           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Monroe Land Investments                  :
                                         :
                   v.                    :   No. 571 C.D. 2017
                                         :   Argued: March 6, 2018
Zoning Board of Adjustment and The       :
City of Philadelphia and Broad Street    :
West Civic Assoc. and John Furey         :
                                         :
Appeal of: John Furey and Broad          :
Street West Civic Assoc.                 :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge




OPINION BY
JUDGE COHN JUBELIRER                         FILED: March 26, 2018


      John Furey and Broad Street West Civic Association (Appellants) appeal from
an Order of the Court of Common Pleas of Philadelphia County (common pleas),
dated March 28, 2017, which granted the appeal of Monroe Land Investments
(Monroe), reversed the decision of the Zoning Board of Adjustment of the City of
Philadelphia (ZBA) denying Monroe’s application for a special exception
(Application), and directed the Philadelphia Department of Licenses and Inspections
(L&I) to issue a zoning permit.     The Appellants contend that common pleas
disregarded the ZBA’s credibility determinations and substituted its judgment for
that of the ZBA. Because common pleas correctly determined that the ZBA’s
decision was not supported by substantial, competent evidence, we affirm common
pleas’ Order.
       Monroe is the owner of property located at 2640 South Carlisle Street in
Philadelphia (the Property), which is improved with a one-story, semi-detached
building. The Property is located within the CMX-2, Neighborhood Commercial
Mixed-Use-2 Zoning District. Monroe applied to L&I for a zoning/use registration
permit to use the Property as a Dunkin’ Donuts store (the Project). (ZBA Opinion
(Op.), Findings of Fact (FOF) ¶ 1.) Dunkin’ Donuts, because it is considered a take-
out restaurant, requires a special exception under Table 14-602-2 of the Philadelphia
Zoning Code (Zoning Code).1 L&I referred Monroe’s Application to the ZBA,
which held a hearing.


I.     ZBA Hearing
       At the hearing, evidence was presented showing that the Property is on a
corner and has frontage on both South Carlisle Street and Oregon Avenue. South
Carlisle Street is a one-way street with row houses. Oregon Avenue is an east-west,
five-lane arterial roadway on which numerous commercial businesses are located.
(Transportation (Transp.) Analysis, Reproduced Record (R.R.) at 308a.) A few
hundred feet away is South Broad Street. Around the corner, at the intersection of
South Broad Street and Oregon Avenue, is the Philadelphia Performing Arts Charter
School. There is another charter school at the corner of South Broad Street and
Shunk Street. About three blocks from the Property, at South 18th Street and Oregon
Avenue, is another Dunkin’ Donuts (the 18th Street Dunkin’ Donuts), which Monroe
also operates. The 18th Street Dunkin’ Donuts operates 24 hours a day and has a

       1
          Monroe’s Application initially included a request for two variances to permit the use of
digital and internally illuminated signs, but Monroe later withdrew those requests.


                                                2
full parking lot, but no drive-thru. The Property previously had been used as a 7-
Eleven and then a NAPA Auto Parts (NAPA) store. Six months after the NAPA
store closed, Monroe purchased the Property.
      The building on the Property is approximately 2,532 square feet,
approximately 16 feet high, and set back from Oregon Avenue by approximately 58
feet. As part of the Project, Monroe proposed reconfiguring the parking lot to allow
for three parking spaces, one of which would be designated for handicapped parking.
Vehicles would enter the lot from Oregon Avenue and pull into parking spots facing
west and parallel with Oregon Avenue, which would enable patrons to pull out of
the lot and onto Oregon Avenue facing forward. The building would have 14 seats
for patrons and 2 bathrooms. Lighting and security cameras would be installed at
the Property. The Dunkin’ Donuts would operate between 5:00 a.m. and 10:00 p.m.
There would be no drive-thru. Deliveries would occur once a week. Garbage would
be stored in tote containers rather than a dumpster in the rear yard and would be
collected two or three times a week. Two new privacy fences would be erected on
the Property: one to the north or rear of the Property on South Carlisle Street, and
the other to the west of the Property, facing the rear of homes fronting South 15th
Street. The latter would be equipped with vision stripes to block the glare from car
headlights. A three-foot alley separating the rear of the Property from the adjacent
residential home on South Carlisle Street would be preserved.
      Albert Taus,2 the Project architect, testified that he had provided designs for
approximately 500 Dunkin’ Donuts stores over the past 25 years. The proposed
Dunkin’ Donuts at the Property is considered a satellite store, meaning no food is
prepared on site but is merely warmed prior to consumption. Venting is necessary


