R. & Y. Burd v. Borough of Brentwood ZHB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Raisa and Yevgeniy Burd, Raju :
and Kalpana Gurung, and :
Henry Pietkiewicz, :
Appellants :
:
v. : No. 1049 C.D. 2021
: Submitted: June 10, 2022
Borough of Brentwood Zoning :
Hearing Board, Borough of :
Brentwood and Agile :
Development, LLC :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: April 18, 2023

Raisa and Yevgeniy Burd, Raju and Kalpana Gurung, and Henry
Pietkiewicz (collectively, Appellants or Residents) appeal from the August 26,
2021 Opinion and Order issued by the Court of Common Pleas of Allegheny
County (common pleas), dismissing their appeal from the denial of their
substantive validity challenge to the Borough of Brentwood (Borough) Zoning
Ordinance No. 2020-1286 (Ordinance), BOROUGH OF BRENTWOOD, PA., ZONING
ORDINANCE NO. 2020-1286 (2020), by the Borough Zoning Hearing Board (ZHB).
The ZHB held that the Ordinance did not constitute illegal spot zoning. Having
reviewed the record and the law, we conclude the ZHB did not abuse its discretion
or commit an error of law in rejecting Appellants’ substantive validity challenge
because substantial evidence supports the ZHB’s findings. Therefore, we affirm.

I. BACKGROUND
On November 23, 2020, the Borough enacted the Ordinance rezoning 201
Wainwright Avenue (Property), which is owned by Agile Development, LLC
(Agile), from R-1 (residential) to MUN (mixed-used neighborhood). On
December 21, 2020, Appellants, who reside on residential properties located
adjacent to or near the Property, filed a Notice of Substantive Validity Challenge to
the Ordinance (Challenge). On February 10, 2021, and March 10, 2021, the ZHB
held hearings at which Appellants and Agile offered evidence in support of their
respective positions on the Ordinance’s validity. Following the hearing, the ZHB
issued a decision denying Appellants’ Challenge, concluding that the rezoning of
the Property was not spot zoning, and making the following relevant findings of
fact.

5. The rezoned [P]roperty is identified as Lot and Block No. 247-A-
154 and is 6,225 square feet in size. A single-family residence
occupies the lot.

6. Agile purchased the house and lot at 201 Wainwright Avenue[, the
Property,] on July 27, 2018[,] to provide six additional parking
spaces for its business activities.

7. The rezoned [P]roperty is bordered on two sides by property that is
zoned R-1, low density residential. The remaining boundaries are
the MUN district, and the Wainwright Avenue right-of-way.

8. Agile’s expert, Andrew J.G. Schwartz [(Schwartz)], of
Environmental Planning & Design, testified he analyzed the
boundary lines of [the Property] and concluded that about 50[%]
relate to the R-1 zoning district and 50[%] relate to the MUN
zoning district.

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9. There are residential dwellings to the southwest and southeast of
the rezoned property. The land to the northwest and northeast
consists of both MUN and Commercial Redevelopment District
(CRD) zoning districts that extend along Brownsville Road.

10. The homes in the area are of pre-World War II construction and
many are within walking distance to the bus stop and stores on
Brownsville Road, including Giant Eagle.

11. Agile . . . is owned by John Slater Jr., who also is president and
supervisor of the John F. Slater Funeral Home, located at 4201
Brownsville Road.

12. Agile . . . owns the property at 4201 Brownsville Road, and the
funeral home leases that property from Agile.

13. Agile is also the owner of Whitehall House, a hospitality venue
for the funeral home that also [is] available for rent by the public
for social events. Whitehall House is situated to the rear of the
funeral home.

14. In 2001[,] Agile purchased two houses on Wainwright [Avenue],
next to the rezoned [P]roperty at issue in the validity [C]hallenge.
In 2013[,] Agile purchased a third house, at 110 Burdine Avenue.

15. [The Borough’s] [C]omprehensive [P]lan was drafted and adopted
in 1998 but has not been updated since.

16. In 2013, the [B]orough updated its zoning map to provide for the
[MUN] zoning district, a new classification. There are three MUN
[D]istricts in the [B]orough.

17. Section 210-10 of the Borough of Brentwood Zoning Code states
that the purpose of the [MUN d]istrict is[]

to provide areas for a mix of residential and
neighborhood commercial facilities intended to serve the
immediate area with goods and services. The [MUN] is
intended to provide convenience opportunities intended
to cater to the surrounding neighborhoods and
community but is not intended to house facilities which
are high impact, and which may be more regional in their
draw.

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18. The MUN district is intended to be a transitional district between
the residential areas and more intense commercial areas. . . .

19. On February 2, 2015, the [B]orough rezoned the two Wainwright
[Avenue] parcels and the Burdine property from R-1 to MUN at
the request of Agile for the construction of Whitehall House and to
provide sufficient parking for the venue and funeral home.

