28 Pa. Commw. 415 | Pa. Commw. Ct. | 1977
Opinion by
Fawn Township, Allegheny County, is a sparsely populated township graced with breathtaking rural amenities. It is also graced with a motorcycle racecourse operated on an 80-acre tract which was recently rezoned at the request of its owner, Bonald B. Porter, so as to allow the course to operate legally. The suit of Porter’s aggrieved neighbors, attacking the validity of the rezoning and thereby seeking to close the racecourse, was successful in the Allegheny County Court of Common Pleas, and Porter’s appeal is now before us.
Porter owns over 100 acres of land in an isolated, rural section of Fawn Township, which had been zoned B-2 Bural Besidential. In addition to a conforming mine-refuse landfill, the tract was being used primarily for a cross-country motorcycle racecourse,
Several of Porter’s neighbors objected to the rezoning and appealed the enactment, of the ordinance to
The common pleas court heard the appeal de novo. After taking testimony and viewing the tract in question, as well as reviewing the record from below, it invalidated the ordinance, because it was unjustifiably and arbitrarily discriminatory.
In its decision, the lower court correctly noted that, where additional evidence is taken, the court is not to review the action of the ZHB but rather to decide the case on the merits. On appeal from the, lower court’s decision, the issue before us is whether the court manifestly abused its discretion or committed an error of law. Drop v. Board of Adjustment, 6 Pa. Commonwealth Ct. 64, 293 A.2d 144 (1972); Pantry Quik, Inc. v. Zoning Board of Adjustment, 1 Pa. Commonwealth Ct. 326, 274 A.2d 571 (1971). We hold that it did neither.
The most troublesome question posed by this case is whether the lower court erred in concluding that the commercial zoning of an 80-acre “doughnut” tract in an isolated rural environment clearly constituted illegal, discriminatory zoning. Spot zoning, a form of discriminatory zoning, has been defined 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 of the, owner of that lot or to his eco
Clearly, the size of the property involved is only one of the determining factors. What is most determinative is whether the parcel in question is being singled out for treatment unjustifiably differing from that of similar surrounding land, thereby creating an ‘island’ having no relevant differences from its neighbors. Id. at 210, 210 A.2d at 277.
This Court has mentioned topography, location, and characteristics of the tract as factors which may be taken into account. Pollock v. Zoning Board of Adjustment, 20 Pa. Commonmealth Ct. 641, 342 A.2d 815 (1975). We have been cautioned by the Supreme Court, however, not to limit our inquiry to the mere physical aspect and characteristics of the land, but also to consider how the rezoning affects the public health, safety, morals, and general welfare and how it relates to the township’s comprehensive plan. Schubach v. Silver, 461 Pa. 366, 382-83 n. 14, 336 A.2d 328, 336 n. 14 (1975). These factors, when assessed, must clearly indicate that a zoning ordinance is arbitrary and unreasonable and has no substantial relation to the general welfare of the public. If the validity of the legislation is fairly debatable, the. legislative judgment must be allowed to control. Id. at 380-81, 336 A.2d at 335.
With these guidelines, in mind, we turn to an evaluation of the instant facts.
The size of the rezoned area, 80 acres, is considerably larger than any area previously found to be the object of spot zoning. Of course, we are dealing not with several acres of land in an urban or suburban environment but rather with a single parcel in an isolated rural setting. The court below, after viewing the area, suggested that in relation to such a setting Porter’s 80 acres could almost be considered minimal. Nevertheless, this is the only factor which even vaguely militates against a conclusion of clearly arbitrary legislation. In this remarkably unique case, every other factor considered by the court below suggests the invalidity of the ordinance. Considering topography, the court could find no difference between the land zoned commercial and the land remaining rural residential: the entire area is hilly. Nor does the location of the Porter property suggest any justification for unique treatment because the whole area is isolated. Clearly, Porter’s land is neither more nor less isolated than the property it surrounds or than the property that surrounds it. The character of the two
Apparently, the township did not seriously consider either the foregoing factors or the appropriateness of any uses allowed in a C-2 district other than Porter’s racecourse. In fact, the court below found the only factor considered was Porter’s desire to operate the course legally. Certainly, the arbitrary effect of this municipal myopia can be illustrated in no better way than by the residential island which remains inexplicably within, and surrounded by, Porter’s commercial sea. This fact, perhaps even more than the isolated rural setting, distinguishes the case at bar from prior spot zoning decisions and compels us to agree with the court below that an 80-acre “dough
Order affirmed.
Order,
And Now, this 1st day of February, 1977, the, order of the Court of Common Pleas of Allegheny County, dated March 7,1975', is affirmed.
A junkyard and an auto repair garage were also operating as legal nonconforming uses. However, together these uses occupy a total of 232 square feet, an insignificant area.
The applicable zoning ordinance provision reads:
‘C-2’ Neighborhood and Highway Commercial
In ‘C-2’ Neighborhood and Highway Commercial Districts only the following structures and uses are permitted:
A. Retail stores and shops.
B. Restaurants.
C. Service establishments such as beauty shops, barbershops, shoe repair, minor appliance repair and dry cleaning pickup.
D. Automobile service stations.
E. Auto repair garages, provided all operations are conducted within the confines of a building established for such purposes.
P. Motels.
G. Drive-in uses including retail, food and amusement centers, both private and public.
Apparently the racecourse use was considered an amusement center.
See generally R. Ryan, Pennsylvania Zoning Law and Practice, §3.4 (1976).
Normally, it is incumbent upon a lower court deciding a zoning ease on tbe merits to set out specific findings of fact to facili
It is contended that the letter from which the engineer’s opinion was taken was inadmissible hearsay and therefore not properly before the lower court. We disagree. Section 1010 of the Pennsylvania Municipalities Planning Code, 53 P.S. §11010, added by the Act of June 1, 1972, P.L. 333, to the Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10101 et seq., gives the lower court the power to make findings of fact based on the record below as supplemented by additional evidence taken. Since the letter in question was part of the record below, it can properly be the basis for a finding by the court.