20 Pa. Commw. 641 | Pa. Commw. Ct. | 1975
Lead Opinion
Opinion by
Gemini, Inc., (Gemini) owns a small tract of land in northeast Philadelphia for which it has received building and use permits for the construction of a commercial office building. Until September 1965, the tract was zoned R-4 and R-5 Residential under the Philadelphia Zoning Code. All the land contiguous to the tract to the north, south and west in the same block is zoned either R-4 or R-5 Residential as is each of the contiguous blocks to the north, south and west. On the east, the tract fronts on Roosevelt Boulevard (Boulevard), a twelve-lane highway, the other side of which at this point is zoned for industrial and commercial usage.
In September 1965, apparently at the request of Gemini, the developer, the Philadelphia City Council passed Ordinance 1016 which rezoned the tract to O. C. Office Commercial. When, in 1972, the Department of Licenses and Inspection (L&I) amended its zoning maps accordingly and issued building and use permits to Gemini to construct an office building, the appellant, one of the plaintiffs below who own and reside in residences either adjacent to or in the immediate vicinity of the tract in question, filed an appeal from the L&I actions to the Zoning Board of Adjustment (Board). In her appeal, she attacked Ordinance 1016 on statutory and constitutional grounds alleging that it was not enacted in conformance with the Comprehensive Plan for Philadelphia and that it was illegal “spot zoning.” After hearings, the Board upheld the validity of the ordinance, dismissed the appellant’s appeal, and sustained the action of L&I. The Court of Common Pleas of Philadelphia County, on appeal, refused to restrain construction of the office building, and dismissed the appeal.
Under the Philadelphia Home Rule Charter
The court below affirmed the Board without taking additional evidence. We must, therefore, review the findings of fact and conclusions of law of the Board to deter
Our review of the record reveals that the subject tract, which is less than an acre in area, is surrounded by land zoned residential except for that portion to the east and across the Boulevard which is zoned for industrial and commercial uses. Inasmuch as the Boulevard, a 250-foot wide highway, provides a substantial boundary from the industrial and commercial uses on its eastern side, we are inclined to agree with the appellant that the rezoned tract has been singled out for treatment dissimilar to that of its immediate surroundings on the western side of the Boulevard. The rezoned tract could not, therefore, be considered a natural extension of a previously existing commercial use on the other side of the Boulevard. Upper Darby Township Appeal, 413 Pa. 583, 198 A.2d 538 (1964).
The rezoning, however, can still be upheld if it is enacted in accordance with the Comprehensive Plan. French v. Zoning Board of Adjustment, 408 Pa. 479, 184 A.2d 791 (1962). It is also important to note that the party challenging the constitutionality of an ordinance bears a heavy burden and must “clearly establish [that] the provisions are arbitrary and unreasonable and have no relation to the public health, safety, morals, and gen
As we review the record in this case, we find that although Ordinance 1016 rezoned a very small parcel of land with no apparent topographical features which distinguish it from the surrounding residential lands, the testimony of various witnesses amply supports reasons for treating this property differently. Because it fronts upon the Roosevelt Boulevard, it is distinctly different from most of the surrounding land for two reasons: 1) there is evidence that property fronting on the Boulevard is both undesirable and not in significant demand as a residential use; 2) more importantly, however, is the testimony in the record by officers of the various city agencies that the Comprehensive Plan for the city is to encourage commercial development along the properties fronting on the Boulevard. These commercial uses were evidenced by commercial development to the north and south of the tract for several blocks along the Boulevard. According to John Mitkus, the Deputy Executive Director of the Philadelphia Planning Commission, the Boulevard was of paramount significance in the then emerging pattern of commercial development. Because of the heavy traffic along the Boulevard, property fronting on that highway would not be suitable for residential use and might be more appropriate as commercial use. According to Mr. Mitkus, the rezoning of
The appellant, however, has also raised objections to the manner in which the ordinance was enacted. These objections, are founded upon the existence or alleged lack of existence of a comprehensive plan and the fact that only a small portion of the land fronting upon the Boulevard was rezoned as office commercial. The appellant indicates that, at the time of the zoning enactment, the Comprehensive Plan designated the subject tract and surrounding land as residential and that the singling out of this small tract constituted “ad hoc” zoning rather than planned zoning. As was stated in Eves v. Zoning Board of Adjustment, 401 Pa. 211, 217, 164 A.2d 7, 11 (1961), “[t]he adoption of a procedure whereby it is decided which areas of land will eventually be zoned F-l Limited Industrial Districts on a case by case basis patently admits that at the point of enactment of Ordinance 28, there was no orderly plan of particular land use for the community . ... In other words, the development itself would become the plan, which is manifestly the antithesis of zoning ‘in accordance with a comprehensive plan.’ ” In Eves, supra, Ordinance 28 did not delineate the boundaries of the zone but rather outlined a procedure whereby anyone might request that his land be rezoned F-l. In this case, however, we again have the testimony of John Mitkus which indicates that the commercial zoning was to be confined to the properties along the Boulevard. As a comparison of Eves, supra, reveals this pattern of development was indeed a plan and was not so haphazard as to permit commercial rezoning with
As our Supreme Court observed in Cleaver, supra, 414 Pa. at 375, 200 A.2d at 413:
“A comprehensive plan does not contemplate or require a ‘master-plan’ which rigidly provides for or attempts to answer in minute detail every possible question regarding land utilization or restriction. Neither a zoning ordinance nor a comprehensive plan is absolutely rigid, static and unchangeable; either or both may be amended, supplemented, changed, modified or repealed — in the sound discretion of the legislative body and in accordance with statutory and other pertinent legal and Constitutional requirements — as conditions or changing circumstances may require. . . .” (Emphasis in original.)
The rezoning here may have been initiated by the developer but the proposed ordinance was first reviewed by the Planning Commission and received a favorable recommendation by that body prior to its enactment. This is a valid procedure by which to ensure that zoning does not take place in a haphazard manner and instead promotes orderly development with changes in the Comprehensive Plan as contemplated by the Planning Commission. Schubach v. Silver, supra.
We believe, therefore, that Ordinance 1016 enacted by the City Council of Philadelphia was valid and consequently we affirm the court below and dismiss the instant appeal.
. The court below had submitted an opinion to this Court explaining its action in denying a restraining order. After all parties had filed briefs with this Court, the lower court submitted a supplemental opinion disposing of the appellant’s statutory and
. Adopted pursuant to the “First Class City Home Rule Act.” Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §13101 et seq.
. Act of May 6, 1929, P.L. 1551, as amended, 53 P.S. §14752 et seq.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. After again reading several of the many cases on the subject of spot zoning, I
The majority states: “Our review of the record reveals that the subject tract, which is less than an acre in area, is surrounded by land zoned residential except for that portion to the east and across the Boulevard which is zoned for industrial and commercial uses. Inasmuch as the Boulevard, a 250-foot wide highway, provides a substantial boundary from the industrial and commercial uses on its eastern side, we are inclined to agree with the appellant that the rezoned tract has been singled out for treatment dissimilar to that of its immediate surroundings on the western side of the Boulevard. The rezoned tract could not, therefore, be considered a natural extension of a previously existing commercial use on the other side of the Boulevard.”
My position simply is that I fully agree with the appellant rather than, like the majority, “inclined to agree with the appellant that the rezoned tract has been singled out' for treatment dissimilar to that of its immediate surroundings on the western side of the Boulevard.” I would reverse the order of the lower court.