124.B. (Id.

¶¶ 7-8.) In addition, the Board concluded that Republic failed to show that the 

proposed bank would be less objectionable in terms of traffic generation and 

congestion, glare, or appearance than the current preexisting, nonconforming use as 

required by Section 300-124.C(1), (2), and (4), respectively. (Id. ¶¶ 9-15.) The 

Board determined the existing funeral home resembles a single-family dwelling, 

whereas the proposed bank “is an all[-]glass modern building, with a ‘unique 

aesthetic character,’ that is dramatically different in appearance than the existing 

nonconforming use.” (Id. ¶¶ 16-17.) The Board further concluded the proposed 

bank would not be “consistent with the surrounding character of a neighborhood 

zoned R-C Residential in Marple Township.” (Id. ¶ 18.) The Board expressly 

rejected the testimony of Mr. Russella and Ms. Thomas that the property would be 

less objectionable than the current use and that the “proposed bank’s ‘unique 

aesthetic character’ and ‘modern look’ would be more attractive than the” existing 

funeral home. (Id. ¶¶ 19-20, 23.) The Board also concluded Republic did not satisfy 

the requirements for the requested variances. 

4 The Board had planned to meet in March but that meeting was canceled due to inclement 

weather. 
7

Republic filed a timely appeal to common pleas, which took no additional 

evidence.5 Based upon the parties’ written submissions and its review of the record, 

common pleas issued its Order, dated January 21, 2020, affirming in part and 

reversing in part the Board’s Decision. Pertinent for purposes of the present appeal, 

common pleas reversed the Board’s determination that Republic did not show the 

property could reasonably be changed to a permitted use or that the proposed bank 

would be less objectionable in external effects than the existing nonconforming use, 

with respect to traffic, glare, or storage. Common pleas explained that the Board’s 

findings with relation to these requirements were not supported by the record but 

were contradicted by the record. (Order at 3.) Common pleas further explained that 

the Board’s finding “that the proposed bank use and building is not consistent with 

the surrounding character of the neighborhood zoned R-C [R]esidential in Marple 

Township [wa]s not supported by the record.” (Order at 4.) According to common 

pleas, the evidence of future proposed commercial development was “probative” and 

was “enhanced by the other evidence of record detailing adjacent and surrounding 

commercial properties.” (Id.) However, in relation to whether the proposed bank 

“would be less objectionable in external effects than the” funeral home, “with 

respect to . . . [a]ppearance,” common pleas found the Board’s findings were 

supported by the record, namely the testimony of the neighbors, and affirmed the 

Board’s Decision on that basis. (Order at 3-4.) 

5 Because common pleas took no additional evidence, common pleas’ review was, as is 

ours, limited to determining whether the Board erred as a matter of law or abused its discretion. 

Williams Holding Grp., LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 1202, 1211 n.8 

(Pa. Cmwlth. 2014). 
8

Thereafter, Republic timely appealed common pleas’ Order to this Court. 

Township did not file a cross-appeal related to common pleas’ reversal of the 

Board’s Decision on the other bases. 

II. PARTIES’ ARGUMENTS

On appeal to this Court, Republic argues that, because Section 300-124.C(4)’s

requirement that the proposed nonconforming use be “less objectionable in external 

effects than the existing nonconforming use with respect [to] . . . appearance” is 

general and subjective, the initial burden was on any objectors, not Republic, to show 

the proposed use did not satisfy the requirement. Here, Republic argues, the only 

“objectors” were two residents who offered public comment that should not have 

been considered by the Board since the residents were not under oath or subject to 

cross-examination. Assuming that the residents’ comments were admissible, 

Republic argues the statements were too generalized and, as a result, were 

insufficient for the residents to carry this burden. Moreover, Republic contends that 

the Board erred in denying the application based on the proposed bank’s appearance. 

It asserts that aesthetics, as a matter of law, cannot be the sole basis for denying 

zoning relief. 

