           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsy Supply, Inc.,                         :
                            Appellant        :
                                             :
              v.                             :    No. 334 C.D. 2015
                                             :    Argued: September 17, 2015
The Zoning Hearing Board                     :
of Silver Spring Township                    :
                                             :
              v.                             :
                                             :
Township of Silver Spring                    :

BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                             FILED: October 15, 2015

              In this zoning appeal, Pennsy Supply, Inc. (Applicant) asks whether
the Court of Common Pleas of Cumberland County1 (trial court) erred in affirming
a decision of the Zoning Hearing Board of Silver Spring Township (ZHB) that
rejected Applicant’s substantive validity challenge to the Silver Spring Township
Zoning Ordinance of 2013 (zoning ordinance) and denied Applicant’s alternative
request for a validity variance. Applicant argues the ZHB erred in concluding
Applicant’s property was not reverse spot zoned and was not treated unjustifiably
different from similar surrounding land. Alternatively, Applicant asserts the ZHB
erred in concluding a validity variance should not be granted in order to avoid an

       1
         A panel consisting of President Judge Kevin A. Hess and Judges Albert H. Masland and
Christylee L. Peck heard and decided Applicant’s land use appeal. President Judge Hess
authored the opinion on behalf of the panel.
unconstitutional confiscation of its property.            Discerning no merit in these
assertions, we affirm.


                                      I. Background
              Applicant owns and operates an existing quarry in Silver Spring
Township (Township), which lies in a Q Quarry zoning district. It also owns an
adjacent, vacant 18.5-acre parcel, referred to as the Hempt Tract, located at the
intersection of Millfording Road and Sample Bridge Road. The Hempt Tract lies
in an R-1 Residential district. Applicant seeks to expand its quarrying operation
onto the Hempt Tract.2


              In November 2013, Applicant filed a substantive validity challenge to
the zoning ordinance with the ZHB in connection with the proposed expansion of
its quarrying activities on the Hempt Tract. Hearings ensued.


              After hearings, the ZHB issued a decision in which it made the
following relevant findings. The Hempt Tract was zoned R-1 Residential at the
time Applicant purchased it. Applicant is the owner and operator of an existing
quarry that abuts the eastern and southern sides of the Hempt Tract. The existing
quarry, which began operations in 1959, has approximately 20 years of reserves to
mine. It has a mining area of approximately 167 acres.



       2
         An aerial image of the entire eastern portion of Silver Spring Township, including the
Hempt Tract, which includes a transparent overlay of the Township Zoning Map is found in the
Reproduced Record at 399a. A color copy of that document, which was admitted at the ZHB
hearing as Exhibit 20, is also appended to the Township’s brief.



                                              2
               The Hempt Tract is bordered to the west and north by land zoned R-1
Residential, including the Millfording Highlands residential development. Prior to
its purchase by Applicant, the Hempt Tract was part of the Millfording Highlands
residential development. Other than its geological suitability for quarrying, the
Hempt Tract does not have any extraordinary physical features, it is relatively flat,
and it is adjacent to the Millfording Highlands development. The geological
suitability of the Hempt Tract for quarrying does not impact its suitability for
development consistent with permitted uses in the R-1 district in which it lies. The
Hempt Tract is similar to the properties to the north of the tract.         It is not
surrounded by land that is zoned other than or less restrictively than R-1
Residential.


               Applicant’s existing quarry is virtually surrounded by residential and
commercial uses. There are no unique physical characteristics on the Hempt Tract
that would prevent Applicant from using it for a permitted use.


               The Township presented the testimony of its engineer, Stephen
Fleming, P.E. Fleming is also a licensed real estate agent. Fleming noted that the
Hempt Tract is generally flat and slightly sloping, bounded to the east and the
south by the existing quarry and by an R-1 Residential district to the north and
west. Fleming also explained the Hempt Tract is bounded by two Township roads,
Sample Bridge Road to the west and Millfording Road, which accesses an existing
single-family residential development to the north. The Hempt Tract is served by
public water and public sewer. It does not appear the Hempt Tract is impacted by
floodplains, wetlands or other limiting features.



                                           3
              Fleming prepared two sketch plans for possible residential
development of the Hempt Tract using the cluster provision of the R-1 district.
The first sketch plan contains 56 lots with a minimum lot size of approximately
6,000 square feet, plus the required open space and two access points from
Millfording Road. The first sketch plan generally complies with the Township’s
zoning and subdivision and land development ordinances. The second sketch plan
contains 57 lots with a minimum lot size of approximately 6,000 square feet, plus
the required open space, and access from both Millfording Road and Sample
Bridge Road. The second sketch plan also generally complies with the Township’s
zoning and subdivision and land development ordinances. The overall cost for
development consistent with the second sketch plan is approximately $630,000,
which is generally consistent with a development of this size.


              Fleming further testified the Hempt Tract has no extraordinary
features that would cause the development costs to significantly exceed that of
another property. Fleming also opined the Hempt Tract could be used for a use
permitted in the R-1 district without prohibitive expense. He based his opinion on
development and infrastructure costs of approximately $10,000 per lot which is in
line with other residential developments in the Township that are currently built
and sold.3

       3
         The Hempt Tract is subject to a landscape easement along the frontage of Sample
Bridge Road and Millfording Road, approximately 100 feet in width. The landscape easement
was created by agreement between the developers of Millfording Highlands and Applicant.
Applicant agreed to the imposition of the landscape easement on the Hempt Tract. The
landscape easement agreement states in paragraph 1 that: “[Applicant] hereby grants and
conveys unto Developers a perpetual, non-exclusive easement (hereinafter called the “Landscape
Easement”) …” ZHB Op., 5/12/14, Finding of Fact (F.F.) No. 47. Paragraph 6 of the agreement
states:
(Footnote continued on next page…)

                                              4
               The Township also presented the testimony of Larry Foote, a certified
general appraiser and licensed real estate broker. Foote testified regarding the
purchase price Applicant paid for the Hempt Tract and a reasonable sale price for
any lots created by a subdivision of the Hempt Tract. In preparation for his
testimony, Foote reviewed the date of the sale, the size of the property, the sale
price, the sale price per acre and the sales of other large tracts of residentially
zoned land that occurred over approximately a four-year time frame.


               Foote explained that Applicant purchased the Hempt Tract for
$1,950,000 in March 2007. The Hempt Tract is 18.55 acres. The “per acre” price
for the Hempt Tract is $105,121. ZHB Op., 5/12/14, Finding of Fact (F.F.) No. 55.
Foote reviewed comparable sales prices for six large tracts of residentially zoned
land sold between 2004 and 2010.                 The “per acre” sales prices for these
comparable large residentially zoned tracts were: $28,743 per acre, $13,622 per
acre, $43,678 per acre, $34,841 per acre, $27,961 per acre, and $34,167 per acre.
The comparable sales prices ranged from a low of $13,622 per acre to a high of
$43,678 per acre. Foote did not find any raw residential land sales that approached




(continued…)

               6. Restrictions. [Applicant] agrees that it shall not do any of the following
               within the Landscape Easement: place any signs relating to its quarry
               operation; perform any activities incidental to its quarry operations;
               change the finished grading; disturb any of the Vegetation except as
               otherwise permitted in this Agreement; or take any action inconsistent
               with the purposes of the establishment of said Landscape Easement, that
               being to maintain the appearance of a residential development.

F.F. No. 48.



                                                5
the price that Applicant paid for the Hempt Tract. Foote opined that, based on the
comparable sales data, Applicant paid an excessive price for the Hempt Tract.


             In preparation for his testimony, Foote also examined the sales prices
and lot sizes for sales of vacant, single-family building lots along Millfording
Road, which are across the street from the Hempt Tract and the existing quarry.
The sale prices of the five comparable, vacant single-family building lots were: 1
Millfording Road, $172,500; 3 Millfording Road, $136,750; 5 Millfording Road,
$136,750; 7 Millfording Road, $136,750; and, 129 Balfour Drive, $100,000.
Based on the comparable sales, Foote opined the lots depicted on the sketch plans
could reasonably sell in the range of $80,000 to $90,000 per lot.


             Before the ZHB, Applicant asserted, among other things: (1) the
zoning ordinance was invalid because the Hempt Tract was unlawfully reverse spot
zoned; and, (2) in the alternative, Applicant was entitled to a validity variance.
The ZHB rejected both claims.4


             As to Applicant’s reverse spot zoning challenge, the ZHB explained
that spot zoning is the unreasonable or arbitrary classification of a small parcel of
land, dissected or set apart from surrounding properties, with no reasonable basis
for the differential zoning. BPG Real Estate Investors-Straw Party II, L.P. v. Bd.
of Supervisors of Newtown Twp., 990 A.2d 140 (Pa. Cmwlth. 2010). The most
determinative factor in an analysis of a spot zoning question is whether the parcel
      4
         Applicant also asserted the Township Zoning Map was invalid because it failed to
provide for a “fair share” of quarries. The ZHB rejected this claim. Applicant does not
challenge the ZHB’s rejection of its “fair share” argument before this Court.



