Zoning amendments should be drafted carefully to avoid singling out a specific parcel for different treatment than the surrounding area, and not to conflict with the intent of the zoning ordinance. That’s the lesson of the Pennsylvania Commonwealth Court’s recent decision in an appeal from the Conshohocken Borough Zoning Hearing Board.

The dispute stems from zoning hearings over a variance for a convenience store and gas station that incurred objections from neighbors and a subsequent effort to amend the zoning ordinance.

Provco Pineville Fayette, L.P. (Provco) was the equitable owner of certain property located in the RO zoning district of the Borough of Conshohocken (the Borough). In April 2014, Provco applied to the Borough’s Zoning Hearing Board (ZHB) for a special exception or variance to build a retail convenience store with gas pumps on the Property, which was denied.

Three years later, in August 2017, Provco sought an amendment to the Borough’s Zoning Ordinance (the Zoning Amendment) that would provide additional permitted uses, standards and special regulations for the RO zoning district, and permit Provco’s desired use. The Borough enacted the zoning amendment in November 2017. At the same time, Provco received its land development plan to build the convenience store with gas pumps. In December 2017, neighbors filed a challenge to the Zoning Amendment. 

Expert Testimony

The ZHB held hearings in which the neighbors testified on their own behalf and also presented the testimony of an expert in land planning, Thomas Comitta. Provco presented the testimony of Joseph Baran, an expert in civil engineering and E. Van Rieker, an expert in municipal planning. The ZHB found in favor of the neighbors and sustained the substantive validity challenge. The Borough and Provco appealed to the Court of Common Pleas, which reversed the ZHB’s decision without taking additional evidence and the Neighbors appealed to the Commonwealth Court.

The appeal by the neighbors centered on claims of error by the trial court, most notably that it erred as a matter of law in holding that the Zoning Amendment did not constitute spot zoning.

The Commonwealth Court explained that the law is clear that spot zoning is unconstitutional and that all zoning ordinances are presumed constitutional. The burden falls on the challenger to prove otherwise.

Spot zoning is the singling out of a small area for different treatment than that of the surrounding area for the economic benefit or detriment of the owner of said area. Importantly, the most determinative factor in the spot zoning analysis is “whether the parcel in question is being treated unjustifiably different from similar surrounding land, thus creating an ‘island’ having no relevant differences from its neighbors.”

Secondly, 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.

Powers of the Zoning Hearing Board

The Commonwealth Court determined that the Property was treated differently from surrounding land similar in character by the Zoning Amendment.

Notably, the Commonwealth Court found that:

"The Property is the only piece of Property in the RO zoning district that could satisfy the requirements for a 250-foot lot width and the 40,000-square-foot minimum lot size, and, as such, it is the only property that could have a convenience store with fuel pumps and an ATM. In order to construct a convenience store with pumps and an ATM in the other areas of the RO zoning district, one would need to demolish existing structures, including Victorian structures, which is contrary to the declaration of the legislative intent for the RO zoning district.”

Next, the Commonwealth court considered whether the Zoning Amendment was arbitrary and unreasonable and had no relation to the public health, safety, morals, and general welfare. Under Pennsylvania law, “an ordinance will be deemed arbitrary where it is shown that it results in disparate treatment of similar landowners without a reasonable basis for such disparate treatment.” Further, the ZHB is the “sole judge of the credibility of witnesses and the weight afforded their testimony. The Commonwealth Court determined the ZHB acted within its power when it accorded more weight to the testimony of the Neighbor’s expert over Provco’s experts. Additionally, it did not err in considering the Neighbors’ testimony regarding how Provco’s proposed use would affect the public health, safety, morals and general welfare.

As a result, the Commonwealth Court reversed the Court of Common Pleas’ decision and concluded the ZHB neither committed an error of law nor a manifest abuse of discretion in deciding the Property was spot zoned.

This case provides important information regarding the drafting of zoning amendments and also highlights the importance of the ZHB’s decision, as evidence taken by the ZHB may ultimately decide whether or not spot zoning occurred.