Opinion
No. 1061 C.D. 2013
03-18-2014
William and Billie Jo Lake, Appellants v. Zoning Hearing Board of Warrington Twp., Board of Supervisors of Warrington Twp., The Township of Warrington
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
On March 7, 2012, the Board of Supervisors of Warrington Township (Supervisors) enacted Ordinance No. 2012-01 amending the Warrington Township (Township) Zoning Map by rezoning four Tracts of land in the Township totaling approximately 147 acres from Residential (R) and Village Residential (VR) to Village Commercial (VC). (Ordinance No. 2012-01, R.R. at 3a-4a.) The Supervisors also amended the Township's Comprehensive Plan. William and Billie Jo Lake (the Lakes) filed a validity challenge to Ordinance No. 2012-01 with the Township's Zoning Hearing Board (ZHB) alleging that the rezoning constituted spot zoning. (Application for Zoning Hearing, Ex. 8, ZHB Hearing, May 15, 2012.) By written Decision issued June 27, 2012, the ZHB denied the Lakes' validity challenge. The Lakes appealed the ZHB's denial to the Court of Common Pleas of York County (trial court). Without taking any additional evidence, the trial court affirmed the ZHB's Decision by Order dated May 8, 2013. The trial court held that, "while the catalyst for rezoning was Intervenor's [Pennex Aluminum Company, LLC's (Pennex)] narrow request for an amendment focused on Pennex'[s] property, two (2) of the one-hundred-forty-seven (147) rezoned acres, the Ordinance was not adopted only for the benefit of Pennex." (Trial Ct. Op. at 7.) Additionally, after reviewing the record, the trial court determined that the Supervisors' decision to enact Ordinance No. 2012-01 was reached only after months of public meetings, deliberations by the Township Planning Commission, and the efforts of the Township staff, and that the Supervisors adequately considered the effect their decision would have on the health, safety, welfare and morals of the community. (Trial Ct. Op. at 8-9). On appeal to this Court from the trial court's Order, the Lakes, representing themselves, again argue that Ordinance 2012-01 is invalid because it permits spot zoning and the ZHB erred and/or abused its discretion in denying the Lakes' validity challenge. Discerning no error or abuse of discretion, we affirm.
The VC zone is a mixed use zone for commercial and residential activities. (Zoning Hearing Board of Warrington Township Decision, Findings of Fact (FOF) ¶ 13.)
The Township, Township resident Giovanni Spataro, and Pennex Aluminum Company, LLC, intervened in opposition to the Lakes' appeal. By Order dated December 20, 2013, this Court precluded Giovanni Spataro from participating in this matter. The Township, the Supervisors, and the ZHB notified this Court that no separate brief will be filed and that these entities are relying on the brief of Pennex in this appeal.
The Lakes originally appealed the trial court's Order to the Superior Court; however, because this is a land use appeal, the Lakes' appeal was transferred to this Court by the Superior Court on June 24, 2013 pursuant to Rule 751 of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 751, and Section 762(a)(4)(i)(A) and (B) of the Judicial Code, 42 Pa. C.S. § 762(a)(4)(i)(A), (B).
The Township is located in York County and the Borough of Wellsville is located adjacent to the Township. (Proposed Zoning Map, R.R. at 267a.) The Township has enacted zoning ordinances while the Borough of Wellsville has no zoning regulations.
The Lakes own a parcel of property located at 105 Community Street in the Township. The Lakes' property was rezoned from R to VC as a result of Ordinance 2012-01.
Pennex is an aluminum manufacturing company that has operated its business for over thirty years at an industrial facility located in the Borough of Wellsville, which facility is adjacent to the Township. (ZHB Decision, Findings of Fact (FOF) ¶ 1.) Pennex wished to construct off-street parking and a maintenance building on the property located in the Township at 110 Community Street, which abuts its industrial facility on the Borough of Wellsville line. (FOF ¶ 3.) The property at 110 Community Street consists of approximately two acres and is located across the street from the Lakes' property at 105 Community Street. (FOF ¶ 3; Deed Dated November 29, 2011 between Pennex and James W. Smith, R.R. at 42a-45a.)
