3 Pa. Commw. 394 | Pa. Commw. Ct. | 1971
Lead Opinion
Opinion by
This is an appeal from an Order and Opinion of the Court of Common Pleas of Philadelphia County, sustaining the appeal of St. Vladimir’s Ukrainian Orthodox Church, appellee (Church), from an adjudication of the Zoning Board of Adjustment of the City of Philadelphia, intervenor (Board). The Board had dismissed the appeal of the Church arising out of the issuance of a zoning and use permit to Fun Bun, Inc., appellant (Fun Bun), for the demolition of an existing building and the erection of a quick-service restaurant. The dimensions of the subject property are one hundred feet by one hundred-fifty feet, and it is located on the northwest corner of North Fifth and Independence Streets in the City of Philadelphia. North Fifth Street is a wide (six lanes) thoroughfare, and Independence Street is a narrow, one-way street directing traffic onto North Fifth Street. Directly across Independence Street southwardly, on the opposite corner, is located the church building of the appellee, and directly behind the subject property of Fun Bun to the west is a parking lot owned and operated for church purposes by the appellee. To the north of the subject property, in the same block, are five lots. Moving northwardly, the adjoining lot contains a vacant residence building owned by Fun Bun, which lot is the subject of another zoning lawsuit pending before the Common Pleas Court of
The subject property was rezoned from R-4 Residential to C-2 Commercial by a zoning ordinance passed in December of 1959, before Fun Bun purchased it. One block to the south of the subject property is a gasoline station, existing under a variance granted by the Board in 1954. It is interesting to note that the church and parish house of the appellee exist under a variance granted by the Board in 1964, and the parking lot adjoining the subject premises to the west apparently exists without a city permit. It can be seen from the above description that the subject premises is surrounded on three sides by commercial or nonresidential type usages, and to the north by at least two usages which also would be considered commercial, although three lots removed.
The record is clear that the 1959 ordinance, which rezoned the subject property to C-2 Commercial, was in accord with the then existing comprehensive plan of the City of Philadelphia, and met all of the statutory requirements. The Church, in its brief, attempted to raise in this case the issues concerning the pending variance matter before the Common Pleas Court of Philadelphia. Inasmuch as that matter is not before this Court, we are not passing upon the issues of that case in this opinion. The sole issue before this Court is whether the 1959 zoning ordinance which rezoned the subject property was “spot-zoning” and therefore invalid. We hold that it is not spot-zoning.
When no additional testimony is taken by the lower court, the test before this Court is whether the Board of Adjustment clearly abused its discretion or committed an error of law. See Coleman v. Zoning Board of Adjustment, 413 Pa. 103, 196 A. 2d 323 (1964).
It has long been held .that one who challenges the constitutionality of a zoning ordinance has no light burden. It is settled that before a zoning ordinance can be declared unconstitutional, it must be shown that its provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare. If the validity of
In Cleaver v. Board of Adjustment, 414 Pa. 367, 378-79, 200 A. 2d 408, 415 (1964), the Pennsylvania Supreme Court said: “It is very difficult to define ‘spot’ zoning. Zoning is a legislative division of a community into areas or districts, in each of which only certain designated uses of land and/or buildings are permitted. Generally speaking, spot zoning is the arbitrary and unreasonable classification and zoning of a small parcel of land. This small parcel of land is usually set apart or carved out of a surrounding or a large neighboring tract, with no reasonable justification for the differential zoning.” In Cleaver, the Court took
We believe we should also point out, as did the court below, that the subject property (according to the record of this case) could not be used as an R-4 Residential property inasmuch as the only expert (appellee’s witness) to testify concerning the possible use of this property stated that subject property could be used and developed for a four-unit professional office building permitted under a C-l Commercial usage. This also is not controlling in the final determination of this matter. This case turns on the facts established in the record of this case that the subject property of Fun Bun is not so isolated as to permit its being designated an island in a sea of some other classification.