                                           6
in question is being treated unjustifiably different from similar surrounding land,
thus creating an “island” having no relevant differences from its neighbors. Id.


             Reverse spot zoning occurs when an “island” develops as a result of a
municipality’s failure to rezone a portion of land to bring it into conformance with
similar surrounding parcels that are indistinguishable. Atherton Dev. Co. v Twp.
of Ferguson, 29 A.3d 1197 (Pa. Cmwlth. 2011).


             The ZHB determined the facts presented here bore a strikingly
similarity to the facts presented in Atherton, in which this Court rejected a reverse
spot zoning challenge. Specifically, like the property at issue in Atherton, here the
Hempt Tract is not completely surrounded by land zoned for less restrictive use;
rather, it is adjacent to land zoned and developed for R-1 residential use to the
north and west, and quarry use to the south and east. The ZHB explained there
was no evidence that the R-1 zoning of the Hempt Tract was unjustified. There are
no physical characteristics of the Hempt Tract that distinguish it from either the
land zoned R-1 residential or the land zoned for quarry use. There is also no
evidence that the Hempt Tract cannot, because of any physical or other
characteristics, be developed in accordance with the R-1 district regulations. All of
these facts, the ZHB stated, were strikingly similar to the facts in Atherton.


             In addition, the ZHB distinguished this case from our Supreme
Court’s decision in In re Realen Valley Forge Greenes Associates, 838 A.2d 718
(Pa. 2003), which sustained an applicant’s reverse spot zoning challenge. Thus,
the ZHB rejected Applicant’s reverse spot zoning claim.



                                          7
             As to Applicant’s claim of entitlement to a validity variance, the ZHB
explained a validity variance is based on the theory that an otherwise valid
ordinance is confiscatory when applied to a particular parcel in that it deprives the
owner of any reasonable use of his property. Laurel Point Assocs. v. Susquehanna
Twp. Zoning Hearing Bd., 887 A.2d 796 (Pa. Cmwlth. 2005). In such a case, the
issuance of a variance is necessary to permit a reasonable use of the land and, thus,
prevent an unconstitutional taking of the property. Id.


             To obtain a validity variance, an applicant must establish: (1) the
effect of the regulations complained of is unique to its property and not merely a
difficulty common to other properties in the neighborhood; and, (2) the regulation
is confiscatory in that it deprives the owner of the use of the property. Id. In
addition, the applicant must prove it satisfies the variance criteria set forth in
Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC).5


             To establish the confiscatory nature or the zoning regulation, an
applicant must prove the land has no value or only distressed value. Laurel Point
Assocs. To meet this burden the applicant must show: (1) the physical features of
the property are such that it cannot be used for a permitted purpose; or (2) that the
property can be conformed for a permitted use only at a prohibitive expense; or, (3)
that the property has no value for any purpose permitted by the zoning ordinance.
Laurel Point Assocs.



      5
       Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as
amended, 53 P.S. §10910.2.



                                            8
              Here, the ZHB determined Applicant did not present credible
evidence to prove, by any of the above stated means, that the zoning ordinance is
confiscatory as it relates to the Hempt Tract.             To the contrary, the evidence
established, and the ZHB determined, the zoning ordinance is not confiscatory.
Specifically, the ZHB found there are no physical features of the Hempt Tract
which prevent Applicant from developing it as a 57-lot, single-family residential
development, which is a permitted use.


              In addition, the ZHB found it would not be prohibitively expensive to
develop the Hempt Tract with such a development as the costs would be typical of
a development of its type and size. Lastly, the ZHB found the Hempt Tract has
value as zoned in that the lots in such a development could reasonably sell for
$80,000 to $90,000 per lot. The ZHB also explained the undisputed evidence
revealed the price Applicant paid for the Hempt Tract was more than two to seven
times the “per acre” price paid for comparable, large, residentially zoned parcels.
ZHB Op. at 16.6




       6
          The ZHB further stated Applicant also claimed the Hempt Tract could not be developed
as a single-family residential development because there can be no access from a public street as
a result of the landscape easement agreement. The ZHB rejected this argument. Specifically,
Applicant itself entered into the landscape easement agreement with the developer of Millfording
Highlands. Thus, Applicant agreed to imposition of the landscape easement on the Hempt Tract.
The ZHB stated the landscape easement was a non-exclusive easement established to reduce the
impact of any quarrying activities on the Hempt Tract from affecting the Millfording Highlands
development. Nowhere in the easement agreement does it state that an access road could not be
constructed across the landscape easement from the Hempt Tract onto Millfording Drive or
Sample Bridge Road. Further, even if the landscape easement did prevent access to the Hempt
Tract, it was not a “unique physical feature” that would prevent development of the Hempt Tract
in a manner consistent with the zoning ordinance. ZHB Op. at 17.



                                               9
             For all these reasons, the ZHB rejected Applicant’s requested relief.
Applicant appealed to the trial court.


             Before the trial court, Applicant argued the ZHB erred in rejecting its
reverse spot zoning and validity variance claims.         Without taking additional
evidence, the trial court rejected both of these assertions, and affirmed the ZHB.


             More specifically, the trial court determined the ZHB’s rejection of
Applicant’s reverse spot zoning claim was proper given that the ZHB’s detailed
findings revealed the Hempt Tract is not an island nor is it surrounded by
properties that changed in character. After a discussion of this Court’s decision in
Atherton, and the Supreme Court’s decision in Realen, the trial court stated that,
while the Hempt Tract is contiguously bordered to the east and south by the
existing quarry, there are also contiguous residential zones to the north and west.
Thus, even though the existing quarry expanded in 2011, the Hempt Tract is not
the sole remaining residential property in the immediate area. The trial court also
noted the ZHB’s finding that the Hempt Tract could be used for residential
purposes in accordance with its current zoning classification. As such, unlike the
property at issue in Realen, the Hempt Tract is not a true island, nor has it been left
behind as the character of the surrounding properties changed.


             As to Applicant’s claim that the ZHB erred in denying the requested
validity variance, the trial court explained that Applicant did not establish the
zoning ordinance was confiscatory and did not rebut evidence that the claimed
hardship claimed was self-inflicted. The trial court stated that, in its findings, the



                                          10
ZHB established that the Hempt Tract was economically viable as currently zoned,
and the trial court saw no basis to substitute its judgment for that of the ZHB.


             The trial court further explained that, prior to purchasing the Hempt
Tract, Applicant maintained a 200-foot setback area in the existing quarry within
which mining was not permitted. Upon acquiring the Hempt Tract, the setback
requirement no longer applied because Applicant owned both tracts, and, as a
result, Applicant began mining within the former setback area. In order to develop
the Hempt Tract for residential use, Applicant claimed, it would have to reestablish
the setback, which prevented it from using all of its existing quarry property in the
manner in which it wished to use it. However, the trial court explained, Applicant
purchased the Hempt Tract when it was zoned R-1 residential, and Applicant
created the situation in which it currently found itself by mining in the former
setback area. The fact remains, and the ZHB found, that the Hempt Tract can be
developed as zoned. The trial court explained that, the fact that the zoning of the
Hempt Tract would remain unchanged was a risk Applicant took when it acquired
the Hempt Tract and began mining within the setback area. By its own actions, the
trial court stated, Applicant prevented a determination that the denial of the
requested validity variance resulted in a confiscatory taking.


             For these reasons, the trial court denied Applicant’s appeal and
affirmed the ZHB’s decision. This appeal by Applicant followed.




                                         11
                                         II. Issues
              On appeal,7 Applicant argues the ZHB erred in concluding the Hempt
Tract was not reverse spot zoned and was not subjected to unjustifiably different
treatment from similar surrounding land. Alternatively, Applicant asserts the ZHB
erred in denying Applicant a validity variance in order to avoid an unconstitutional
confiscation of Applicant’s property.


                                    III. Discussion
                                A. Reverse Spot Zoning
                                    1. Contentions
              Applicant first argues the Hempt Tract was subjected to reverse spot
zoning and is being treated differently from surrounding land that is
indistinguishable from it in character to Applicant’s detriment. Applicant contends
that most of the land adjoining the Hempt Tract was rezoned into a Q Quarry
district so that the Hempt Tract is a peninsula largely surrounded by an existing
quarry.


