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In a recently published opinion, the Pennsylvania Commonwealth Court in Burd v. Borough of Brentwood Zoning Hearing Board, 2023 Pa. Commw. LEXIS 92 (April. 18, 2023) rejected an appeal brought by neighboring property owners alleging that a local ordinance constituted impermissible spot zoning. In its analysis, the Commonwealth Court emphasized the heavy burden a challenger must meet to overcome the presumptive validity of a zoning ordinance.

The property at issue in Burd is located in the borough of Brentwood, Pennsylvania, the opinion said.

In late 2020, the borough enacted an ordinance, changing the zoning classification of the property from low-density residential (R-1) to mixed residential and neighborhood commercial (MUN).

The borough passed the zoning ordinance at the request of Agile Development which, on immediately adjacent lots, operated a funeral home and an event planning center, the opinion said.

At the time of change of the zoning classification, the property contained a single-family home, the opinion said.

According to the opinion, Agile Development requested the change in the zoning of that property to allow it to create additional parking spaces for its funeral home business.

In Burd, the Commonwealth Court explained that the rezoned property is 6,225 square feet in area and is bordered on two sides by property zoned R-1, the remaining boundaries of the rezoning property abut land zoned MUN, and the immediate vicinity of the rezoned property also includes land zoned as a commercial redevelopment district (CRD) that allows for more intensive, regional attraction uses, including a Giant Eagle supermarket and a McDonald’s.

After enactment of the zoning ordinance, neighboring residents living in the R-1 residential areas adjacent to the property filed a notice of substantive validity challenge to the zoning ordinance.

The borough’s zoning hearing board thereafter held hearings about the notice of substantive validity challenge.

At the hearing, the neighboring residents argued that the change to the zoning classification of the property constituted illegal spot zoning because it created a “peninsula” of MUN use jutting into an area zoned for R-1 use without justification, the opinion said.

The borough’s zoning hearing board, in a 3-2 decision, rejected the neighboring residents’ challenge, finding that the ordinance rezoning the property did not constitute impermissible spot zoning.

The neighboring residents then appealed to the borough’s zoning hearing board’s ruling to the Allegheny County Common Pleas Court, which ultimately upheld it.

The trial court held that the neighboring residents failed to rebut the presumption of validity and that the rezoned property is a natural extension of adjoining MUN uses.

Subsequently, the neighboring residents appealed the trial court’s ruling to the Commonwealth Court.

On appeal, the neighboring residents raised the following primary issues—that the borough’s zoning hearing board failed to view the ordinance in light of the borough’s comprehensive plan; that the ordinance was invalid because it was not supported by substantial evidence and because it constituted impermissible spot zoning; and because the ordinance was unreasonable and arbitrary.

The Commonwealth Court quickly dispensed with the neighboring residents’ first argument, finding that the borough’s zoning hearing board did not ignore the comprehensive plan and found that contrary to their characterization, the proposed use of the property, as additional parking, was consistent with the purposes of the MUN classification, which include providing for adequate off-street parking.

The remainder of the Commonwealth Court’s memorandum opinion is devoted to the claim of the neighboring residents that rezoning the property constitutes illegal spot zoning.

First, the neighboring residents argued that the borough’s zoning hearing board’s decision was not supported by “substantial evidence.”

The Commonwealth Court, bound by the borough’s zoning hearing board’s findings of fact and credibility, rejected this line of argument, finding that the record demonstrated that the property is surrounded by various land uses, including other mixed use and intensive commercial uses.

The Commonwealth Court also concluded that the borough’s zoning hearing board’s finding that Agile Development required additional parking was supported by substantial evidence.

Turning its attention to the core of neighboring residents’ argument regarding spot zoning, the Commonwealth Court noted that zoning ordinances generally come with a presumption of validity.

Citing to Township of Plymouth v. County of Montgomery, 531 A.2d 49 (Pa. Commw. Ct. 1987), the Commonwealth Court defined spot zoning as any zoning provision adopted without reference to the overall plan or general welfare of the community.

Relying upon Takacs v. Indian Lake Borough Zoning Hearing Board, 11 A.3d 587 (Pa. Commw. Ct. 2010), the Commonwealth Court stated that spot zoning is a “singling out of one lot or a small area for different treatment from that accorded to similar surrounding land indistinguishable from it in character, for the economic benefit or detriment of the owner of that lot.”

According to the Commonwealth Court, the single most determinative factor in identifying a spot zone is whether the property is being treated unjustifiably different from surrounding land, rendering it an “island” with respect to its neighbors, and that a party challenging a spot zone must prove that the zoning provision is arbitrary and unreasonable, with no relation to public health, safety, morals and general welfare.

The Commonwealth Court observed that, under Knight v. Lynn Township Zoning Hearing Board, 568 A.2d 1372 (Pa. Commw. Ct. 1990), when considering whether a property is receiving unjustifiably different treatment from surrounding land, courts should consider the size of the property, along with its topography, location and other characteristics.

Importantly, the Commonwealth Court also noted that the Pennsylvania Supreme Court in Shubach v. Silver, 336 A.2d 328 (Pa. 1975) cautioned that “a reviewing court cannot take too constrained a view” of the surrounding neighborhood.

The Commonwealth Court went on to clarify that spot zoning does not occur simply because the rezoning occurs at a property owner’s request or because the property owner will benefit from the rezoning.

Additionally, in the memorandum opinion, the Commonwealth Court stated that, even if the neighboring residents intended to argue that the borough had an improper rationale for enacting the ordinance, a municipality’s state of mind when enacting an ordinance is irrelevant to the ordinance’s validity under Plaxton v. Lycoming County Zoning Hearing Board, 986 A.2d 199 (Pa. Commw. Ct. 2009).

Furthermore, the Commonwealth Court emphasized that, contrary to the Supreme Court’s guidance in Schubach, the neighboring residents took “too constrained a view” of the property, noting that they construed the property to be a “peninsula of property that was being treated differently” solely based on its relationship to their own R-1 zoned properties, rather than within the context of all surrounding properties, which included other MUN and CRD uses.

Next, the Commonwealth Court observed that the property as rezoned continued to allow for residential dwellings, just as the adjacent R-1 district does.

The Commonwealth Court pointed out that the mere fact that a property can have a nonresidential use does not result in a peninsula of commercially zoned property in a sea of residentially zoned property.

In essence, the Commonwealth Court reasoned that, by improperly focusing solely on the property’s relationship to the neighboring R-1 parcels, the neighboring residents’ argument failed to appreciate the purpose of the MUN zoning classification.

The rezoned property, the Commonwealth Court concluded, could continue to be used for residential purposes in addition to now permitted commercial uses.

Additionally, the Commonwealth Court noted the importance of permitting the “natural extension of an already-existing, adjacent zoning district” even where the extension allows for different uses.

Finally, the Commonwealth Court addressed the neighboring residents’ argument that the ordinance was arbitrary and unreasonable.

The Commonwealth Court stressed that even though a significant number of neighboring residents opposed rezoning the property, this opposition alone does not signify that the ordinance bears no relation to the public health, safety, morals and general welfare.

The Commonwealth Court then stated that the rezoned property is consistent with the purpose of the MUN district as it created a buffer area between commercial and residential uses.

Additionally, the Commonwealth Court explained that the ordinance is consistent with the comprehensive plan as it ensures sufficient off-street parking for existing and new development, thus protecting the public health, safety, and welfare by freeing the streets of motor vehicles.

Accordingly, the Commonwealth Court ruled that their argument that the ordinance is invalid because it is unreasonable, arbitrary, and not substantially related to the borough’s police power, must fail.

—Dylan Beltrami, a third-year law student at the Drexel University Thomas R. Kline School of Law, who is interning at the firm, assisted in the preparation of this article.

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.com.