      2
          Taus’ testimony is found at pages 31a-42a of the Reproduced Record.


                                               3
but only for hot air from a microwave, sandwich station, and a convection oven.
(Hr’g Tr. 22, R.R. at 34a.) The vent would be located as far away as possible from
the homes on South Carlisle Street and South 15th Street. Taus opined that the
Project would not impair an adequate supply of light or air to any of the surrounding
properties. Dunkin’ Donuts satellite stores, Taus continued, have historically not
had detrimental impacts on utilities, such as water, electricity, and sewer.
      Frank Montgomery (Montgomery),3 a traffic engineer with Traffic Planning
and Design, Inc., (TPD), testified regarding a traffic analysis he conducted of the
area surrounding the Property. Montgomery noted that over the past 20 years he had
conducted numerous traffic impact and parking studies. Montgomery conducted a
traffic count during the morning (7:00 a.m. to 9:00 a.m.) and evening (4:00 p.m. to
6:00 p.m.) rush hours and also observed traffic during the early afternoon when
school is dismissed. Montgomery’s traffic count noted that between 7:30 a.m. and
8:30 a.m., 421 vehicles traveling east passed South Carlisle Street, while 648
vehicles traveling west passed South Carlisle Street. (Transp. Analysis, Fig.3, R.R.
at 316a.) Using an industry manual and other analyses TPD had conducted in
Philadelphia, Montgomery projected that approximately 130 customers would
frequent the Dunkin’ Donuts between 7:30 a.m. and 8:30 a.m. (Transp. Analysis,
R.R. at 310a; Hr’g Tr. at 33, R.R. at 45a.) However, Montgomery continued, given
that this is a densely populated area and is in close proximity to mass transit, 75
percent of patron trips or about 100 patrons to the Dunkin’ Donuts will not come via
a vehicle. Thus, he estimated there will be about 30 cars entering and exiting the




      3
          Montgomery’s testimony is found at pages 42a-59a of the Reproduced Record.



                                              4
Property between 7:30 a.m. and 8:30 a.m., that is, one vehicle every 2 minutes.4 (Id.)
There would be “significantly” fewer customer trips to the Dunkin’ Donuts in the
afternoon. (Hr’g Tr. at 33, R.R. at 45a.) Montgomery noted that the proposed
parking lot at the Dunkin’ Donuts was small and this encouraged people to walk
there. (Hr’g Tr. at 36, R.R. at 48a.) In addition, Montgomery opined that given most
patrons would be familiar with the area, if a patron drove to the Dunkin’ Donuts and
saw no room to park, he would drive to the 18th Street Dunkin’ Donuts where there
is more parking. Looking at how the vehicle traffic to the Property would impact
the traffic in the area, Montgomery concluded that the Project would not increase
congestion in the public streets. (Hr’g Tr. at 41, R.R. at 53a.) Regarding the
Philadelphia Performing Arts Charter School, Montgomery concluded that “the
limited vehicular traffic associated with the proposed Dunkin[’] Donuts, especially
during the afternoon pickup times, will not significantly impact traffic in this area.”
(Transp. Analysis, R.R. at 313a.) Montgomery also concluded that given the
infrequency of deliveries and trash collection to the Property, the Project would not
be detrimental to the health, safety, and welfare of the neighborhood. (Hr’g Tr. at
41, R.R. at 53a.)
       Russell Shoemaker,5 a nearby resident, a member of the South Philadelphia
Business Association, and president of the Police Advisory Board for South
Philadelphia, testified that he has witnessed disturbances from kids at the 18th Street
Dunkin’ Donuts. Most of the kids are from outside the neighborhood and meet at
the 18th Street Dunkin’ Donuts. Shoemaker and the police then chase the kids from

