Zoning Permits: Special Exceptions

What It Is

A Special Exception is a type of land use zoning permit in which the owner or developer wants to create a project that that is not specifically listed as a permitted or ‘by-right’ use in the ordinance. However, even though the drafters of the ordinance did not list this type of activity as by-right, they did foresee that it might still be necessary or allowed under certain circumstances.  The drafters of an ordinance then put these types of foreseeable land uses under their own separate category of ‘special exceptions’. This is different than a variance or conditional use permit, which seeks to do something not allowed by the zoning ordinance.

What Industry Must Show in Order to Get Special Exceptions

Special Exception may be misleading since if the proposed land use meets these particular requirements, the land use is therefore permitted. The terminology is rooted in the notion that uses meeting the unique criteria for a Special Exception is typically a rare occurrence.

Special Exceptions are very similar to a conditional use. So, like a conditional use, it is already provided within the list of acceptable uses in the zoning plan.  

Differences between the two are that applications for conditional use permits are made directly to the governing body rather than a Zoning Hearing Board (ZBH). This is because, unlike conditional uses, Special Exceptions do meet the zoning code.

Often times the scale of the development will determine whether someone will pursue a Special Exception (for smaller developments) or a Conditional Use Approval (for larger developments). This may be because as the scale of the development gets larger with more details, it becomes more complicated and the likelihood of the development meeting all of the criteria of a Special Exception becomes more difficult to do.

Resources

         The Planning Series #6: The Zoning Hearing Board (See section V. on Hearing Procedures)

         The Planning Series #7: Special Exceptions, Conditional Uses, and Variances

People Involved

         Zoning Hearing Board

         Public - during opportunities to comment

         Planning Commission may be required to review, depending on local rules 

         Adjacent property owners and others with standing

Who Decides

The Zoning Hearing Board makes the ultimate decision. 

Timeline

Application Submitted: Even though a conditional use is decided by the governing body and a special exception is decided by the ZHB, their procedures are otherwise similar. One of the few differences is that for a conditional use application, the Planning Commission is required by the Municipal Planning Code to review the application before the public hearing. For a Special Exception review by the Planning Commission is optional.

The application is first submitted to the Zoning Hearing Board.

The ZHB must provide notice of the public hearing no less than 7 days before the hearing.

Decision/Issuance: A decision should be issued by the governing body within 45 days of the hearing.

An appeal to the decision made by the governing body can be made to the Court of Common Pleas in the county were the development is proposed. Typically, the filing must be made within 30 days of the decision.

Opportunities for Public Engagement

         Members of the public may comment on the application before the ZHB makes its decision.

         Adjacent property owners and other parties with standing may participate in the hearing.