20. No validity challenge was raised against the 2015 rezoning of
these three lots.

21. Issues arose after Agile began construction on the Whitehall
House project behind the funeral home. Residents testified that the
construction caused flooding and damage to their yards and the
problem had not been corrected by Agile.

22. A resident did acknowledge that there was a sump pump in her
basement before construction on Whitehall House and the parking
lot began.

23. Residents offered no expert testimony as to the source or cause of
the stormwater and flooding issues.

24. Residents further testified that the Whitehall House was not a
“chapel” as had been originally proposed and subsequently
approved. Residents claim it is a social hall available for rent for
any purpose and open until late in the evening.

25. Residents argued that rezoning of the [Property] for parking
constitutes illegal spot zoning because it creates a peninsula that
juts into a R-1 area for six parking spaces they deem unnecessary.

26. Residents also testified that Agile had no need for additional
parking because the parking on site was sufficient for the funeral
home and Whitehall House.

27. [Mr.] Slater testified that at least four times a month the on-site
parking is not adequate for the funeral home, and that when there
are multi-family funerals visitors have to park on Burdine and
Wainwright, as well as in lots of neighboring businesses after
closing hours.

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(ZHB’s Decision, Findings of Fact (FOF) ¶¶ 5-27.1)
The ZHB observed that ordinances are presumed to be valid and that the
party challenging the validity of an ordinance bears a heavy burden to rebut that
presumption by showing that the provisions are clearly unreasonable and arbitrary
and bear no relation to public health, safety, morals, and general welfare. (Id.,
Conclusions of Law (COL) ¶¶ 29-30.) In a spot zoning challenge, the ZHB held
that the challengers had to prove that the rezoned land is being treated unjustifiably
different from similar surrounding land. (Id. ¶ 31.) Based on its findings and the
law, the ZHB concluded:

32. The rezoned [Property] in the instant case is not being treated
differently[.] To the contrary, the [Property] is an extension of the
existing MUN [D]istrict, and both the R-1 and MUN [D]istricts
provide for residential uses.

33. The rezoned [Property] in the instant case is in an area
characterized by a mixture of residential and non-residential land
use; residents in the area of the rezoned [Property] are within
walking distance of the bus stop and a variety of commercial and
professional establishments on Banksville Road.

34. Although the comprehensive plan has not been updated it has not
expired. This is not a basis for finding that the [O]rdinance is
invalid.

35. That A[]gile and[/]or Mr. Slater may benefit from the rezoning of
the subject [P]roperty is not a basis for finding the [O]rdinance
invalid as it is presumed that parties seeking the rezoning of their
property are doing it for their own benefit.

(Id. ¶¶ 32-35.) The ZHB voted three-to-two to deny the Challenge.

1
The ZHB’s Decision is attached to Appellants’ brief as Exhibit B.

5
 Appellants appealed the ZHB’s Decision to common pleas, where no
additional evidence was taken. Common pleas affirmed the ZHB’s Decision,
concluding that “the [ZHB] properly determined that extending the [Property] into
the MUN district was not spot zoning.” (Common Pleas Opinion (Op.) at 4-5.2)
Common pleas held that “Appellants failed to rebut the presumption that the
passing of the Ordinance is valid[,]” “that the rezoning of [the Property] is a
natural extension of an existing MUN district which includes many districts that
are entirely compatible with a residential district[,]” and that while “Appellants
may be negatively impacted by this development, . . . a substantive validity
challenge” is not the proper avenue by which to pursue a remedy. (Id. at 4.)
Appellants now appeal to this Court.3

II. APPEAL TO THIS COURT
On appeal, Appellants assert multiple reasons for why they contend the ZHB
erred in rejecting the Challenge.4

A. Did the ZHB err by ignoring the Comprehensive Plan with which the
Ordinance was allegedly inconsistent?
Appellants assert that the ZHB erred in ignoring the Comprehensive Plan
and that the Borough granted “serial rezoning requests,” without regard to the

2
Common pleas’ opinion is attached to Appellants’ brief as Exhibit A.
3
“Because the parties presented no additional evidence after the ZHB’s decision, our
review is limited to determining whether the ZHB committed an abuse of discretion or an error
of law.” Plaxton v. Lycoming Cnty. Zoning Hearing Bd., 986 A.2d 199, 204 n.2 (Pa. Cmwlth.
2009) (citation omitted). “A conclusion that the [ZHB] abused its discretion may be reached
only if its findings are not supported by substantial evidence.” Baker v. Chartiers Twp. Zoning
Hearing Bd., 677 A.2d 1274, 1276 (Pa. Cmwlth. 1996) (citations omitted).
4
We have reordered Appellants’ arguments for ease of discussion.