       4
          Montgomery anticipated that many of these vehicular trips would be “pass-by trips” (a
trip made to the site while en route to another destination), but he showed them as “new trips” (a
trip for the express purpose of visiting the site) in order to be conservative. (Transp. Analysis,
R.R. at 310a.)
        5
          Shoemaker’s testimony is found at pages 54a-59a of the Reproduced Record.


                                                5
one location to the next. Shoemaker did not believe the 18th Street Dunkin’ Donuts
is a nuisance. He thought the Project would relieve some of the pressure on the 18th
Street Dunkin’ Donuts.
      In opposition to the Application, the ZBA received the following comments.6
Peter Elliott from Councilman Kenyatta Johnson’s (Councilman Johnson) office
said that Councilman Johnson, having received several petitions opposing the
Application, opposed it. Elliott noted that residents have complained to Councilman
Johnson’s office about drivers parking their cars in the middle of South Carlisle
Street and then patronizing businesses on Oregon Avenue.
      John Furey of the Broad Street West Civic Association commented that, as a
result of the Project, “home values will depreciate, traffic congestion will increase,
and their quality of life will be affected by noise, trash, and teens hanging out there.”
(Hr’g Tr. at 51, R.R. at 63a.) Furey opined that the proposed parking lot “is too
small for the number of cars that these stores draw.” (Id.) Noting that “in South
Philadelphia[] everybody knows parking is crazy,” Furey predicted that “[i]f there
is a space[,] they are going to put two or three cars in there, go in and get their
coffee.” (Hr’g Tr. at 54, R.R. at 66a.) Furey also claimed that the 18th Street
Dunkin’ Donuts has a history of ignoring neighbors’ complaints about it being a
“public nuisance.” (Hr’g Tr. at 52, R.R. at 64a.) Furey acknowledged that Monroe
had modified its proposal to satisfy community concerns, with the exception of
eliminating the parking lot, but neighbors remained opposed to the Project. Furey
commented, “we’re opposed to it, period.” (Hr’g Tr. at 57, R.R. at 69a (emphasis
added).)




      6
          The comments are found at pages 59a-77a of the Reproduced Record.


                                              6
      Rose Mary LaCroce, whose home abuts the Property, commented that kids
would loiter on the Property and hang over the privacy fence, just as they do at the
18th Street Dunkin’ Donuts. She commented that “[o]n a normal day traffic is
horrendous[,]” and that “[t]raffic is crazy no matter when you go.” (Hr’g Tr. at 60,
R.R. at 72a.) LaCroce acknowledged, however, that she “wasn’t . . . happy . . . when
the 7-Eleven was there[,]” and that the Property, being in the CMX-2 zone, could be
used as a 24-hour gym as of right. (Hr’g Tr. at 61, R.R. at 73a.) LaCroce responded
that “just because . . . you can do it, doesn’t make it right[,]” and that “it doesn’t
mean that it’s not going to impact those of us who live in that area.” (Id.)
      Raymond Luning, who lives across the street from the Property, commented
that residents who live on South Carlisle Street, because it is so narrow, have to park
on the pavement in order for the garbage truck to pass. Luning stated that with the
Project he is “going to lose thousands and thousands of dollars [and] I just don’t
want that place there. That’s it.” (Hr’g Tr. at 63, R.R. at 75a (emphasis added).)
      Roseanna Lord, a local resident, commented that when the 7-Eleven was
operated at the Property, “[i]t was horrible.” (Hr’g Tr. at 64, R.R. at 76a.) At night,
when she had to walk by the 7-Eleven, she feared for her life. (Id.) She added that
there were “[b]eggers,” and “it was a very uncomfortable situation.” (Id.)
      Adelina LaCroce, another local resident, commented that any of the by-right
uses for the CMX-2 zone would be better than the proposed use. She did not want
any use involving food except for “an eat-in restaurant” because it “brings a different
client[ele].” (Hr’g Tr. at 65, R.R. at 77a.) She commented that NAPA “was great”
because it had “regular business hours, no food, no loitering, no littering.” (Id.)
      A letter from State Representative Maria P. Donatucci was submitted
opposing the Application for the same reasons the commenters expressed.



