St. Vladimir's Ukrainian Orthodox Church v. Fun Bun, Inc.

Dissenting Opinion by

Judge Crumlish, Jr. :

I dissent. I would hold that by rezoning the subject premises from R-4 to C-2 this particular lot is the object of special treatment. This unjustified1 reclassification is invalid spot zoning.

In Schubach v. Zoning Board of Adjustment, 440 Pa. 249, 253, 270 A. 2d 397, 399 (1970), the Supreme Court of Pennsylvania said: “. . . Thus, 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, is invalid ‘spot’ zoning. 8 E. McQuillin, Municipal Corporations, §25.83 at 224-25 (3d ed. 1965).” Appellant contends that his lot is distinguishable in character from the other lots located in the R-4 residential district for two reasons: (1) the lot can only be used for commercial purposes and, (2) the lot is indistinguishable in character from the area located across the street which is zoned C-2 Commercial. These arguments are not persuasive.

There is nothing in the record to support the contention that this lot could not be used for residential purposes. There is evidence that the best use of the property is commercial but “best use” of itself cannot justify this reclassification. Rezoning of this one lot in a residential district to C-2 would increase the value of appellant’s property but at the same time decrease the value of the bordering residential lots. This is clas*403sic favoritism. It is apparent to me that its passage is zoning change solely for the economic benefit of the owner. Mulac Appeal, 418 Pa. 207, 210 A. 2d 275 (1965); Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A. 2d 408 (1964).

In Mulac, supra, at 211, it is stated: “. . . appellee’s argument that the rezoning was proper because the parcel is situated in an area of mixed commercial and residential uses is not persuasive. The area in which the subject premises is located is zoned residential. It is true that within the confines of this large residential zone, certain commercial uses exist. All such commercial establishments exist, however, as nonconforming uses, and should such uses cease, the properties could be utilized only for residential purposes.” (Emphasis in original). While Mulac dealt with nonconforming commercial properties, the same reasoning advanced therein would also apply to here where the only commercial uses in this residentially zoned area exist by virtue of variance and could therefore also revert to residential use.

The fact that nearby districts are zoned C-2 commercial lends no support to appellant’s position. As stated in Schubach, supra at 254, “The appellees also place substantial emphasis upon the fact that there is a very large commercially zoned area within a few hundred feet to the north of the premises in question. It is argued that this per se indicates that the area is not truly residential in nature and, therefore the Pine Hill lot should also be commercially zoned. We are not persuaded by such an argument since it would mean that every border line area in the city could be subjected to such down-zoning.”

Boundary lines between zoning districts must be reasonable and there is no question that the setting of general zone boundaries is within the legislative discretion. See, Arena v. Norristown Borough Zoning *404Board of Adjustment, 2 Pa. Commonwealth Ct. 285, 276 A. 2d 838 (1970). The legislative discretion, however, is subject to judicial review to insure adequate protection and advantage for all property interests. This Court must step in to prevent such an abuse by the legislative branch as in the instant case where one lot is singled out for special treatment without justification. Here Fifth Street forms a natural wide boundary between the commercial and residential zones. The mere fact that the subject premises is a corner lot and not an “island” surrounded by residential properties is an argument without merit. “The test is whether a relatively small area has been treated in a manner inconsistent with the surrounding area, without justification. The ‘island’ is simply the most common form of inconsistency.” Ryan, Pennsylvania Zoning Law and Practice, §3.4.9 (1970). While admittedly the premises in dispute is not sandwiched in among other differently qualified parcels thus making it an “island” in the literal sense, I believe the same reasoning which has prompted our courts to refer to “islands” applies equally to this corner property. It is the miniscule selectivity which controls and not the geographical situs.

In my judgment, appellant elected to take the legislative route when the proper procedure to effect the change of the use of a single piece of property is via a variance. The variance issue is not before us and will not be considered. I merely observe that a zoning amendment is appropriate only when there are substantial changes which would warrant the rezoning of a sizable area.2

The order of the court below should have been affirmed.

The record is silent as to whether the comprehensive plan requires this particular lot to receive special commercial treatment. See concurring opinion of Justice Robebts in Mulac Appeal, 418 Pa. 207, 212, 210 A. 2d 275, 278-79 (1965).

For a thorough, discussion of the latest developments in Pennsylvania zoning see 16 Vill. L. Rev. 507 (1971).