              Applicant maintains neither the size of the Hempt Tract (18.5 acres)
nor its shape as a peninsula precludes it from being characterized as spot-zoned
according to established principles of jurisprudence. Applicant further asserts that
use of the Hempt Tract for quarrying will not adversely affect community health,
safety, morals, or welfare, nor would it impose any additional burden on municipal
infrastructure or services.
       7
         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. Penn Street, L.P. v. E. Lampeter Twp. Zoning Hearing Bd., 84 A.3d 1114 (Pa. Cmwlth.),
appeal denied, 99 A.3d 78 (Pa. 2014). The ZHB is the fact-finder here. Id.



                                             12
             Applicant points out that attached to its brief is an exhibit admitted
during the ZHB hearings that shows the location of the Hempt Tract and
surrounding properties.     On the exhibit, the Hempt Tract is an imperfect,
triangular-shaped parcel marked “B.” To the east and south is the Q Quarry
district, which is now being mined, and is marked “A.” To the west, the Hempt
Tract is bordered by Sample Bridge and Millfording Roads. On the other side of
those roads is R-1 residentially zoned land marked “C.”


             Applicant argues the Hempt Tract was zoned residential R-11 from
1975 to 1995, and R-1 from 1995 to the present. Reproduced Record (R.R.) at
120a. Prior to 1995, the land now occupied by the existing quarry was zoned
Residential R-6 at the southwest and the northwest part was R-11 until 1988. R.R.
at 119a-20a. Then, in 1988, the northwest part of the existing quarry was rezoned
to Mineral Recovery District. R.R. at 120a. In 1995, the entire 167-acre site of the
existing quarry was rezoned as a Q Quarry district. Id.


             As a result of the creation of the Q Quarry district, Applicant
maintains, the Hempt Tract was reverse spot zoned. Applicant claims the Hempt
Tract is a wedge intruding like an arrowhead into the Q Quarry district. Applicant
contends that there is no reasonable basis for treating the Hempt Tract differently
from the land in the Q Quarry district, which borders it on much of its boundary.
The terrain is the same, the soil is the same, the dolomite beneath is the same and
the vegetation is the same. As the ZHB stated in Conclusion of Law No. 25, there
are no features distinguishing it from the land in the Q Quarry district.




                                          13
             Applicant asserts the ZHB and the trial court erred in concluding the
Hempt Tract could not be reverse spot zoned because it was not an “island” and
because it is too large. Applicant maintains the foremost treatise on zoning in
Pennsylvania, states:

             While most ‘spot’ zoning cases involve a smaller use
             ‘island’ located in any area of inconsistent uses, it is not
             necessary that the tract be an island or that it be small.
             The test is whether an area has been treated without
             justification in a manner inconsistent with the
             surrounding area. The ‘island’ is simply the most
             common form of inconsistency.

Robert S. Ryan, PENNSYLVANIA ZONING LAW AND PRACTICE §3.4.9 (revised July
31, 2005).


             Applicant contends the assertion that spot zoning applies only to
“islands” is incorrect. In Atherton, the common pleas court observed, “case law
does not directly address whether or not reserve spot zoning may be claimed when
the tract in question forms a peninsula, rather than an island.” Id. at 1209. This
Court agreed, adding “there is no obvious policy reason why spot zoning
jurisprudence should not fully apply to reverse spot zoning cases.” Id. Applicant
notes that spot zoning jurisprudence includes cases that apply spot zoning
principles to peninsulas. Knight v. Lynn Twp. Zoning Hearing Bd., 568 A.2d 1372
(Pa. Cmwlth. 1990); C.L. Assocs. v. Bd. of Supervisors of Montgomery Twp., 415
A.2d 134 (Pa. Cmwlth. 1980).


             Applicant argues the fact that one side of the Hempt Tract borders on
a road on the other side of which is a R-1 district does not preclude a finding that


                                         14
spot zoning occurred here. It asserts that Baker v. Chartiers Township Zoning
Hearing Board, 677 A.2d 1274 (Pa. Cmwlth. 1996), involved a spot zoning
challenge that is analogous to Applicant’s challenge here. There, this Court held
the property at issue was illegally spot-zoned. In so doing, we stated: “A zone can
be a spot zone even if it is a peninsula surrounded on all but one side by
inconsistently zoned land, as appears to be the case here.” Id.


             Here, Applicant contends, the fact that the Hempt Tract is contiguous
(although separated by a road) to a R-1 district does not bar a finding of spot
zoning. The Hempt Tract is a peninsula jutting into the Quarry district just like the
property at issue in Baker.      Pursuant to Baker, the fact of contiguity to a
consistently zoned district on one side does not bar a finding of spot zoning. Thus,
in Penn Street, L.P. v. East Lampeter Township Zoning Hearing Board, 84 A.3d
1114 (Pa. Cmwlth.), appeal denied, 99 A.3d 78 (Pa. 2014), this Court
acknowledged a peninsula (a parcel surrounded on three of four sides by properties
with less restrictive zoning classifications) could be unlawfully spot zoned.


             Applicant contends the ZHB relied on Atherton for the proposition
that a finding of spot zoning cannot be made where the property is contiguous to
another parcel with the same zoning. It asserts such reliance is erroneous because,
even if Atherton can be read to include such a holding, it conflicts with Baker, a
binding precedent that Atherton neither overruled nor distinguished.


             Applicant further maintains, contrary to the ZHB’s assertion that spot
zoning is limited to “a small parcel of land,” the 18.5 acre Hempt Tract is not too



                                         15
large to be spot zoned. If a parcel is a “single integrated unit,” it makes no
difference if it is a .25-acre lot or a 50-acre industrial complex–it can be spot
zoned. Commercial Props., Inc. v. Peternel, 211 A.2d 514 (Pa. 1965). Thus, the
Supreme Court held the 135-acre tract in Realen was reverse spot- zoned. See also
Baker (221-acre farm was spot zoned); Pace Res., Inc. v. Shrewsbury Twp.
Planning Comm’n, 492 A.2d 818 (Pa. Cmwlth. 1985) (37-acre tract was spot-
zoned); Appeal of Benech, 368 A.2d 828 (Pa. Cmwlth. 1977) (80-acre tract was
spot zoned).


               Applicant asserts the ZHB committed several fundamental errors of
law: (1) it ignored uncontradicted evidence that the Hempt Tract’s characteristics
are indistinguishable from the characteristics of the Q Quarry district, which is
contiguous on two of its three sides; (2) it concluded a parcel must be an “island”
to be spot-zoned; (3) it concluded the 18.5-acre Hempt Tract was too large to be
spot-zoned; and, (4) it ignored that there is no reasonable justification for treating
the Hempt Tract differently from the adjacent Q Quarry district because a 300-foot
setback requirement imposed by state regulations will apply to the border of the
Hempt Tract and the residences across the road, see 25 Pa. Code §§77.126
(A)(4)(ii), 77.504(A)(2), 77.564(G)(4). Because the Hempt Tract was spot zoned,
Applicant asserts, it is entitled to the definitive relief it seeks: use of the Hempt
Tract for quarrying.




                                         16
               The Township8 responds that reverse spot zoning occurs where an
“island” develops as a result of a municipality’s failure to rezone a portion of land
to bring it into conformance with similar surrounding parcels that are
indistinguishable. The Township argues the Hempt Tract is neither completely
surrounded nor surrounded on three sides by land zoned for quarry use; rather it is
adjacent to land zoned and developed for R-1 use to the north and west, and quarry
use to the south and east. The Hempt Tract has no physical characteristics that
distinguish it from either the land zoned residential or the land zoned for quarry
use. There is also no evidence that the Hempt Tract cannot, because of any
physical or other characteristics, be developed in accordance with the R-1 district
regulations. The Township relies on Penn Street and Atherton, in which this Court
rejected reverse spot zoning challenges in similar factual scenarios.


               In its reply brief, Applicant counters that the ZHB and the Township
erroneously rely on the fact that the Hempt Tract is not an “island” in defending
the tract against reverse spot zoning. Applicant argues that, although courts may
consider whether a property is an “island” in reviewing a spot zoning claim, the
fact that a property is not an “island” does not bar a finding of spot zoning or
reverse spot zoning.


               Further, Applicant contends, in refuting a finding of reverse spot
zoning, the Township relies on the fact that the Hempt Tract is adjacent to land
developed and zoned R-1 Residential. Applicant argues this ignores the reality of

       8
       The ZHB indicated it would not file a brief, stating its position is identical to that of the
Township.



                                                17
the Hempt Tract’s location in the Township. While it is true a R-1 district adjoins
the Hempt Tract on the other side of a street, the majority of the Hempt Tract is a
“wedge” (i.e., a peninsula) that extends into the existing Quarry district. The
Hempt Tract is akin to a piece of pie that was engulfed by the quarry. As a result,
Applicant argues, while the Township slowly rezoned the existing quarry from
residential to the now Q Quarry district use over a period from 1988-1995, the
Hempt Tract, which extends into the existing quarry, remains zoned for residential
use. R.R. at 119a-120a. Such action results in the reverse spot zoning of the
Hempt Tract as it is now treated differently than the contiguous quarry without
justification.

