                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Township of Sewickley                           :
                                                :
               v.                               :
                                                :
Tracy Hampshire and David                       :
Hampshire, a married couple;                    :
and Sewickley Township Zoning                   :
Hearing Board                                   :
                                                :
               v.                               :
                                                :
Jonathan C. Turik and Kelly A.                  :
Turik, a married couple                         :
                                                :
Appeal of: Tracy Hampshire and                  :    No. 2117 C.D. 2014
David Hampshire                                 :    Submitted: November 16, 2015

BEFORE:        HONORABLE BERNARD L. McGINLEY, Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                    FILED: January 28, 2016

               Tracy and David Hampshire (collectively, Appellants) appeal from an
order of the Court of Common Pleas of Westmoreland County (common pleas
court) which reversed the decision of the Sewickley Township Zoning Hearing
Board’s (ZHB) determination that Ordinance 2012-6 created an illegal spot zone.1




      1
          Jonathan C. Turik and Kelly A. Turik (the Turiks) joined as Intervenors.
I. ZHB’s Opinion, Findings Of Fact And Conclusions Of Law

                            Opinion
   . . . Prior to the hearing the parties entered into a
   stipulation stating that the area subject to the zoning
   change in this case is 2.19 acres with the Township
   property consisting of 1.5 acres and the Turik property
   consisting of .69 acres. The solicitor for Sewickley
   Township stipulated that only one hearing was held and
   that the matter was advertised in a local newspaper rather
   than in two local newspapers.

   Findings of Fact:

   1. The advertising and notice and hearings conducted by
   the Township of Sewickley were appropriate under case
   law. (Emphasis added.)

   2. The primary area involved is single family with
   various small lots.

   3. The parcel owned by the Appellants are [sic] the
   largest parcels in the district.
   ....
   5. The ordinance being challenged is ordinance number
   2012-6. (Emphasis added.)

   6. The area being rezoned constitutes a small area in the
   applicable zoning district. (Emphasis added.)

   7. The rezoning would be for the economic benefit of the
   owners Jonathan C. and Kelly A. Turik.

   8. The rezoning would potentially cause a traffic and
   safety problem in the rezoned areas. (Emphasis added.)

   9. The rezoned [area is in] near proximity to the zoned
   area which would be able to accommodate a commercial
   property.



                               2
               10. The municipal planning code requires only one public
               hearing relative to a zoning change.
               Conclusions of Law:
               On the basis of the testimony and records and stipulations
               submitted in this matter the zoning hearing board is of
               the opinion that the rezoning amendment as
               accomplished by the Township of Sewickley constitutes
               an illegal spot zone. (Emphasis added.)
               ....
               The rezoning constitutes a spot zoning in that it is
               singling out of one lot or a small area for different
               treatment from that accorded to similar surrounding land
               and indistinguishable from it in character and for
               economic benefit of the owner of that lot.

               The rezoning of the parcels in question is treating them in
               an unjustifiably [sic] different from similar surrounding
               land and creating an island having no relevant differences
               from its neighbors.

               The board concludes that the validity challenge filed by
               David and Tracy Hampshire is appropriate in that the
               ordinance creates an illegal spot zone. (Emphasis
               added.)

The Zoning Hearing of Sewickley Township’s Opinion, September 20, 2013,
Findings of Fact Nos. 1-3 and 5-10 at 1-2; Reproduced Record (R.R.) at 221a-22a.


                                  II. Notice Of Land Use Appeal
               The Township of Sewickley (Township) appealed the ZHB’s decision
and alleged:
               5. The Township holds title to a certain parcel of ground
               situate in Sewickley Township . . . having erected
               thereon a former school building now being used for
               library and recreation purposes . . . .




                                           3
6. The Township Property is located in an area of
Sewickley Township currently designated and zoned as
P-1, Public Facilities. (Emphasis added.)

7. Turik holds title to a parcel of ground situate in
Sewickley Township . . . which is currently vacant and
adjacent to the Township Property. Said property was
acquired by Deed dated October 13, 2011 . . . .

8. The Turik Property is located in an area of Sewickley
Township currently identified and zoned as V-1, Rural
Village. (Emphasis added.)

9. Applications for zoning changes as to both the
Township Property and the Turik Property were received
by the Township requesting that each parcel be rezoned
and reclassified to the C-C, Community Commercial
Zoning District. (Emphasis added.)

10. The applications for zoning changes were properly
considered by the Sewickley Township Board of
Supervisors and were approved by Ordinance No. 2012-6
as approved at a public meeting of the Sewickley
Township Board of Supervisors held on October 17,
2012 . . . .

11. Subsequent to the adoption of Ordinance No. 2012-6,
the Appellees Hampshire filed an appeal to the ZHB
asserting that the adoption was invalid for two primary
reasons; first, that Ordinance No. 2012-6 was not adopted
properly in accordance with the provisions of the
Ordinance; and second, that Ordinance No. 2012-6
created an area of improper spot zoning within Sewickley
Township. (Emphasis added.)
....
14. At the meeting of June 26, 2013, the ZHB determined
that the challenge to Ordinance No. 2012-6 relating to the
manner of the adoption thereof was denied but that the
challenge asserting improper spot zoning was upheld . . .
.

                            4
             ....
             16. The stated decision of the ZHB relating to the claim
             of spot zoning is contrary to law and without foundation
             for the following reasons:
             a. . . . [R]epresentatives of the ZHB improperly asserted
             that the public facilities on the Township Property were
             ‘grandfathered’ into the underlying zoning district . . . .;
             (Emphasis added.)

             b. In fact, the Township Property already was designated
             with the zoning classification of P-1, separate and distinct
             from all adjacent and surrounding properties;
             (Emphasis added.)

             c. Ordinance No. 2012-6 as duly adopted is entitled to a
             presumption of validity; (Emphasis added.)

             d. The statements of the ZHB members during
             deliberations indicated a belief that the mere size of the
             area in question for rezoning was sufficient to constitute
             a claim of spot zoning without making a determination as
             to whether the parcels in question were, in fact,
             distinguishable in character from the adjacent and
             surrounding parcels; and (Emphasis added.)

             e. The actions of the Board of Supervisors are entitled to
             create [sic] latitude in matters of legislative discretion as
             is the case in the adoption of a zoning ordinance and/or
             map amendment.

Notice of Land Use Appeal, July 18, 2012, Paragraphs 5-11, 14, and 16 at 2-4;
R.R. at 141a-43a.


                    III. The Common Pleas Court’s Decision
             On appeal, the common pleas court reversed the ZHB’s decision and
concluded that “a reviewing court must presume that the zoning ordinance is valid
and constitutional . . . [and] [w]ith no evidence to rebut this presumption, the Court

                                          5
finds that the Sewickley Township Board of Supervisors properly enacted
Ordinance No. 2012-6 in accordance with applicable law.”2 Order of the Common
Pleas Court, October 22, 2014, at 1-2.


                                          IV. Issue
              On appeal, Appellants contend3 that the common pleas court erred
when it reversed the ZHB’s decision that Township Ordinance 2012-6 changed the
zoning of a small parcel of property which resulted in spot zoning.4 Specifically,
Appellants assert that the common pleas court failed to credit the testimony and
exhibits in support of the ZHB’s findings of fact and conclusions of law.


              The Township responds that “the responsibility was solely on the
Appellants to meet the high burden to overcome the presumption of the validity of
Ordinance [No. 2012-6] as adopted.”               Brief for the Appellee Township of
Sewickley at 2.

       2
         The common pleas court determined that Appellants failed to offer any testimony at the
ZHB hearing to sustain their burden that the rezoned parcels were indistinguishable from the
surrounding land.
       3
         In zoning cases where, as here, the common pleas court did not receive any additional
evidence, this Court’s review is limited to a determination of whether the zoning hearing board
committed an error of law or a manifest abuse of discretion. Hogan, Lepore & Hogan v. Pequea
Township Zoning Board, 638 A.2d 464 (Pa. Cmwlth.), petition for allowance of appeal denied,
647 A.2d 905 (Pa. 1994).
       4
         In Takacs v. Indian Lake Borough Zoning Hearing Board, 11 A.3d 587, 594 (Pa.
Cmwlth. 2010), this Court defined the term “spot zoning”:
               Spot zoning is a singling out of one lot or a small area for different
               treatment from that accorded to similar surrounding land
               indistinguishable from it in character, for the economic benefit or
               detriment of the owner of that lot . . . . The most determinative
               factor in an analysis of spot zoning is whether the parcel in
               question is being treated unjustifiably different from similar
               surrounding land, thus creating an ‘island’ having no relevant
               difference from its neighbors . . . . (Citations omitted.)



                                              6
                Additionally, the Turiks respond that “the burden of proving spot
zoning 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.” Brief on Behalf of Intervenors, Summary of Argument at 7. The
Turiks contend that Appellants’ allegation that Ordinance 2012-6 would create a
dangerous and unsafe condition due to increased traffic has no merit. Specifically,
there was no evidence of any studies conducted to support the proposition that the
rezoning of the property would cause traffic and safety problems.


                The issue of whether Ordinance No. 2012-6 resulted in spot zoning
was raised and argued before the common pleas court5 and ably disposed of in the
comprehensive order of the Honorable David A. Regoli, Judge of the Court of
Common Pleas of Westmoreland County. Therefore, this Court shall affirm on the
basis of Judge Regoli’s October 22, 2014, order and opinion.                    Township of
Sewickley v. Tracy Hampshire and David Hampshire, a married couple, and




       5
           The common pleas court stated:
                AND NOW, to wit, this 30th day of December, 2014, a Notice of
                Appeal having been filed in the above-captioned matter by
                Appellants (Appellees below), Tracy Hampshire and David
                Hampshire, it is hereby noted that the reasons for the Court’s
                October 22, 2014 Order of Court, which reversed the decision of
                the Zoning Hearing Board, were set forth at length in said Order.
                This Order is being entered to comply with the Pennsylvania Rule
                of Appellate Procedure 1925(a).

Rule 1925(a) Opinion, December 30, 2014, at 1.




                                                7
Sewickley Township Zoning Hearing Board, Civil Division, No. 3771 of 2013,
filed October 22, 2014.


                                  ____________________________
                                  BERNARD L. McGINLEY, Judge




                                    8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Township of Sewickley                  :
                                       :
             v.                        :
                                       :
Tracy Hampshire and David              :
Hampshire, a married couple;           :
and Sewickley Township Zoning          :
Hearing Board                          :
                                       :
             v.                        :
                                       :
Jonathan C. Turik and Kelly A.         :
Turik, a married couple                :
                                       :
Appeal of: Tracy Hampshire and         :   No. 2117 C.D. 2014
David Hampshire                        :


                                  ORDER

             AND NOW, this 28th day of January, 2016, the order of the Court of
Common Pleas of Westmoreland County in the above-captioned matter is
affirmed.

                                       ____________________________
                                       BERNARD L. McGINLEY, Judge