6
Comprehensive Plan. (Appellants’ Brief (Br.) at 23-24.) The ZHB and Agile5
respond that the Ordinance cannot be challenged on the basis that it is inconsistent
or fails to comply with the Comprehensive Plan, which does not expire. (ZHB’s
Br. at 15; Agile’s Br. at 25.) Further, the ZHB and Agile assert that the rezoning of
the Property is consistent with the goals of the Comprehensive Plan.
A review of the ZHB’s Decision reveals that the ZHB did not ignore the
Comprehensive Plan, as it specifically recognized that the Comprehensive Plan has
not been updated since it was drafted and adopted in 1998 but noted that such plans
do not expire. (FOF ¶ 15; COL ¶ 34.) Further, it was not error for the ZHB to
reject the Challenge based on the Ordinance’s alleged nonconformity with the
Comprehensive Plan. Section 303(c) of the Pennsylvania Municipalities Planning
Code6 (MPC), 53 P.S. § 10303(c), provides: “Notwithstanding any other provision
of this act, no action by the governing body of a municipality shall be invalid nor
shall the same be subject to challenge or appeal on the basis that such action is
inconsistent with, or fails to comply with, the provision of a comprehensive
plan.” (Emphasis added.)
In CACO Three, Inc. v. Board of Supervisors of Huntington Township, 845
A.2d 991, 995 (Pa. Cmwlth. 2004), we stated,

[a]lthough a comprehensive plan is a useful tool for properly guiding
growth and development of the community, it is only intermediate and
inconclusive steps in the land use planning [sic]. Swinehart v. Upper
Pottsgrove T[wp.], . . . 351 A.2d 702 ([Pa. Cmwlth.] 1976); Saenger
v. Plan[.] Comm[’n] of Berks C[nty.], 308 A.2d 175 (Pa. 1973).

5
The Borough filed a Statement in Lieu of Brief, adopting and incorporating the ZHB’s
Findings of Fact and March 20, 2021 Decision, and requesting that this Court affirm the Opinion
and Order of common pleas.
6
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10303(c).

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 Unlike a specific and regulatory zoning ordinance, a comprehensive
plan is, by its nature, an abstract recommendation as to desirable
approaches to land utilization and development of the community.
Michaels Dev[.] Co. v. Benzinger T[wp.] B[d.] of Supervisors, . . . 413
A.2d 743 ([Pa.] 1980).

Thus, we held that inconsistencies with a comprehensive plan, by themselves, were
insufficient to, in that case, deny a land development plan. Id. In Briar Meadows
Development, Inc. v. South Centre Township Board of Supervisors, 2 A.3d 1303,
1307 (Pa. Cmwlth. 2010), this Court held, citing Section 303(c) and CACO Three,
that a substantive challenge to a zoning ordinance could not be based on the
ordinance’s alleged inconsistency with a comprehensive plan.
Under Section 303(c) of the MPC, Briar Meadows Development, Inc., and
CACO Three, Appellants’ contention that the ZHB’s determination must be
reversed due to the Ordinance’s alleged inconsistency or noncompliance with the
Comprehensive Plan is not a proper basis upon which to challenge the Ordinance’s
validity. 53 P.S. § 10303(c); Briar Meadows Dev., Inc., 2 A.3d at 1307; CACO
Three, 845 A.2d at 995. Moreover, a review of the Comprehensive Plan reveals
that one of its goals is to promote the development of adequate off-street parking
for existing and new development. (Reproduced Record (R.R.) at 494a.) Here, the
ZHB credited Mr. Slater’s testimony that additional off-street parking was needed
and would be provided on the Property as rezoned. (Id. at 965a.) Further, as Mr.
Schwartz credibly testified, the Ordinance advances the public health, safety, and
welfare of the community because it frees the streets from excessive cars and
prevents the nuisance of someone parking in or blocking access to someone else’s
driveway. (Id. at 199a-200a.) Mr. Schwartz also explained the Ordinance is
consistent with the Comprehensive Plan’s goal of requiring businesses to provide
additional off-street parking to prevent their patrons from “inundating the streets.”

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(Id.) Based on the foregoing, we conclude that the ZHB neither ignored the
Comprehensive Plan nor erred in not granting the Challenge on this basis.

B. Did the ZHB err in finding that the Ordinance was not invalid?
Appellants also argue that the Ordinance is invalid as impermissible spot
zoning because it creates a peninsula of commercial property surrounded by
residential property that has no relevant differences from its neighboring,
residential properties and because the Ordinance is arbitrary, capricious, and
exceeds the Borough’s constitutionally-derived police power.7 As part of these
arguments, Appellants assert that two of the ZHB’s findings used in concluding
that no spot zoning occurred – that there were residential dwellings on only two
sides of the Property and that additional parking is needed – are not supported by
substantial evidence. On the legal issues, Appellants maintain that the Ordinance
created a peninsula of “commercial” property, which constitutes impermissible
spot zoning under Knight v. Lynn Township Zoning Hearing Board, 568 A.2d 1372
(Pa. Cmwlth. 1990) and C.L. Associates v. Board of Supervisors of Montgomery
Township, 415 A.2d 134 (Pa. Cmwlth. 1980),8 wherein the rezoning of a single
property created a peninsula that was found to be spot zoning. (Appellants’ Br. at
18.) According to Appellants, the Ordinance also is invalid because it exceeds the
Borough’s authority, in that the rezoning is for the sole benefit of Agile, rather than
the community, as reflected in the 260 signatures of residents opposing the
rezoning, a fact that the ZHB should have considered, but did not. The ZHB

7
Although Appellants’ brief contains separate sections for these issues, their arguments
on these issues overlap considerably. Therefore, we will address them together to avoid
repetition.
8
Appellants refer to this case as Montgomery Township Appeal.