                                          7
        In rebuttal, Monroe offered the testimony of Larry Persofsky,7 a paralegal for
the attorney representing Monroe, who reviewed crime data, as reported by the
Philadelphia Police Department, which showed that there was one report of a
robbery at the 18th Street Dunkin’ Donuts between June 3, 2015, and December 30,
2015.
        At the conclusion of the hearing, a representative from the City of
Philadelphia Planning Commission (CPC) expressed that the CPC had no objection
to granting Monroe’s Application for a special exception since, “given the evidence
and testimony given today, we believe that the standards for granting a special
exception have been met.”8 (Hr’g Tr. at 71, R.R. at 83a.)
        The ZBA voted unanimously, 4-0, against granting Monroe a special
exception. Monroe then appealed to common pleas. During the pendency of the
appeal, the ZBA submitted findings of fact and conclusions of law. In its findings
of fact, the ZBA summarized the evidence presented at the hearing.                        In its
conclusions of law, the ZBA concluded “that the evidence of record does not support
grant of the requested special exception.” (ZBA Op., Conclusions of Law (COL)
¶ 7.) The ZBA continued:

        8.     The Board specifically concludes that Applicant did not submit
        credible, objective evidence sufficient to establish that the proposed use
        will not cause congestion in the public streets or endanger public health
        or safety to a degree beyond that which might normally be expected
        from a takeout restaurant.




        Persofsky’s testimony is found at pages 78a-81a of the Reproduced Record.
        7
        8
         The CPC’s recommendation was made pursuant to Section 14-303(7)(c) of the Zoning
Code, which states that the CPC “shall review each application for a special exception” and “make
a recommendation to the [ZBA] as to whether the application meets the criteria for a special
exception.” Phila., Pa., Zoning Code § 14-303(7)(c) (2016).


                                               8
       9.     The Board is persuaded by opponents’ testimony regarding
       existing traffic patterns, congestion in the streets, and the proximity of
       two charter schools and residential uses that the proposed Dunkin’
       Donuts is substantially likely to cause a detrimental impact on the
       neighborhood’s health, safety and welfare beyond that which might
       normally be expected from a takeout restaurant.
(Id. ¶¶ 8-9.)


II.    Common Pleas’ Decision
       Common pleas,9 which did not take additional evidence, reversed the ZBA,
and granted the Application for a special exception. In its opinion issued pursuant
to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.
1925(a), common pleas concluded that the ZBA abused its discretion in that
paragraphs 8 and 9 of its conclusions of law were not supported by substantial
evidence. (Common Pleas Op. at 8.) Common pleas stated that Monroe had
sustained its burden of proof by presenting relevant evidence including testimony
from two experts, a community group, and local crime data, none of which the ZBA
deemed incredible. (Id. at 9-10.) Monroe also demonstrated “compliance with each
of the specific impacts set forth in the zoning code through unrebutted expert
testimony.”       (Id. at 9.)    In short, common pleas stated, Monroe “presented
substantial, unrebutted, and objective evidence that the grant of the special exception
for its Project would not cause specific detrimental impacts to the neighborhood
beyond that which normally might be expected from the proposed use.” (Id. at 10.)
The objectors, in contrast, did not offer any expert testimony, but solely “lay opinion
from near[by] neighbors.” (Id.) This evidence, consisting of only “lay, personal
opinion testimony about speculative harms” failed to meet the objectors’ burden of


