PA Commonwealth Court Finds No Unlawful Spot Zoning in Ordinance Amendment

February 2011Newsletters In the Zone

In Takacs v. Indian Lake Borough Zoning Hearing Bd. (“Takacs I”), — A.2d —, 2010 WL 5116376 (Pa. Commw. 2010), the Pennsylvania Commonwealth Court held an ordinance amendment that added permitted uses that could only be developed on one lakefront property owned by the borough council president did not constitute unlawful spot zoning because the uses applied to all properties in the zoning district, and protestants did not establish that the ordinance was arbitrary, unreasonable or had no relation to the public welfare.

In 2004, the Indian Lake Borough Council appointed an ad hoc committee to study the borough zoning ordinance and provide insight as to how it should be amended. The borough council president initially served on the committee but was replaced after he purchased a lakefront property at issue in the study. Based on the committee’s recommendations, the borough council considered and ultimately adopted Borough Ordinance 144 on Aug. 20, 2007, which, among other things, added multifamily structures and commercial boat docking as permitted uses in the Commercial-Recreational (C-R) District. After Ordinance 144 was passed, protestants challenged its adoption by filing an appeal with the Zoning Hearing Board. The board rejected the challenge and the trial court affirmed.

On appeal to the Commonwealth Court, the protestants essentially offered three arguments as to why the adoption of Ordinance 144 was invalid: (1) the amendment was not initiated by the borough planning commission; (2) the borough council failed to provide notice of a map change; and (3) the changes to the C-R District constituted illegal spot zoning. The Commonwealth Court rejected all of these arguments.

First, the court rejected the argument that Ordinance 144 was invalid because it was not initiated by the borough planning commission as purportedly required by a provision of the borough zoning ordinance. The court found Section 609 of the MPC specifically provides for amendments other than those prepared by the planning commission. See 53 P.S. § 10609. The court held that to the extent a provision of the zoning ordinance limited initiation of zoning amendments to the planning commission, the provision was invalid because the MPC takes precedence over and invalidates all inconsistent municipal zoning enactments. See 53 P.S. § 10103.

Second, the court denied the protestants’ argument that Ordinance 144 was invalid because the addition of new uses in the C-R District constitute a zoning map change, and the borough failed to provide notice of a map change pursuant to Section 609(b) of the MPC. See 53 P.S. § 10609(b) (requiring posting of the tract and mailing to all owners of property to be rezoned). The court held the addition of permitted uses to a zoning district does not constitute a zoning map change. Thus, Ordinance 144 was not invalid for failure to give notice pursuant to the provisions of Section 609(b) of the MPC.

Third, the court rejected several arguments that Ordinance 144 constituted illegal spot zoning. The court defined spot zoning as “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.” The court stated to establish spot zoning, “the challenger must prove that the provisions at issue are arbitrary and unreasonable and have no relation to the public health, safety, morals and general welfare.

The court declined to find the amendment constituted spot zoning despite the protestants’ assertions that multifamily and commercial boat dock uses were specifically added to the C-R District to accommodate development of the lakefront property owned by the borough council president. The court was unmoved and held the state of mind of a legislative body in amending a zoning ordinance is not relevant to determining its validity. The court stated the ordinance must stand or fall on its own terms.

Finally, the court rejected the argument that adding the new uses constituted spot zoning because, although they applied to all properties in the C-R District, they could not as a practical matter be developed on any property other than the borough president’s lakefront property. The court found the commercial boat dock use was justified because it would benefit owners of non-lakefront C-R District properties who sought to rent a dock. Additionally, the court found there was conflicting evidence as to whether multifamily structure could indeed be developed on other properties in the C-R District.

For more information, please contact Clair E. Wischusen at 215.918.3559 or [email protected].