M. Chaffier v. Hellertown Borough ZHB v. J. O'Brien

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Chaffier, :
:
Appellant :
:
v. : No. 907 C.D. 2022
: Argued: September 11, 2023
Hellertown Borough Zoning :
Hearing Board :
:
v. :
:
James O’Brien, Andrea Goshen, :
John William Goshen, David :
Heffelfinger, and Alan Kunsman :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 10, 2024

Michael Chaffier (Owner)1 appeals from the order of the Northampton
County Court of Common Pleas (trial court) that affirmed the decision of the
Hellertown Borough (Borough) Zoning Hearing Board (Board) granting the
substantive validity challenge of James O’Brien, Andrea Goshen, John William
Goshen, David Heffelfinger, and Alan Kunsman (together, Objectors) to the

1
The property in question is owned by Michael and Sarah Chaffier, but only Michael
Chaffier is participating in this appeal.
Borough’s Zoning Ordinance 834-2020 (Ordinance 834) that rezoned Owner’s
property (Property) from R-1 Residential to R-2 Residential. The issue before the
Court is whether the Board erred or abused its discretion when it invalidated
Ordinance 834 as illegal spot zoning. After careful review, we affirm.
The relevant facts as found by the Board are as follows. The Property,
located at 1527 Easton Road, consists of 6.7 acres, with 4.86 acres in the Borough,
and the remaining acres located in Lower Saucon Township. Board Opinion,
8/30/21, at 1.2 Owner’s Property contains two residential dwellings. Id. On
November 1, 2019, Owner applied for a zoning map amendment with the Borough,
requesting that Borough Council, in its legislative capacity, rezone the portion of the
Property in the Borough from R-1 Residential to R-2 Residential.3 Id. The Borough
Planning Commission reviewed Owner’s application and voted 4-3 to recommend
that Borough Council deny Owner’s request. Id. The Lehigh Valley Planning
Commission (LVPC) also reviewed the application and opined that the zoning
amendment was “generally consistent with the County Comprehensive Plan.” Id. at
2. See also Reproduced Record (R.R.) at 9a-10a. On January 21, 2020, Borough
Council reviewed Owner’s application, voted 5-1 (with one abstention) to grant
Owner’s application, and adopted Ordinance 834 to amend the Borough’s official

2
The Board Opinion, 8/30/21, may be found in the Original Record (O.R.) at Item No. 15.

3
Hellertown Borough, PA, Zoning Ordinance of 2002 (Zoning Ordinance), as amended,
may be found in the Original Record at Item No. 15. Section 450-10(A) of the Zoning Ordinance
governs permitted uses in the R-1 zone, which include in relevant part, without limitation, single-
family detached dwellings and single-family semi-detached dwellings (duplexes). Section 450-
11(A) of the Zoning Ordinance governs permitted uses in the R-2 zone, which include in relevant
part, without limitation, multi-family dwellings, single-family attached dwellings (townhomes),
single-family detached dwellings, and duplexes. Sections 450-10 and 450-11 of the Zoning
Ordinance may be found in the Reproduced Record (R.R.) at 44a-50a.
2
zoning map to change the designation of Owner’s Property from R-1 Residential to
R-2 Residential.4 Id. See also R.R. at 20a-21a.
On March 5, 2021, Owner requested a preliminary opinion from the
Borough Zoning Officer as to whether single-family attached homes (townhomes)
are permitted on the Property in the R-2 zone, to which the Zoning Officer responded
that townhomes are permitted. Board Opinion at 3. On April 21, 2021, Objectors,
whose various properties are adjacent to or near the Property, filed a zoning appeal
with the Board challenging the substantive validity of Ordinance 834, alleging that
the rezoning of the Property from R-1 to R-2 constituted illegal spot zoning. Id. at
2. The Board conducted three public hearings regarding Objectors’ appeal: on May
19, 2021; June 16, 2021; and July 21, 2021, the last of which was for argument only.
Id. The Board provided proper notice for these public hearings, the first of which
was conducted remotely, and the others were conducted in-person with a remote
option. Id. at 2-3. All five Board members were present (with one member
participating remotely) at each public hearing, where they were represented by the
Board’s solicitor, Matthew Deschler, Esquire. Owner, represented by counsel, was
also present at each public hearing, as was the Borough, represented by its solicitor,
Michael Corriere, Esquire. Id. at 3. Objectors were also present at each public
hearing, represented by counsel. Id. at 3-4. Objectors’ various properties, which
range in size from .36 to 2.75 acres, are all located in the R-1 zone. Id. R-1 and R-
2 zones are the two residential zoning districts in the Borough. Id. at 4.

4
After Borough Council adopted Ordinance 834, the Borough Mayor vetoed it, after which
Owner filed a declaratory judgment action with the trial court against the Mayor and the Borough,
asserting that the Mayor did not have the legal authority to veto Ordinance 834. The trial court
found as a matter of law that the Mayor did not have the authority to veto Ordinance 834, and the
parties entered into a settlement agreement confirming the valid enactment of Ordinance 834 by
Borough Council, effective January 21, 2020. See R.R. at 22a-25a.
3
 The Board reviewed Sections 450-10 and 450-11 of the Zoning
Ordinance and found that “[m]ore intense residential uses, including, without
limitation, single[-]family attached dwellings (townhomes) are not permitted in the
R-1 zone.” Board Opinion at 4. The Board also made the following findings
regarding the R-1 and R-2 zones at issue here.