       9
           The decision of common pleas was issued by the Honorable Daniel J. Anders.


                                                9
proof. (Id. at 11.) Therefore, common pleas concluded, it properly reversed the
ZBA’s determination denying Monroe a special exception.
       On appeal,10 the Appellants contend that common pleas erred because it
impermissibly substituted its judgment for that of the ZBA, when the ZBA
concluded that Monroe’s evidence was not credible and objective and, therefore,
insufficient to meet its initial burden of proof. Essentially, the Appellants posit
common pleas disagreed with the ZBA’s findings on credibility, which is not a basis
for overturning the ZBA’s determination. The Appellants argue that Montgomery’s
conclusions about the impact the Project would have on traffic in the area were not
credible and the ZBA rightly rejected them. In any case, the Appellants argue,
Montgomery’s testimony supports the ZBA’s decision that the Project “will add an
extreme amount of volume to an already congest[ed] and busy intersection of
multiple streets.” (Appellants’ Brief (Br.) at 19.) Further, the Appellants argue, the
ZBA’s decision that Monroe did not meet its burden “was clearly based on the
credible and objective testimony from the near[by] neighbors” who recounted how
the surrounding area is congested, the proposed use presents a danger to parents and
children who walk to the nearby charter schools, the prior use of the property as a 7-
Eleven was “horrible,” and the 18th Street Dunkin’ Donuts is a public nuisance. (Id.
at 16-17 (emphasis in original).) Although Monroe failed to meet its burden, the
Appellants continue, they met their burden of proof establishing that the Project was
contrary to the health, safety, and welfare of the surrounding community. According
to the Appellants, common pleas was wrong to reject the Appellants’ evidence as
speculative. Rather, the Appellants’ evidence, although admittedly consisting of


       10
        Although the Appellants have presented their argument in three point headings, we have
condensed them into one for ease of discussion and clarity.


                                             10
testimony from lay witnesses, was objective proof of the conditions surrounding the
Property because their testimony was based on existing experience.


III.   Analysis
       “A special exception is a conditionally permitted use, allowed by the
legislature if specifically listed standards are met.” In re Appeal of Brickstone Realty
Corp., 789 A.2d 333, 340 (Pa. Cmwlth. 2001) (emphasis added). Thus, “[a] special
exception is . . . not an ‘exception’ to the zoning ordinance, but a use permitted
conditionally, the application for which is to be granted or denied by the zoning
hearing board pursuant to express standards and criteria.” Id.
       Section 14-303(7)(e) of the Zoning Code sets forth the criteria the ZBA must
consider when determining whether to approve an application for a special
exception.

       The Zoning Board must approve, or approve with conditions, the
       application for a special exception if it determines that the criteria in
       § 14-303(7)(e)(.1) and § 14-303(7)(e)(.2) below have been met, unless
       the Zoning Board finds that the objectors, if any, satisfied the criteria
       in § 14-303(7)(e)(.3). The Zoning Board shall, in writing, set forth each
       required finding for each special exception that is granted, set forth each
       finding that is not satisfied for each special exception that is denied, and
       to the extent that a specific finding is not relevant to the decision, shall
       so state. The Zoning Board shall file with each decision approving a
       special exception any Project Information Form prepared by the
       applicant pursuant to § 18-503, but need not attach the Form to the
       decision; filing of the Form shall not constitute incorporation of its
       contents into the decision and those contents shall not be binding.

             (.1) Specific Conditions of Use.
             The applicant shall have the initial duty of presenting evidence,
             and the burden of proof, that the proposed use meets the
             definition for a use permitted by special exception, that all
             dimensional standards are satisfied, and that the application
             complies with all the criteria and meets all the conditions


                                           11
            applicable to the proposed use, including all applicable use-
            specific standards in § 14-603 (Use-Specific Standards).

            (.2) Specific Detrimental Impacts on the Neighborhood.
            The applicant shall have the initial duty of presenting objective
            evidence, and the burden of proof, that the grant of a special
            exception will not cause the following specific detrimental
            impacts to the neighborhood beyond that which normally
            might be expected from the proposed use:

                   (.a) Congestion in the public streets or transportation
                   systems;
                   (.b) Overcrowding the land;
                   (.c) Impairing an adequate supply of light and air to
                   adjacent property;
                   (.d) Burdening water, sewer, school, park, or other public
                   facilities;
                   (.e) Impairing or permanently injuring the use of adjacent
                   conforming properties;
                   (.f) Endangering the public health or safety by fire or
                   other means; or
                   (.g) Inconsistency with the Comprehensive Plan of the
                   City.

