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APPEAL FROM FAYETTE COUNTY ORDINANCE NO. 83-2 AMENDMENT TO ZONING ORDINANCE FAYETTE COUNTY (05/13/86)

decided: May 13, 1986.

IN RE: APPEAL FROM FAYETTE COUNTY ORDINANCE NO. 83-2 AMENDMENT TO THE ZONING ORDINANCE OF FAYETTE COUNTY, PENNSYLVANIA AND ISSUANCE OF ZONING CERTIFICATE NO. 83-243 AND RESOLUTION NO. 83-17, OF THE FAYETTE COUNTY ZONING HEARING BOARD. ROBERT ORAVETS, CAROLINE ORAVETS, BRUCE HAYDEN AND BEVERLY HAYDEN, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Fayette County, in case of In Re: Appeal from Fayette County Ordinance No. 83-2, Amendment to the Zoning Ordinance of Fayette County, Pennsylvania, and Issuance of Zoning Certificate No. 83-243 and Resolution No. 83-17 of the Fayette County Zoning Hearing Board, No. 122 of 1984, G.D.

COUNSEL

Richard F. Pohl, for appellants.

J. E. Ferens, Jr., Waggoner & Ferens, for intervenors, Ivan Rider and Anna Faye Rider, his wife.

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

Author: Macphail

[ 97 Pa. Commw. Page 212]

Appellants*fn1 appeal here from an order of the Court of Common Pleas of Fayette County which affirmed the decision of the Fayette County Zoning Hearing Board (Board) and held that certain property belonging to Ivan and Anna Faye Rider (Rider) was not improperly zoned. We reverse.

Rider filed a petition to reclassify approximately 6 acres of land zoned R-2 Residential located in the Borough of Smithfield, Georges Township along Route 119.*fn2 The petition requested that the land be zoned M-2 Heavy Industrial to permit the repair of mining cars and similar equipment. The Fayette County Planning Commission recommended that the Rider petition be granted, certifying that the rezoning conformed to the applicable provisions of the Comprehensive Development Plan for Fayette County, Volume I, April 1968 (Plan). After holding a public hearing, the County Commissioners (Commissioners) granted the petition and enacted amending Ordinance No. 83-2 of the Zoning Ordinance of Fayette County (Ordinance), rezoning the Rider property to M-2 Heavy Industrial.*fn3

[ 97 Pa. Commw. Page 213]

Appellants, Rider's aggrieved residential neighbors, appealed the Commissioners' decision to the Board.*fn4 After a hearing, the Board upheld the ordinance. Appellants then appealed to the court of common pleas. That court, without taking additional evidence, determined that Appellants had not sustained their burden of proving Ordinance No. 83-2's invalidity. The instant appeal followed.

Preliminarily, we note that where the court of common pleas has taken no additional evidence, our scope of review is limited to a determination of whether the Commissioners abused their discretion or committed an error of law in enacting the ordinance. Pace Resources, Inc. v. Shrewsbury Township Planning Commission, 89 Pa. Commonwealth Ct. 468, 492 A.2d 818 (1985).

The narrow issue presented for our consideration is, as it was for the court below, whether the rezoning of the Riders' 6 acres constituted illegal spot zoning. Spot zoning has been defined as "[a] singling out of one lot or

[ 97 Pa. Commw. Page 214]

    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, 210 A.2d 275, 277 (1965), quoting Putney v. Abington Township, 176 Pa. Superior Ct. 463, 474, 108 A.2d 134, 140 (1954). "[T]he size of the property involved is only one of the determining factors. What is most determinative is whether the parcel in question is being singled out for treatment unjustifiably differing from that of similar surrounding land, thereby creating an 'island' having no relevant differences from its neighbors." Mulac Appeal, 418 Pa. at 210, 210 A.2d at 277. Relevant factors to be considered are the physical aspect and character of the land, how the rezoning affects ...


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