Pennsy Supply, Inc. v. Zoning Hearing Bd. of Silver Spring Twp., 334 C.D. 2015
| Decision Date | 15 October 2015 |
| Docket Number | No. 334 C.D. 2015,334 C.D. 2015 |
| Parties | Pennsy Supply, Inc., Appellant v. The Zoning Hearing Board of Silver Spring Township v. Township of Silver Spring |
| Court | Pennsylvania Commonwealth Court |
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
In this zoning appeal, Pennsy Supply, Inc. (Applicant) asks whether the Court of Common Pleas of Cumberland County1 (trial court) erred in affirming a decision of the Zoning Hearing Board of Silver Spring Township (ZHB) that rejected Applicant's substantive validity challenge to the Silver Spring Township Zoning Ordinance of 2013 (zoning ordinance) and denied Applicant's alternative request for a validity variance. Applicant argues the ZHB erred in concluding Applicant's property was not reverse spot zoned and was not treated unjustifiably different from similar surrounding land. Alternatively, Applicant asserts the ZHB erred in concluding a validity variance should not be granted in order to avoid anunconstitutional confiscation of its property. Discerning no merit in these assertions, we affirm.
Applicant owns and operates an existing quarry in Silver Spring Township (Township), which lies in a Q Quarry zoning district. It also owns an adjacent, vacant 18.5-acre parcel, referred to as the Hempt Tract, located at the intersection of Millfording Road and Sample Bridge Road. The Hempt Tract lies in an R-1 Residential district. Applicant seeks to expand its quarrying operation onto the Hempt Tract.2
In November 2013, Applicant filed a substantive validity challenge to the zoning ordinance with the ZHB in connection with the proposed expansion of its quarrying activities on the Hempt Tract. Hearings ensued.
After hearings, the ZHB issued a decision in which it made the following relevant findings. The Hempt Tract was zoned R-1 Residential at the time Applicant purchased it. Applicant is the owner and operator of an existing quarry that abuts the eastern and southern sides of the Hempt Tract. The existing quarry, which began operations in 1959, has approximately 20 years of reserves to mine. It has a mining area of approximately 167 acres.
The Hempt Tract is bordered to the west and north by land zoned R-1 Residential, including the Millfording Highlands residential development. Prior to its purchase by Applicant, the Hempt Tract was part of the Millfording Highlands residential development. Other than its geological suitability for quarrying, the Hempt Tract does not have any extraordinary physical features, it is relatively flat, and it is adjacent to the Millfording Highlands development. The geological suitability of the Hempt Tract for quarrying does not impact its suitability for development consistent with permitted uses in the R-1 district in which it lies. The Hempt Tract is similar to the properties to the north of the tract. It is not surrounded by land that is zoned other than or less restrictively than R-1 Residential.
Applicant's existing quarry is virtually surrounded by residential and commercial uses. There are no unique physical characteristics on the Hempt Tract that would prevent Applicant from using it for a permitted use.
The Township presented the testimony of its engineer, Stephen Fleming, P.E. Fleming is also a licensed real estate agent. Fleming noted that the Hempt Tract is generally flat and slightly sloping, bounded to the east and the south by the existing quarry and by an R-1 Residential district to the north and west. Fleming also explained the Hempt Tract is bounded by two Township roads, Sample Bridge Road to the west and Millfording Road, which accesses an existing single-family residential development to the north. The Hempt Tract is served by public water and public sewer. It does not appear the Hempt Tract is impacted by floodplains, wetlands or other limiting features.
Fleming prepared two sketch plans for possible residential development of the Hempt Tract using the cluster provision of the R-1 district. The first sketch plan contains 56 lots with a minimum lot size of approximately 6,000 square feet, plus the required open space and two access points from Millfording Road. The first sketch plan generally complies with the Township's zoning and subdivision and land development ordinances. The second sketch plan contains 57 lots with a minimum lot size of approximately 6,000 square feet, plus the required open space, and access from both Millfording Road and Sample Bridge Road. The second sketch plan also generally complies with the Township's zoning and subdivision and land development ordinances. The overall cost for development consistent with the second sketch plan is approximately $630,000, which is generally consistent with a development of this size.
