Can a Zoning Hearing Board Restrict Hours of Operation?
The short answer is yes, if such a restriction is reasonable based on the evidence of record, as announced by the Commonwealth Court in Fask v. Zoning Hearing Board of the Township of Haverford, 17 C.D. 2019. However, if the restriction is based on speculation and perceived harm rather than on fact-based concerns, then the restriction will not be upheld.
Dr. Fask applied for a special exception to operate a professional office within a residential dwelling on Brennan Drive within the Township. Pursuant to the Zoning Ordinance, a psychologist’s office qualifies as a professional office. The testimony indicated that Dr. Fask saw clients during the week and on Sunday nights but did not anticipate working more than 40 hours per week. Appointments lasted 45 to 50 minutes and there is 10 to 15 minutes between appointments meaning that it is unlikely that more than one client would be at the home at a time. Dr. Fask also presented additional evidence that he could comply with all other specific requirements for the special exception use.
Several neighbors testified that through traffic is prohibited from the Darby Road intersection with Brennan Drive between 7 am and 9 am but the same prohibition does not apply to the Route 320 entrance to Brennan Drive. They also expressed concerns about the type of patients that Dr. Fask would treat.
The Zoning Hearing Board (“ZHB”) approved the special exception subject to 6 conditions. One of the conditions was that the business hours would be no more than 40 hours per week, Monday through Friday only and that office hours could not begin before 9 am and no appointments would start after 7 pm. Dr. Fask appealed this condition. On appeal, the ZHB conceded that the condition limiting the hours of operation were based on the traffic restriction. The weekend prohibition was because more families and children are present on the weekends and the ZHB had a desire to preserve the residential character of the neighborhood.
The Commonwealth Court cited the well-established principle that a “special exception is a use expressly permitted by the local zoning code, so long as the proposed use does not have a detrimental effect on the community.” The ZHB can impose reasonable conditions in granting a special exception. “However, where there is no evidence in the record to support the imposition of a condition it is considered manifestly unreasonable and an abuse of discretion.” The record in this case contained only speculative concerns raised by the neighbors that did not amount to substantial evidence. The restriction on days and hours of operation was therefore unreasonable and the Commonwealth Court struck it.
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.