When Pennex was negotiating to purchase the property located in the Township at 110 Community Street, the Township Engineer and staff met with Pennex several times to discuss Pennex's future plans for the property. (Hr'g Tr. at 36-37, May 15, 2012, R.R. at 156a-57a.) Pennex planned to demolish the existing dwelling and expand Pennex's parking lot to enhance safety for its workers; however, achieving this goal would be difficult because the property was zoned R (for residential uses) and Pennex would need to prove hardship in order to be granted certain variances from the Township's zoning ordinances. (Minutes of Supervisors' Meeting at 1, May 18, 2011, R.R. at 25a.) During the discussions the Township suggested to Pennex that, if it wished to proceed with its development plans for 110 Community Street, it submit an application for an amendment to the Township's Zoning Map which would allow the intended development to be a permitted use. (Hr'g Tr. at 37, May 15, 2012, R.R. at 157a.) As a result, Pennex filed a formal Application for Amendment to the Zoning Map (Application), dated June 20, 2011, requesting that approximately 27 acres in the Township be rezoned to VC. (FOF ¶ 9; Hr'g Tr. at 37, May 15, 2012, R.R. at 157a.)
By deed dated November 29, 2011, Pennex purchased the property located in the Township at 110 Community Street. (Deed Dated November 29, 2011 between Pennex and James W. Smith, R.R. at 42a-45a.)
In accordance with the normal process, the Supervisors reviewed Pennex's Application. (Hr'g Tr. at 37, May 15, 2012, R.R. at 157a.) This review resulted in the Supervisors suggesting that the Township Planning Commission not only consider Pennex's Application, but also consider whether other areas of the Township should be rezoned from residential to commercial use or changed from one residential use to another residential use. (Hr'g Tr. at 37-38, 52, May 15, 2012, R.R. at 157a-58a, 172a.) Part of this process was to identify currently non-conforming commercial properties and areas of the Township that could be developed both residentially and commercially in the zones containing the non-conforming properties. (Hr'g Tr. at 53, May 15, 2012, R.R. at 173a.) Thus, the Township wished to consider the rezoning from a community-wide perspective and not limit its consideration to Pennex's Application. (Hr'g Tr. at 51, May 15, 2012, R.R. at 171a.)
During the Township's review process, Pennex requested a letter of support from the Supervisors to Pennex's board of directors showing that positive progress was being made on Pennex's Application. (Minutes of Supervisors Meeting at 2, October 19, 2011, R.R. at 38a.) Thereafter, the Supervisors sent a letter dated November 10, 2011 to Pennex's CEO outlining the history surrounding Pennex's Application, advising Pennex of the Supervisors' "support [for] Pennex because of the positive economic impact to the community," advising Pennex that the Supervisors were favorable to Pennex's suggestion that the VC zone be expanded to the area of Community Street, and informing Pennex that making changes to the Township's zoning ordinance to include new zoning "does not happen quickly." (Letter from Supervisors to Pennex CEO, November 10, 2011, R.R. at 41a.) The letter further advised Pennex's CEO of the progress being made to change the Township's Zoning Map to include not only the area that Pennex requested be rezoned, but to rezone approximately 150 acres in the Township to the VC zone. (Letter from Supervisors to Pennex, November 10, 2011, R.R. at 41a.) Finally, the letter advised Pennex's CEO that, once the Supervisors received feedback in December 2011 from the York County Planning Commission on the Township's rezoning request, the Supervisors would schedule a public hearing on the proposed changes to the Zoning Map and Comprehensive Plan. (Letter from Supervisors to Pennex, November 10, 2011, R.R. at 41a.) The Supervisors closed the letter by thanking Pennex for its patience and stating that they hoped that "this request [would] result in a positive end." (Letter from Supervisors to Pennex, November 10, 2011, R.R. at 41a.)
As part of the normal review process, the Township submitted a request to the York County Planning Commission to rezone the four Tracts identified as: (1) Tract A consisting of approximately 27 acres, which was zoned R; (2) Tract B consisting of approximately 110 acres, which was zoned R and VC; (3) Tract C consisting of approximately 7 acres, which was zoned VR; and (4) Tract D consisting of approximately 7 acres, which was zoned R. (FOF ¶ 15; Village Commercial Rezoning Request, Ex. A-3, ZHB Hearing, May 15, 2012.) On December 6, 2011, the York County Planning Commission considered the Township's request to update its Zoning Map by rezoning Tracts A, B, C, and D and, after a lengthy discussion and apparent input from the Lakes, who attended the meeting with counsel, the York County Planning Commission voted to recommend: (1) denial of the Township's request to update its Zoning Map; (2) that the Township reconsider the proposal; and (3) that the Township consider "the possibility of spot zoning and any uses currently in place or that could come into the area as a result of the change." (Minutes of York County Planning Commission Meeting at 5, December 6, 2011, R.R. at 47a.)
