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In a recently published opinion, the Commonwealth Court of Pennsylvania in Chaffier v. Hellertown Borough Zoning Hearing Board, Pa. Commw. Unpub. LEXIS 30 (Jan. 10, 2024) struck down an attempted change in a property’s zoning classification as illegal spot zoning.

In late 2019, the property owner in Chaffier applied to the local government in Hellertown Borough to change the zoning classification of the property at issue from R-1 to R-2, the opinion said.

Subsequently, in early 2020, the Hellertown Borough Council adopted a zoning ordinance changing the property’s zoning classification to R-2, the opinion said.

After obtaining the desired zoning classification for the property, the property owner requested an advisory opinion from zoning officer for Hellertown Borough as to whether the zoning classification of R-2 permitted single-family attached homes (townhomes) to be constructed on the property, the opinion said.

The zoning officer thereafter responded that townhomes would be so permitted on the property, the opinion said.

Under the zoning classification of R-1, a property owner in Hellertown Borough would only be permitted to use the property for single-family detached homes and duplexes.

Several neighboring property owners in Chaffier, all of whom owned properties with a zoning classification of R-1, filed a zoning appeal with the Hellertown Borough Zoning Hearing Board challenging the substantive validity of the zoning ordinance which changed the property’s zoning classification from R-1 to R-2, alleging that the rezoning constituted illegal spot zoning, the
opinion said.

Following a number of public hearings, the Hellertown Borough Zoning Hearing Board made several findings regarding the property and the zoning classifications at issue.

Before the adoption of the ordinance which changed the property’s zoning classification, the Hellertown Borough Zoning Hearing Board noted that Easton Road served as a boundary between properties which had a zoning classification of R-1 and R-2, with all properties with a zoning classification of R-2 being situated on the west side of Easton Road, the opinion said.

According to the Hellertown Borough Zoning Hearing Board, however, the ordinance erased this preexisting boundary line, creating a R-2 zone on the east side of Easton Road that “juts out” into the R-1 zone.

The Hellertown Borough Zoning Hearing Board also found that the property has no physical characteristics or conditions that distinguish it from the surrounding properties that were not subject to the ordinance, the opinion said.

The neighboring property owners in Chaffier presented testimony that the property, with its previous zoning classification of R-1, could accommodate 18 single-family detached homes or 26 duplexes, and that both types of homes would be marketable to potential buyers, the opinion said.

A realtor who testified on behalf of the neighboring property owners in Chaffier stated that developing single-family detached homes or duplexes on the property would increase Hellertown Borough’s tax base, but that building townhomes on the property would result in an even larger tax base increase, the opinion said.

The neighboring property owners in Chaffier summarized their position as desiring to maintain the single-family character and “ideal setting” of the area, and they argued that the ordinance did not benefit Hellertown Borough as a whole, but rather benefited only the property owner who obtained the change in the property’s zoning classification, the opinion said.

The Hellertown Borough Zoning Hearing Board also reviewed plans from local and regional planning bodies, both of which denoted the property as being in an area indicated for low-intensity residential use, the opinion said.

In response, Hellertown Borough presented testimony and evidence in favor of the adoption of the ordinance.

The zoning officer in Chaffier testified that aside from the 2 homes located on it, the property was one of the few remaining undeveloped parcels within Hellertown Borough, the opinion said.

The zoning officer also testified that he believed the ordinance was in accordance with the surrounding property uses because there are townhome and apartment developments just across Easton Road, the opinion said.

Additionally, the zoning officer added that, since 2015, Hellertown Borough has received numerous proposals from real estate developers eager to build apartments and/or townhomes throughout it, the opinion said.

The engineer for Hellertown Borough also presented testimony to the Hellertown Borough Zoning Hearing Board, in which he stated that there were no other properties of the same size in Hellertown Borough that could be developed for residential purposes, the opinion said.

The engineer added that there was demand for townhomes in Hellertown Borough and that such development at the property would be consistent with other nearby land uses, the opinion said.

Reviewing the evidence and relying on Pollock v. Zoning Board of Adjustment, 342 A.2d 815 (Pa. Commw. Ct. 1975), the Hellertown Borough Zoning Hearing Board recalled that there is “no hard and fast test” to determine where an illegal spot zone exists and that each case must be heard and judged by its “own particularities”.