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ignored, Appellants argue, “that the only reason the [r]ezoned [P]roperty borders
the MUN [d]istrict at all is because of the rezoning of three residential parcels
owned by Agile in conjunction with the 2015 Expansion.” (Id. at 20.) Because the
Property will be used for parking, rather than for residential purposes, Appellants
argue that the Property’s use is now different from the surrounding properties
without justification. (Id. at 21.)
The ZHB and Agile respond that the Ordinance does not create a peninsula,
but rather is a natural extension of an existing MUN district, and that there is
substantial evidence for the ZHB’s findings. (ZHB’s Br. at 10; Agile’s Br. at 10,
28-29.) Agile argues that the rezoning of the Property was not spot zoning because
the Property is not being treated unjustifiably different from similar surrounding
land, and that, in reviewing the “surrounding” land, more than just the immediately
adjacent properties should be considered. (Agile’s Br. at 14, 18.) The ZHB and
Agile further argue that the ZHB was not required to engage in an analysis of
whether the Ordinance benefited the community’s health, safety, and welfare once
the ZHB determined that the Property was not being treated unjustifiably
differently from similar surrounding land because Appellants did not establish that
the Property was spot zoned. (ZHB’s Br. at 14; Agile’s Br. at 14.) “Nonetheless,
the ZHB gave [Appellants] ample opportunity to verbalize their disagreement with
the Borough’s rezoning decision.” (ZHB’s Br. at 14.) The ZHB highlights that
Appellants “testified at length about their opposition when the three lots behind the
funeral home were rezoned MUN, while admitting that no validity challenge was
raised in 2015[,]” but notes that such rezoning was not before the ZHB or relevant
to the rezoning of the Property. (Id. at 15.) Agile asserts that the rezoning “was
consistent with, upholds, and facilitates the community development objectives

10
outlined in the Comprehensive Plan,” (Agile’s Br. at 30), and, as such, was not
arbitrary or unreasonable.

1. Substantial Evidence
In reviewing Appellants’ substantial evidence challenges, we are mindful
that “this Court may not substitute its interpretation of the evidence for that of the
zoning hearing board.” Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d
807, 811 (Pa. Cmwlth. 2005) (citation omitted). “The board is the sole judge of the
credibility of witnesses and the weight afforded their testimony.” Id. (citation
omitted). “Assuming the record contains substantial evidence, we are bound by
the board’s findings that result from resolutions of credibility and conflicting
testimony rather than a capricious disregard of the evidence.” Id. (citation
omitted). “Substantial evidence is such relevant evidence that a reasonable mind
would accept as adequate to support a finding of fact.” Czachowski v. Zoning Bd.
of Adjustment, 271 A.3d 973, 979 n.9 (Pa. Cmwlth. 2022) (citation omitted).
When determining whether there is substantial evidence to support a finding, “we
must view the evidence in the light most favorable to the party that prevailed
before the fact[ ]finder.” Renaissance Real Est. Holdings, L.P. v. City of Phila.
Zoning Bd. of Adjustment, 199 A.3d 977, 983 (Pa. Cmwlth. 2018) (citation
omitted). “It is irrelevant whether the record contains evidence to support findings
other than those made by the fact finder.” Id. (citation omitted).
Our review of the record reveals that the challenged ZHB’s findings are
supported by substantial evidence. As to the ZHB’s findings that the Property
borders 50% on the R-1 district and 50% on the MUN district, and has residential
dwellings to the southeast and southwest, with the land to the northwest and
northeast consisting of MUN and CRD along Brownsville Road, (FOF ¶¶ 8-9),