                                         2. Analysis
                 At the outset, we note, this Court may not substitute its interpretation
of the evidence for that of the ZHB. Taliaferro v. Darby Twp. Zoning Hearing
Bd., 873 A.2d 807 (Pa. Cmwlth. 2005). It is the ZHB’s function to weigh the
evidence before it. Id. The ZHB is the sole judge of the credibility of witnesses
and the weight afforded their testimony.           Id.   Assuming the record contains
substantial evidence, we are bound by the ZHB’s findings that result from
resolutions of credibility and conflicting testimony. Id.


                 As to the standards employed in analyzing a substantive validity
challenge, in Realen, our Supreme Court explained:

                 [A] zoning ordinance must be presumed constitutionally
                 valid unless a challenging party shows that it is
                 unreasonable, arbitrary, or not substantially related to the
                 police power interest that the ordinance purports to
                 serve[;] nevertheless, [a]mong other reasons, an
                 ordinance will be found to be unreasonable and not

                                             18
             substantially related to a police power purpose if it is
             shown to be unduly restrictive or exclusionary....
             Similarly, an ordinance will be deemed to be arbitrary
             where it is shown that it results in disparate treatment of
             similar landowners without a reasonable basis for such
             disparate treatment.... Moreover, in reviewing an
             ordinance to determine its validity, courts must generally
             employ a substantive due process inquiry, involving a
             balancing of landowners’ rights against the public
             interest sought to be protected by an exercise of the
             police power.

                    Moreover, [t]he substantive due process inquiry,
             involving a balancing of landowners’ rights against the
             public interest sought to be protected by an exercise of
             the police power, must accord substantial deference to
             the preservation of rights of property owners, within
             constraints of the ancient maxim of our common law, sic
             utere tuo ut alienum non laedas. 9 Coke 59-So use your
             own property as not to injure your neighbors. A property
             owner is obliged to utilize his property in a manner that
             will not harm others in the use of their property, and
             zoning ordinances may validly protect the interests of
             neighboring property owners from harm.

                    Hence, the function of judicial review, when the
             validity of a zoning ordinance is challenged, is to engage
             in a meaningful inquiry into the reasonableness of the
             restriction on land use in light of the deprivation of
             landowner’s freedom thereby incurred.

Id. at 728-29 (citations omitted).


             Spot zoning is the “unreasonable or arbitrary classification of a small
parcel of land, dissected or set apart from surrounding properties, with no
reasonable basis for the differential zoning.”     Penn Street, 84 A.3d at 1121
(quoting Atherton, 29 A.3d at 1204); BPG Real Estate Investors, 990 A.2d at 150;
Christman v. Zoning Hearing Bd. of Twp. of Windsor, 854 A.2d 629, 634-35 (Pa.


                                         19
Cmwlth. 2004). “When faced with a spot zoning challenge, a reviewing court
must presume the zoning ordinance is valid and constitutional; the burden of
proving otherwise is on the challenging party, who must show that the provisions
are arbitrary and unreasonable, and have no relation to the public health, safety,
morals, and general welfare.” Id. (quoting Atherton, 29 A.3d at 1204); Christman,
854 A.2d at 635.


             “Spot zoning must be clearly established; if the validity of the
rezoning ordinance is debatable, it must be permitted to stand.” Id. The most
determinative factor in an analysis of a spot zoning question is whether the parcel
at issue is being treated unjustifiably different from similar surrounding land, thus
creating an “island” having no relevant differences from its neighbors. Id.


             “There is no precise formula for determining whether a classification
of property constitutes spot zoning and cases should be decided on the facts guided
by case law.” Id. (quoting Sharp v. Zoning Hearing Bd. of Twp. of Radnor, 628
A.2d 1223, 1228 (Pa. Cmwlth. 1975)).


             Reverse spot zoning, the theory advanced by Applicant, occurs where
an “island” develops as a result of a municipality’s failure to rezone a portion of
land to bring it into conformance with similar surrounding parcels that are
indistinguishable. Realen; Penn Street; Atherton; Briar Meadows Dev., Inc. v. S.
Centre Twp. Bd. of Supervisors, 2 A.3d 1303 (Pa. Cmwlth. 2010); LHT Assocs. v.
Twp. of Hampton, 809 A.2d 1072, 1075 (Pa. Cmwlth. 2002); Guentter v.
Montgomery Cnty., Borough of Lansdale, 345 A.2d 306 (Pa. Cmwlth. 1975).



                                         20
            Here, in rejecting Applicant’s reverse spot zoning claim, the ZHB
made the following pertinent findings (with emphasis added):

            2. [Applicant] is the owner of an approximately 18.5 acre
            vacant tract of land located at the intersection of
            Millfording Road and Sample Bridge Road … (N.T. pp.
            46, 299, Township Exhibits 20 and 21)

            3. The [Hempt Tract] is zoned R-1, Residential Zone.
            (N.T. p[.] 302; Township Exhibits 19A and 19B).

            4. The [Hempt Tract] was also zoned R-1 Residential
            Zone when [Applicant] purchased it. (N.T. p. 46).

            5. [Applicant] is the owner and operator of an existing
            quarry that abuts the eastern and southern sides of the
            [Hempt Tract] …. N.T. pp. 46, 302, Township Exhibits
            20 and 21.

                                       ****

            10. The [e]xisting [q]uarry is zoned Q, Quarry Zone.
            (N.T. p. 28; Township Exhibits 19A and 19B).

            11. The [Hempt Tract] is butted to the west and north by
            land zoned R-1 Residential Zone, including the
            Millfording Highlands development. (N.T. pp. 302-303;
            Township Exhibits 20 and 21).

            12. Prior to its purchase by [Applicant], the [Hempt
            Tract] was part of the Millfording Highlands
            development. (N.T. p. 305).

            13. Other than its geological suitability for quarrying, the
            [Hempt Tract] does not have any extraordinary physical
            features, it is relatively flat in nature and it is adjacent to
            the Millfording Highlands development. (N.T. pp. 229,
            303, 341). The geological suitability of the [Hempt Tract]
            for quarrying does not impact upon its suitability for
            development consistent with the permitted uses in the
            district.


                                          21
            14. The [Hempt Tract] is similar to the properties to the
            north of the tract. (N.T. p. 303).

            15. The [Hempt Tract] is not surrounded by land that is
            zoned other than or less restrictively than R-1 Residential
            Zone. (N.T. [pp.] 302-303; Township Exhibits 20 and
            21).

            16. [Applicant’s] [e]xisting [q]uarry is virtually
            surrounded by residential and commercial uses. (N.T. p.
            306; Township Exhibits 20 and 21).

            17. There are no unique physical characteristics on the
            [Hempt Tract] which would prevent it from being used
            for something for which it is zoned. (N.T. pp. 48, 340-
            346; Township Exhibits 25 and 26).

ZHB Op., 5/12/14, Findings of Fact (F.F.) Nos. 2-5, 10-17. Additionally, the ZHB
made the following pertinent conclusions of law (with emphasis added):

            23. The [Hempt Tract] is not completely surrounded by
            land zoned Quarry, rather it is adjacent to land zoned and
            developed as R-1 Residential to the north and [west] and
            Quarry to the south and east.

            24. There is no evidence that the R-1 zoning the [Hempt
            Tract] is unjustified.

            25. There are no physical characteristics of the [Hempt
            Tract] which distinguish it from either the land zoned R-1
            Residential or the land zoned Quarry.

            26. There is no evidence that the [Hempt Tract] cannot,
            because of any physical or other characteristics[,] be
            developed in accordance with the R-1 Residential
            District.

            27. Because the facts of Realen are vastly different from
            those of the present case, the Realen decision is not
            controlling.



                                        22
             28. [Applicant] has not met its burden of proof to show
             that a reverse spot zone has been created with regard to
             the [Hempt Tract].

ZHB Op., Concls. of Law Nos. 23-28. Upon review, we discern no error in the
ZHB’s rejection of Applicant’s reverse spot zoning claim.


             Specifically, the irregularly-shaped Hempt Tract is neither an
“island,” nor as Applicant contends, a “peninsula,” which is completely
surrounded, or surrounded on all but one side by properties with less restrictive
zoning classifications.    Indeed, our review of the record confirms the ZHB’s
determinations that, although the property to the south and east of the Hempt Tract
is zoned for Quarry use, the properties to the north and west are zoned R-1
Residential, like the Hempt Tract. See F.F. Nos. 5, 11, 33; R.R. at 325a, 399a.
Indeed, Millfording Highlands, a large residential development, is located to the
north of the Hempt Tract, and the Hempt Tract is bounded by Millfording Road,
which accesses the Millfording Highlands residential development. F.F. No. 34;
R.R. at 325a.


