            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael DiMattio, Eileen Tighe,               :
Drew Carlin and Nadia Carlin,                 :
                        Appellants            :
                                              :
              v.                              :   No. 1051 C.D. 2015
                                              :   Submitted: March 4, 2016
Millcreek Township Zoning Hearing             :
Board and Township of Millcreek               :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY JUDGE BROBSON                                   FILED: September 21, 2016

              This matter relates to a decision by the Millcreek Township Board of
Supervisors (Supervisors) to pass Ordinance 2014-7, which “down-zoned” a
24-acre parcel of land (Property) within Millcreek Township (Township) from a
mix of RR (Rural Residential) and R-1 (Single Family Residential) to R-2
(Low Density Residential). In terms of residential dwellings, only single-family
residents are allowed in the RR and R-1 districts. Agricultural activities are an
authorized use in an RR district, distinguishing it from the R-1 district. The
down-zoning of the Property to R-2 allows for two-family dwellings (i.e., duplexes
or townhouses) as an additional permitted residential use on the Property and
eliminates agricultural use on the portion of the Property zoned RR.1
       1
          “The R-2 Low Density Residential District is intended to allow any uses permitted by
the previous residential districts as well as two family dwellings such as duplexes or
townhouses.” Section 4.02.1 of the Millcreek Township Zoning Ordinance (Reproduced Record
(R.R.) at 13a.)
              Appellants Michael DiMattio, Eileen Tighe, Drew Carlin, and Nadia
Carlin (Objectors) are nearby, but not adjoining, property owners whose properties
share the only point of access/egress to the disputed parcel.2 Objectors initiated the
subject substantive validity challenge to Ordinance 2014-7.                 The Millcreek
Township Zoning Hearing Board (ZHB) denied Objectors’ challenge, and the
Court of Common Pleas of Erie County (trial court) affirmed. We now affirm the
trial court’s decision.
                                 I.     BACKGROUND
              On March 17, 2014, the owners of the Property, Jeffrey L. Braver and
Marvin E. Gold (Owners), submitted an application to the Township’s Planning
Commission (Commission), requesting that the Township’s zoning map be
amended to reclassify the property as R-2. On April 8, 2014, the Commission
recommended that the Supervisors deny Owners’ application to amend the zoning
map. The Supervisors considered Owners’ application during their May 13, 2014
regular meeting and approved the application by unanimous vote. (Reproduced
Record (R.R.) at 43a.)                On June 3, 2014, the Supervisors adopted
Ordinance 2014-7, which amended the Zoning Ordinance, in the nature of a map
change, to reflect the rezoning of the Property from RR and R-1 to R-2. (R.R. 6a.)
              Objectors lodged their challenge to the substantive validity of
Ordinance 2014-7 with the ZHB.             Objectors raised three claims: (1) that the
rezoning constituted unlawful “spot zoning”; (2) that the rezoning was inconsistent
with the Township’s comprehensive plan; and (3) that the rezoning was an invalid


       2
         The Property is located on Golf Course Road, which is a private road and an extension
of the public road that passes by Objectors’ homes on Old Zink Road.



                                              2
exercise of the Township’s police power because it bears no relationship to the
public health, safety, or welfare. The ZHB held a hearing on the challenge on
August 27, 2014, during which it received evidence. The ZHB issued its final
adjudication on September 25, 2014 rendering the following findings of fact:
                   1.     [Objectors] have filed a challenge to the
            validity of Ordinance 2014-7, enacted by the Township
            Board of Supervisors on June 3, 2014. The Ordinance
            rezoned property located on the south side of Golf Club
            Road, west of Interstate 79 and consisting of
            approximately 24 acres. Prior to the rezoning, a portion
            of the subject property was zoned RR Rural Residential
            and R-1 Residential. Following the rezoning the land
            was classified R-2 Low Density Residential. The chief
            difference between the subject property’s original zoning
            classifications and the R-2 designation is that R-2 permits
            two family dwellings, commonly known as duplexes, as
            well as single family dwellings.
                   2.     [Objectors] are residents of the general area
            of the subject property, but live approximately six-tenths
            of a mile and three quarters of a mile from the subject
            property, respectively.
                   3.     The subject property is located at the
            extreme southern end of Millcreek Township and a
            portion of the property actually abuts neighboring
            Summit Township. The property also abuts Interstate 79
            and is located very close to a municipal golf course.
            Access to the municipal golf course is via Golf Club
            Road, the street fronting the subject property.
                   4.     The Township’s comprehensive plan
            indicates that long range planning contemplated some
            sort of conservation or recreational use on the subject
            property, although even its current zoning classification
            permits single family residential development. In fact,
            the Millcreek Township Zoning Ordinance does not
            contain a zoning classification for conservation or public
            recreation as such.
                   5.     The owners of the subject property
            originally petitioned the Board of Supervisors for a

