In a recently published opinion, the Pennsylvania Commonwealth Court in RDM Group v. Pittston Township Zoning Hearing Board, 2004 Pa. Commw. LEXIS 58 (Feb. 20, 2024), found that a local zoning hearing board and the corresponding trial court abused its discretion by failing to properly evaluate the merits of zoning variance requests of a property owner that sought to build a warehouse in Pittstown Township.

According to the opinion, RDM Group proposed to construct a 164,640-square-foot warehouse on a vacant, 17.9-acre triangular parcel that contained woodlands and a creek.

The local chamber of commerce designated a portion of the property, equaling approximately 20%, as being within the Grimes Industrial Park, the opinion said.

The property in RDM Group is zoned for R-1 single-family use, with on the south and west of it, bordering in the I-1 industrial use zoning district and, on the east of it, bordering by an R-1 property.

RDM Group applied for a zoning permit in late 2019 to construct the warehouse.

The zoning officer for the township denied the governmental application because warehouses are not permitted as a use in the R-1 district, the opinion said.

RDM Group then sought special governmental approval from the township’s zoning hearing board, requesting a use zoning variance and several dimensional zoning variances.

The zoning hearing board thereafter conducted a hearing in early 2020.

At the hearing, RDM Group called several witnesses to testify in support of the zoning variance requests.

A real estate appraiser testified at the hearing on behalf of RDM Group that he was familiar with other industrial uses in the area and opined that the property had “extremely minimal” value as an R-1 property due to the adjoining industrial uses, the opinion said.

The real estate appraiser further testified at the hearing that it would not be advisable to construct single-family dwellings in this area and that the nearest residence to the property is 1,000 feet away and would not be adversely affected by the zoning variance requests.

A land development engineer also testified at the hearing for RDM Group, pointing out that RDM Group initially believed that the property was in the I-1 district and only later discovered that it was in fact in the R-1 district, the opinion said.

At the hearing, the land development engineer added that the irregular shape of the property meant that the warehouse would be located near other industrial uses, not the residential uses to the east, and he opined that it would be possible, but not practical, to build a single-family homes at the property.

RDM Group’s director of development and director of management also testified at the hearing. He confirmed that RDM Group only learned the property was zoned R-1 and could not be used as a warehouse after RDM Group already spent a considerable sum of money on its plans.

RDM Group also called a civil engineer to testify at the hearing. The civil engineer summarized a traffic survey that was performed on behalf of RDM Group that noted that the area could accommodate the additional traffic the warehouse would be expected to generate.

Finally, RDM Group had a land use planner testify at the hearing who stated that using the property for residential use would be “impractical” and “defy conventional wisdom” due to the surrounding industrial uses. The land use planner also testified at the hearing that the requested zoning variances would not adversely affect the surrounding area and that they constituted the least zoning modification possible.

The township called its engineer at the hearing who testified in opposition to the zoning variance requests.

The township’s engineer agreed that the property was irregularly shaped but also testified that he believed it could accommodate residential properties.

Other than the testimony of the township’s engineer, the township did not call any other witnesses or introduce any other facts into evidence at the hearing.

At the conclusion of the hearing, the zoning hearing board voted unanimously to deny RDM Group’s zoning variance requests.

The trial court ultimately upheld the zoning hearing board’s ruling.

RDM Group then appealed the trial court’s ruling to the Commonwealth Court.

The court in RDM Group held that the zoning hearing board erred and abused its discretion in finding that there were no unique physical characteristics precluding the use of the property consistent with its zoning classification as R-1 and that RDM Group’s harm was self-created because it was technically possible to build single-family homes at the property.

The court in RDM Group stated that the zoning hearing board relied almost exclusively on the fact that it was, at least in theory, possible to build single-family homes at the property. However, according to the court in RDM Group, what is possible is not the correct standard to determine the merits of such a zoning variance request. Rather, the court in RDM Group cautioned that the zoning hearing board should have considered whether the zoning rules and regulations for the property would permit RDM Group to make reasonable use of the property as currently zoned. Due to the zoning hearing board’s application of a “possibility” standard instead, the court in RDM Group concluded that the zoning hearing board erred as a matter of law.