It is undisputed that the property owned by Pennex located at 110 Community Street and the Lakes' property located at 105 Community Street are both included in Tract A.
When Ordinance 2012-01 was enacted, the area rezoned in Tract D was reduced from 7 to 3 acres.
After several regularly scheduled meetings and one joint special meeting of the Supervisors and the Township's Planning Commission between May 18, 2011 and November 2, 2011, where the proposed rezoning was considered, the Supervisors held a public hearing on March 7, 2012 to address the amendment to the Comprehensive Plan and the rezoning of the four designated Tracts to VC. (FOF ¶¶ 18-19.) Several residents and counsel on behalf of the Lakes voiced their opposition to the proposed rezoning and change to the Comprehensive Plan. A Pennex representative and the president of the York County Economic Alliance spoke in favor of the rezoning proposal. At the conclusion of the public hearing, the Supervisors voted unanimously to rezone Tracts A, B, C, and D to VC and to amend the Comprehensive Plan. (FOF ¶ 21.) Thereafter, the Supervisors enacted Ordinance No. 2012-01 amending the Township Zoning Map by rezoning the four designated Tracts from R and VR to VC. The rezoning of these four Tracts resulted in the elimination of eleven non-conforming commercial uses or non-conforming multi-family residential uses in the Township. (Hr'g Tr. at 39, May 15, 2012, R.R. at 159a.)
The Lakes filed a validity challenge to Ordinance No. 2012-01 with the ZHB on the basis that the rezoning constituted spot zoning. Hearings were held before the ZHB. The Lakes, now representing themselves, testified on their own behalf in opposition to the rezoning, presented witness testimony, and submitted documentary evidence purporting to show, inter alia, the adverse effects of the rezoning on public safety and the general welfare of the community. The Township presented the testimony of its Zoning Officer and Engineer.
Based upon the testimony and documentary evidence presented, the ZHB found, in relevant part, as follows:
4. Pennex is a longstanding area business that desires to make certain changes to its commercial business, including installing a parking area and improving certain roadways, which it is not able to do under the current zoning without extensive variances.
5. Pennex has received widespread support through Wellsville Borough and Warrington Township in support of the above-named projects and of the company's future existence in the area.
. . . .
7. Allowing Pennex to improve its facility as it had requested is critical to its competitiveness and continued existence in the community.
. . . .
13. After the Board of Supervisors and the Planning Commission had reviewed the mixed residential and commercial non[-]conforming uses within the Township, the [Supervisors] came up with a plan to re-zone certain parcels of land in order to consider other existing businesses in the Township which were not zoned correctly.
14. The [Supervisors] found that there were existing businesses that were zoned residential, and were non[-]conforming, within those areas, and in order for them to change any use or physical feature on their property they would have had to ask for a zoning variance.
15. The . . . Supervisors identified eleven existing non-conforming businesses within the four tracts to be rezoned.
. . . .
20. The tracts of land were determined by the Township to be more suitable for this rezoning and were chosen according to their proximity to certain already commercial uses as well as more developed roads. The borders of each tract were designed to follow parcel lines or street lines wherever possible. Chris Hoover, Township Engineer, testified that the intent of zoning the four tracts into "Village Commercial" was to allow mixed use of residential as well as commercial.(FOF ¶¶ 4-5, 7, 13-15, 20.) Noting that the Lakes did not challenge the amendment to the Township's Comprehensive Plan, the ZHB reviewed whether the Supervisors' enactment of Ordinance No. 2012-01 rezoning Tracts A, B, C, and D constituted spot zoning. In rejecting the Lakes' assertion that the rezoning constituted spot zoning, the ZHB reasoned that:
In this case, it is true that Pennex's initial problem with rezoning initiated the discussion into how its property could best be developed within the framework of the Township's zoning. However, that query led to additional questions about the overall zoning of the Township, and specifically how the businesses within the Township intersect with those in the neighboring Borough, and how best to address the existing non[-]conforming uses contained within these areas. After months of public meetings, Planning Commission deliberations, and thorough reviews of the status quo with the Township Engineer, the [Supervisors] determined on its own to re-zone over 150 acres of land contained within the four targeted parcels, which represent the areas currently containing mixed residential and commercial use.
