PA Commonwealth Court Upholds Mixed-Use Rezoning Ordinance in Rejection of Spot-Zoning Argument

This post was authored by Samuel J. Creech, Touro University Jacob D. Fuchsberg Law Center

In November 2020, the Borough of Brentwood, Pennsylvania (“Borough”), enacted a rezoning ordinance that transformed the property at 201 Wainwright Avenue from an R-1 residential zone to a MUN mixed-use zone. A group of residents owning property adjacent to the rezoned property (“Appellants”) brought a challenge to the substantive validity of the ordinance. One of the major reasons for the readjustment of the zoning was to allow the property owner to build a parking lot that would otherwise be impermissible on a residential zone. The challenge was based on two theories: one, that the ordinance was unjustifiably inconsistent with the relevant comprehensive plan, and two, that the ordinance was invalid as impermissible spot-zoning. As a preliminary matter, the court posited that the Zoning Board’s determination will be deferred to, and zoning ordinances will be considered valid unless the provisions are clearly unreasonable and arbitrary and bear no relation to public health, safety, morals, and general welfare. Furthermore, in a spot zoning challenge, the challengers must prove that the rezoned land is being treated unjustifiably different from similar surrounding land. The Commonwealth Court considered whether the lower court’s denial of the Appellants’ challenge to the rezoning was valid under this framework.

As to the comprehensive plan argument, the court explained that the Zoning Board did not “ignore” the comprehensive plan as per the Appellants’ argument, but rather that the Zoning Board specifically recognized that the comprehensive plan had not been updated since its inception in 1998. As a result, the fact that the ordinance is inconsistent with its comprehensive plan is an insufficient basis alone to hold that it is invalid. Thus, the court concluded that inconsistencies with a comprehensive plan, by themselves, are insufficient to deny a land redevelopment plan.

With respect to the question of spot zoning, the Appellants’ asserted the ordinance is invalid (i) as impermissible spot zoning because it creates a peninsula of commercial property surrounded by residential property that has no relevant differences from its neighboring, residential properties and  (ii) because it exceeded the Borough’s constitutional police power. The key fact here is the “peninsula” concept: the Appellant’ alleges that the rezoned property is subject to a three-sided residential zone, but the Borough contended that it was only surrounded on two sides by residential zone. The Borough further contended that the mixed-use rezone was not a peninsula, but a “natural extension.”

Next, the court looked to the case of Czachowski v. Zoning Bd. of Adjustment for their holding on the substantive evidence rule, which reasoned that “[S]ubstantial evidence is such relevant evidence that a reasonable mind would accept as adequate to support a finding of fact.” On this rule, the court found that the “extension” argument was more substantially evidenced than the “peninsula” argument, and reiterated that the Zoning Board, as fact finder, must defer from barring any violation of the substantial evidence rule. Here, maps and specific testimony combined to build a record that was in accordance with the substantial evidence rule, and enough to persuade the court that the rezoned property was merely bordered on two sides by residential zones.

The court then went on to analyze whether the rezoning constituted spot zoning. “Spot zoning” refers to the 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. The determinative factor here is whether a parcel is being unjustifiably treated different from surrounding parcels, thus creating an “island” (or in this case, an alleged “peninsula”) having no relevant differences from its neighbors. The court analyzed how sharp of a departure the rezoned property would be from its surroundings. Specifically, the court looked to whether the “spot” to be zoned was strongly discordant from its surroundings. The court held that it was not, and that the very presence of some adjacent mixed-use zoning was enough to justify further rezoning the property to mixed-use as well.  

Finally, the court held that the rezoning ordinance was consistent with the purpose of the mixed-use district which is to create buffer area between commercial and residential uses, and that the rezoning was consistent with the Borough’s comprehensive plan outlining the structure of expanded parking availability for commercial districts through mixed-use buffer areas. As such, appellants could not persuasively argue that the rezoning was “arbitrary, unreasonable, and had no relation to public health, safety, morals, and general welfare.”

Burd v. Borough of Brentwood Zoning Hearing Board, 2023 WL 4308748 (PA Cmwlth 7/3/2023)