            (.3) General Detrimental Impacts on the Neighborhood.
            Once the applicant meets such initial duty and burden of proof,
            the objectors, if any, shall have the duty of presenting objective
            evidence, and the burden of proof, that the proposed use is
            substantially likely to cause a detrimental impact on the health,
            safety, and welfare of the neighborhood exceeding that which
            normally might be expected from the proposed use. The
            objectors also may present evidence, and have the burden of
            proof, that the proposed use fails to conform with the purpose,
            spirit, and intent of this Zoning Code.

Phila., Pa., Zoning Code § 14-303(7)(e) (2016) (emphasis added).
      The Zoning Code, thus, places the initial burden on the applicant to prove that
the proposed use meets all of the Zoning Code’s criteria and conditions applicable
to the proposed use. The applicant also bears the initial burden of proving that the



                                        12
proposed use will not detrimentally impact the neighborhood beyond what is
normally expected from the proposed use pursuant to seven specific criteria. If
the applicant satisfies this initial burden, the objectors, should there be any, have the
burden of proving that the proposed use will detrimentally impact the health, safety,
and welfare of the neighborhood beyond what is normally expected from the
proposed use and may present evidence, and bear the burden of proving, that the
proposed use does not conform with the purpose, spirit, and intent of the Zoning
Code. In order for the objectors to meet their burden, they cannot merely speculate
as to possible harm, but must show “a high degree of probability that the proposed
use will substantially affect the health, safety[,] and welfare of the community
greater than what is normally expected from that type of use.” Sunnyside Up Corp.
v. City of Lancaster Zoning Hearing Bd., 739 A.2d 644, 650 (Pa. Cmwlth. 1999)
(quotation omitted). The burden placed on the objectors “is a heavy one.” Marr
Dev. Mifflinville, LLC v. Mifflin Twp. Zoning Hearing Bd., 166 A.3d 479, 483 (Pa.
Cmwlth. 2017).
      When common pleas takes no additional evidence, our standard of review of
the ZBA’s denial of a special exception is limited to whether the ZBA abused its
discretion or committed an error of law. In re Appeal of Brickstone Realty Corp.,
789 A.2d at 338. The ZBA abuses its discretion when it makes material findings of
fact not supported by substantial evidence. Id. “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Manor Healthcare Corp. v. Lower Moreland Twp. Zoning Hearing
Bd., 590 A.2d 65, 70 (Pa. Cmwlth. 1991). The ZBA, as fact-finder, determines the
credibility of witnesses and the weight afforded to their testimony. Hawk v. City of




                                           13
Pittsburgh Zoning Bd. of Adjustment, 38 A.3d 1061, 1065 (Pa. Cmwlth. 2012). The
ZBA may accept or reject the testimony of a witness in whole or in part. Id.
      Here, common pleas correctly concluded that the ZBA abused its discretion
in denying the Application because there was not substantial evidence in the record
to support the ZBA’s conclusions of law 8 and 9. First, in conclusion of law 8, the
ZBA concluded that Monroe did not satisfy its burden of establishing that the Project
will not cause traffic congestion or endanger the health or safety of the public. The
proposed use, a take-out restaurant, is permitted by special exception, and therefore
it was Monroe’s burden to establish that the Dunkin’ Donuts would not cause traffic
congestion or endanger the health or safety of the public beyond what is normally
expected from a take-out restaurant on that site. As common pleas correctly found,
there was not substantial evidence to support the ZBA’s conclusion, while, to the
contrary, there was ample evidence, much of which was unrebutted, to support the
opposite result. Specifically, Montgomery, the only expert to testify at the hearing
regarding traffic, concluded that the Project would not increase traffic congestion.
Montgomery’s conclusion was based on an analysis that included a manual traffic
count, other analyses TPD had conducted in Philadelphia, and his review of an
industry manual about the number of customers that could be expected to frequent a
coffee/donut shop without a drive-thru window. Montgomery concluded that the
highest level of traffic would be in the morning, between 7:30 a.m. to 8:30 a.m., and
that 130 customers would visit the Dunkin’ Donuts during this hour, 30 of which
would be customers who drove there. During this same hour, Montgomery noted,
over 1,000 vehicles would be driving along Oregon Avenue past South Carlisle
Street. (Transp. Analysis, Fig.3, R.R. at 316a.) Thus, 30 vehicles stopping at the
Dunkin’ Donuts, many of which, Montgomery stated, would be stopping while en



