Recent Spot Zoning Challenge in Pennsylvania
I don’t need to explain to renewable energy developers how difficult permitting a project can be. Outdated ordinances, public opposition, and slow-moving local government can all contribute to this difficulty. Avoiding a spot zoning challenge is one less permitting aspect to worry about.
When a developer looks to rezone an area they typically only look at the project footprint. If the developer can properly rezone the project footprint it is seen as a homerun. While this is ultimately the goal, a developer must look at the project footprint in conjunction with the greater project area. If the rezoning efforts capture more than just a few project-specific parcels, this rezoning will be much less susceptible to a spot zoning claim down the road such as with the Conshohocken cases described below.
In Conshohocken Borough v. Conshohocken Borough Zoning Hearing Board, 261 A.3d 582 (Cmwlth. Ct., 2021), decided on August 16, 2021, the Commonwealth Court, the Pennsylvania appellate court which handles zoning appeals, ruled that an amendment to Conshohocken’s Zoning Ordinance (ZO) was unlawful spot zoning. The Borough had adopted an amendment, effective five days after its enactment, which, among other uses, added “convenience retail food store, including the sale of fuel, an ATM, and lottery sales”. Significantly, this change was as a direct result of, and in response to, an application to locate a Wawa store on a specific property in the Borough’s Residential Office (RO) zoning district.
The same night that the Borough Council approved the zoning amendment, it also approved the final subdivision plan for the Wawa. This resulted in two (2) parallel appeals. Neighbors filed an appeal to the Borough’s Zoning Hearing Board (ZHB) challenging the substantive validity of the ZO amendment on the basis of spot zoning and filed an appeal directly with the county court challenging the enactment of the amendment on procedural grounds. Conshohocken Borough v. Conshohocken Borough Zoning Hearing Board addresses the substantive spot zoning challenge.
There, after 28 hearings, the ZHB found that the amendment constituted unlawful spot zoning. The developer appealed to the county court, which reversed, finding that the amendment was lawful. The challengers then appealed to Commonwealth Court (the “Court”), which reversed the county court, and upheld the finding of spot zoning, invalidating the ordinance. Importantly, the Court extensively reviewed the findings of the ZHB, and held that those findings were supported by substantial evidence, and thus the Court had no basis to overturn the ZHB’s decision.
Essentially, the ZHB found, among other things, and the Court upheld, that the proposed Wawa site was the only location in the RO district on which a convenience store with fuel could be built, and was contrary to the ZO’s Statement of Community Objectives for the RO district. Other changes were made to setbacks, lighting, and other provisions which would only favor the Wawa. The ZHB found that the use was inconsistent with the RO district.
In analyzing the spot zoning issue, the Court did not break any new ground. It held, consistent with earlier cases, that spot zoning is the singling out of one lot or a small area for different treatment than for similar surrounding land for the benefit or detriment of that lot’s owner, and that challengers must show that the provisions are arbitrary and unreasonable, with no relation to the public health, safety, morals, or general welfare, and cases must be decided on the facts of that case, considering the community’s comprehensive plan. In this case, the Court found that the ZHB had considered all of those factors in ruling that the amendment was unlawful spot zoning, and the Court thus upheld their decision, which it must do under its rules of review.
The results of this case are not ground-breaking and follow established precedent. It is significant that the Court affirmed the ZHB’s decision based on a review of the ZHB’s findings and the established record, and so it was not required to overrule that decision. Rather, the Court was able to base its ruling on the fact that it was bound by the ZHB’s findings, as they were consistent with the law. No appeal was taken from this ruling, so this decision is a final ruling.
As stated earlier, there was also another appeal in this matter arguing that the amendment was invalid as it was procedurally defective. That case, Dorsey v. Borough Council of Conshohocken Borough, 1114 C.D. 2020, was decided by the Court on December 7, 2021. The main issue in this case was that the Borough erred by approving the land development plan (LDP) the same night as the ZO amendment was approved, as the ZO amendment was not effective until five days after approval. Thus, the LDP was approved under the old ZO, because the amendment was not yet effective. However, the Court held that, as the ZO amendment was struck down in the Conshohocken Borough case, then the LDP approval, which was based on the ZO amendment, could not stand either. The parties agreed with this resolution, in light of the Conshohocken Borough case. This opinion was unreported, which means that it has no precedential value; it was effectively a procedural decision.
Nevertheless, the argument raised in Dorsey is a strong, and almost certainly a winning one. The cautionary tale of Dorsey is that municipalities and applicants need to be aware of the effective dates of the prospective ordinances, especially when they are coupled with a related action. Otherwise, the concept of spot zoning is alive and well, though essentially unchanged by these two companion cases.
If you have other specific questions about spot zoning, renewable energy, or anything related or unrelated, please don’t hesitate to call our firm at (717-845-1524) or email Andy Miller (firstname.lastname@example.org) or Cory Dillinger (email@example.com) with any questions or comments.