It is clear from a review of the evidence put into the record at the March 7 hearing that while this rezoning does ultimately assist
Pennex in accomplishing its goals, it is not specifically tailored to Pennex. Rather, the rezoning reflects what has actually occurred in fact within the Township in the last several years, and accommodates the existing businesses (there are eleven known listed) within the four tracts, as well as the mixed residential character of the areas.(ZHB Decision at 7-8.) Accordingly, the ZHB denied the Lakes' validity challenge to Ordinance No. 2012-01. The Lakes appealed the ZHB's Decision to the trial court, which affirmed without taking any additional evidence. This appeal followed.
Applicant also complains that insufficient studies were completed regarding fire, water, and sewer protections. However, those studies are not appropriate at this time, as there is no specific building, development, or subdivision at issue. Those issues are all thoroughly addressed through the subdivision and permitting processes contained [within] the Subdivision and Land Development Ordinance, as well as the Zoning Ordinance.
Although the Township's Village Commercial Rezoning Request submitted to the York County Planning Commission sought to rezone 151 acres, (Village Commercial Rezoning Request Ex. A-3, ZHB Hearing, May 15, 2012), Ordinance No. 2012-01 rezoned 147 acres of land. (Ordinance No. 2012-01, R.R. at 3 a.)
"Because the parties presented no additional evidence after the ZHB's decision, our review is limited to determining whether the ZHB committed an abuse of discretion or an error of law." Plaxton v. Lycoming County Zoning Hearing Board, 986 A.2d 199, 204 n.2 (Pa. Cmwlth. 2009). "A conclusion that the [ZHB] abused its discretion may be reached only if its findings are not supported by substantial evidence." Baker v. Chartiers Township Zoning Hearing Board, 677 A.2d 1274, 1276 (Pa. Cmwlth. 1996).
In this appeal, the Lakes focus primarily on the rezoning of Tract A and assert that Ordinance No. 2012-01 is invalid because it constitutes spot zoning. Preliminarily, we note that zoning ordinances are presumed to be valid. Woll v. Monaghan Township, 948 A.2d 933, 938 (Pa. Cmwlth. 2008). A challenger to the validity of a zoning ordinance has a heavy burden of establishing the ordinance's invalidity. Id. Spot zoning has historically been defined as "zoning provisions adopted to control the use of a specific area of land without regard to the relationship of those land use controls to the overall plan and the general welfare of the community." Township of Plymouth v. County of Montgomery, 531 A.2d 49, 57 (Pa. Cmwlth. 1987). Spot zoning was recently explained by this Court as follows:
Spot zoning is 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. In re Realen Valley Forge Greenes Associates, 576 Pa. 115, 133-34, 838 A.2d 718, 729 (2003). The most determinative factor in an analysis of spot zoning 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. BPG Real Estate Investors-Straw Party II, L.P. v. Board of Supervisors, 990 A.2d 140, 150 (Pa. Cmwlth. 2010).Takacs v. Indian Lake Borough Zoning Hearing Board, 11 A.3d 587, 594 (Pa. Cmwlth. 2010). When considering whether the subject property has been accorded unjustifiable differential treatment, the courts have considered the size of the property, along with the topography, location, and characteristics of the tract at issue. Knight v. Lynn Township Zoning Hearing Board, 568 A.2d 1372, 1375 (Pa. Cmwlth. 1990). Also relevant, but not dispositive to the question of whether specific rezoning constitutes spot zoning, is whether there is "evidence of a rezoning of a specific parcel of land occurring within the context of a larger re-evaluation of the zoning map." Baker v. Chartiers Township Zoning Hearing Board, 677 A.2d 1274, 1277 (Pa. Cmwlth. 1996). "[I]f there are material factors indicating unlawful spot zoning . . . then a given rezoned parcel of land may be held to be the object of spot zoning." Id. at 1277-78.
To establish improper 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. Id. If the validity of a zoning ordinance is debatable, it must be permitted to stand. Id. Spot zoning cases should be decided on the facts, guided by case law; there is no precise formula for determining whether a rezoning of property constitutes spot zoning. Id.