11
these findings are supported by the maps and Mr. Schwartz’s testimony. The maps
show that one side of the Property is zoned MUN and a second side of the Property
abuts the right-of-way for Wainwright Road. (R.R. at 309a, 1005a-08a.) The
other sides of the Property are zoned R-1 and have residential dwellings thereon.
(Id. at 309a.) The map of the larger area demonstrates that there are MUN and
CRD districts to the northwest and northeast of the Property. (Id. at 1005a-08a.)
Mr. Schwartz credibly explained that the perimeter of the Property is 370 feet in
length, that approximately 50% is adjacent to the R-1 properties, a “small leg on
Wainwright,” approximately 40 to 45 feet, is on a right-of-way, and that to the
northwest “adjoins the existing mixed use neighborhood district.” (Id. at 163a-
64a.) Mr. Schwartz also testified that 50% of the rezoned Property adjoins an
existing MUN district or Wainwright Avenue, and approximately 49.25% adjoins
the R-1 district. (Id. at 165a.) Viewing this evidence in the light most favorable to
Agile, “a reasonable mind would accept [it] as adequate to support [the challenged]
finding of fact,” Czachowski, 271 A.2d at 979 n.9, and, therefore, the ZHB’s
findings are supported by substantial evidence.
The ZHB’s finding that additional parking is needed likewise is supported
by substantial evidence. Although Appellants provided pictures purporting to
show sufficient parking and testified that the funeral home has 107 parking spaces,
Mr. Slater does not need more, and the parking “is more than enough” because Mr.
Slater allowed third parties to park in the lot daily, (R.R. at 65a), Agile presented
contrary evidence. Mr. Slater testified that there are occasions when parking at the
funeral home is inadequate. (Id. at 231a.) On these occasions, Mr. Slater
explained, patrons park on neighboring streets or in parking lots of neighboring
businesses. (Id. at 231a-32a.) Mr. Slater testified that there have been instances

12
where patrons have complained about having to park far away from the funeral
home, and that there is occasionally a hazard on Brownsville Road when “people
are trying to get into the parking lot.” (Id. at 232a-33a.) Mr. Slater acknowledged
that parking is not an issue when only one family is at the funeral home, but where
there are “two huge families” or “many times, three or four families, sometimes
five, [] parking is definitely an issue.” (Id. at 234a.) The ZHB, acting in its role as
fact finder, weighed the evidence and found Mr. Slater’s testimony more
convincing, and we are bound by that determination. Taliaferro, 873 A.2d at 811.
Because “a reasonable mind would accept [Mr. Slater’s credible testimony] as
adequate to support [the] finding of fact” at issue, Czachowski, 271 A.2d at 979
n.9, the ZHB’s findings are supported by substantial evidence.

2. Spot Zoning
We now turn to Appellants’ legal challenge to the Ordinance’s validity
because it created a peninsula of differently treated property that directly benefits
Agile. Zoning ordinances are presumed to be valid, and a challenger has a heavy
burden of establishing the ordinance’s invalidity. Woll v. Monaghan Twp., 948
A.2d 933, 938 (Pa. Cmwlth. 2008). Spot zoning has historically been defined as
“zoning provisions adopted to control the use of a specific area of land without
regard to the relationship of those land use controls to the overall plan and the
general welfare of the community.” Twp. of Plymouth v. Cnty. of Montgomery,
531 A.2d 49, 57 (Pa. Cmwlth. 1987). As explained by this Court,

[s]pot zoning is a 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 or
detriment of the owner of that lot. In re Realen Valley Forge Greenes
Assoc[s.], . . . 838 A.2d 718, 729 ([Pa]. 2003). The most
determinative factor in an analysis of spot zoning is whether the

13
 parcel in question is being treated unjustifiably different from
surrounding land, thus creating an “island” having no relevant
differences from its neighbors. BPG Real Estate Investors-Straw
Party II, L.P. v. B[d.] of Supervisors, 990 A.2d 140, 150 (Pa. Cmwlth.
2010).

To establish improper spot zoning, the challenger must prove that the
provisions at issue are arbitrary and unreasonable and have no relation
to the public health, safety, morals and general welfare. Id. If the
validity of a zoning ordinance is debatable, it must be permitted to
stand. Id. Spot zoning cases should be decided on the facts, guided
by case law, [and] there is no precise formula for determining whether
a rezoning of property constitutes spot zoning. Id.

Takacs v. Indian Lake Borough Zoning Hearing Bd., 11 A.3d 587, 594 (Pa.
Cmwlth. 2010).
When considering whether the subject property has been accorded
unjustifiable differential treatment, the courts have considered the size of the
property, along with the topography, location, and characteristics of the tract at
issue. Knight, 568 A.2d at 1375. Our Supreme Court cautioned in Schubach v.
Silver, however, that

a reviewing court cannot take too constrained a view of the
surrounding neighborhood. To discuss a zoning measure by merely
looking at the nature of the particular city block on which the rezoned
[] land is located is simply incorrect. Although the court must focus
its attention on the immediately surrounding land, . . . we are mindful
that in this immediate area there is an industrial tract, multi-family
apartment structures and shopping areas. If on[e] stood on the
[property] and made a 360[-]degree turn, within a few blocks of
the land, [one] would find many different land uses.

336 A.2d 328, 337 n.16 (Pa. 1975) (emphasis added). Applying these standards,
we discern no error in the ZHB’s denial of Appellants’ Challenge.