Appellee also argues that Salvitti v. Zoning Board of Adjustment, 429 Pa. 330, 240 A. 2d 534 (1968) controls in this matter. A careful reading of that case, however, indicates that the court first found that the property there in question was completely surrounded by another classification. We do not have that fact situation in this case.
The record indicates that the Planning Commission of Philadelphia, subsequent to the issuance of the permit in this case, changed the comprehensive plan by stating that this particular lot should be classified as R-4. Pronouncements of the Planning Commission after the fact are not relevant to this matter. The lower court’s reference to an increased volume in traffic likewise does not control. Rather, that is a matter for those officials of the City with the responsibility to control traffic. Whether Independence Street should be one-way east or one-way west, or a two-way street, is not a matter of concern for this Court in this case. We hold that the Zoning Board of Adjustment did not abuse its discretion, nor did it commit an error of law in sustaining the action of the officials issuing the per
Dissenting Opinion
Dissenting Opinion by
I dissent. I would hold that by rezoning the subject premises from R-4 to C-2 this particular lot is the object of special treatment. This unjustified
In Schubach v. Zoning Board of Adjustment, 440 Pa. 249, 253, 270 A. 2d 397, 399 (1970), the Supreme Court of Pennsylvania said: “. . . Thus, 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 economic detriment, is invalid ‘spot’ zoning. 8 E. McQuillin, Municipal Corporations, §25.83 at 224-25 (3d ed. 1965).” Appellant contends that his lot is distinguishable in character from the other lots located in the R-4 residential district for two reasons: (1) the lot can only be used for commercial purposes and, (2) the lot is indistinguishable in character from the area located across the street which is zoned C-2 Commercial. These arguments are not persuasive.
There is nothing in the record to support the contention that this lot could not be used for residential purposes. There is evidence that the best use of the property is commercial but “best use” of itself cannot justify this reclassification. Rezoning of this one lot in a residential district to C-2 would increase the value of appellant’s property but at the same time decrease the value of the bordering residential lots. This is clas
In Mulac, supra, at 211, it is stated: “. . . appellee’s argument that the rezoning was proper because the parcel is situated in an area of mixed commercial and residential uses is not persuasive. The area in which the subject premises is located is zoned residential. It is true that within the confines of this large residential zone, certain commercial uses exist. All such commercial establishments exist, however, as nonconforming uses, and should such uses cease, the properties could be utilized only for residential purposes.” (Emphasis in original). While Mulac dealt with nonconforming commercial properties, the same reasoning advanced therein would also apply to here where the only commercial uses in this residentially zoned area exist by virtue of variance and could therefore also revert to residential use.
The fact that nearby districts are zoned C-2 commercial lends no support to appellant’s position. As stated in Schubach, supra at 254, “The appellees also place substantial emphasis upon the fact that there is a very large commercially zoned area within a few hundred feet to the north of the premises in question. It is argued that this per se indicates that the area is not truly residential in nature and, therefore the Pine Hill lot should also be commercially zoned. We are not persuaded by such an argument since it would mean that every border line area in the city could be subjected to such down-zoning.”
Boundary lines between zoning districts must be reasonable and there is no question that the setting of general zone boundaries is within the legislative discretion. See, Arena v. Norristown Borough Zoning
In my judgment, appellant elected to take the legislative route when the proper procedure to effect the change of the use of a single piece of property is via a variance. The variance issue is not before us and will not be considered. I merely observe that a zoning amendment is appropriate only when there are substantial changes which would warrant the rezoning of a sizable area.
The order of the court below should have been affirmed.
The record is silent as to whether the comprehensive plan requires this particular lot to receive special commercial treatment. See concurring opinion of Justice Robebts in Mulac Appeal, 418 Pa. 207, 212, 210 A. 2d 275, 278-79 (1965).
For a thorough, discussion of the latest developments in Pennsylvania zoning see 16 Vill. L. Rev. 507 (1971).