As to the unique physical characteristics of the property, the zoning hearing board concluded that none in fact existed. However, the court in RDM Group stated that Pennsylvania jurisprudence has held that the character and use of surrounding properties may in certain circumstances constitute unique physical characteristics that justify granting a variance, for example, where a parcel is surrounded by “dissimilar and disharmonious” uses.

Relating to the underlying circumstances, the court in RDM Group noted that the property is composed of vacant woodlands and had not been used for residential purposes since 1974, when the property was purchased.

At the hearing, RDM Group presented uncontested evidence that the property was surrounded by other industrial uses and that, accordingly, it had minimal value for use as a residential development. Keeping that in mind, the court in RDM Group found that the hardship was particular to this property.

The court in RDM Group also emphasized that, although a zoning board’s findings of fact and credibility are accorded great deference upon appeal, it emphasized that, aside from stating that it was merely possible to build single-family homes at the property, the zoning hearing board did not make any specific findings of fact regarding the unique nature of the property or any hardship such uniqueness may have caused.

The court in RDM Group pointed out that the weight of the evidence presented by RDM Group’s witnesses, as well as the failure of the township’s sole witness failed to contradict and, in fact, corroborated certain portions of their testimony.

The court in RDM Group reasoned that the zoning hearing board’s findings on the unique characteristics of the property were not supported by substantial evidence in the record. In that regard, the court in RDM Group believed that the zoning hearing board’s findings “were arbitrary and capricious and are disregarded.”

For similar reasons, the court in RDM Group held that the zoning hearing board’s finding that RDM Group created its own hardship and that the requested zoning variance requests would harm the public welfare or change the character of the area were not supported by substantial evidence.

Finally, the court in RDM Group concluded that there was no evidence in the record indicating that the requested zoning variances was greater in scope than what would be required to allow RDM Group’s proposed use of the property.

Based on the foregoing, the court in RDM Group reversed the trial court’s ruling and remanded the case to the zoning hearing board for additional findings of fact regarding RDM Group’s requested zoning variances.

Because the zoning hearing board did not make any findings of fact or conclusions of law regarding the requested dimensional zoning variances, the court in RDM Group did not address those issues on appeal.

Alan Nochumson is the principal of Nochumson P.C., a legal services firm with a focus on real estate, land use and zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Nochumson 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.

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Nochumson P.C. is proud to announce that founding partner Alan Nochumson has been named as a finalist for the Power Players category of The Legal Intelligencer’s 2024 Pennsylvania Legal Awards. The legal awards highlight the great work and achievements across the full breadth of the legal communities in Pennsylvania and Delaware.

The Power Player award honors attorneys who, like Alan, through their advocacy, have made a significant impact in 2023 on public policy, legislation or jurisprudence in Pennsylvania or Delaware. The Legal Intelligencer will announce winners in finalist categories at the Pennsylvania Legal Awards event in May.

Alan’s nomination included a conglomerate of client testimonials–including mentions of his “promptness, candor, and extensive knowledge of the city’s rules, regulations, and zoning processes” along with the fact that him and his team have filed more zoning appeals than any other law firm in the city (6% of all variances that were submitted to the ZBA since 2018).

The nomination also included that, in addition to practicing law and mentoring associates at the firm, Alan is an active member of Philadelphia’s robust real estate community. He is regularly appointed by the court for real estate matters as a hearing officer, regularly conducts continuing legal education seminars for the benefit of attorneys, and teaches a “Real Estate Practice” course at Temple University’s Fox School of Business. He has also written for over 20 years (and continues to write) a monthly real estate column for The Legal Intelligencer.

Alan has repeatedly been recognized by his peers as an attorney who represents his clients well and with a great degree of success. He was awarded Best of the Bar for Real Estate by the Philadelphia Business Journal in 2020 and an Influencer of Real Estate by The Philadelphia Inquirer in 2019, amongst other accolades. He is also active in both the Philadelphia legal and real estate communities, formerly serving as Chair of the Philadelphia Bar Association’s Young Lawyers Division as well as currently as a member of the Temple American Inn of Court.