14
 Appellants argue that the Ordinance is invalid spot zoning because Agile
requested the rezoning and will benefit from that rezoning. However, spot zoning
does not occur simply because the rezoning occurs at the request of the landowner,
Schubach, 336 A.2d at 337; Appeal of McWilliams, 198 A.2d 538, 540 (Pa. 1964),
or because the landowner will benefit from the rezoning, Lyons v. Zoning Hearing
Board of Borough of Sewickley (Pa. Cmwlth., No. 178 C.D. 2014, filed Nov. 10,
2014), slip op. at 17.9 Further, to the extent that Appellants’ arguments could be
read as challenging the Borough’s rationale for enacting the Ordinance, a
municipality’s state of mind in enacting an ordinance is irrelevant to the
ordinance’s validity. Plaxton v. Lycoming Cnty. Zoning Hearing Bd., 986 A.2d
199, 210 (Pa. Cmwlth. 2009). Therefore, these are not reasons to conclude that the
ZHB erred.
In asserting that the Ordinance created a peninsula of property that was
being treated differently, Appellants focus on the Property’s connection with their
own residential properties and argue, essentially, that the Property’s connection
with the MUN district should be disregarded because of how that MUN district
came into existence and how Agile has used or will use its properties in the MUN
district. The ZHB held that the Property was located in an area of mixed
residential and non-residential uses and was not being treated differently from
other properties because its rezoning was an extension of the existing MUN
district, a district that, like the R-1 district, allows residential uses. (COL ¶¶ 32-
33.) Precedent has held that the most determinative factor is whether the rezoned

9
While not binding, unreported opinions of this Court may be cited for their persuasive
authority pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and
Section 414(a) of our Internal Operating Procedures, 210 Pa. Code. § 69.414(a).

15
property is being treated unjustifiably different from surrounding properties,
resulting in an “island” or “peninsula” with no relevant differences from its
neighbors. Takacs, 11 A.3d at 594 (citing BPG Real Estate Investors-Straw Party
II, 990 A.2d at 150). In reviewing such determinations, we must be mindful that
we do not take a “too constrained a view of the surrounding neighborhood.”
Schubach, 336 A.2d at 337 n.16.
In focusing only on their own residential uses and the proposed parking use
of the rezoned Property, Appellants discount that the focus is on the zoning
classifications of the properties around the rezoned property and whether the
rezoning creates a different classification without justification. The Property, as
rezoned, allows for residential dwellings, just as the adjacent R-1 district does.
That the Property may also be used for a non-residential use, which is also
permitted in the MUN district, does not result in a peninsula of commercially
zoned property in a sea of residentially zoned property. The fact remains that the
rezoned Property permits residential and commercial uses. Appellants’ arguments
and focus on their residential properties further ignore the transitional purpose of
the MUN district, which, per Section 210-26 of the BRENTWOOD ZONING
ORDINANCE, “is to provide areas for a mix of residential and neighborhood
commercial facilities intended to serve the immediate area with goods and
services.” (R.R. at 362-63a (emphasis added).) Mr. Schwartz credibly testified,
consistent with that section, that the MUN district is to serve as a buffer between
residential and “the more intense commercial areas, like on the other side of
Brownsville where the Giant Eagle and the McDonald’s” are located. (Id. at
171a.) Reviewing the broader area surrounding the Property, which includes both
the nearby residences, but also the MUN district and the intense commercial areas

16
of the CRD, it cannot be said that the Property is being treated unjustifiably
differently. Accordingly, these are not reasons to find that the ZHB erred.
Appellants’ argument that the rezoned property will be “clearly a different
use from the properties located to the North, South, and East of the rezoned
property,” (Appellants’ Br. at 21), is similarly unpersuasive. First, Appellants’
view of the surrounding area is too constrained, as, in accordance with the
Supreme Court directive in Schubach, we must view the surrounding area more
broadly than just the block on which the rezoned property is located. In that
broader surrounding area, there is a MUN district and a right-of-way immediately
adjacent to the Property and, nearby, there is a CRD, which Mr. Schwartz credibly
described as “more intense commercial.” (R.R. at 171a.)
Second, in Appeal of McWilliams, our Supreme Court recognized the
importance of allowing the natural extension of an already-existing, adjacent
zoning district in analyzing the validity of an ordinance, even if it allows for
different uses. 198 A.2d at 540. In that case, the Supreme Court concluded that
the ordinance at issue did not constitute the illegal spot zoning of a property and
had a reasonable relationship to the health, safety, and general welfare, explaining:

The tract of land here in question, slightly less than an acre in area,
was rezoned at the request of appellees’ grantor. This fact does not in
and of itself invalidate the rezoning. . . . Nor does the limited size of
the plot and the fact that all other properties fronting on Marshall
Road . . . are zoned B-Business, necessarily force the conclusion that
the enactment is invalid. Reference to the township zoning map
discloses that the area zoned is a natural extension of an already
existing R-3 Residential district, adjoining to the north and west.

....