Township responds as follows. Nonconforming uses are generally disfavored 

because they are inconsistent with a municipality’s zoning ordinance. As a result, 

continuation of nonconforming uses should be strictly construed. Here, the proposed 

bank does not strictly comply with the Marple Township Zoning Code’s 

requirements for a special exception. Contrary to Republic’s assertions, Section 

300-124 puts the burden on the applicant to show each criterion is satisfied, which 

Republic did not do. According to the Board, the only evidence of the appearance 
9

of the existing structure was that the building was two stories; therefore, it was 

“impossible to determine whether the proposed structure was or was not less 

objectionable.” (Township Brief (Br.) at 15.) It also argues that the testimony from 

Republic’s expert that the building is “unique” and photographs depicting the glass 

building support its conclusion that the proposed bank would not be less 

objectionable than the funeral home in terms of appearance. To the extent 

Republic’s witnesses testified that the height of the new structure was lower than the 

existing building, Township argues this is irrelevant to whether the proposed bank 

would be less objectionable with regard to appearance. In addition, it argues that the 

Board, as factfinder, was free to reject the testimony of Republic’s witnesses and 

credit the residents who “testified with specificity” instead. (Id.) Furthermore, 

Township argues that Republic has waived its argument that the residents’ testimony 

was incompetent because it neither objected at the Board hearing nor raised the issue 

before common pleas. Regardless, Township contends the testimony was admissible 

because Section 908(6) of the Pennsylvania Municipalities Planning Code (MPC)6

provides the Rules of Evidence do not apply to zoning hearings. 

Republic filed a reply brief, wherein it disputes Township’s assertion that 

nonconforming uses are disfavored by law. Republic also points out that Township 

opted to allow the change from one nonconforming use to another. Republic also 

disputes Township’s characterization of the residents’ comments as testimony, 

asserting that the terms “testimony” and “witness” include a requirement of being 

under oath or affirmation, which the residents were not. Lastly, it asserts it did not 

waive its argument related to the residents’ comments. Republic argues that 

residents are permitted to make public statements at the end of a hearing, but such 

6 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908(6).
10

comments cannot be treated as evidence. Because it did not know until the Board 

issued its Decision that the Board was going to rely on the residents’ unsworn 

statements, it contends it had no reason to object. 

III. DISCUSSION 

As a preliminary matter, despite its name, a special exception is a misnomer. 

It is not an exception to a zoning ordinance but is a use that is expressly permitted 

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

applicable 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.

Here, the requirements for a special exception to change one nonconforming 

use to another are governed by Section 300-124 of the Marple Township Zoning 

Code, which provides:

A. Such change shall be permitted only as a special exception.

B. The applicant shall show that the nonconforming use cannot 

reasonably be changed to a permitted use.

C. The applicant shall show that the proposed change will be less 

objectionable in external effects than the existing 

nonconforming use, with respect to:

(1) Traffic generation and congestion, including truck, 

passenger car and pedestrian traffic;
11

(2) Noise, smoke, dust, fumes, vapors, gases, heat, glare or 

vibration;

(3) Storage, including storage of solid waste for disposal; and

(4) Appearance.

(Marple Township Zoning Code § 300-124) (emphasis added).)

Republic argues that it was error to deny the special exception because the 

denial was based solely on aesthetics. While aesthetics is a valid consideration, it is 

well established that aesthetics alone cannot be the sole basis for denying zoning 

relief. White Advert. Metro, Inc. v. Zoning Hearing Bd. of Susquehanna Twp., 453 

A.2d 29, 35 (Pa. Cmwlth. 1982); Heck v. Zoning Hearing Bd. for Harvey’s Lake 

Borough, 397 A.2d 15, 19 (Pa. Cmwlth. 1979). 