Fleming further testified the Hempt Tract has no extraordinary features that would cause the development costs to significantly exceed that of another property. Fleming also opined the Hempt Tract could be used for a use permitted in the R-1 district without prohibitive expense. He based his opinion on development and infrastructure costs of approximately $10,000 per lot which is in line with other residential developments in the Township that are currently built and sold.3
The Township also presented the testimony of Larry Foote, a certified general appraiser and licensed real estate broker. Foote testified regarding the purchase price Applicant paid for the Hempt Tract and a reasonable sale price for any lots created by a subdivision of the Hempt Tract. In preparation for his testimony, Foote reviewed the date of the sale, the size of the property, the sale price, the sale price per acre and the sales of other large tracts of residentially zoned land that occurred over approximately a four-year time frame.
Foote explained that Applicant purchased the Hempt Tract for $1,950,000 in March 2007. The Hempt Tract is 18.55 acres. The "per acre" price for the Hempt Tract is $105,121. ZHB Op., 5/12/14, Finding of Fact (F.F.) No. 55. Foote reviewed comparable sales prices for six large tracts of residentially zoned land sold between 2004 and 2010. The "per acre" sales prices for these comparable large residentially zoned tracts were: $28,743 per acre, $13,622 per acre, $43,678 per acre, $34,841 per acre, $27,961 per acre, and $34,167 per acre. The comparable sales prices ranged from a low of $13,622 per acre to a high of $43,678 per acre. Foote did not find any raw residential land sales that approachedthe price that Applicant paid for the Hempt Tract. Foote opined that, based on the comparable sales data, Applicant paid an excessive price for the Hempt Tract.
In preparation for his testimony, Foote also examined the sales prices and lot sizes for sales of vacant, single-family building lots along Millfording Road, which are across the street from the Hempt Tract and the existing quarry. The sale prices of the five comparable, vacant single-family building lots were: 1 Millfording Road, $172,500; 3 Millfording Road, $136,750; 5 Millfording Road, $136,750; 7 Millfording Road, $136,750; and, 129 Balfour Drive, $100,000. Based on the comparable sales, Foote opined the lots depicted on the sketch plans could reasonably sell in the range of $80,000 to $90,000 per lot.
Before the ZHB, Applicant asserted, among other things: (1) the zoning ordinance was invalid because the Hempt Tract was unlawfully reverse spot zoned; and, (2) in the alternative, Applicant was entitled to a validity variance. The ZHB rejected both claims.4
As to Applicant's reverse spot zoning challenge, the ZHB explained that spot zoning is the unreasonable or arbitrary classification of a small parcel of land, dissected or set apart from surrounding properties, with no reasonable basis for the differential zoning. BPG Real Estate Investors-Straw Party II, L.P. v. Bd. of Supervisors of Newtown Twp., 990 A.2d 140 (Pa. Cmwlth. 2010). The most determinative factor in an analysis of a spot zoning question is whether the parcelin question is being treated unjustifiably different from similar surrounding land, thus creating an "island" having no relevant differences from its neighbors. Id.
Reverse spot zoning occurs when an "island" develops as a result of a municipality's failure to rezone a portion of land to bring it into conformance with similar surrounding parcels that are indistinguishable. Atherton Dev. Co. v Twp. of Ferguson, 29 A.3d 1197 (Pa. Cmwlth. 2011).
The ZHB determined the facts presented here bore a strikingly similarity to the facts presented in Atherton, in which this Court rejected a reverse spot zoning challenge. Specifically, like the property at issue in Atherton, here the Hempt Tract is not completely surrounded by land zoned for less restrictive use; rather, it is adjacent to land zoned and developed for R-1 residential use to the north and west, and quarry use to the south and east. The ZHB explained there was no evidence that the R-1 zoning of the Hempt Tract was unjustified. There are no physical characteristics of the Hempt Tract that distinguish it from either the land zoned R-1 residential or the land zoned for quarry use. There is also no evidence that the Hempt Tract cannot, because of any physical or other characteristics, be developed in accordance with the R-1 district regulations. All of these facts, the ZHB stated, were strikingly similar to the facts in Atherton.
In addition, the ZHB distinguished this case from our Supreme Court's decision in In re Realen Valley Forge Greenes Associates, 838 A.2d 718 (Pa. 2003), which sustained an applicant's reverse spot zoning challenge. Thus, the ZHB rejected Applicant's reverse spot zoning claim.
As to Applicant's claim of entitlement to a validity variance, the ZHB explained a validity variance is based on the theory that an otherwise valid ordinance is confiscatory when applied to a particular parcel in...
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