Key Points

• Traffic is a general concern. An ordinance requiring the board to weigh highway congestion sets a general, non-objective standard. That means objectors, not the applicant, must come forward first with evidence of traffic harm.
• “Shall establish” doesn’t flip the burden. Ordinance language requiring applicants to “establish” traffic effects places only the persuasion burden on the applicant; objectors still carry the initial burden of producing evidence of such traffic effects.
• Small gaps are de minimis. A 2.39-foot shortfall in lot width — less than 3 percent — supported a de minimis variance and would have satisfied the traditional variance test anyway.

Neighbors who oppose a special exception on traffic grounds need more than an argument that the developer failed to submit a traffic study. They need evidence of their own.

That is the lesson of Abrams v. Zoning Hearing Board of Tredyffrin Township, in which the Commonwealth Court on October 19, 2026 affirmed approvals for a five-unit multifamily building in Devon, Chester County. The memorandum opinion is unreported, but it offers useful guidance on burden-shifting in special exception cases and on when a small dimensional shortfall qualifies as de minimis.

From Single-Family Home to Five Units

The property at 311 South Valley Forge Road holds a vacant single-family home in the township’s R-4 Residence District, which is designed for the township’s highest residential densities and greatest variety of housing types. Multifamily dwellings are permitted there by special exception.

Penn Crest Properties, LLC proposed to replace the house with a five-unit multifamily dwelling, a driveway and parking area, a sidewalk, and stormwater management facilities. The project would also fix existing problems: the property currently has one undersized parking space where two are required, no stormwater facilities, and a house that violates the side-yard setback.

The building would meet the code’s area and bulk requirements with one exception. The code requires a lot width of 100 feet at the building line. The lot is 100 feet wide at its title line but narrows to 97.61 feet at the building line.

In April 2023, the zoning hearing board granted the special exception and a lot-width variance. It found that, among other things, the area already (1) includes townhouses, another five-unit building, and an apartment complex, and that (2) the project would not worsen existing traffic and parking problems on South Valley Forge Road. The Chester County Court of Common Pleas affirmed.

Who Has to Prove Traffic Impact?

The objectors focused on Section 208-150.A(7) of the township’s zoning code. That provision (1) directs the board to consider the effect of proposed development on highway congestion, (2) states that each applicant “shall establish the effect of the proposed development on the reserve capacity of the public roads,” and (3) bars any special exception that would “materially increase traffic congestion.” Because Penn Crest presented no traffic evidence, the objectors argued that it could not have met its burden.

Judge Christine Fizzano Cannon, writing for the panel, disagreed with the objectors. Once an applicant satisfies an ordinance’s specific, objective requirements, a presumption arises that the use is consistent with the public health, safety and welfare. The burden then shifts to objectors to prove “to a high degree of probability” that the use will harm the community more than would normally be expected from that type of use.

Relying on the court’s 1984 decision in Appeal of M.G.H. Enterprises, the panel held that general “traffic conditions” are non-objective criteria, while specific enumerated items — such as the location of access points or the safe capacity of roads — can be objective requirements. Section 208-150.A(7), which speaks of congestion and highway protection in general terms, falls in the first category.

The court also rejected the argument that the “shall establish” language shifted the burden to the developer. Under Manor Healthcare Corp. v. Lower Moreland Township Zoning Hearing Board, an ordinance that places the “burden of proof” on an applicant “merely places the persuasion burden on the applicant.” The objectors “still retain the initial presentation burden.” Because they offered no traffic evidence, Penn Crest kept the benefit of the presumption.

Prior Board Decisions Are Not Binding

The objectors also pointed to an earlier case in the same township in which the board denied a special exception, in part citing Section 208-150.A(7). The court found that decision of “little to no application,” since it mentioned the traffic provision only in passing and turned on neighborhood-character problems. More broadly, a zoning hearing board “must consider each matter on its own merits,” and reviewing courts defer to the board’s interpretation in the case before them — not in some other matter.

A Textbook De Minimis Variance

On the lot-width variance, the court agreed with the board that the 2.39-foot shortfall was de minimis. A de minimis variance may be granted without the usual showing of hardship where the deviation is insignificant, and the public interest is otherwise protected. The court noted that courts have found deviations of roughly 6 to more than 10 percent to be de minimis — including a 7 percent lot-width deviation — and that this one, at less than 3 percent, was significantly smaller.

Even without the de minimis doctrine, the court said, the traditional variance test was satisfied. The narrow lot is a physical condition of the property that the developer did not create, and any construction would need the same relief. Citing its decision in In re Sesso, the court observed that the developer cannot “provide even one more inch of lot width.” Where strict compliance is impossible, “by definition, rigid compliance cannot be necessary for the public interests the Zoning Code is meant to protect.”

Takeaways

First, once an applicant meets the objective requirements for a special exception, objectors bear the initial burden on general concerns like traffic. Objectors who want to block a project on those grounds must present evidence — ideally expert testimony — rather than rely on gaps in the applicant’s presentation.

Second, ordinance language placing the “burden of proof” on applicants will generally be read to impose only a persuasion burden. Developers should still be prepared to address traffic, but they need not front-load a traffic study unless the ordinance makes it a specific, objective requirement.

Third, minor dimensional shortfalls — particularly pre-existing ones that cannot be cured — are strong candidates for de minimis relief. Applicants should present the percentage deviation and show that the policy behind the requirement is protected by other means, such as compliance with setbacks and landscaping rules.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the author(s) and not necessarily this law firm or its clients. Prior results do not guarantee a similar outcome.