Bray v. Zoning Board of Adjustment

In Bray v. Zoning Board of Adjustment, 48 Pa. Commw. 523, 410 A.2d 909 (Pa. Cmwlth. 1980), the Court clarified the rules regarding the duty to present initial evidence (duty) and the burden of persuasion (burden) in special exception (and, consequently, conditional use) cases. The Court outlined the following rules. With respect to: Specific requirements, e. g., categorical definition of the conditional use as a use type or other matter, and objective standards governing such matter as a conditional use and generally: The applicant has both the duty and the burden. With respect to: 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. And with respect to: General policy concerns, 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. Id., 410 A.2d at 913. According to Bray, therefore, both the burdens of proof and persuasion as to the detrimental effect or general policy concerns about a conditional use are always on the objector. The burden of persuasion as to the health, safety and welfare concerns raised by objectors is on objectors unless the terms of the ordinance provide otherwise.