With the foregoing principles in mind, we turn to the Lakes' assertions that the rezoning of Tract A constitutes spot zoning. The Lakes first contend that when Pennex realized that it could not secure the necessary zoning variances to develop the property at 110 Community Street, it developed a plan with the Township that would allow Pennex to easily accomplish its goal of expanding its industrial activities into a residential area. The Lakes argue that the November 10, 2011 letter of support from the Supervisors to Pennex proves that the Supervisors failed to make a full and fair examination of the impact of the rezoning in its attempt to accommodate Pennex. The purchase by Pennex of 110 Community Street only days after receiving this letter reaffirms that Pennex was convinced that the Supervisors would approve the rezoning. The Lakes argue that rezoning is not permitted based on regulations and conditions devised by agreement between a municipality and a landowner.
We note that the Township's complete zoning ordinance is not included in the certified record.
As recognized by the ZHB, it was Pennex's request to rezone a portion of the Township in order for Pennex to fulfill its desire to expand its commercial business activities that precipitated the Township's decision to rezone portions of the Township from R and VR to VC. Moreover, it is clear from the record that the Supervisors supported Pennex's desire to expand its business into the Township. However, these facts alone do not automatically invalidate the rezoning set forth in Ordinance 2012-01. As stated by this Court,
[t]he fact that rezoning is done at the request of a landowner does not, in and of itself, invalidate a rezoning. Schubach v. Silver, 461 Pa. 366, 384, 336 A.2d 328, 337 (1975). Indeed, in Plaxton v. Lycoming County Zoning Hearing Board, 986 A.2d 199, 210 (Pa. Cmwlth. 2009), [] this court stated that: (1) the state of mind of a legislative body in amending a zoning ordinance is not relevant to determining its validity; (2) the amendment must stand or fall on its own terms; and (3) even the strenuous lobbying by supporters does not itself render the amendment special legislation.Takacs, 11 A.3d at 594.
The Lakes' contention that the rezoning of Tract A was the result of an agreement between the Township and Pennex and, therefore, unlawful is in essence a contention that the rezoning constitutes contract zoning. Contract zoning is an unlawful form of spot zoning where rezoning is based on regulations and conditions devised by agreement between a municipality and a landowner. Knight, 568 A.2d at 1375-77. Mere strenuous lobbying for a zoning change is insufficient to prove contract zoning; there must be evidence of an actual devised agreement. See id. at 1376 (contract between governing body and landowner tailored to ensure particular use restrictions of a tract of land was evidence of the supervisors' intent to adopt a unique classification for a particular parcel). Here, there is no evidence of an actual devised agreement between the Supervisors and Pennex that could be construed as contract zoning. While the November 10, 2011 letter expresses the Supervisors' support for Pennex, the letter does not condition the rezoning on any particular factor, act by Pennex, or show intent on the part of the Supervisors to adopt a unique classification for a particular parcel. To the contrary, the letter merely acknowledges the Supervisors' favorable view of Pennex's suggestion that the VC zone be expanded to the area of Community Street, sets forth the Supervisors' intent to expand, at the same time, the VC zone to other areas in the Township, and advises Pennex of the progress of the process required when considering a rezoning request. (Letter from Supervisors to Pennex, November 10, 2011, R.R. at 41a.)
Next, the Lakes assert that the rezoning of Tract A, which consists mainly of residential parcels with no distinguishable differences to the surrounding areas, clearly creates a peninsula effect for the benefit of Pennex. While Tract A borders a parcel of land located in the Borough of Wellsville that is currently being used for industrial activities, the Borough of Wellsville has no zoning ordinance. In addition, unlike Tracts B, C, and D, Tract A is not serviced by a collector road which the Township Engineer testified was the type of road best suited to front commercial development. Most importantly, the Lakes argue, the rezoning of Tract A from R to VC allows one single parcel owned by Pennex to accommodate industrial activity among the already existing residential homes. The parcel purchased by Pennex that is located in Tract A does not have any characteristic differences that would prohibit the parcel from continuing to be used as a residential parcel under the R zoning. Thus, the Lakes assert, the rezoning singles out one parcel for different treatment from that accorded to similar surrounding land indistinguishable from it in character. As support for their arguments, the Lakes cite Appeal of Mulac, 418 Pa. 207, 210 A.2d 275 (1965), and Commercial Properties, Inc. v. Peternel, 418 Pa. 304, 211 A.2d 514 (1965).