In Allegheny Tower Associates, LLC v. City of Scranton Zoning Hearing 

Board, 152 A.3d 1118 (Pa. Cmwlth. 2017), the applicant had sought a special 

exception to construct a monopole communications tower. The local zoning hearing 

board denied the application, finding it did not meet the requirement in the ordinance 

that the proposed use “will not significantly affect the desirable character of an 

existing residential neighborhood.” Id. at 1120. The trial court affirmed. After 

reviewing the other bases for denying the requested zoning relief and concluding 

they were “unsustainable,” the Court concluded “the protection of aesthetics and 

property values cannot serve as sufficient bases for the [board’s] denial of [the 

a]pplicant’s special exception application.” Id. at 1126 (emphasis added).

Here, the sole basis supporting the denial of the special exception is that the 

proposed bank did not meet the requirement that it be “less objectionable in external 

effects than the existing nonconforming use, with respect to . . . [a]ppearance.” 

(Marple Township Zoning Code § 300-124.C(4) (emphasis added).) While the 
12

Board initially cited other bases for denying the application, common pleas reversed 

the Board as to each of those bases, including reversal of the Board’s determination 

that the proposed bank was not consistent with the surrounding character of the 

neighborhood. There has been no appeal or challenge to common pleas’ 

determination related to those other bases; therefore, those bases are not before us. 

For support that Republic did not demonstrate the proposed change would be less 

objectionable in terms of external effects with respect to appearance, the Board 

stated the existing funeral home resembles a single-family dwelling, whereas the 

proposed bank would be “an all[-]glass modern building, with a ‘unique aesthetic 

character.’” (COL ¶¶ 16-17 (emphasis added).) The Board further stated that the 

proposed bank would be “dramatically different in appearance than the” funeral 

home. (Id. ¶ 17.) Thus, it appears the Board based its decision on aesthetics. 

However, pursuant to longstanding precedent, “while we recognize the legitimate 

interest of the Township to advance its aesthetic goals as part of its protection of the 

general welfare, purely aesthetic judgments are far too subjective to alone carry the 

burden of showing detriment to the public interest.” White Advert., 453 A.2d at 35. 

Thus, aesthetics cannot be the only basis for denying zoning relief. Because there 

is no other basis for the Board’s determination, we reverse common pleas’ Order to 

the extent it affirmed the Board’s denial of the application on the basis of appearance. 

IV. CONCLUSION

Zoning relief cannot be denied on the basis of aesthetics alone, and the only 

basis that remains for denying Republic its application was that the proposed bank 

was not “less objectionable in external effects than the existing nonconforming use, 

with respect to . . . [a]ppearance,” (Marple Township Zoning Code § 300-124.C(4)),
13

based on the Board’s finding the proposed change would be a “modern building”

with “a unique aesthetic character,” (COL ¶ 17). It was, therefore, error to deny 

Republic the zoning relief it requested in the form of a special exception. 

Accordingly, common pleas’ Order is reversed to the extent it affirmed the Board’s 

Decision denying the application on the basis of appearance. The remainder of 

common pleas’ Order was not challenged and is, therefore, affirmed.7

_____________________________________

RENÉE COHN JUBELIRER, Judge

Judge Fizzano Cannon did not participate in the decision in this case.

7 Given the Court’s disposition, it is unnecessary to reach the merits of Republic’s other 

arguments. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Republic First Bank d/b/a :

Republic Bank, :

Appellant :

 :

v. : No. 205 C.D. 2020

 : 

Marple Township Zoning Hearing :

Board and Marple Township :

O R D E R

NOW, December 14, 2020, the Order of the Court of Common Pleas of 

Delaware County (common pleas), entered in the above-captioned matter, is 

REVERSED IN PART and AFFIRMED IN PART. The Order is reversed to the 

extent common pleas affirmed the Decision of the Marple Township Zoning Hearing 

Board denying the application for a special exception filed by Republic First Bank 

d/b/a Republic Bank on the basis that the proposed bank was not “less objectionable 

in external effects than the existing nonconforming use, with respect to . . . 

[a]ppearance.” (Marple Township Zoning Code § 300-124.C(4)). Common pleas’ 

Order is affirmed in all other respects. 

_____________________________________

RENÉE COHN JUBELIRER, Judge