The nomination also detailed that, in addition to advising clients and managing Nochumson P.C., Alan took a unique approach to overcoming pandemic challenges. While most firms downsized, Alan expanded his office into a new space that is more than double the size of the last one. The office is in many senses a metaphor for Alan’s approach to law and managing a law firm–it cultivates an inviting and open atmosphere that is as ripe for practicing the law as it is for business development, cross-selling, and networking.

The Power Players finalist will be announced at the Pennsylvania Legal Awards 2024 event at the Loews Philadelphia Hotel on May 15th, 2024.

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The City of Philadelphia’s Department of Licenses and Inspections (L&I) recently issued a crucial reminder to property owners in Philadelphia about the impending deadline for certain fire protection inspection certifications. These certifications are essential for ensuring the proper functioning and compliance of fire protection systems within buildings. This proactive approach is critical for several reasons:

1. Life Safety: Functioning fire protection systems can save lives by providing early warning of fires, containing them, and allowing occupants to evacuate safely.
2. Property Protection: Effective fire protection measures help minimize property damage in the event of a fire, reducing repair costs and business disruptions.
3. Legal Compliance: Compliance with fire protection inspection certifications is mandated by local regulations, and failure to comply can result in fines, penalties, and legal consequences.
4. Insurance Requirements: Many insurance policies require proof of regularly maintained fire protection systems to ensure coverage in case of fire-related incidents.

The deadline for submitting these certifications is May 31, 2024, and property owners are urged to act promptly to avoid lapses in compliance that could compromise the safety of occupants and property. Mayor Cherelle Parker’s initiative to enhance safety within the City, particularly regarding fire protection systems, underscores the importance of regular inspections and certifications. Fire protection systems subject to inspection include fire sprinklers, alarms, emergency standby power, smoke control systems, dampers in high-rise buildings, and other fire suppression systems.

Qualified individuals licensed by the City are responsible for conducting these inspections, and certifications must be submitted using designated city forms. Property owners are advised to consult their operational manuals for maintenance and testing guidelines specific to the fire protection systems installed in their properties. 

Property owners can easily submit their certificates to L&I through the online portal, eCLIPSE. Additionally, property owners can verify the status of their certifications using Atlas, the City’s public access portal, to stay informed and avoid potential violations or investigations.

Failure to meet the May 31, 2024 deadline for certification submission may result in violations and associated monetary penalties and fines. Property owners whose buildings no longer utilize fire protection systems must complete a form by the deadline, accompanied by relevant information demonstrating compliance with the Philadelphia Code.

If you need assistance with this pivotal governmental filing, please direct inquiries to Alex Goldberg at alex.goldberg@nochumson.com or (215) 907-7102.

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On Thursday, March 21st, 2024, Nochumson P.C. hosted its very first March Madness Work & Play event at our office on 1 South Broad Street.  The Work & Play event was an opportunity for our clients and friends to watch the NCAA tournament, eat hoagies and drink beer, network, and work (if they needed to). Our next-generation professional space was the perfect venue for such a gathering. The Nochumson P.C. office environment has the ability to facilitate a variety of situations from independent deep work, collaborative meetings, and networking events.

Much fun was had by all that attended and it was our pleasure to spend time with such a wonderful group. We cannot wait to do it again next year!

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In a recently published opinion, the Pennsylvania Commonwealth Court in Johnson v. Pocono Township Zoning Hearing Board, 2024 Pa. Commw. LEXIS 46 (Feb. 7, 2024), found that an owners’ use of their property as a short-term rental was a legal, existing nonconformity even after an ordinance outlawed such a use in the municipality.

In 2016, the owners in Johnson purchased a property to use as a vacation home and to provide short-term rentals during periods in which they were not using the property, the opinion said.

According to the opinion, the property is located in a low-density residential zoning district and the zoning ordinance that was implemented in 2003 did not expressly include short-term rentals as a permitted use.

However, the zoning ordinance did include “transient dwelling accommodations” in the recreation and commercial zoning districts.

Although the term “transient dwelling accommodations” is not defined in the zoning ordinance, it is exemplified by hotels, motels, resorts, and lodges, but not including bed-and-breakfasts and boarding houses.

Under the law, bed-and-breakfasts and boarding houses are allowed by-right in commercial districts but require conditional use approval in recreational districts.