It appears from the record that the Borough of Wellsville Planning Commission recommended to the Wellsville Borough Council that, if the Township proceeded with the proposed rezoning, the Borough of Wellsville should enact a zoning ordinance as a defensive measure. (See Memo from Wellsville Planning Commission to Wellsville Borough Council, March 1, 2012, R.R. at 49a.)
As found on the Township's official website, Article II, Section 203 of the Warrington Township Subdivision and Land Development Ordinance defines "collector street" as "[a] street or road which carries traffic from minor streets to the major system of arterial streets including, but not limited to, the principal entrance streets of a residential development and all roadways identified in the Township Thoroughfare Plan or Official Map as collector streets."
The Lakes' arguments on this issue do not take into account that the rezoning of Tract A implemented by Ordinance No. 2012-01 includes commercial activities currently existing among the residential properties. Tract A encompasses 27 acres, within which two existing formerly non-conforming commercial businesses are located, and those businesses cover approximately one-third of the area of Tract A that the Township marked for rezoning. (Hr'g Tr. at 41, May 15, 2012, R.R. at 161a.) The Township's configuration of Tract A resulted from the Township's identification of non-conforming commercial properties and the areas of the Township that could be developed both residentially and commercially in the zones containing the non-conforming properties. (Hr'g Tr. at 53, May 15, 2012, R.R. at 173a.) Thus, if Pennex proceeds with its plan to use the property located at 110 Community Street for commercial activities, it will not be an "island" having no relevant differences from its existing commercial neighbors.
Further, the cases relied upon by the Lakes do not mandate a different conclusion. In Appeal of Mulac, the City of McKeesport rezoned one city block measuring 210 feet by 215 feet from residential to general business in order for the owner to erect a grocery store. The Supreme Court held that the rezoning was illegal spot zoning because the surrounding properties were residential and the record did not "disclose any sound basis for such special treatment." Id. at 211, 210 A.2d at 277.
In Peternel, Mount Lebanon Township rezoned 10 acres from neighborhood shopping to residential; however, the purpose of the rezoning was to prevent the owner from lawfully using the property to develop a shopping center on the rezoned parcel. The Supreme Court held that it made no difference that it was only 10 acres that was rezoned when the record showed that the 10 acre "tract was proposed to be developed as a single, integrated unit;" therefore, it was impossible to escape the conclusion that because the rezoning was aimed at a particular piece of property, the rezoning was illegal spot zoning. Id. at 311-12, 211 A.2d at 518-19.
Here, unlike Appeal of Mulac and Peternel, the record shows that the Township did not just rezone a single parcel within one zoning classification or aim the rezoning at a particular piece of property. Tract A consists of 27 acres and all the properties contained therein were zoned from R to VC after the Township undertook a comprehensive review of the existing zoning in the Township to determine if rezoning was warranted. (Hr'g Tr. at 37-38, 52, May 15, 2012, R.R. at 157a-58a, 172a.).
Next, the Lakes contend that Ordinance 2012-01 neither follows the Township's community vision nor bears a substantial relationship to the public health, safety, morals, or general welfare. The Lakes argue that the quick passing of Ordinance No. 2012-01, the direct contradiction to the Township's Comprehensive Plan, the lack of consideration to the York County Planning Commission's negative recommendation, the Wellsville Borough Planning Commission's negative reaction, along with the lack of expert witnesses, the absence of studies and/or substantial evidence showing how the rezoning promotes the good of the community as a whole, shows that Ordinance 2012-01 is unjustly discriminatory, arbitrary, unreasonable, and confiscatory in its application. The Lakes cite to this Court's decision in Baker as support for their contentions that the rezoning was arbitrary and not in the public interest.