17
 Nor can we brand the ordinance as illegal spot zoning. The area
rezoned is not an “island of more or less restricted use within a district
zoned for a different use or uses[.]” As previously stated herein, the
area rezoned is adjoined on the north and west by a large R-3
Residential district and no residential island has been created by the
ordinance.
Id. (footnote omitted).
Here, the rezoned Property is 6,225 square feet – much less than the almost
acre10 being rezoned in McWilliams, (FOF ¶ 5), and there are adjoining properties
that are zoned R-1. However, the limited size of the lot and the fact that the other
properties are zoned R-1 does not “necessarily force the conclusion that the
enactment is invalid.” McWilliams, 198 A.2d at 540. Similar to the rezoning in
McWilliams, the Property was rezoned to an already existing district, the MUN
district,11 adjoining the Property, which, like the R-1 district, allows residential
uses. As such, the rezoned Property is a natural extension of the already existing
MUN district and it is not a peninsula or “island of more or less restricted use
within a district zoned for a different use or uses.” Id. The rezoned Property
shares the same and similar uses to its surrounding properties, and, therefore,
Appellants’ arguments on this point do not establish error by the ZHB.
Knight and C.L. Associates, upon which Appellants rely, are distinguishable.
In Knight, we held that an ordinance constituted illegal spot zoning, citing as “a
conclusive factor” a contract in which the landowner agreed to record a restrictive
covenant limiting development of the land. 568 A.2d at 1376. We explained that

10
An acre is 43,560 square feet. See https://www.unitconverters.net/area/square-feet-to-
acres.htm (last visited Apr. 17, 2023).
11
Although Appellants assert arguments based on the 2015 rezoning that resulted in the
MUN district, no challenges to that rezoning were filed at that time. We agree with the ZHB and
Agile that the time to challenge the validity of that rezoning has passed.

18
“the contract, which the governing body tailored to ensure particular use
restrictions of the tract, [was] evidence of the [s]upervisors’ intent to adopt a
unique classification for a particular parcel[]” and that such classification did not
“further the purpose of the zoning ordinance or the comprehensive plan.” Id.
Conversely, here, there is neither a contract nor agreement between the Borough,
Agile, and/or Mr. Slater that the rezoned Property be used only for parking.
Appellants acknowledge this but assert that the Ordinance “was tied together with
the land development plan for the parking lot expansion so that it became the
functional equivalent of Mr. Slater promising to only use the Property for parking
and not any other authorized use in the MUN [d]istrict.” (Appellants’ Br. at 17-
18.) However, there is no evidence that the rezoned Property can be used only for
parking purposes, which distinguishes this matter from Knight. Also, unlike the
challenged ordinance in Knight, the Ordinance, and Agile’s intended use of the
Property, furthers the Comprehensive Plan’s goal of promoting the development of
adequate off-street parking for existing and new development. (R.R. at 472a,
494a.) Thus, Knight does not require a different result.
C.L. Associates is similarly distinguishable. In that case, a landowner sought
rezoning of its property consisting of two 100-foot wide lots, so that the entirety of
the lots was zoned C-Commercial, rather than three-fourths of the lots as it was
zoned. The remaining one quarter of the lots was zoned R-2 Residential, in which
no commercial uses were permitted. Adjoining and/or within a few hundred feet
of the two lots were a fast food restaurant (adjoining to the east), a motel
(adjoining on the south), and a large shopping mall (300 feet to the south and
southwest). The owner of the lot immediately to the west of the two lots asked to
have his 100-foot wide lot rezoned but subsequently sought to retain its R-2

19
Residential zoning. After the hearing, the board of supervisors did not grant or
deny the requested relief but rezoned the two lots R-2 Residential “by redrawing
the line marking the boundary of the C-Commercial and R-2 Residential zoning
districts,” and enacted an ordinance to amend the zoning map to reflect the change.
C.L. Assocs., 415 A.2d at 136. On appeal, we upheld the trial court’s findings of
impermissible spot zoning, that the two lots should be zoned C-Commercial,
because the amendment created “a peninsula of residentially zoned land in a sea of
commercial zoning (and uses),” and singled out these properties for treatment
different than other similar surrounding land to the economic detriment of the
owner. Id. We noted that the amendment, which related only to the appellee’s
property, interrupted the otherwise “perfectly straight lines marking the C-
Commercial zoning” along the Route 309 corridor, even though “those lines
pass[ed] through many other properties, large and small,” and questioned whether
the zoning was designed to prevent a permitted use of the land after an application
for that use had been made to the township. Id.
The instant case is distinguishable from C.L. Associates. The rezoning in
C.L. Associates precluded the lots from being used for commercial uses, as they
had been zoned before and which were consistent with the “sea” of adjoining and
nearby commercial properties. Id. at 136. The Ordinance still permits residential
use of the Property, which is consistent with its previous zoning and with its
neighboring R-1 district, but also permits additional uses that are consistent with
the adjoining MUN district and nearby CRD district. Accordingly, C.L.
Associates, likewise, does not require a different result.

20
 3. Unreasonable, Arbitrary, and Unrelated to the Borough’s Police
Power
Finally, Appellants assert that the Ordinance is invalid because it is
unreasonable, arbitrary, and not substantially related to the Borough’s police
power. Appellants argue “substantial evidence exists that the . . . Ordinance is an
unconstitutional exercise of the Borough’s police power to zone for the benefit of
one landowner at the expense of many.” (Appellants’ Br. a 22.) Appellants rely
on the 260 Borough residents who signed a petition in opposition to the enactment
of the Ordinance, and their claims that Whitehall House is not permitted in the
MUN district and no additional parking is needed. (Id. at 22-23; R.R. at 671a-
88a.)
We have already addressed Appellants’ claims regarding the lack of need for
additional parking, holding that the ZHB’s contrary findings are supported by
substantial evidence, as well as those relating to how the rezoning was based on
Agile’s request and benefitted Agile, which does not reflect that impermissible
spot zoning has occurred under our precedent. See, e.g., Schubach, 336 A.2d at
330. This leaves Appellants’ argument based on the 260 signatures of residents
who opposed the Ordinance and assertions related to the impermissible use of
Whitehall House in the MUN district.
A zoning ordinance is presumed valid and constitutional and the challenging
party “must clearly establish the provisions are arbitrary and unreasonable and
have no relation to the public health, safety, morals, and general welfare and if the
validity is debatable the legislative judgment is allowed to control. Id. at 335
(emphasis added). While Appellants presented evidence that 260 residents
opposed the Ordinance, it cannot be said that the Ordinance has “no relation to the
public health, safety, morals, and general welfare,” id. (emphasis added), where it

21
is consistent with the purpose of the MUN district, which reflects the Borough’s
legislative judgment to create a buffer area between commercial and residential
uses. The Ordinance is also consistent with the Comprehensive Plan’s goals of
ensuring sufficient off-street parking for existing and new development, which Mr.
Schwartz credibly testified protects the public health, safety, and welfare by
freeing the streets of excessive cars and preventing the nuisance of people parking
in or blocking access to the driveways of residences nearby. (R.R. at 199a-200a.)
It is neither arbitrary nor unreasonable to enact an ordinance that is consistent with
a comprehensive plan (even if such consistency is not required for the legislation to
be valid per CACO Three, 845 A.2d at 995). Thus, these are not reasons to find the
ZHB erred or abused its discretion.
Appellants’ arguments that the ZHB erred because Whitehall House is not a
permitted use in the MUN district but is being used as an exhibition center or
nightclub are unpersuasive. To the extent that Appellants’ arguments appear to
argue that the 2015 rezoning was in error, (Appellants’ Br. at 24), no validity
challenge was ever filed to the 2015 rezoning, (FOF ¶ 20), and that rezoning,
having gone unchallenged, is not relevant to the question currently before the ZHB
– the rezoning of the Property. Further, there is a question regarding how the use
of Whitehall House is relevant to whether the Ordinance constitutes impermissible
spot zoning of the Property. As common pleas’ noted, the Borough’s Solicitor
acknowledged “that a substantive validity challenge is the wrong way to address
[the] concerns” that Appellants have about being negatively impacted by the
development of Whitehall House. (Common pleas Op. at 4; R.R. at 955a-56a.)
Finally, although Appellants characterize Whitehall House as an “exhibition
center[] and/or nightclub[],” (Appellants’ Br. at 8), the ZHB found that Whitehall

22
House was “a hospitality venue for the funeral home that also [is] available for rent
by the public for social events,” (FOF ¶ 13). Appellants do not allege, nor provide
support for their proposition from the Borough Zoning Code, the MPC, or any
relevant law, that the use identified by the ZHB is not permitted in the MUN
district. Thus, Appellants have not established that the Ordinance is unreasonable,
arbitrary, or has no relationship with the public health, safety, morals and general
welfare resulting in the Borough exceeding its police powers in enacting the
Ordinance.

III. CONCLUSION
Based on the foregoing, the ZHB’s findings of fact are supported by
substantial evidence and those findings, as well as precedent, support the
conclusions that Appellants did not establish that the Ordinance constituted
impermissible spot zoning by creating a peninsula of property being treated
unjustifiably differently or that the Ordinance was unreasonable, arbitrary, and
bore no relationship to the public health, safety, morals, and general welfare such
that the Borough exceeded its police power. Accordingly, we affirm.

__________________________________________
RENÉE COHN JUBELIRER, President Judge

23
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Raisa and Yevgeniy Burd, Raju :
and Kalpana Gurung, and :
Henry Pietkiewicz, :
Appellants :
:
v. : No. 1049 C.D. 2021
:
Borough of Brentwood Zoning :
Hearing Board, Borough of :
Brentwood and Agile :
Development, LLC :

ORDER

NOW, April 18, 2023, the August 26, 2021 Order of the Court of Common
Pleas of Allegheny County is hereby AFFIRMED.

__________________________________________
RENÉE COHN JUBELIRER, President Judge