Shortly after the owners purchased the property, the case Marchenko v. Zoning Hearing Board of Pocono Township, 147 A.3d 947 (Pa. Cmwlth. 2016), came before the Commonwealth Court.

Marachenko held that short-term rentals were consistent with a board interpretation of the single-family dwelling use and, therefore, were permitted in the low-density residential zoning district.

However, in Marachenko, then-Senior Judge Dan Pellegrini dissented, concluding that “someone who offers a property for rent on a transient basis is not occupying the home as a single-family dwelling, but instead operating a business of renting out the property.”

In response to the holding in Marchenko, in 2017, Pocono Township enacted an ordinance titled “The Short-Term Rental Ordinance of Pocono Township.” This zoning ordinance created a system for inspections, issuance and renewal of licenses, and to established penalties for violations, and applied to “all existing and future properties” that are used for short-term rentals located in low-density residential zoning districts.

In April 2017, the owners obtained a short-term rental license, which they understood to be valid for a one-year period, the opinion said.

The owners proceeded to retain the services of a property management company, which rented the property approximately eight to 12 days per month, the opinion said.

When the license expired in October 2018, the owners were granted a renewal to expire the following November.

In April 2019, the Pennsylvania Supreme Court in Slice of Life v. Hamilton Township Zoning Hearing Board, 652 Pa. 224 (2019), concluded that “the purely transient use of a house is not a permitted use in a residential zoning district limiting use to single-family homes.”

The Supreme Court’s ruling in Slice of Life was incompatible with the decision handed down by the Commonwealth Court in Marchenko, so in July 2019, Pocono Township repealed the zoning ordinance adopted in 2017, eliminating short-term rental licensing in the low-density residential district, the opinion said.

In September 2019, Pocono Township enacted a new zoning ordinance that applied to the commercial and recreation zoning districts and more clearly differentiated short-term rentals, or “TDUs,” from hotels, motels, bed-and-breakfasts, boarding houses, and group homes, by defining them as “any dwelling unit owned or managed by a person which is rented or leased for a period of less than 30 days.”

This zoning ordinance also created separate licensing requirements for TDUs, as well as a process for appeals of licensing decisions to Poconos Township’s Board of Commissioners.

In November 2019, the property owners’ license expired and the zoning officer denied the application to renew the license.

The property owners appealed to the renewal of the license to the Zoning Hearing Board alleging that their TDU should be allowed to continue legal nonconforming use based on the doctrines of vested rights and variance by estoppel.

The property owners also argued that the zoning ordinance enacted in 2019 was invalid because it totally excluded TDUs from all zoning districts.

After the zoning hearing board denied the owners’ appeal, the property owners appealed this administrative ruling to the trial court which affirmed the zoning hearing board’s ruling.

The owners then appeal the trial court’s ruling to the Commonwealth Court.

The two primary issues on appeal to the Commonwealth Court are whether the zoning ordinance enacted in 2019 is impermissible exclusionary because it does not permit TDUs in any zoning district; and whether the owners’ TDU constitutes a lawful, nonconforming use of the property that they must be permitted to continue.

Regarding the first issue on appeal, the owners faced an uphill battle because, citing to Bloomsburg Industrial Ventures v. Town of Bloomsburg, 242 A.3d 969 (Pa. Cmwlth. 2020), “a party challenging the lawfulness of an ordinance bears a heavy burden because an ordinance is presumptively valid and constitutional.

The Commonwealth Court in Johnson ultimately held that Pocono Township intended to, and in fact permitted short-term rentals, or TDUs, in the commercial and residential zoning districts and developed and enacted comprehensive licensing scheme to regulate them.

The Commonwealth Court in Johnson rejected the owners’ attempts to invalidate the zoning ordinance on the basis that it was impermissibly exclusionary because nothing in the record, nor the holding in Slice of Life, prohibited Pocono Township from partially excluding the use of TDUs in certain residential zoning districts.

Regarding the second issue on appeal, the owners argued that their TDU was a legal, nonconforming use that they should be allowed to continue.

The Commonwealth Court in Johnson noted that a lawful nonconforming use is a use that predates the enactment of a prohibitory zoning restriction and the ability to maintain a nonconforming use is only available for uses that were lawful when they came into existence, and which existed when the ordinance took effect.

According to the Commonwealth Court in Johnson, the fundamental basis for the protection of uses and structures that were lawful when instituted is the “inherent and indefeasible” right of the commonwealth’s citizens to possess and protect property guaranteed by Article I, Section 1 of the Pennsylvania Constitution, Pa. Const. art. I, Section 1.

The Commonwealth Court in Johnson pointed out that the burden was on the owners to establish the existence of a nonconforming use, and to do so, they must provide “objective evidence that the subject land was devoted to such use at the time the zoning ordinance was enacted.

The Commonwealth Court in Johnson emphasized that satisfying this burden requires “conclusive proof by way of objective evidence of the precise extent, nature, time of creation and continuation of the alleged nonconforming use.”

Keep all of this mind, the Commonwealth Court in Johnson then reviewed the underlying factual circumstances.

In summary, the zoning ordinance was initially enacted in 2003, and after the Commonwealth Court’s ruling in Marchenko in 2016, it was interpreted to allow TDUs in low-density residential districts, and, after the zoning ordinance in 2017 was enacted to regulate such uses, the owners obtained a license for their TDU, and when the Supreme Court issued its decision in Slice of Life, the zoning ordinance in 2017 was rescinded and a zoning ordinance in 2019 was enacted to limit TDUs to commercial and recreational zoning districts.

The Commonwealth Court found that the zoning ordinance enacted in 2017 first legitimized the owner’s TDU and the zoning ordinance in 2019 created nonconformity.

In doing so, the Commonwealth Court concluded that the owners, therefore, had established a legal, nonconforming use that should continue and remanded the second question back to the trial court for further remand to the zoning hearing board.

It will be interesting to see how the Commonwealth Court’s ruling will affect how short-term accommodations are treated in Philadelphia. Due to recent changes in the Philadelphia Zoning Code, an owner who owns a property in a residential district must now obtain a variance from the city of Philadelphia’s Zoning Board of Adjustment in order to use that property for short-term accommodations must obtain a variance. It is clear to us that such property owners throughout Philadelphia could argue that their property should be deemed a legal, nonconforming use.

Alan Nochumson is a shareholder of Nochumson P.C., a legal services firm with a focus on real estate, land use and zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Nochumson 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 Goldberg is an associate attorney at the firm. You can reach him at 215-399-1346 or alex.goldberg@nochumson.com.

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Mayor Cherelle Parker enacted a plan that splits Philadelphia’s Department of Licenses and Inspections (L&I) into two separate divisions, each with its own commissioner, as part of the proposed overhaul of L&I. The split aims to create more specialized and focused oversight within L&I, addressing various aspects of licensing and inspections separately.

Mayor Parker appointed Basil L. Merenda, the former Director of the City of Philadelphia’s Department of Labor under former Mayor Jim Kenney, to head the division responsible for overseeing construction, building operation, and demolition, while Bridget Collins-Greenwald, the Commissioner of the City of Philadelphia’s Department of Public Property, has been tapped to head the division which will focus on quality-of-life issues and business code enforcement.

By splitting L&I into two distinct divisions, Mayor Parker’s plan aims to improve efficiency, accountability, and effectiveness within L&I. Each division will have a clear focus on its respective areas of responsibility, allowing for better coordination, specialization, and resource allocation to address the City’s licensing and inspection needs more effectively. This change to one of the City’s most crucial departments comes just days after Mayor Parker announced that the City of Philadelphia’s Streets Department would be separated into two distinct operations – Streets and Sanitation. 

In late 2023, Nochumson P.C. attorneys, Natalie Klyashtorny and Alex Goldberg, participated in a L&I Reform Task Force Subcommittee on Enforcement which made recommendations to L&I focusing on the “out-of-balance” enforcement structure that is currently in place. Ultimately, the task force called for steps to be taken to make L&I more responsive to construction site complaints. The task force also wanted to see better collaboration with 311, the City of Philadelphia’s Department of Revenue, and the City of Philadelphia’s Commerce Department to eliminate government silos, along with initiating more vigorous code enforcement of contractors that are not code compliant, not properly licensed, or not meeting their tax obligations. The findings of the task force and others were published in a Final Report of the Joint Task Force on Regulatory Reform for the Department of Licenses and Inspections, which was reported to Mayor Parker on December 19, 2023. 