With respect to a governing body's obligation to consider rezoning from a community-wide perspective, this Court has explained:
The key point is that when a municipal governing body puts on blinders and confines its vision to just one isolated place or problem within the community, disregarding a community-wide perspective, that body is not engaged in lawful zoning, which necessarily requires that the picture of the whole community be kept in mind while dividing it into compatibly related zones by ordinance enactments. In other words, legislating as to a spot is the antithesis of zoning, which necessarily functions within a community-wide framework. . . . [Z]oning, to be valid, must be in accordance with a rational and well considered approach to promoting safety, health and morals and a coordinated development of the whole municipality.Township of Plymouth v. County of Montgomery, 531 A.2d 49, 57 (Pa. Cmwlth. 1987) (emphasis in original). In Baker, Chartiers Township rezoned a privately owned farm consisting of 221 acres from an agricultural to an industrial district in order for a landfill operation to expand onto the 221 acres. The zoning hearing board found that the rezoning was not spot zoning; however, the trial court reversed. Upon review of the trial court's order, this Court held that there were material factors indicating that the 221 acre parcel was the object of unlawful spot zoning. Id. at 1278. We determined that the proper zoning procedures were not followed when the township's board of supervisors failed to submit the comprehensive plan to the county planning commission to determine whether the rezoning complied with the township's comprehensive plan. Id. This failure "indicate[d] that the deliberation process was expedited to the detriment of the public interest." Id. at 1278-79. We also took notice of the trial court's observation that the township did not consult any private third-party expert to aid in its investigation of the impact of the rezoning and to assist the township in determining whether the objector's environmental concerns regarding the landfill were valid. Id. at 1279. We concluded that these irregularities indicated that a full and fair examination of the impact of the rezoning did not occur in order to accommodate the owner of the rezoned property. Id.
Here, unlike Baker, the Supervisors followed proper zoning procedures and there was a full and fair examination of the impact of the rezoning on the public health, safety, morals, and general welfare. The record shows that the Supervisors did not put on blinders and confine its rezoning to one isolated parcel of property within the Township. As the Township Engineer testified, upon the Application of Pennex to rezone a portion of the Township, the Township undertook a comprehensive review of other areas to determine if a rezoning from residential to commercial use or changing from one residential use to another residential use would be appropriate. (Hr'g Tr. at 37-38, 52, May 15, 2012, R.R. at 157a-58a, 172a.) This review encompassed several months of public meetings by the Supervisors and the Township's Planning Commission, culminating in a public hearing before the Supervisors where numerous residents appeared and voiced their concerns and support for the rezoning. Moreover, because Tract A is adjacent to commercial uses in the neighboring Borough of Wellsville, which, if the Borough of Wellsville had zoning, would likely be zoned as some type of heavy manufacturing or industrial use, the Township followed the accepted principle that, in preparing a comprehensive plan or zoning ordinance, the Township should attempt to mirror the commercial use in the Borough of Wellsville in the event Pennex wished to expand into the Township. (Hr'g Tr. at 53, May 15, 2012, R.R. at 173a.)
The Township's Engineer testified as follows regarding the events leading up to the Township's decision to rezone Tracts A, B, C, and D. Tract A comprises 27 acres and is located adjacent to the eastern side of the Borough of Wellsville and it is bordered by Community and Carroll Streets. (Hr'g Tr. at 39-40, May 15, 2012, R.R. at 159a-60a.) Tract A was originally part of Pennex's rezoning request; however, the Township reconfigured Tract A because the area that Pennex originally requested be rezoned existed entirely of residentially zoned property. (Hr'g Tr. at 41, May 15, 2012, R.R. at 161a.) The Township's reconfiguration included two existing commercial properties that covered approximately one-third of the area of Tract A that was proposed for rezoning. (Hr'g Tr. at 41, May 15, 2012, R.R. at 161a.) The Township changed Tract A to include these two existing commercial properties to remove their non-conformity status and make it easier for these properties to develop or expand by right rather than by special exception. (Hr'g Tr. at 42, May 15, 2012, R.R. at 162a.) Single family homes are uses permitted by right in the VC zone and the Township believed that the rezoning would bring these two commercial properties into conformity without directly impacting the current residential uses located in Tract A. (Hr'g Tr. at 43-44, May 15, 2012, R.R. at 163a-64a.) On cross-examination, Mrs. Lake questioned the Township Engineer as to why only a portion of the parcel comprising one of the commercial properties targeted for rezoning was included in Tract A. (Hr'g Tr. at 60, May 15, 2012, R.R. at 180a.) The Township Engineer responded that he did not know why the entire parcel was not included in Tract A. (Hr'g Tr. at 60, May 15, 2012, R.R. at 180a.)
