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decided: October 12, 1978.


Appeal from the Order of the Court of Common Pleas of Luzerne County in case of John O'Malia and Lillian O'Malia, his wife v. Council of the Township of Wilkes-Barre, sitting as the Zoning Hearing Board of Wilkes-Barre Township, No. 10598 of 1976.


Kenneth C. Marano, with him Chester B. Muroski, for appellant.

Stephen B. Killian, for appellees.

Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 38 Pa. Commw. Page 122]

The Council of Wilkes-Barre Township, sitting as a zoning hearing board (Township), has appealed from an order of the Court of Common Pleas of Luzerne

[ 38 Pa. Commw. Page 123]

County which reversed the Township's denial of a petition for rezoning brought by John and Lillian O'Malia (O'Malias).

The O'Malias are the owners of a tract of land containing approximately 1.3 acres on which they have constructed a commercial building. The tract was zoned "B-1" as a "Neighborhood Business District" which permitted such uses as professional offices, mortuaries, neighborhood retail stores and restaurants when the O'Malias petitioned the Township to rezone their property to "B-4" as a "General Business District," permitting a wider variety of business uses. After a hearing on this request, the Township denied the petition. An appeal from this denial was taken to the Court of Common Pleas of Luzerne County which decided the case on the basis of stipulated evidence and exhibits and held the petition for rezoning should be granted. The Township now appeals here.*fn1

Our scope of review, when a lower court considered a zoning case upon facts as stipulated by the parties

[ 38 Pa. Commw. Page 124]

    before it and decided the case de novo on the merits, is limited to a determination as to whether or not that court committed an error of law or abused its discretion. In Re: Appeal of the Emmanuel Baptist Church, 26 Pa. Commonwealth Ct. 427, 364 A.2d 536 (1976).

The lower court here examined the nature of the properties surrounding the O'Malias' tract and found as a fact that "[t]he character of the property surrounding the subject premises is general commercial." Specifically, the property is located on Blackman Street, a major traffic artery, with the area located immediately to the rear being zoned as a heavy industrial district. The land on one side is zoned "B-4" for general business, and the present uses in this zone include a retail lumber yard, a skating rink, and a parking lot. The other side abuts the Wilkes-Barre city line. Directly across Blackman Street is another "B-4" zone in which a tavern, auto body shop, commercial store, and a radiator repair shop are located. On either side of this "B-4" zone are areas for two-family residences. On the basis of these findings, the lower court concluded that the present zoning creates an island composed exclusively of the O'Malias' property although no unique features would warrant it to be zoned differently from the surrounding area. Declaring this to be illegal spot zoning, the lower court determined that the property should be rezoned from "B-1" to "B-4."

Although a precise definition of illegal spot zoning has not yet been developed, our Supreme Court has adopted the Superior Court's language by describing it as "[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 of the owner of that lot or to his economic detriment. . . ." Mulac Appeal, 418 Pa. 207, 210,

[ 38 Pa. Commw. Page 125210]

A.2d 275, 277 (1965); Putney v. Abington Township, 176 Pa. Superior Ct. 463, 474, 108 A.2d 134, 140 (1954). Certain factors, such as the topography, location, and characteristics of the land, may be considered in determining whether or not an area has been "spot zoned," but each case must be decided on its own facts. Pollock v. Zoning Board of Adjustment, 20 Pa. Commonwealth Ct. 641, 342 A.2d 815 (1975). Furthermore, the facts of the case must reveal that the zoning scheme is arbitrary and unreasonable, with no relation to the public health, safety, morals, and general welfare and no relation to the municipality's comprehensive plan. Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975).

We cannot agree with the Township that the lower court erred in concluding that the property in question is of the same character as the properties adjacent to it and that it is, therefore, illegally spot zoned. The Township has presented no evidence that the requested rezoning will interfere with comprehensive planning nor has it explained why "B-1" zoning, as opposed to "B-4" zoning, is necessary for the protection of the general welfare of the community. On the contrary, an examination of the Township's zoning map clearly substantiates the lower court's conclusion that the O'Malia tract is a small "B-1" zone among "B-4" zones.

The Township also argues that the lower court improperly utilized "hardship" principles usually applied only in variance cases and that the Township's refusal to rezone was reversed solely because the O'Malias had sustained economic losses caused by their inability to rent their building. Although it is true that one of the lower court's findings is that the O'Malias built a structure on their property at a cost of approximately $175,000.00, there is no other mention of economic considerations in the court's opinion,

[ 38 Pa. Commw. Page 126]

    and it seems clear to us that the lower court decided the case on the issue of spot zoning. We believe that it committed no error of law or abuse of discretion in reversing the Township's refusal to rezone the property here concerned.

We will, therefore, affirm the order of the lower court.


And Now, this 12th day of October, 1978, the order of the Court of Common Pleas of Luzerne County is hereby affirmed.



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