We are optimistic that the changes proposed and newly implemented at L&I will improve efficiency, accountability, and effectiveness within L&I, and we look forward to Mayor Parker’s new administration in 2024 and beyond. 

Please feel free to contact Natalie Klyashtorny at either (215) 600-2852 or natalie.klyashtorny@nochumson.com if you wish to learn more about these changes to L&I and how it may affect a property or business you own or manage in Philadelphia.

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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

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The City of Philadelphia recently created an online portal that has streamlined the process of renewing or updating your license, keeping your property in good repair, finding financial and housing programs, and avoiding costly eviction processes, amongst other functions. The portal, called the Landlord Gateway Program, allows current and prospective landlords to forgo the often-long lines at the Municipal Services Building and, instead, provides centralized access to the resources needed to navigate the City’s processes and requirements in a single location.

The Landlord Gateway Program is divided into sections for new landlords, existing landlords, affordable housing, and includes a hub for resources useful to all landlords and property managers. Under this program, landlords in Philadelphia can learn how to obtain rental licenses and legally lease their properties, and maintain their existing governmental licenses. The program also provides guidance for landlords and prospective landlords who wish to own as well as manage affordable housing in the City of Philadelphia via the Housing Choice Voucher Program, and offers information on unique funding opportunities for Affordable Rental & Special-Needs Housing Developments.

In addition, the program includes directions to accessing the Eviction Diversion Program, which provides resources for landlords to resolve issues and avoid a costly or lengthy court process. The Landlord Gateway Program includes, amongst others functions, a streamlined conflict mediation process. At no cost to the individual, a neutral mediator can help landlords and tenants resolve issues and financial assistance for eligible landlords to cover a tenant’s back rent.

The Landlord Gateway Program also includes all the housing-related services and resources from 16 of the City’s departments and agencies so that landlords have help managing their rental properties. The Gateway is divided into sections for new landlords, existing landlords, affordable housing, and includes a hub for resources useful to all landlords. Additional resources can be found for the following City entities:

• The Division of Housing and Community Development
• The Office of Homeless Services
• The Pennsylvania Housing Finance Agency
• Philadelphia Gas Works
• The U.S. Department of Housing and Urban Development

This “one-stop-shop” is free and available online at the City of Philadelphia’s website, listed under the “Programs” tab. Please feel free to contact Alan Nochumson at either (215) 600-2851 or alan.nochumson@nochumson.com if you need assistance using the program or wish to learn more.

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Modifying governmental rules and regulations under the Philadelphia Zoning Code for properties in Philadelphia is a time-intensive process. Typically, several months elapse from the initiation of an idea by a member of Philadelphia City Council to its passage into law. This prolonged timeline usually includes recommendations from the City Planning Commission about the proposed modification to the Philadelphia Zoning Code as well as hearings to gather input from the public regarding it.

As a result, the City of Philadelphia’s Department of Licenses and Inspections often finds itself grappling with decisions regarding zoning and land use applications received during the period when an ordinance is still “pending” but has not yet been signed into law.

In Pennsylvania, under the “pending ordinance doctrine,” an applicant may be required to adhere to proposed modification to the Philadelphia Zoning Code even before it has been formally adopted into law.

One important piece of legislation which may pull the pending ordinance doctrine into play is the proposed property development in Brewerytown-Sharswood Overlay Subarea, which has been read and passed by Philadelphia City Council, but not yet enacted into law. The bill establishes limitations on building heights on residentially zoned land and prohibits roof decks. The overlay specifies that the maximum height allowed must match the tallest building on an adjacent lot, with a limit of 35 feet or a height corresponding to the majority of existing buildings within the block if no adjacent building exists.

Ordinances such as the proposed property development in Brewerytown-Sharswood Overlay Subarea should put real estate developers and investors on notice to learn of any pending ordinances that may impact their ability to develop real estate in Philadelphia before purchasing it.

Please feel free to contact Alan Nochumson at either (215) 600-2851 or alan.nochumson@nochumson.com if you wish to learn if a property in Philadelphia is subject to a pending ordinance.

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