             In addition, the R-1 Residential zoning classification of the Hempt
Tract, as compared to the Q Quarry zoning classification of the property to the
south and east, is justified. To that end, the ZHB, as fact-finder, found that prior to
Applicant’s purchase the Hempt Tract was part of the Millfording Highlands
residential development.     F.F. No. 12; R.R. at 289a.       Further, other than its
geological suitability for quarrying, the Hempt Tract has no extraordinary physical
features, it is relatively flat, and it is adjacent to the Millfording Highlands
development. F.F. No. 13; R.R. at 287a, 325a. The ZHB found the Hempt Tract is


                                          23
similar to the residentially zoned properties to its north, F.F. No. 14; R.R. at 287a,
and it contains no unique physical features that would prevent Applicant from
using it for a permitted use in the R-1 district. F.F. No. 17; R.R. at 102a, 323a-
330a, 409a-410a. Thus the ZHB expressly determined there was no evidence that
the Hempt Tract’s R-1 zoning classification was unjustified. Concl. of Law No.
24.


             Nevertheless, Applicant points to the fact that the existing quarry,
which lies to the south and east of the Hempt Tract, was zoned for residential use
until 1995, when it was rezoned for quarry use, while the Hempt Tract retained its
residential zoning classification. However, Applicant makes no assertion that the
properties to the north and west of the Hempt Tract, which are currently zoned for
residential use, were rezoned from more restrictive zoning classifications over
time.    Thus, Applicant offers an incomplete picture of the rezoning of the
surrounding properties, which is insufficient to bolster its reverse spot zoning
claim.


             Further, contrary to Applicant’s assertions, the ZHB did not reject
Applicant’s reverse spot zoning claim simply because the Hempt Tract is not an
“island” of residentially zoned land or because it is too large. Rather, the ZHB
employed the correct analysis in evaluating Applicant’s reverse spot zoning claim.
As stated above, the most determinative factor in an analysis of a spot zoning
question is whether the parcel at issue is being treated unjustifiably different from
similar surrounding land, thus creating an “island” having no relevant differences




                                         24
from its neighbors. Here, the ZHB determined the Hempt Tract is not an “island”
that is being treated unjustifiably different from surrounding properties.


             Moreover, while Applicant repeatedly refers to the Hempt Tract as a
peninsula, which is surrounded on two of its three sides by less restrictively zoned
properties, our review of the zoning map belies this assertion. See R.R. at 399a (a
color version of which is appended to the Township’s brief). Additionally, even if
Applicant were correct in its characterization of the Hempt Tract as a “peninsula,”
in our 2014 decision in Penn Street, we recognized that, “up to this point there has
been no successful claim of reverse spot zoning in a ‘peninsula’ [(as opposed to an
‘island’)] fact situation.” Id. at 1126 (quoting Atherton, 29 A.3d at 1209).


             Moreover, in Penn Street and Atherton, we rejected claims of spot
zoning in cases that presented fairly similar factual scenarios to the facts presented
here. First, in Atherton, the applicant filed a validity challenge to the township
zoning map questioning the high density residential zoning classification of its
property. It sought to have the property rezoned for commercial use. The local
governing body rejected the applicant’s claim that its property was reverse spot
zoned. The common pleas court affirmed.


             In upholding the rejection of the applicant’s reverse spot zoning
challenge, this Court explained that the property at issue was not entirely
surrounded by commercially zoned properties; rather, it was bounded on one side
by residential use and partially, on another side, by residential use.          More
importantly, there was no indication that the property’s residential zoning



                                         25
classification was unjustified.     To the contrary, the fact-finder reasonably
explained why the property was treated differently than some of the surrounding
areas. The fact-finder also determined the property was more compatible with the
adjoining residential land than the adjoining commercial land, and it offered
record-based reasons for its determination. Additionally, while the applicant’s
witnesses expressed their preference to develop the property for commercial use,
the applicant conceded the subject property was indistinguishable in character from
the adjoining residential use.


             Thereafter, in Penn Street, the applicant filed a substantive validity
challenge to a township zoning ordinance, claiming, among other things, the rural
zoning classification of its property constituted reverse spot zoning.        There,
commercial properties bordered the applicant’s property to the north and east,
while the properties to the south and west were zoned rural like the applicant’s
property. The zoning board rejected the applicant’s reverse spot zoning claim, and
the common pleas court affirmed.


             On further appeal, this Court affirmed, explaining the property was
neither an island nor a peninsula of land surrounded by properties with less
restrictive zoning classifications. Further, the rural zoning of the property was not
unjustified because the commercially zoned properties had frontage on the area’s
primary commercial artery, while the applicant’s property did not. This Court also
pointed to the zoning board’s finding that the applicant’s property had no physical
features that differed substantially from the rural zoned properties to the south and
west.



                                         26
                Further, in both Atherton and Penn Street, we explained that where
“an honest difference of opinion” exists as to how a property should be zoned, and
“sound policy” could support a decision that a property was properly zoned for
either of two competing zoning classifications, we could not disturb a local
governing body’s legislative decision. Penn Street, 84 A.3d at 1126 (quoting
Atherton, 29 A.3d at 1207). Thus, “[i]t is well established that, if the validity of
the legislation is fairly debatable, the legislative judgment must be allowed to
control.” Id.


                Moreover, in both Atherton and Penn Street, we distinguished Realen,
discussed by Applicant here. We explained that Realen involved “the validity of
the agricultural zoning of a tract located in the heart of one of the most highly
developed areas in the region, entirely surrounded by an urban landscape, and
immediately adjacent to what is currently the world’s largest shopping complex at
one discrete location: the Court and the Plaza at King of Prussia.” Realen, 838
A.2d at 720.       The 135-acre property at issue in Realen, which was zoned
agricultural, was used as a golf course and was located at the confluence of the
region’s primary arterial highways and immediately adjacent to one of the most
intensely developed commercial areas in the region. Although surrounding tracts
were originally zoned for agricultural use, between 1955 and 1985, the vast
majority of the properties in the agricultural district were rezoned to permit intense
commercial development, with the exception of the golf course tract.             The
equitable owner of the golf course tract, who sought to develop it for a large multi-
use development, challenged the validity of the tract’s agricultural zoning. The
zoning board, court of common pleas and this Court rejected the challenge.



                                          27
            On further appeal, however, a majority of the Supreme Court
sustained the developer’s reverse spot zoning challenge. In so doing, the Court
employed a substantive due process analysis, balancing the landowner’s rights
against the public interest sought to be protected by an exercise of the police
power. The Court explained that in reviewing a spot zoning challenge, the critical
inquiry is whether the rezoned land was treated unjustifiably different from similar
surrounding land. It stated, “[t]he question is whether the lands at issue are a
single, integrated unit and whether any difference in their zoning from that of
adjoining properties can be justified with reference to the characteristics of the
tract and its environs.” Id. at 730. The Court concluded no difference in the
zoning could be justified. Specifically, the Court, speaking through former Justice
Lamb, stated:

            We hold that th[e] agricultural zoning [of the property at
            issue], designed to prevent development of the [property
            at issue] and to ‘freeze’ its substantially undeveloped
            state for over four decades in order to serve the public
            interest as ‘green space’, constitutes unlawful ‘reverse
            spot zoning’ beyond the municipality’s proper powers.
            …

                   Of the land characteristics offered by the zoning
            board in support of its rejection of the spot zoning
            challenge, only the size of the tract and its location
            entirely bounded by arterial highways, are the subject of
            any discussion. There can be no question, as the zoning
            board found, that arterial roadways are, in many
            instances, an appropriate feature to be designated as the
            boundary between incompatible zoning districts. But the
            issue here is not whether any zoning district designation
            could be appropriately applied to the [g]olf [c]lub’s lands
            but whether the [agricultural zoning] [d]istrict
            designation can be so justified. It turns reason and land
            planning precepts on their head to assert, as the zoning
            board’s decision implies, that this tract’s restricted,

                                        28
agricultural zoning is justified by its ready access to the
region’s primary arterial roads on every hand. Apart from
a bare assertion that it is so, neither the zoning board nor
the courts below have offered either reason or authority
to support the proposition, essential to the propriety of
the decision here reviewed, that the location of [the]
highways [that entirely bound the golf course property]
makes agricultural zoning appropriate for this tract while
the properties on the opposite side of the same roadways
are appropriately zoned and developed for intense,
commercial use. Any relationship between agricultural
zoning and the other tract characteristics identified in the
decisions below, including the property’s topography and
shape, is similarly unexplored in the evidence of record,
the findings of the [b]oard, or the arguments of appellees.
…

       On this record, no characteristic of the [g]olf
[c]lub’s property justifies the degree of its developmental
restriction by zoning as compared to the district
designation and use of all of the surrounding lands both
within the [t]ownship and in the adjoining municipality.
This is spot zoning.