The Hellertown Borough Zoning Hearing Board applied Pennsylvania’s two-part test set forth in Lower Allen Citizens Action Group, Inc. v. Lower Allen Township Zoning Hearing Board, 500 A.2d 1253 (Pa. Commw. Ct. 1985).

The first prong of the test looks at whether the ordinance treats the property differently from surrounding properties with similar characteristics, while the second prong asks if the property is treated differently and whether such differential treatment is “justified on health, safety, moral, and public welfare grounds.”

Applying the first prong of the test, the Hellertown Borough Zoning Hearing Board found that, while townhome development may have been more lucrative to the property and Hellertown Borough, the property was perfectly suitable for development in accordance with a zoning classification of R-1.

Applying second prong of the test, the Hellertown Borough Zoning Hearing Board found that the mere fact that developers had proposed more intensive residential development did not in and of itself indicate a need for that type of development in Hellertown Borough. In doing so, the Hellertown Borough Zoning Hearing Board rejected Hellertown Borough’s arguments regarding increased potential for tax revenue as justifying the adoption of the ordinance.

After examining all the testimony and evidence, the Hellertown Borough Zoning Hearing Board concluded that the ordinance constituted illegal spot zoning.

The property owner in Chaffier appealed the Hellertown Borough Zoning Hearing Board’s ruling to the Northampton County Court of Common Pleas which upheld it.

The trial court in Chaffier observed that, at the outset, that it must presume the ordinance is constitutionally valid unless a challenger can show that it is unreasonable, arbitrary, or not substantially related to the police power, a substantial burden to overcome.

As to the first prong of the test, the trial court found that the ordinance did treat the property differently from surrounding properties.

The trial court pointed out that mere fact that a property is larger than those around it does not, on its own, signify that it is distinguishable.

The trial court also rejected the other arguments the property owner put forth. Notably, that its frontage on Easton Road, unlike the neighboring properties, made it distinguishable, and, further, that its location along Easton Road, a “border zone” between the R-1 and R-2 zones, made it distinguishable.

The trial court also rejected the property owner’s argument that the property, as rezoned, created a peninsula, not an island.

The trial court then moved on to the second prong of the test to determine whether the differential treatment was justified.

The trial court believed that the ordinance was not justified based on its alleged consistency with county comprehensive plan because there was no evidence that the Hellertown Borough Council considered the county comprehensive plan when it adopted the ordinance. The trial court also noted the lack of evidence regarding the supposed increase in tax revenue if the property was developed with townhomes. Regardless, the trial court cautioned that increased tax revenue alone cannot justify spot zoning.

The property owner then appealed the trial court’s ruling to the Commonwealth Court. The Commonwealth Court in Chaffier upheld the trial court’s ruling and held that the ordinance to be an illegal spot zone.

As to the first prong of the test, the Commonwealth Court found no error in the Hellertown Borough Zoning Hearing Board’s finding that the property is not distinguishable from surrounding uses.

The Commonwealth Court observed that a peninsula of rezoned property, not only an island, may constitute spot zoning, emphasizing that the distinction between and “peninsula” and an “island” comes down to semantics.

Turning to the second prong of the test, the Commonwealth Court also found no error in the Hellertown Borough Zoning Hearing Board’s determination that the ordinance was not rationally related to Hellertown Borough’s police power.

The Commonwealth Court reasoned that the ordinance was less about benefitting to Hellertown Borough through development and increased tax revenue and more about increasing the value of the property to the property owner.

Lastly, the Commonwealth Court found that the property owner’s arguments regarding the tax benefits to the Borough were too speculative to rely upon.

Ultimately, this ruling highlights the reality that even a seemingly rational rezoning or development proposal, such as the property owner’s desire in Chaffier to build townhomes in Hellertown Borough, may fall afoul of Pennsylvania jurisprudence regarding illegal spot zones. To avoid a substantive validity challenge, a party seeking a change in a property’s zoning classification should take care to develop the factual record to demonstrate that the subject property is distinguishable from those around it and/or that the change is a justified use of the local government’s police power.

Alan Nochumson is the principal of Nochumson P.C., a legal services firm with a focus on real estate, land use & zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Alan is a frequent author and lecturer on issues commonly confronting businesses, individuals, and professionals. You can reach him at 215-600-2851 or alan.nochumson@nochumson.com.

Alex Hamilton is an associate attorney at the firm. You can reach him at 215-399-1346 or alex.hamilton@nochumson.co