                                        3
            reclassification of the property to R-4 High Density
            Residential, but this request was withdrawn and replaced
            with the request for the R-2 designation, which was
            ultimately approved by the Supervisors. The Township
            Planning Commission, by a three to two vote, failed to
            recommend approval of the proposed R-2 zoning, as did
            the Erie County Planning Commission. Nonetheless, the
            Supervisors, by a unanimous 3-0 vote, approved the
            rezoning.
                   6.     No strictly procedural issues regarding the
            method of enactment of the Ordinance have been raised
            by [Objectors], whose appeal documents indicate that
            this validity challenge is based upon a claim that the
            rezoning constitutes invalid “spot zoning;” that it is
            inconsistent with the Township’s comprehensive plan;
            and that it generally bears no relationship to the
            advancement of the public health, safety and welfare.
                   7.     The subject property is a relatively large
            parcel of 24 acres consisting of a significant amount of
            wetland and undeveloped area. It is currently vacant.
(R.R. 76a-77a.)
            The ZHB rejected each of Objectors’ claims. As to “spot zoning,” the
ZHB first noted the large size of the Property and concluded that while the size of
the subject parcel is not necessarily determinative, courts have typically found
“spot zoning” with respect to small parcels. The ZHB also noted that there are
many zoning districts within the Township that comprise “far less than 24 acres in
area.” (R.R. 77a.) “Under [Objectors’] view,” the ZHB continued, “all of them
would be invalid as ‘spot zoning.’” (Id.) The ZHB also held that the Property did
not constitute an “island” surrounded by disparate land uses, something the ZHB
observed was also indicative of “spot zoning.”         Moreover, in the ZHB’s
assessment, both R-1 and R-2 districts provide for low-density residential
development, the latter of which allows for townhouses and duplexes. The ZHB
concluded that rezoning the Property to R-2 to allow for this additional form of

                                        4
low-density residential development did not create fundamentally inconsistent uses
among the Property and neighboring districts such that locating them in proximity
to each other reflected bad planning. (Id.)
             The ZHB also rejected Objectors’ claim of a violation of the
Township’s comprehensive plan, noting critically that the plan’s suggested use of
the Property was inconsistent even with its permitted use before passage of
Ordinance 2014-7. The ZHB held that inconsistency with a planning document,
which is at best a recommendation to a legislative body, is not adequate legal
grounds to override a legislative act of rezoning land. (Id.)
             Finally, the ZHB addressed Objectors’ police power challenge. The
ZHB held that in order to withstand this challenge, the Supervisors’ rezoning
decision need only be rational. The ZHB concluded that Ordinance 2014-7 met the
test of rationality, rejecting Objectors’ evidence and concerns about traffic impacts
and aesthetic and safety issues as inadequate to overcome the presumption of
validity. Instead, such concerns are appropriately raised and addressed if and when
the property is developed. The ZHB rejected as irrelevant Objectors’ argument
that other properties within the Township are better suited for multi-family
development. The ZHB also rejected Objectors’ plea that the Property should be
used as “green space,” noting that it is privately-held and that absent the exercise
of eminent domain the Township cannot mandate that it remain vacant.
(R.R. 77a-78a.)
             Objectors’ appealed the ZHB’s decision to the trial court, which did
not take any additional evidence. Objectors’ pressed their claims. The trial court
affirmed, agreeing with the ZHB that, in light of the characteristics of the Property
and the surrounding area, the differentiation in zoning classification between the


                                          5
original R-1 zoning district and the change to R-2 was not so significant as to
exceed the Supervisors’ power to enact a zoning change. (R.R. 83a-87a.) In so
doing, the trial court specifically analyzed and addressed Objectors’ concerns
about the difference in the density of residential development afforded in the
R-2 zone. Nonetheless, the trial court rejected those concerns, noting that at best
only half of the Property is even developable due to wetlands. Infrastructure and
topographical limitations on the Property will also impede full development of the
Property. (R.R. 84a.) In the trial court’s assessment, then, Objectors did not
establish that Ordinance 2014-7 constituted spot zoning.         Based upon that
conclusion, the trial court opined that it need not address the question of whether
the rezoning amendment served the public health, safety, and welfare.
            With regard to Objectors’ claims that the rezoning was inconsistent
with the Township’s comprehensive plan, the trial court essentially adopted the
ZHB’s analysis, adding, however, that “[a] zoning ordinance cannot be challenged
or invalidated on the basis it is inconsistent with a comprehensive plan.”
(R.R. at 89a (citing Section 303(c) of the Municipalities Planning Code, Act of
July 31, 1968, P.L. 805, as amended, 53 P.S. §10303(c)).)
            On appeal to this Court, Objectors jettison their challenge to
Ordinance 2014-7 based on an alleged inconsistency with the Township’s
comprehensive     plan.       They     press,   however,     their   claims    that
Ordinance 2014-7 constitutes illegal spot zoning and that the Supervisors failed to
consider how the rezoning would negatively impact the general health, safety, and
welfare of the surrounding community. In an appeal from a court of common
pleas’ order affirming a decision of a zoning hearing board, where the common
pleas court takes no additional evidence, our review is limited to considering


                                         6
whether the zoning hearing board abused its discretion or erred as a matter of law.
Interstate Outdoor Adver. v. Zoning Hearing Bd. of Warrington Twp.,
39 A.3d 1019, 1024 n.5 (Pa. Cmwlth. 2012), appeal denied, 75 A.3d 1283
(Pa. 2013). The zoning hearing board abuses its discretion when it issues findings
of fact that are not supported by substantial record evidence:
             Substantial evidence is such relevant evidence that a
             reasonable mind might accept as adequate to support a
             conclusion. The Zoning Hearing Board as fact finder is
             the ultimate judge of credibility and resolves all conflicts
             in the evidence. If the Zoning Hearing Board’s findings
             of fact are based upon substantial evidence, those
             findings of fact are binding upon this Court for purposes
             of appellate review.
Eichlin v. Zoning Hearing Bd. of New Hope Borough, 671 A.2d 1173, 1175
(Pa. Cmwlth. 1996).
                               II.   SPOT ZONING
                                A. Legal Standard
             Spot zoning is unconstitutional and invalid. Lower Allen Citizens
Action Group, Inc. v. Lower Allen Twp. Zoning Hearing Bd., 500 A.2d 1253, 1260
(Pa. Cmwlth. 1985). All zoning ordinances, however, are presumed constitutional
and valid. Atherton Develop. Co. v. Twp. of Ferguson, 29 A.3d 1197, 1204
(Pa. Cmwlth. 2011). The burden thus falls on the challenger to prove otherwise.
Id.   In Takacs v. Indian Lake Borough Zoning Hearing Board, 11 A.3d 587
(Pa. Cmwlth. 2010), we explained spot zoning and the relevant legal standard:
                    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,

                                          7
            thus creating an “island” having no relevant differences
            from its neighbors.
                   To establish improper spot zoning, the challenger
            must prove that the provisions at issue are arbitrary and
            unreasonable and have no relation to the public health,
            safety, morals and general welfare. If the validity of a
            zoning ordinance is debatable, it must be permitted to
            stand. Spot zoning cases should be decided on the facts,
            guided by case law; there is no precise formula for
            determining whether a rezoning of property constitutes
            spot zoning.
Takacs, 11 A.3d at 594 (citations omitted; emphasis added); see also Sharp v.
Zoning Hearing Bd. of Twp. of Radnor, 628 A.2d 1223, 1228 (Pa. Cmwlth.)
(holding there is no precise formula to determine spot zoning; whether
classification constitutes spot zoning is determined by facts and guided by case
law), appeal denied, 637 A.2d 290 (Pa. 1993).
            As suggested by the quotation above, a challenger’s initial burden in a
spot zoning case is to demonstrate that a governing body’s rezoning reflects a
difference in treatment of a tract of land from surrounding land similar in
character. Consequently, while Objectors here make additional claims relating to
the public health, safety, morals, and general welfare, an analysis addressing that
component of their spot zoning claim is only necessary if Objectors satisfied the
burden to prove a difference in treatment of characteristically similar surrounding
land.
                                   B. Analysis
            We look to the Board’s decision and the record to see whether
Objectors satisfied their burden of demonstrating that the Property is
indistinguishable in character from the land immediately surrounding it. Schubach
v. Zoning Bd. of Adjustment, 270 A.2d 397, 399 (Pa. 1970). Schubach provides an
illustration of the analysis that courts employ in considering whether an objector
                                        8
has demonstrated sufficient similarities between a re-zoned tract and surrounding
areas. In Schubach, the Supreme Court considered whether an ordinance rezoning
a four-acre parcel of land from an R-4 to C-2 zoning classification, in order for the
owner to construct a nursing home without having to obtain a special certificate,
constituted spot zoning. The tract was approximately one-half of a city block and
was surrounded by (1) a 450-acre plot zoned industrial to the north; (2) a
commercial area upon which a gas station and stores were located to the east; (3) a
medical center, apartment buildings, and a shopping center to the south and
southeast; (4) exclusively residential properties to the west; and (5) an apartment
structure to the northwest. Id. at 332.         The Supreme Court opined:
             It is well-settled that an ‘ordinance cannot create an
             “island” of more or less restricted use within a district
             zoned for a different use or uses, where there are no
             differentiating relevant factors between the “island” and
             the district . . . . Thus, singling out of one lot or a small
             area for different treatment from that accorded to similar
             surrounding land indistinguishable from it in character,
             for the economic benefits of the owner of that lot . . . is
             invalid “spot” zoning.’

Schubach, 336 A.2d at 336 (citation omitted).
             The Supreme Court observed that the subject property was “distinctly
different from the surrounding residential land.” Id. at 336. As described by the
Supreme Court, the subject property fronted two heavily traveled traffic arteries,
which distinguished it from the surrounding land. The record also showed that
development of the property in accordance with the existing detached residential
zoning was not suited to the permitted residential use in the zone in which it was
located or economically feasible.         Id.     The Supreme Court opined that the
commercial fronting of the property together with the poor economic and location
fit relative to detached residential uses, rendered the property “useable only as a
                                            9
‘natural extension’ of the already existing commercial use.” Id. at 384. Thus, the
Supreme Court concluded that the rezoning did not unjustifiably create an island
amidst different surrounding uses. Id. at 385. Additionally, the Supreme Court
noted that reviewing courts should not
             take too constrained a view of the surrounding
             neighborhood . . . . Although the court must focus its
             attention on the immediately surrounding land, and
             instantly the residential land to the west, since the owners
             thereof have a distinct right to the protection of their
             property interests, we are mindful that in this immediate
             area there is an industrial tract, multi-family apartment
             structures and shopping areas.

Id. More recently, in In re Realen Valley Forge Greens Association, 838 A.2d 718
(Pa. 2003), our Supreme Court described the question as “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.” Realen, 838 A.2d at 730.
              During the Board’s hearing, one of the Objectors, Mr. DiMattio,
pressed upon the Board the concern that the development of the Property would
create a detriment to the individual residents whose properties are situated on Old
Zuck Road. Mr. DiMattio also indicated that all of the residences on Old Zuck
Road are single family homes. Mr. DiMattio represented to the Board that there
are numerous other areas in the Township that are designated as R-2 zoning
districts, thus suggesting that there are other areas in which the owner of the
Property could build such residences.      Mr. DiMattio also submitted evidence
concerning the need for “green uses” in the Township, and that the Property is
designated for such use by the Township’s comprehensive plan.               Although
evidence in the record indicates that areas to the west and north of the Property,

                                         10
like the Property prior to the rezoning, are zoned as RR or R-1, the simple fact that
the Property was zoned similarly to the adjacent areas is insufficient to establish
that the rezoning constituted differing treatment of characteristically similar
surrounding land.
             Although Objectors do not identify and address any alleged similar
characteristics between the Property and the surrounding land, we have reviewed
the evidence of record to consider whether Objectors met their burden to prove that
the Property is characteristically similar to adjoining areas, such that the Board was
required to offer justification for the differential treatment of the Property. First,
we note that the record indicates that the area generally to the east of the Property
abuts Interstate 79. Our Supreme Court has accepted that arterial roadways may
constitute “an appropriate feature to be designated as the boundary between
incompatible zoning districts.” Realen, 838 A.2d at 730. Thus, it would be for the
Board to consider that characteristic when determining whether the area adjoining
the Property to the east provides a basis for comparison of similar characteristics
with the Property. Moreover, even if the nature of the area on the other side of
Interstate 79 were relevant for the purpose of Objectors’ challenge to the rezoning
of the Property, Objectors were required to submit evidence of possible
similarities. In their appeal to this Court, they have not pointed us to any place in
the record where they made such a demonstration. Thus, the Board had no record
evidence from which it could determine that the Property is characteristically
similar to the tracts of land on the other side of Interstate 79. Although it appears
that some of the residential non-adjoining tracts further north of the Property on
Old Zuck Road also abut Interstate 79, those properties do not adjoin the Property




                                         11
and, unlike the Property, do not appear to be hemmed in on three sides by
non-residential uses.
               With regard to the southern boundary of the Property, which is the
neighboring Summit Township, Objectors have not pointed to any evidence or
legal authority for the proposition that a zoning hearing board considering a spot
zoning challenge should consider similarities between a re-zoned tract and an
abutting area that is in a different municipality. Also again, Objectors offer no
evidence of similarities.3
               Additionally, while it appears from the record that Golf Course Road
adjoins the Property to the north, an aerial photograph of the area submitted as
ZHB Exhibit 38 (R.R. at 45A) indicates that the land opposite the Property to the
north is the municipal golf course. Such land and the use of that land cannot be
described as being similar in character or use to the present or proposed use of the
Property. Objectors have not produced any evidence suggesting that the use of or
development of the area to the immediate north is indistinguishable from the
Property. Consequently, we conclude that Objectors did not offer any evidence
regarding the area adjoining the Property to the immediate north that would
support their claim that the Property is so similar to that adjacent area such that the
Board was required to examine whether the rezoning of the Property was
unjustified or irrational.

       3
          Moreover, it appears from a review of Summit Township’s zoning map, of which we
take judicial notice, that the area of Summit Township adjoining the Property is zoned by that
municipality as R-2. Thus, even if Objectors had established that the Property and the area
adjoining the Property to the south were characteristically similar, the rezoning actually appears
to result in a consistency of use and, therefore, no differential zoning treatment that would
require justification on the part of the Township.



                                               12
             As to the area to the immediate west of the Property, again, the record
is lacking in any evidence indicating that the area is characteristically similar to the
Property. Exhibit 12 (R.R. at 22A), however, consists of another aerial photograph
appearing to depict the area to the immediate west of the Property as part of the
golf course. Thus, in actuality, the Property appears to be shaped like a trapezoid,
surrounded on the north and west by the golf course, Summit Township to the
south (which appears to be classified by that township as an R-2 zoning district),
and by Interstate 79 and undescribed tracts further to the east. Therefore, the
immediate area surrounding the Property appears to be completely dissimilar to the
Property.   Objectors, other than relying upon similarities of size between the
Property and other tracts in the Township and describing the topography of Old
Zink Road and Golf Course Road, have not submitted any evidence regarding the
geographic or physical characteristics of the Property that would indicate that it is
characteristically similar to the tracts surrounding it.
             Consequently, in reviewing the Board’s decision, it seems apparent to
this Court that Objectors simply failed to satisfy their burden of proof regarding the
similarity of the Property to the immediately surrounding area. As the transcript in
the record demonstrates, during the hearing, Objectors focused almost entirely on
their: (1) health, safety, and welfare arguments; and (2) the comprehensive plan
designation of the Property as recreational. Despite the best efforts of the members
of the Board to have Objectors focus on the characteristics of the Property and the
surrounding area, the only characteristic of the subject property that the Objectors
addressed was the size of the property, which they asserted was similar to other
tracts in the area, and concerns regarding traffic. With regard to the size of the
Property, the Board reached a different factual finding, which appears to be


                                           13
supported by the record (and, consequently, is binding on this Court), that the
Property is a relatively large-sized, vacant tract, a significant portion of which
contains wetlands.
             Because the standard applicable to spot zoning matters requiring a
demonstration of justification for differential treatment of adjoining tracts applies
only to rezoning where adjoining tracts have been shown to be characteristically
similar, Schubach, Realen, and Objectors did not demonstrate that the rezoning of
the Property reflected treatment of a tract characteristically similar to the
surrounding area, there is no need to address the question of whether the rezoning
was justified on health, safety, morals, and public welfare grounds. We note in
passing, nevertheless, that the safety concern Objectors expressed relating to
increased traffic is one that, as the members of the Board noted, is typically
addressed in the developmental stage of a project.
             Accordingly, we affirm the trial court’s order.




                                P. KEVIN BROBSON, Judge



Judge McCullough dissents.




                                         14
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael DiMattio, Eileen Tighe,      :
Drew Carlin and Nadia Carlin,        :
                        Appellants   :
                                     :
           v.                        :   No. 1051 C.D. 2015
                                     :
Millcreek Township Zoning Hearing    :
Board and Township of Millcreek      :


                                 ORDER


           AND NOW, this 21st day of September, 2016, the order of the Court
of Common Pleas of Erie County is AFFIRMED.




                             P. KEVIN BROBSON, Judge