      We recognize that the circumstances here
presented differ factually from the spot zoning cases we
have previously decided in the chronology of the
municipal action creating the unjustified ‘island’ of
disparate zoning. In previous cases, the island was
created by a single municipal act directed toward the
property which became the disputed island; either to that
property owner’s benefit or detriment. Here, in contrast,
the [g]olf [c]lub’s status as an island of agricultural
zoning was the product of a series of rezonings of
surrounding properties beginning in the 1950’s and
ending in about 1985.

       [The developer] contends that the origin of a
tract’s unjustified zoning treatment as compared to
adjoining properties is not decisive and we agree. It is
the difference in treatment that must be justified, not its
origin or chronology. Some courts have used the term
‘reverse spot zoning’ to describe the circumstances where

                            29
              the unjustified difference in treatment arises from the
              rezoning of lands surrounding the tract at issue and this
              term appropriately underscores the distinction between
              cases like that here presented where an island is created
              by the rezoning of other land from the more common
              situation where the challenged legislation is that creating
              the island tract.

Id. at 721, 730-31 (emphasis in original). As a result, the Supreme Court sustained
the developer’s validity challenge.9


              For the reasons set forth above, the case presently before this Court is
distinguishable from Realen. Specifically, the Hempt Tract is not completely
surrounded or surrounded on three sides by properties with less restrictive zoning
classifications. In fact, the properties to the north and west of the Hempt Tract are
zoned R-1 Residential, like the Hempt Tract.                More importantly, the ZHB
determined there was no evidence that the R-1 residential zoning of the Hempt
Tract was unjustified.       ZHB Op., Concl. of Law No. 24.               The ZHB further
determined that the Hempt Tract is similar to the residentially zoned properties to
its north; in fact, it was previously part of the existing Millfording Highlights
residential development. F.F. Nos. 12, 14. Additionally, the Hempt Tract has no
unique physical characteristics that would prevent Applicant from using it for a
permitted use in the R-1 district. F.F. No. 17; Concl. of Law No. 26. Thus, the
present case is more akin to Penn Street and Atherton than Realen.




       9
         In a thoughtful dissenting opinion, Justice (now Chief Justice) Saylor opined that the
zoning board’s supported findings warranted rejection of the reverse spot zoning challenge.



                                              30
            We also reject Applicant’s reliance on Baker.         There, the local
governing body amended the zoning ordinance resulting in the rezoning of a 221-
acre farm from agricultural to industrial. The rezoned land was adjacent to an
existing landfill, and the rezoning occurred at the request of the landfill’s owner.
An objector challenged the validity of the rezoning, and the zoning board rejected
the challenge.   On appeal, however, the common pleas court reversed.             It
determined the zoning board erred in concluding the parcel was not spot zoned,
based on several factors, including: (1) the local governing body’s failure to
provide a full and fair examination of the impact the rezoning would have on
adjacent properties; (2) the special relationship between the landfill owner and the
local governing body that led to an expedited deliberation process to the detriment
of the public interest; and, (3) the township’s knowing failure to comply with the
statutory mandate to submit the comprehensive plan to the planning commission
for comparison with the rezoning request.


            On further appeal to this Court, the landfill operator asserted the
objector did not meet her burden of proving the rezoning constituted an illegal spot
zone. We disagreed. Preliminarily, we rejected the argument that the parcel’s
large size, by itself, precluded a determination that it was spot zoned. We also
determined that the fact that the parcel was not an “island” entirely surrounded by
inconsistently zoned properties was not dispositive as a “peninsula” surrounded on
all but one side by inconsistently zoned land could be considered spot zoned.


            Of greater significance to our determination, we explained that one
factor that was indicative of spot zoning was that the township did not comply with



                                        31
the MPC’s mandate regarding submission of a comprehensive plan to the planning
commission for comparison with a rezoning request.         Failure to submit the
comprehensive plan to the planning commission to determine whether or not the
rezoning complied with the comprehensive plan indicated the deliberation process
was expedited to the detriment of the public interest. Although the common pleas
court refrained from labeling the rezoning “contract zoning,” we stated the
procedural irregularities revealed the zoning board did not make a full and fair
examination of the impact of the rezoning in its attempt to accommodate the
landfill operator.   Thus, we held the zoning board erred in determining the
rezoning of the farm did not constitute spot zoning.


             Here, Applicant argues, to the extent the ZHB relied on Atherton for
the proposition that when a parcel is bounded on one side by land subject to the
same zoning classification, a spot zoning claim must fail, such an interpretation
conflicts with Baker, which held that a parcel that is a “peninsula” (surrounded on
all but one side by inconsistently zoned land), can be considered spot zoned. This
argument lacks merit for two reasons.


             First, in Atherton, we acknowledged the common pleas court’s
observation that, while our case law reveals that a peninsula may constitute spot
zoning in the appropriate case, see Knight; C.L. Assocs., the law was silent as to
whether a peninsula could form the basis for a reverse spot zoning claim. We
agreed with this observation, adding: “While there is no obvious policy reason why
spot zoning jurisprudence should not fully apply to reverse spot zoning cases, we
acknowledge that up to this point there has been no successful claim of reverse



                                         32
spot zoning in a ‘peninsula’ fact situation.” Atherton, 29 A.3d at 1209. Thus,
there is no conflict between Atherton and Baker, and a careful review of the ZHB’s
decision reveals it did not interpret Atherton in a manner that conflicts with Baker.
More importantly, as discussed above, the Hempt Tract is not a peninsula that
adjoins similarly zoned land on only one side; rather, the ZHB’s supported findings
reveal the properties to both the north and west of the Hempt Tract are zoned R-1
Residential.


                                 B. Validity Variance
                                    1. Contentions
               Alternatively, Applicant contends it also sought a validity variance in
order to avoid an unconstitutional confiscation of its land. It asserts a municipality
may utilize zoning only if it is substantially related to protection of public health,
safety, or welfare; neither zeal nor worthwhile objectives justify impinging on the
rights of private property owners. Applicant argues a validity variance is a method
of avoiding a needless confiscation of property. It further maintains the zoning
ordinance here violates these constitutional precepts as applied to Applicant’s
parcels, the Hempt Tract and the adjoining quarry. Applicant contends the ZHB
erred in denying Applicant’s validity variance request.


               To that end, Applicant maintains the zoning ordinance confiscates its
land by needlessly placing next to a Q Quarry district, a R-1 district, which
deprives Applicant of the ability to use a significant part of the existing quarry for
its permitted use. Specifically, Applicant argues, if the requested variance is
denied, Applicant will be either unable to use 300-feet of the existing quarry (the
required setback for a quarry from a residential development), or it will be unable


                                          33
to use the Hempt Tract for many years while it mines the quarry. If a variance
allowing quarrying on the Hempt Tract is granted, all of the existing quarry can be
mined, a substantial part of the Hempt Tract can be mined, and the 300-foot
setback can be provided. Applicant asserts that, if the variance is granted, the
public health, safety and general welfare will be protected, and it will be allowed
the economically viable use of both the Hempt Tract and the existing quarry. An
unnecessary confiscation of private property can be avoided through the grant of
the validity variance.


             Applicant asserts that a validity variance may be granted where an
applicant establishes: (1) the effect of the regulations complained of is unique to
the applicant’s property and not merely a difficulty common to other lands in the
neighborhood; and (2) the regulation is confiscatory in that it deprives the owner of
the use of the property. Hersh v. Zoning Hearing Bd. of Marlborough Twp., 493
A. 2d 807 (Pa. Cmwlth. 1985); E. Torresdale Civic Ass’n v. Zoning Bd. of
Adjustment, 481 A. 2d 976 (Pa. Cmwlth. 1984), aff’d, 499 A.2d 1064 (Pa. 1985).
Applicant contends it satisfied these two criteria.


             In particular, Applicant first argues the zoning ordinance denies it the
economically viable use of its land and, therefore, works a confiscation. While the
Hempt Tract can be used for residential purposes, the R-1 zoning of the Hempt
Tract needlessly prevents Applicant’s permitted use of a substantial part of its
adjoining property in the Q Quarry district. By legislating that the permitted use of
the Hempt Tract is residential, Applicant argues, the Township needlessly placed
an inconsistent use next to a Q Quarry district, which, as a matter of law, prevents



                                          34
Applicant from the permitted use of a substantial part of its land in the Quarry
district. Applicant points out that state regulations require a 300-foot setback from
the nearest occupied dwelling, school, park, or institutional building not owned by
the quarry operator. 25 Pa. Code §§77.126(A)(4)(ii), 77.504(A)(2), 77.564(G)(4).


             Applicant maintains there is no economically viable use of its land in
the Q Quarry district for anything other than extraction of dolomite.              The
Township legislated that the Hempt Tract is to be used for residences. Under the
Township’s zoning scheme, if the Hempt Tract is put to its only viable permitted
use (residential), a substantial part of Applicant’s existing quarry cannot be used
for its permitted use (extraction of dolomite). Alternatively, if Applicant uses the
existing quarry for its permitted use, it cannot use the Hempt Tract for residences.
Applicant contends it owns both tracts, and it has a right as the owner to make
economically viable use of each. To deprive it of the ability to use a significant
portion of one of its tracts because of the permitted use of an adjoining tract that it
owns is a confiscation. The zoning scheme currently in place needlessly forces
Applicant to choose which of its properties it will use.


             Applicant acknowledges that a party seeking a validity variance must
comply with the traditional variance requirements of Section 910.2(a) of the MPC.
Laurel Point Assocs. However, it asserts, not all of these requirements must be
met, only those that are “relevant.” Id. at 801, n.9. Importantly “unnecessary
hardship” is established by proof of needless confiscation. Id. at 801. Here,
Applicant contends, it did not create the hardship; rather, the zoning ordinance
creates the confiscation.



                                          35
            The Township counters that a validity variance is based on the theory
that an otherwise valid ordinance is confiscatory when applied to a particular
parcel, in that it deprives the owner of any reasonable use of his property. Laurel
Point Assocs. To establish the confiscatory nature of the zoning regulation, an
applicant must prove the land has no value or only distressed value. To meet this
burden the applicant must show: (1) the physical features of the property are such
that it cannot be used for a permitted purpose; or (2) that the property can be
conformed for a permitted use only at a prohibitive expense; or, (3) that the
property has no value for any purpose permitted by the zoning ordinance. Id.


            The Township argues, in order to obtain a validity variance, the
applicant must establish: (1) the effect of the regulations complained of is unique
to the applicant’s property and not merely a difficulty common to other lands in the
neighborhood; and, (2) the regulation is confiscatory in that it deprives the owner
of the use of the property. Id. Additionally, the applicant must also comply with
the variance criteria in Section 910.2 of the MPC.


            The Township maintains Applicant did not present credible evidence
to prove, by any of the above means, that the zoning ordinance is confiscatory as to
the Hempt Tract. In contrast, the Township proved the zoning ordinance is not
confiscatory. The Township showed there are no physical features of the Hempt
Tract that would prevent it from being used as a 57-lot, single-family residential
development, which is a permitted use. R.R. at 323a-29a, 409a, 410a.




                                        36
             In addition, the Township argues it showed it would not be
prohibitively expensive to develop the Hempt Tract as a residential development,
the costs of which would be typical of a development of its type and size. R.R. at
330a. The Township asserts it showed that the Hempt Tract has value as zoned in
that the lots in such a development could reasonably sell for $80,000 to $90,000
per lot. R.R. at 342a, 343a, 413a-18a. The Township also contends that it showed
the price Applicant paid for the Hempt Tract was more than two to over seven
times the “per acre” price paid for comparable, large, residentially zoned parcels.
R.R. at 339a-343a, 419a, 420a.


             The Township notes that, in its brief, Applicant does not contest that
the Hempt Tract can be developed as a residential development in accordance with
its R-1 regulations, but rather it contends doing so would preclude it from
continuing to quarry within the required setback. See Section 223.8 of the zoning
ordinance (requiring a minimum setback of 200 feet for mining from any property
line of properties not owned or controlled by the operator of the principal use).


             The Township argues that, prior to Applicant’s purchase of the Hempt
Tract in 2007, the mining operation of the existing quarry was set back 200 feet
from the property line that separates the Hempt Tract from the existing quarry.
After the purchase of the Hempt Tract, Applicant, under Section 223.8 of the
zoning ordinance, was no longer required to maintain the 200-foot setback because
Applicant, the operator of the existing quarry, also owned the Hempt Tract.
Applicant was then able to mine within the 200-foot setback up to 25 feet from the
property line. R.R. at 97a. In the event the Hempt Tract is sold for residential



                                         37
development, Applicant would be required to reinstate the 200 foot mining setback
and stop mining within the setback. Id. The Township points out that Applicant
argues that, as a result, the existing quarry property within the 200 foot setback
would be “confiscated,” and it is entitled to a validity variance. The Township
maintains this argument fails for several reasons.


             First, Applicant applied for a validity variance for the Hempt tract, not
the existing quarry. The fact that the Hempt Tract is zoned R-1 and can be
developed in accordance with R-1 regulations does not result in the confiscation of
any part of the Hempt Tract. Second, the test for a validity variance requires that
Applicant prove the Hempt Tract has no value or only distressed value to establish
a confiscation. To meet this burden, Applicant had to show: (1) the physical
features of the Hempt Tract are such that it cannot be used for a permitted purpose;
or (2) the Hempt Tract can be conformed for a permitted use only at a prohibitive
expense; or (3) the Hempt Tract has no value for any purpose permitted by the
zoning ordinance. Having a potentially adverse impact on an adjacent property
owned by the same entity is not grounds for a validity variance on the Hempt
Tract. The Township asserts Applicant did not prove or even offer any evidence to
meet the required burden for a validity variance.


             Lastly, the Township argues, Applicant mined within the 200-foot
setback of the existing quarry since it purchased the Hempt Tract and may continue
to do so until it sells the Hempt Tract or depletes the minerals. If it had not
purchased the Hempt Tract, it would have never been able to mine within the
existing setback. Thus, the Township asserts Applicant used the Hempt Tract to



                                         38
further its quarry use despite the fact that no quarrying takes place on the Hempt
Tract. Applicant chose to mine in the 200-foot setback despite the fact that the
Hempt Tract is zoned R-1, and if it were ever developed residentially and the lots
sold, Applicant would be required to stop mining in the setback. The Township
contends Applicant either knew or should have known at the time it began mining
in the setback that at some point it would have to choose between continuing to
mine in the setback or developing the Hempt Tract. By mining in the setback,
Applicant created its own hardship and an artificial confiscation.


             In its reply brief, Applicant maintains it seeks a validity variance on
one of its tracts (the Hempt Tract) to avoid needless confiscation of land on
another of its tracts (the existing quarry).    Because the Township created an
inconsistent use zone (residential) adjacent to a quarry zone, a significant part (300
feet) of the quarry is rendered unusable for the otherwise permitted quarrying use.
The zoning ordinance allows quarrying as the permitted use in the Quarry district,
but because of the residential zoning of the Hempt Tract, Applicant cannot extract
dolomite from a large part of its existing quarry unless it does not use the Hempt
Tract for decades. This fact is undisputed.


             Applicant further notes that, in its brief, the Township contends the
Hempt Tract can be used for residences. However, it maintains, this position
ignores the fact that doing so needlessly deprives Applicant of its ability to mine a
large part of its land in the Q Quarry district as permitted by the zoning ordinance.




                                         39
             Applicant contends the Township also argues Applicant did not
request a variance for the existing quarry.          Applicant responds that, because
quarrying is a permitted use in the zoning district in which the existing quarry lies,
no variance is needed for the existing quarry.


             Applicant further argues that, although the Township contends
Applicant created its own hardship, Applicant did not create the confiscation of its
land by needlessly placing inconsistent zones contiguously and by failing to
provide relief from the resulting confiscation. Rather, by purchasing the Hempt
Tract, Applicant enabled the grant of a validity variance to avoid loss of use of its
land without harm to the community.

                                       2. Analysis
             A validity variance is granted when a zoning regulation is restrictive
to the point of confiscation, and the variance is necessary to permit a reasonable
use of the land. Hoffman Mining Co., Inc. v. Zoning Hearing Bd. of Adams Twp.,
958 A.2d 602 (Pa. Cmwlth. 2008). The applicant can establish the confiscatory
nature of the zoning regulation by proving the land has no value or only distressed
value because of the regulation. Id.


             A validity variance “differs from the ‘normal variance’ in that the
‘normal variance’ is granted to adjust the zoning regulation to the particular
property; a validity variance holds that the zoning regulation is restrictive to the
point of confiscation and requires the issuance of a variance permitting a
reasonable use of the land.” Hunt v. Zoning Hearing Bd. of Conewago Twp., 61
A.3d 380, 383-84 (Pa. Cmwlth. 2013) (quoting Hersh, 493 A.2d at 811)); see also


                                           40
Nowicki v. Zoning Hearing Board of Monaca, 91 A.3d 287 (Pa. Cmwlth. 2014).
When a validity variance is warranted, its issuance prevents an unconstitutional
taking. Hunt; Laurel Point Assocs. In other words, a validity variance request is
asserted in circumstances that essentially merit a zoning amendment. Id.


             An applicant for a validity variance must satisfy numerous criteria.
Hunt. Where applicable, an applicant must establish that: “(1) the effect of the
regulations complained of is unique to the applicant’s property and not merely a
difficulty common to other land in the neighborhood; and (2) the regulation is
confiscatory in that it deprives the owner of the use of the property.” Id. at 384
(quoting Laurel Point Assocs., 887 A.2d at 801)).


             An applicant for a validity variance also must comply with the
requirements for a variance found in Section 910.2 of the MPC. Id. However, an
applicant need not meet each and every element necessary for the grant of a
traditional variance in order to establish grounds for a validity variance. Id. To
that end, Section 910.2(a) of the MPC requires a ZHB to make findings regarding
the variance criteria “where relevant,” meaning that “not all criteria must be
satisfied in every case and that the quantum of proof necessary to establish a
particular criterion may vary depending on the type of variance sought.” Id.
(quoting Laurel Point Assocs., 887 A.2d at 801 n.9).


             Finally, in order to show a property has no value or only a distressed
value as a result of the regulation, an applicant for a validity variance must
establish: “(1) the physical features of the property are such that it cannot be used



                                         41
for a permitted purpose; or (2) that the property can be conformed for a permitted
use only at a prohibitive expense; or (3) that the property has no value for any
purpose permitted by the zoning ordinance.” Id. at 385 (quoting Laurel Point
Assocs., 887 A.2d at 802). In a validity variance case, the key is the actuality of
confiscation. Laurel Point Assocs.


            Here, after setting forth the applicable principles governing validity
variances and a discussion of this Court’s decision in Laurel Point Associates, the
ZHB explained:

                   Applicant failed to provide credible evidence to
            prove, by any of the aforementioned means, that the
            [z]oning [o]rdinance is confiscatory with regard in the
            [Hempt Tract]. In contrast, the evidence established and
            the [ZHB] finds that the [z]oning [o]rdinance is not
            confiscatory. The [ZHB] finds that there are no physical
            features of the [Hempt Tract] that would prevent it from
            being used as a 57 lot single family residential
            development, which is a permitted use on the [Hempt
            Tract]. (N.T. pp. 339-345; Township Exhibits 25 and 26).
            In addition the [ZHB] finds that it would not be
            prohibitively expensive to develop the [Hempt Tract] into
            such a development, the costs of which would be typical
            of a development of its type and size. (N.T. p.346).
            Lastly, the [ZHB] finds that the [Hempt Tract] has value
            as zoned in that the lots in such a development could
            reasonably sell for $80,000.00 to $90,000.00 per lot.
            (N.T. pp. 359-360; Township Exhibit 28, pp. 1-6). In
            addition the uncontradicted evidence finds that the price
            [Applicant] paid for the [Hempt Tract] was more than
            two (2) to over seven (7) times the per acre price paid for
            comparable, large, residentially zoned parcels. (N.T. pp.
            355-359; Township Exhibit 28, pp. 7-8). …

ZHB Op. at 16.



                                        42
             Upon review, we discern no error in the denial of Applicant’s validity
variance request in light of the ZHB’s supported findings that: (1) the Hempt Tract
has no unique physical features that prevent it from being developed for a 57-lot
residential development, a permitted use in the R-1 district, R.R. at 323a-330a,
409a-410a; (2) it would not be prohibitively expensive to develop the Hempt Tract
for this permitted use, R.R. at 329a-330a; and, (3) when divided into lots for
single-family homes in a 57-lot residential development, such lots could
reasonably sell for $80,000 to $90,000 per lot, R.R. at 345a. See Laurel Point
Assocs. (rejecting developer’s validity variance request seeking to use residentially
zoned property for commercial office buildings where zoning board’s supported
findings revealed developer could use property for permitted residential
development); Hersh (rejecting applicant’s request for a validity variance to use
residentially zoned property for mining and quarrying where zoning board found
that residential use of property was possible).


             Further, that it may be more profitable for Applicant to use the Hempt
Tract for quarrying does not entitle Applicant to a validity variance. Laurel Point
Assocs. A landowner is not entitled to a validity variance simply because an
ordinance deprives it of the most lucrative and profitable uses. Id. Thus, in
Hoffman Mining, we explained, in a validity variance case, “an owner who was
claiming that the zoning deprived him of the use of the property had to show not
only that the coal could not be mined, but that the property could not be reasonably
used for any other purpose.” Id. at 612 (citing Machipongo Land & Coal Co., Inc.
v. Commonwealth, 799 A.2d 751 (Pa. 2002)).




                                          43
              In its brief, Applicant does not dispute that it can develop the Hempt
Tract for a residential development in accordance with the R-1 district regulations,
as found by the ZHB. Instead, it advances the rather convoluted argument that
development of the Hempt Tract for residential use will result in an inability to
mine a significant portion of its existing quarry on the adjacent tract, as a result of
state regulations that require a 300-foot setback from residential dwellings for
mining activities.10 This argument fails.


              Applicant sought a validity variance for the Hempt Tract, not the
existing quarry. The ZHB’s supported findings reveal the Hempt Tract is zoned
for residential use and can be developed consistent with the R-1 regulations. These
findings make clear that those regulations are not confiscatory when applied to the
Hempt Tract. Applicant cites no authority for the proposition that an alleged
economic detriment to an adjacent property could justify grant of a validity
variance. In any event, the type of economic loss claimed by Applicant with
regard to its existing quarry property is not tantamount to confiscation as is
required to obtain a validity variance. Laurel Point Assocs.


              In addition, the ZHB and the trial court alluded to the fact that any
hardship Applicant would suffer as a result of the denial of the requested validity
variance was self-inflicted. As to self-inflicted hardship, in Nowicki, this Court
recently explained:


       10
           For mining activities, the zoning ordinance requires a setback of 200 feet from any
property line of properties which are not owned, controlled or leased by the operator of the
principal use. Section 223.8 of the zoning ordinance.



                                             44
            In Wilson [v. Plumstead Township Zoning Hearing
            Board, 936 A.2d 1061 (Pa. 2007)], our Supreme Court
            addressed the question of whether an applicant has
            created a self-inflicted hardship, in which case a variance
            request should be denied. [936 A.2d at 1070]. The Court
            held that it is not enough that an applicant knew or
            should have known how the property was zoned to
            demonstrate that a hardship was self-inflicted; such a
            holding, the Court concluded, would mean that only the
            owner of the property at the time the alleged hardship
            was created could seek a variance and that the variance
            could be denied simply because of the use an applicant
            sought. Id.; Manayunk Neighborhood Council v. Zoning
            Board of Adjustment of City of Philadelphia, 815 A.2d
            652, 657 (Pa. Cmwlth. 2002) (pre-purchase knowledge of
            zoning restrictions, without more, does not create a self-
            inflicted hardship; where hardship arises from the
            intensity of the restriction, the right to relief runs with the
            land). Instead, the Court reiterated that a hardship is self-
            inflicted where an applicant purchased the subject
            property for too high a price. [Wilson, 936 A.2d at 1070];
            Manayunk Neighborhood Council, 815 A.2d at 657 (to
            be self-inflicted, a hardship must arise from the purchase
            itself, as in instances where the price paid was too dear).

Id. at 296 (footnote omitted) (emphasis added).


            Here, the record reveals Applicant knew of the Hempt Tract’s R-1
zoning when it purchased it, R.R. at 100a, and the uncontradicted evidence showed
Applicant paid an excessive price for the Hempt Tract. F.F. No. 60, ZHB Op. at
16; R.R. at 339a-43a. Based on these determinations, the ZHB could properly
conclude any hardship was self-inflicted. Nowicki. For these reasons, no error is
apparent in the ZHB’s denial of the requested validity variance.




                                          45
Based on the foregoing, we affirm.




                           ROBERT SIMPSON, Judge




                          46
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsy Supply, Inc.,                  :
                        Appellant     :
                                      :
            v.                        :   No. 334 C.D. 2015
                                      :
The Zoning Hearing Board              :
of Silver Spring Township             :
                                      :
            v.                        :
                                      :
Township of Silver Spring             :

                                    ORDER

            AND NOW, this 15th day of October, 2015, the order of the Court of
Common Pleas of Cumberland County is AFFIRMED.




                                     ROBERT SIMPSON, Judge
