Kelly v. Zoning Board of Adjustment

Memobandum-Opinion by Judge Sloane, . This is an appeal from the decision of the Zoning Board approving a City Council Ordinance upgrading land from “C-2” Commercial to “R-9A” Residential. The subject tract is within Philadelphia and is bounded by Greenwood Street, Fayette Street, Vernon Road and Michener Street. Despite its trapezoidal shape, the tract is commonly known as the “Vernon Road Triangle”. Appellants are owners of commercial stores located within the Vernon Road triangle. They contend that the reclassification (1) violates zoning policy and property rights by creating nonconforming uses; (2) constitutes invalid spot zoning (3) bears no relation to the public health, safety or welfare. The inquiry is whether City Council had authority to make this comprehensive reclassification. The scope of judicial review is limited — the court acts neither as [139] a super-zoning board or master planner of last resort. Village 2 at New Hope, Inc. Appeals, 429 Pa. 626. A strong presumption of constitutional validity attends the amendatory zoning ordinance, Jacobi v. Zoning Board of Adjustment, 413 Pa. 286, and a heavy burden of proof rests upon parties asserting invalidity or unconstitutionality. Cleaver v. Board of Adjustment, 414 Pa. 367. Appellants make several points in their argument that the reclassification results in an invalid and unconstitutional nonconforming use. They claim the restrictions inherent in the upgraded R-9A zone will cause them undue expense and hardship. For example, the commercial property owners may not convert their premises to other commercial uses. The R-9A classification requires return to residential use once the present commercial use is terminated. Also, a three-year vacancy in the present commercial properties would result in mandatory conversion to residences. Appellants claim these restrictions decrease the value of their properties and deprive them of constitutionally protected “property rights”. This argument misconceives the foundation of zoning law. Appellants have no vested rights in the continuation of a certain zoning classification. Key Realty Co. Zoning Case, 408 Pa. 98; Schmidt v. Philadelphia Zoning Board of Adjustment, 382 Pa. 521. In Peterson v. Zoning Board of Adjustment, 412 Pa. 582, our Supreme Court recognized that a property owner who acquired a tract in reliance upon advice from a municipality that a use was permitted in the zone could not preclude reclassification by the municipality. The zoning designation does not constitute an agreement with the property owners not to upgrade the district. The construction of commercial stores in the Vernon Road triangle was not accomplished by precluding upgrading for future residential classification. [140] Appellants’ second contention that the reclassification is invalid as “spot zoning” is also without merit. As condemned in Mulac Appeal, 418 Pa. 207, spot zoning occurs when the tract in question is singled out for treatment differing unjustifiably from that of similar surrounding land, thereby creating an “island” having no relevant differences from its neighbors. Also see Cleaver v. Board of Adjustment, 414 Pa. 367. Far from creating an irrelevant zone, the record establishes that this reclassification is aimed at maintaining the residential nature of the neighborhood. . The relationship this reclassification bears to the public health, safety and welfare is attested to by the strong civic support rendered this upgrading. The residents of the neighborhood have a valid interest in seeking to exercise more control over commercial encroachment. The reclassification they support represents their wish to keep this neighborhood residential, and does not deprive commercial property owners of vested rights. Accordingly, the decision of the Zoning Board is sustained and this appeal is denied and dismissed. Opinion by Judge Wilkinson : The Court adopts the opinion of Judge Sloane of the Court of Common Pleas of Philadelphia who heard the case below on the record of the Zoning Board of Adjustment, without additional testimony, and sustained the unanimous decision of the Board. Because of the able presentation of their brief and oral argument, we would comment on appellants’ position. Appellants claim that the action of City Council in reclassifying the subject property from C-2 commercial to B-9A residential was the result of political pressure rather than expert planning. If appellants mean by this position improper pressure from “political leaders” or “politicians”, there is nothing in the record to [141] sustain such a claim. If they mean that the people in the neighborhood, individually, by letter, by petitions, and through their various associations, attended meetings to support the reclassification to R-9A and impressed their views in this matter on their representative in the City Council, then we must say that such actions, far from being improper, are the heart of the democratic representative process. In addition, it happens that in this instance the position of the citizens in the neighborhood supporting reclassification was the same as that of the expert planners, i.e., the City Planning Commission. Appellants attempt to avoid the prior decisions of the Pennsylvania Supreme and Superior Courts by pointing out that most, if not all, of them involved the reclassification of undeveloped and unimproved land, whereas the land involved in the instant case is developed and improved. We see no distinction in the law as involved in this case other than as the rights of the owners of developed and improved land are protected, qua the developments and improvements, by the doctrine of nonconforming use. For the reasons stated in Judge Sloane’s opinion and the additional comments herein expressed, the order of the court below is affirmed.