                                         14
route to another destination, would not, as Montgomery concluded, increase
congestion in the public streets.11 Based on the foregoing, Monroe met its initial
burden of showing that the Project would not cause congestion in the streets or
endanger public health or safety beyond that which normally might be expected
from the proposed use. See In re Appeal of Brickstone Realty Corp., 789 A.2d at
341 (stating that substantial evidence did not support zoning board’s conclusion that
a proposed entry and exit would be dangerous to persons using that roadway where
the only expert to testify, who was not found incredible, testified to the contrary).
       Therefore, the burden shifted to the objectors to show that the Project would
detrimentally impact the health, safety, and welfare of the neighborhood beyond
what is normally expected from the proposed use. In conclusion of law 9, the
ZBA found that the objectors’ testimony regarding existing traffic patterns,
congestion in the streets, and the proximity of two charter schools and residential
uses was sufficient to establish that the Project was substantially likely to cause such
a detrimental impact. However, the objectors’ evidence was insufficient to meet
their burden of proof. As common pleas aptly noted, many of the comments from
the objectors were speculative. Comments such as “traffic congestion will increase,”
the proposed parking lot “is too small for the number of cars that these stores draw,”
and patrons will try to park two or three cars in a single parking spot, were
speculative and unsupported by “objective evidence.” (Hr’g Tr. at 51, 54, R.R. at
63a, 66a); Phila., Pa., Zoning Code § 14-303(7)(e)(.3) (2016); see Allegheny Tower
Assocs., LLC v. City of Scranton Zoning Hearing Bd., 152 A.3d 1118, 1126 (Pa.

       11
           In the Appellants’ brief, they argue that Montgomery’s conclusion that 75 percent of
trips to the Dunkin’ Donuts will be non-vehicular is “mind bogglingly high,” but the Appellants
presented no proof to counter Montgomery’s conclusion. (Appellants’ Br. at 19.) Montgomery,
however, noted that the Property is located near a bus stop and the Broad Street subway line. (Hr’g
Tr. at 33, R.R. at 45a.)


                                                15
Cmwlth. 2017) (stating that objectors’ lay testimony based “solely on their personal
opinions, bald assertions and speculation” is insufficient to meet their burden); In re
Appeal of Brickstone Realty Corp., 789 A.2d at 342 (stating that in order for
protestors to meet their burden, they “were required to produce more than lay
expressions of concern for increased traffic in an already busy area”). Many of the
objectors complained about the general traffic conditions in the area, with one
objector describing it as “horrendous.” (Hr’g Tr. at 60, R.R. at 72a.) However, “the
fact that a proposed use would contribute to projected traffic congestion primarily
generated by other resources is not a sufficient basis for denying a special
exception.” Manor Healthcare Corp., 590 A.2d at 71 (internal quotation marks and
citation omitted).12 Moreover, even if the objectors had provided objective evidence
showing that traffic would increase in already congested streets, this would not
suffice to meet their burden. They had to show a “substantial increase [that] would,
by a high degree of probability, pose a substantial threat to the health and safety of
the community.” In re Appeal of Brickstone Realty Corp., 789 A.2d at 341. The
objectors fell short of meeting their burden.
       Furthermore, the presence of two charter schools and residential homes
nearby does not, contrary to the ZBA’s conclusion, lead to the conclusion that the
Project “is substantially likely to cause a detrimental impact on the neighborhood’s
health, safety and welfare beyond that which might normally be expected from a
takeout restaurant.” (COL ¶ 9 (emphasis added).) The mere proximity of the
Dunkin’ Donuts to two charter schools and residential homes standing alone is
insufficient to overcome the presumption “that the local legislature has already