Tract B comprises 110 acres and is located on the north and south sides of Carlisle Road to west of Rossville extending to the Borough of Wellsville. (Hr'g Tr. at 40, May 15, 2012, R.R. at 160a.) Tract B is a true mixed area of residential and commercial uses. (Hr'g Tr. at 45, May 15, 2012, R.R. at 165a.) There are apartments and multifamily units interspersed with single family homes. (Hr'g Tr. at 45, May 15, 2012, R.R. at 165a.) All of the parcels included in Tract B front onto Carlisle Road, which is a major thoroughfare or collector road in the Township. (Hr'g Tr. at 45, May 15, 2012, R.R. at 165a.) Because Carlisle Road is a collector road, "it is intended that any type of heavy use type of activities, whether in volume of traffic or type of traffic, should be located along this type of roadway." (Hr'g Tr. at 4546, May 15, 2012, R.R. at 165a66a.)
Tract C consists of seven acres and it is located east of Ziegler Road and adjacent to the southern border of the Borough of Wellsville. (Hr'g Tr. at 40, 46, May 15, 2012, R.R. at 160a, 166a.) Because Tract C was zoned R, six of the seven acres housed nonconforming business uses. (Hr'g Tr. at 46, May 15, 2012, R.R. at 166a.) The Township chose Tract C for rezoning in order to make it easier for the businesses located in that area to expand or develop in accordance with the Township's zoning ordinance. (Hr'g Tr. at 47, May 15, 2012, R.R. at 167a.)
Tract D consists of three acres and is located on the south side of Wellsville Road and on the western end of the Borough of Wellsville. (Hr'g Tr. at 40, 47, May 15, 2012, R.R. at 160a, 167a.) Wellsville Road is a heavily travelled road in the Township. (Hr'g Tr. at 47, May 15, 2012, R.R. at 167a.) A commercial business is located on approximately onethird of the area included in Tract D. (Hr'g Tr. at 47, May 15, 2012, R.R. at 167a.) The Township chose Tract D for rezoning because of its proximity to Wellsville Road and the notion that if further commercial development were to occur in this area, it would make sense for it to occur along this roadway. (Hr'g Tr. at 4748, May 15, 2012, R.R. at 167a68a.)
In addition, while the York County Planning Commission was not in favor of the planned rezoning, its recommendation was not binding on the Township. As noted by this Court, "a planning commission is no more than an advisory body whose recommendations have no binding effect on the governing body." Takacs, 11 A.3d at 597 n.11. Moreover, the fact that the Borough of Wellsville, which is a neighboring municipality, reacted negatively to the Township's rezoning is of no moment because the Township was not required to obtain the Borough's approval to change the zoning in its Township.
Finally, based on the record, we cannot say that the Township did not consider the impact of the rezoning on the public safety, health, morals, and welfare. (Hr'g Tr. at 48, May 15, 2012, R.R. at 168a.) The Township Engineer testified that the Township considered the impact of the rezoning on the road, sewer facilities, water supplies, schools, and other public service facilities. (Hr'g Tr. at 48, May 15, 2012, R.R. at 168a.) Regarding sewer service, the Township considered that most of the rezoned areas "either front upon an existing sewer line or existing sewage can be extended into these areas." (Hr'g Tr. at 48, May 15, 2012, R.R. at 168a.) The Township does not have a public water system, but if commercial development occurred in the rezoned areas, feasibility studies would be required in accordance with the Township's subdivision and land development ordinance (SALDO). (Hr'g Tr. at 48, May 15, 2012, R.R. at 168a.) While there were no written studies, the Township Engineer and Township Manager consulted verbally with the person who prepared the Township's Zoning Map and Comprehensive Plan regarding traffic, safety, noise, and general public welfare concerns. (Hr'g Tr. at 56, May 15, 2012, R.R. at 176a.)
With regard to the impact of the rezoning on natural resources, other natural features, and the environment, the Township Engineer testified that the natural features would be preserved and sensitive environmental issues resolved through the provisions of the Township's zoning ordinance and SALDO. (Hr'g Tr. at 49-50, May 15, 2012, R.R. at 169a-70a.) The Township Engineer also testified that there would be no adverse impact on the public health and welfare as a result of the rezoning. (Hr'g Tr. at 50, May 15, 2012, R.R. at 170a.)
Like the trial court, this Court is sympathetic to the Lakes' plight; however, because the ZHB's findings are supported by the record, we cannot conclude that the ZHB abused its discretion by rejecting the Lakes' validity challenge to Ordinance No. 2012-01. As previously stated herein, "[i]f the validity of a zoning ordinance is debatable, it must be permitted to stand." Takacs, 11 A.3d at 594.
Accordingly, we are constrained to affirm the trial court's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, March 18, 2014, the Order of the Court of Common Pleas of York County entered in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge