IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mercer County Citizens for Responsible Development, Robert W. Moors and Marian Moors, Appellants v. No. 703 C.D. 2009 Springfield Township Zoning Hearing No. 704 C.D. 2009 Board, Springfield Township, and Wal-Mart Stores East, L.P. Argued October 13, 2009 BEFORE HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE KEITH B. QUIGLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED November 20, 2009 Mercer County Citizens for Responsible Development, Robert W. Moors and Marian Moors (collectively, MCCRD) appeal from an order of the Court of Common Pleas of Mercer County (trial court), which affirmed the decision of the Springfield Township (Township) Zoning Hearing Board (Board). In its decision, the Board held that the zoning ordinance amendment, Ordinance 01-2007 (the Ordinance), rezoning certain property within the Township from C-2 Commercial to C-1 Commercial did not constitute spot zoning. MCCRD argues that the Board committed errors of law, abused its discretion, and made factual findings which are

not supported by substantial evidence. MCCRD also challenges the trial court s order affirming the Township Board of Supervisors (Supervisors) decision approving the Final Subdivision and Land Development Plan (Plan) submitted by Wal-Mart Stores East, L.P. (Wal-Mart). Wal-Mart is the owner of the rezoned property. In 2001, the Supervisors enacted Township Ordinance No. 2 of 2001 (Zoning Ordinance), which zoned land northeast of the intersection of Interstate 79 and State Road 208 (Intersection) in the Township as C-2 Commercial. In 2005, the Supervisors passed an ordinance which would have rezoned certain of this C-2 property owned by Wal-Mart (Wal-Mart Property) as C-1 Commercial. However, this ordinance was challenged and overturned on procedural grounds. On May 5, 2007, the Supervisors passed the Ordinance, which rezoned the Wal-Mart Property as C-1, but did not rezone the other C-2 properties northeast of the Intersection. Among these properties are additional properties owned by Wal-Mart, a property containing a BP service station (BP Property), and a property containing a Boot Box store (Boot Box Property). On April 18, 2008, Wal-Mart filed the Plan with the Supervisors, seeking permission to use the Wal-Mart Property consistently with its C-1 designation. Among other things, big-box retail stores are a permitted use in a C-1 district, but not in a C-2 district. On April 25, 2008, MCCRD filed a substantive appeal of the Ordinance on the grounds that the Ordinance constituted spot zoning. The Board held a hearing on MCCRD s appeal of the Ordinance on May 21, 2008. At the hearing, the Board and the Township presented the testimony of Barbara Brown, 2

the Township s Administrator and Zoning Officer. MCCRD presented the testimony of a landscape architect, Michael Wetzel and one of MCCRD s members, Township resident Marian Moors. On July 1, 2008, the Board issued a decision affirming the validity of the Ordinance. The Board determined that the Ordinance did not constitute spot zoning because the Wal-Mart Property was distinguishable from the remaining C-2 properties on the basis of the size of the Wal-Mart Property and the fact that the Ordinance did not create an island of inconsistently zoned property. MCCRD filed an appeal of the Board s decision upholding the Ordinance on July 20, 2008. On July 22, 2008, the Supervisors approved the Plan. MCCRD also filed an appeal of the Supervisors decision approving the Plan on August 19, 2008. Wal-Mart intervened in the appeals. On November 24, 2008, the trial court consolidated MCCRD s appeals and the parties filed briefs with the trial court. On March 17, 2009, the trial court, without taking additional evidence, issued a Memorandum Opinion and Order affirming the Board s decision upholding the Ordinance. The trial court also dismissed MCCRD s challenge to the Supervisors approval of the Plan. The trial court relied upon the same grounds as the Board, and also noted that the record contained evidence that there was greater infrastructure availability to the Wal- Mart Property than to the BP Property and Boot Box Property. MCCRD appealed the trial court s order to this Court. 1 1 This Court s scope of review in zoning cases where, as here, the trial court took no additional evidence is limited to determining whether the Board committed an error of law or an abuse of discretion. Sharp v. Zoning Hearing Board of the Township of Radnor, 628 A.2d 1223, 1226 n.1 (Pa. Cmwlth. 1993) (citing Isaacs v. Wilkes-Barre City Zoning Hearing Board, 612 A.2d 559, 561 n.2 (Pa. Cmwlth. 1992)). 3