       12
          Some of the objectors’ testimony was not relevant to this Project. One objector testified
about the traffic conditions near the 18th Street Dunkin’ Donuts at some unspecified time in the
past when she “used to work at the University of Penn.” (Hr’g Tr. at 59, R.R. at 71a.)


                                               16
considered that such use satisfies local concerns for the general health, safety, and
welfare.” In re Appeal of Brickstone Realty Corp., 789 A.2d at 340 (emphasis
added); see Allegheny Tower Assocs., 152 A.3d at 1125 (stating that “‘[p]roof that
goes no further than to establish (for example) that there are residences close to a
proposed gasoline station is insufficient, for to permit a denial on that basis would
be to overrule the legislative judgment reflected in zoning’”) (quoting Robert S.
Ryan, Pennsylvania Zoning Law & Practice, § 5.3.4 (rev. 2003)).
       While the Appellants also point to the operation of the 18th Street Dunkin’
Donuts as proof foreshadowing the detrimental impact that the Project will have on
the area, the ZBA did not reach such a conclusion. Unlike with the neighboring
charter schools and residential homes, the ZBA did not mention the 18th Street
Dunkin’ Donuts in its conclusions of law.13
       In short, there was not substantial evidence in the record by which the ZBA
could have been “persuaded” that the Project “is substantially likely to cause a
detrimental impact on the neighborhood’s health, safety and welfare beyond that
which might normally be expected from a takeout restaurant.” (COL ¶ 9.) Thus,
contrary to the Appellants’ contention, common pleas did not substitute its judgment
for that of the ZBA but, here, the only evidence in the record supported granting the
special exception. See Lamar Advert. of Penn, LLC v. Zoning Hearing Bd. of
Borough of Deer Lake, 915 A.2d 705, 709 n.9 (Pa. Cmwlth. 2007) (noting that in
reviewing a decision of a zoning hearing board, “a court may not substitute its
judgment for that of the board; and, assuming the record demonstrates substantial


       13
          The Appellants also point to the prior use of the Property as a 7-Eleven, which, in the
words of one objector, was “horrible.” (Hr’g Tr. at 61, R.R. at 73a.) However, there was little
elaboration about how the use of the Property as a 7-Eleven made the area “horrible” other than
there were “[b]eggers” in the area. (Hr’g Tr. at 64, R.R. at 76a.)


                                               17
evidence, the court is bound by the board’s findings which result from resolutions
of credibility and the weighing of evidence rather than a capricious disregard for the
evidence”) (citation omitted). While we understand that the testifying neighbors do
not want the Dunkin’ Donuts in their neighborhood, and are concerned about
increased traffic and congestion, a take-out restaurant is permitted on the Property
as a special exception. Thus, they had to demonstrate that this take-out restaurant
would detrimentally impact the neighborhood beyond that which would normally be
expected from a take-out restaurant on this site. This they did not do. As such,
common pleas correctly concluded that the ZBA abused its discretion in denying
Monroe’s Application for a special exception, and we affirm the Order.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge



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




                                         18
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Monroe Land Investments                   :
                                          :
                  v.                      :   No. 571 C.D. 2017
                                          :
Zoning Board of Adjustment and The        :
City of Philadelphia and Broad Street     :
West Civic Assoc. and John Furey          :
                                          :
Appeal of: John Furey and Broad           :
Street West Civic Assoc.                  :


                                   ORDER


      NOW, March 26, 2018, the March 28, 2017 Order of the Court of Common
Pleas of Philadelphia County, in the above-captioned matter, is hereby
AFFIRMED.




                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge
