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JOHN J. MCILHINNEY v. ZONING HEARING BOARD BENSALEM TOWNSHIP. BENSALEM TOWNSHIP (02/17/83)

decided: February 17, 1983.

JOHN J. MCILHINNEY
v.
ZONING HEARING BOARD OF BENSALEM TOWNSHIP. BENSALEM TOWNSHIP, APPELLANT



Appeal from the Order of the Court of Common Pleas of Bucks County in the case of John J. McIlhinney v. Zoning Hearing Board of Bensalem Township, No. 78-144A-12-5.

COUNSEL

Henry F. Huhn, with him Leslie G. Dias, for appellant.

Emil F. Toften, Emil F. Toften & Associates, for appellee.

Judges Blatt, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 72 Pa. Commw. Page 130]

Bensalem Township appeals an order of the Court of Common Pleas of Bucks County which reversed a decision of the Zoning Hearing Board of Bensalem Township.*fn1 The Zoning Hearing Board upheld the action of the Township Board of Supervisors (Board) which rezoned the land of John J. McIlhinney from C-Commercial to R-A Rural.

After careful review of the record and consideration of the arguments advanced by counsel in the filed briefs, we find ourselves in agreement with the opinion of Judge William Hart Rufe, III for the court of common pleas. Judge Rufe's well-reasoned analysis proceeds as follows:

Finally, [McIlhinney] challenges the ordinance on substantive grounds. [He] argues that the enactment of the ordinance changing the zoning of [McIlhinney's] property singled

[ 72 Pa. Commw. Page 131]

    out [his] parcel for treatment unjustifiably differing from similar surrounding land and thus constituted spot zoning. Generally, a court must presume the validity of an ordinance and the burden of proving its invalidity rests upon the party challenging it. Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964). Furthermore, the challenging party must clearly establish that the ordinance is arbitrary and unreasonable with no relation to the public health, safety, morals and general welfare, and if the validity is debatable, the court will defer to legislative judgment. Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975).

To determine whether or not a Board of Supervisors is engaged in invalid "spot zoning," it must first be determined whether or not the rezoned tract is being treated differently from similar surrounding land and then whether or not such differential treatment, if found, is justifiable. Guentter v. Borough of Lansdale, Montgomery County, 21 Pa. Commonwealth Ct. 287, 345 A.2d 306 (1975). "Possibly the most important factor in an analysis of a spot zoning question is whether the rezoned land is being treated unjustifiably different from similar surrounding land." Schubach v. Silver, supra, at p. 336 (emphasis added). Further, we must consider the area's physical attributes, topography and size, the economic feasibility of a particular use, planning factors, and determine whether the rezoning is part of a plan which will produce nondiscriminatory zoning when fully implemented. Seeherman v. Wilkes-Barre City Zoning Hearing Board, 42 Pa. Commonwealth Ct. 175, 400 A.2d 1334 (1979).

[ 72 Pa. Commw. Page 132]

In the instant matter, the record establishes that before the rezoning, [McIlhinney's] property, then zoned commercial, was located in an area that was primarily and almost exclusively commercial. Aerial photos show that the site in question is adjacent to the Woodhaven Interchange of I-95. Adjoining the property is a motor freight trucking terminal, commercial stores and other property zoned and used commercially. Also located in the general vicinity of the parcel are the Woodhaven Mall, the Liberty Bell Race Track and a restaurant. The ...


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