Before this Court, MCCRD argues that the Ordinance constitutes spot zoning. MCCRD also argues that, if this Court determined that the Ordinance constitutes spot zoning, we must reverse the Supervisors decision approving the Plan. MCCRD argues that the Ordinance constitutes spot zoning because it treats adjoining land unjustifiably differently, and that the BP Property and Boot Box Property are just as suitable for C-1 zoning as the Wal-Mart Property. We do not agree that the Ordinance constitutes spot zoning. Zoning ordinances are presumed to be constitutional, and courts should only hold them to be unconstitutional when challengers show that such an ordinance is clearly invalid. Sharp v. Zoning Hearing Board of the Township of Radnor, 628 A.2d 1223, 1228 (Pa. Cmwlth. 1993). Spot zoning is the singling out of one lot or a small area for different treatment accorded to similar surrounding land indistinguishable from it in character, for the economic benefit of the owner of that lot or to his economic detriment. Putney v. Abington Township, 108 A.2d 134, 140 (Pa. Super. 1954) (adopted in Appeal of Mulac, 418 Pa. 207, 210, 210 A.2d 275, 277 (1965)). The determination of whether zoning constitutes spot zoning is a fact-dependent analysis. Sharp, 628 A.2d at 1228. This Court has stated that The size of the property is only one determining factor. The topography, location and characteristics of the land are also among the factors to be considered. The most important factor, however, is whether the rezoned land is being treated unjustifiably different[ly] from similar surrounding land, thereby creating an island having no relevant differences from its neighboring property. The Court must also consider the effect of rezoning on public health, safety, morals and general welfare; and the relationship of rezoning to the comprehensive plan. 4

Id. (citations omitted) (citing Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975); Appeal of Mulac; Knight v. Lynn Township Zoning Hearing Board, 568 A.2d 1372 (Pa. Cmwlth. 1990)). MCCRD argues that the Board (1) improperly focused only 2 on the question of whether the Ordinance turned the BP Property and Boot Box Property into islands of C-2 zoned property, (MCCRD s Br. at 12); (2) erred in focusing exclusively on the comparative sizes of the BP Property, Boot Box Property, and the Wal-Mart Property, (MCCRD s Br. at 13); (3) erred in its determination that the BP Property and Boot Box Property are distinguishable from the Wal-Mart Property on the basis of utility and infrastructure availability; and (4) erred in determining that the BP Property and Boot Box Property are not negatively impacted by the Ordinance. We do not agree that the Board improperly focused on any one factor to the exclusion of other relevant factors. As pointed out above, the size of a property, its location, and its characteristics are all legitimate factors for a zoning body to consider in making a determination regarding spot zoning. Here, the Board based its determination on the fact that the Wal-Mart Property was much larger than the other properties and that rezoning the Wal-Mart Property was a natural extension of the C-1 zone that currently exists west of Interstate 79. The extension of the C-1 zone across Interstate 79 does not create either an isolated island of C-1 zoning or 2 We note that the arguments that the Board focused only on whether the Ordinance created islands of zoning and exclusively on the comparative sizes of the properties at issue are inconsistent with each other and with MCCRD s arguments that the Board improperly considered a number of other factors. 5

an isolated island of C-2 zoning. Although MCCRD concentrates on the C-2 zoning of the BP Property and Boot Box Property, Wal-Mart is correct that there are additional contiguous properties northeast of the Intersection that are also zoned C-2. (Rezoning Plan, Board Hr g Ex. A-3.) Additionally, there are contiguous properties to the southeast of the Intersection that are also zoned C-2. (Rezoning Plan, Board Hr g Ex. A-3.) MCCRD attempts to frame the relevant area very narrowly by focusing only on the land northeast of the Intersection; however, there are a number of other properties surrounding the BP Property and Boot Box Property that are zoned C-2. Therefore, the BP Property and Boot Box Property are not islands of C-2 zoning. The Township merely extended the existing C-1 zone across Interstate 79 to include the Wal-Mart Property. Despite the fact that the BP Property and Boot Box Property are not islands of C-2 zones completely surrounded by C-1 zoning, MCCRD argues that it is enough that these properties are peninsulas, mostly surrounded by C-1 zoning, relying on C. L. Associates v. Board of Supervisors of Montgomery Township, 415 A.2d 134 (Pa. Cmwlth. 1980). The facts of C. L. Associates were strikingly different from the facts in this case C. L. Associates applied to the Board of the Township Supervisors for a rezoning of their property consisting of the two lots so that all of their area, instead of an approximate three-fourths of it, would be located in the C-Commercial zone. The owner of the property lying immediately to the west of appellee's property, most of whose land was in the R-2 Residential zone, first joined in the appellee's request, asking that his 100 foot wide lot also be rezoned but later expressed a desire to retain his R-2 Residential zoning. The supervisors after hearing, instead of simply granting or denying the appellee the relief sought, decided to rezone its land by redrawing the line marking the boundary of the C-Commercial and the R-2 Residential zoning districts so as to place the appellee's lots wholly in 6

the R-2 Residential zone and enacted an ordinance amending the zoning map to so provide. C. L. Associates, 415 A.2d at 135. C. L. Associates does not describe any proffered justification for the creation of a peninsula of residential use in a commercial district on the property of a party that had asked for its property to be zoned completely commercial. In this case, by contrast, Wal-Mart asked for its property to be rezoned as C- 1. Wal-Mart correctly points out that it is not necessarily spot zoning to re-zone land at the request of its owner. See, e.g., Schubach, 461 Pa. at 370-71, 336 A.2d at 330 (Supreme Court found no spot zoning in a case where the property in question was rezoned at the owner s request.). In Schubach, the Supreme Court stated that [a] court must be mindful of the fact that in rapidly growing cities certain pieces of property will lie between two different uses, and it is in conformity with the comprehensive plan to put this land to the best use possible. Id. at 386, 336 A.2d at 338. Here, before the Board, Barbara Brown testified that it had originally been the Township s intention to zone the entire area around the Intersection as C-1, but that property to the east of Interstate 79 was zoned as C-2 due to a lack of water and traffic infrastructure. (Board Hr g Tr. at 54-55.) Ms. Brown also testified that when the Ordinance was passed, sufficient infrastructure was then available for the Wal-Mart Property. (Board Hr g Tr. at 55, 57.) Thus, the rezoning of the Wal-Mart Property as C-1 appears to be a natural expansion of the existing C-1 district lying west of Interstate 79. In essence, MCCRD s argument appears not to be that the Wal-Mart Property is not suitable for C-1 zoning, but that the BP Property and Boot Box 7

Property are just as suitable for C-1 zoning and should have been rezoned as well. Aside from the problem with this argument already discussed that these properties are not isolated C-2 zones, but are contiguous with other C-2 uses it is not clear that the rezoning of the Wal-Mart Property as C-1 results in economic detriment to the BP Property or Boot Box Property. In this regard, MCCRD focuses on the buffer requirement of Section 512 of the Zoning Ordinance. 3 While this section can be read as requiring a buffer between a C-2 property and a C-1 property, Ms. Brown testified that this was not the intention of the section, and acknowledged that Section 512 may need to be amended. (Board Hr g Tr. at 64.) Moreover, MCCRD acknowledges that because there will be prior nonconforming uses with respect to Section 512, the BP Property and Boot Box Property will not be required to conform to Section 512 unless they change uses. MCCRD did not adduce any testimony from the owners of the BP Property or Boot Box Property; therefore, there is neither evidence that they intend to change uses at any point in the future nor that they are otherwise negatively or economically impacted in any way by the change in zoning of the Wal-Mart Property. Therefore, it is not clear that the Ordinance results in any concrete, economic harm to the owners of the BP Property and Boot Box Property. Because the record does not contain evidence that the Ordinance created isolated areas of disparate zoning to the economic detriment of adjoining 3 Section 512 provides that properties in a C-2 district must maintain, along [a]ll property lines which abut other districts... [a] fifty- (50) foot wide buffer yard of vegetation sufficient to provide opaque screening during six (6) months of the year, along with [a] screening yard of spruce. (Zoning Ordinance 512(A).) 8

properties, we hold that the Ordinance is not spot zoning 4 and affirm the order of the trial court. RENÉE COHN JUBELIRER, Judge 4 Due to our holding on this issue, we do not reach MCCRD s argument that the Supervisors decision approving the Plan must be overturned because the Ordinance is invalid. 9