32. Prior to the zoning amendment [in Ordinance 834],
Easton Road served as the boundary line between the R-2
Zone to the West and the R-1 Zone to the east.

33. Prior to the zoning amendment [in Ordinance 834],
the R-1 Zone was a single, contiguous zone on the
Borough’s eastern edge that stretched from the Borough’s
northeast point where Easton Road intersects with the
Lower Saucon Township boundary line to the Borough’s
southern boundary on Walnut Street.

34. Prior to the zoning amendment [in Ordinance 834],
the R-2 Zone was located exclusively on the western side
of Easton Road, directly across from the [] [P]roperty.

35. As a result of the zoning amendment [in Ordinance
834], the use of Easton Road as the boundary line between
the R-1 and R-2 Zones has been abandoned.

36. As a result of the zoning amendment [in Ordinance
834], the R-2 Zone now juts out and extends to the eastern
side of Easton Road for the sole purpose of including the
[] [P]roperty in the R-2 Zone.

37. As a result of the zoning amendment [in Ordinance
834], the former single, contiguous R-1 Zone has been
severed into two separate R-1 Zones: an isolated, triangle-
shaped R-1 Zone in the northeast corner of the Borough
that is bordered on the south by the northern property line
of the [] [P]roperty, and a large contiguous R-1 Zone
bordered on the north by the southern property line of the
[] [P]roperty and extending to the Borough’s southern
boundary on Walnut Street.

4
 38. There are no other physical characteristics or
conditions associated with the [] [P]roperty that
distinguish it from the properties which immediately
surround it.
Id. at 5-6.5
The Board summarized the testimony presented by the parties at the
Board hearings. Objectors presented testimony from a professional civil engineer,
Mark Bahnick (Bahnick), who prepared sketch plans and testified that it would be
possible to fit 18 single-family detached dwellings or 26 duplexes on the Property if
it was zoned R-1. Board Opinion at 6. Objectors also presented testimony from a
licensed realtor, Joe D’Ambrosio (D’Ambrosio), who testified that single-family
detached homes and duplexes, as shown on Bahnick’s sketch plans, would be
marketable to potential buyers. Id. D’Ambrosio also testified that development of
the Property with single-family homes or duplexes would increase the Borough’s
tax base, but that developing the Property with “a townhome development would
provide a higher tax ratable than either single-family detached dwellings or twin
homes.” Id. Objectors testified, in essence, that their neighborhood consists of
approximately one-acre lots where parents raise their children in “an ideal setting”;
they expected the neighborhood to remain single-family homes when they purchased
their properties; Ordinance 834 would “change the character of the neighborhood”;
they are concerned that development of the Property in the R-2 Zone will cause “loss
of privacy, noise, and increased traffic problems”; and, Ordinance 834 does not
benefit “the Borough as a whole, but rather solely benefits [Owner].” Id. at 7.

5
The Borough zoning maps, before and after the adoption of Ordinance 834, may be found
in the Reproduced Record at 42a-43a. The color versions of these maps may be found in the
Original Record at Item No. 15.
5
 The Board then reviewed the LVPC Comprehensive Plan, that purports
to provide a “10-15[-]year vision of how development and conservation can
contribute to the character and services” of the Borough, Lower Saucon Township,
and the Saucon Valley School District. Board Opinion at 7. The Board reviewed
the map contained in the LVPC Comprehensive Plan,6 and compared it to the
Borough’s zoning map before the enactment of Ordinance 834. Id. The Board found
that “[p]rior to the zoning amendment [Ordinance 834], the R-1 Zone corresponded
to the area designated as planned future area of low intensity residential use, and the
R-2 Zone corresponded to the area designed as the planned future area of higher
intensity residential use.” Id. The Board found that Objectors’ properties and the
Property were denoted in yellow [on the LVPC map], signifying the planners’ intent
to maintain these properties as areas of low intensity residential use. Id. at 8.
The Borough presented testimony from its Zoning Officer, Kris Russo
(Zoning Officer), which the Board summarized as follows. The Zoning Officer
testified that the Property, aside from the two homes already on it, is one of the “few
undeveloped properties in the Borough.” Board Opinion at 9. The Zoning Officer
testified that “streets are used as zoning district boundaries for all but three zoning
districts in the Borough.” Id. The Zoning Officer testified that he believed that
Ordinance 834 is “consistent with the surrounding area, which includes townhomes
and apartments within the more densely used area on the [western] side of Easton
Road.” Id. The Board noted and described the townhome developments and
apartment complexes located in close proximity and directly across the street from
the Property. Id. at 9-10. The Zoning Officer testified that, since 2015, there had

6
See O.R. at Item 15, p. 1-17.
6
been 5 plan submissions for single-family dwellings, 5 plan submissions for
duplexes, and 14 plan submissions for townhomes in the Borough. Id. at 10.
The Borough also presented testimony from Bryan Smith, the Borough
Engineer (Borough Engineer). The Borough Engineer testified that there are no
other properties of the same size as the Property that can be developed for residential
purposes in the Borough. Board Opinion at 10. The Borough Engineer opined that
“[b]ased on the number of townhome plan submissions received by the Borough in
recent years, . . . there is a demand for townhomes in the Borough.” Id. The
Borough Engineer further opined that the uses permitted for the Property in the R-2
Zone, such as townhomes, “would be consistent” with the townhome developments
across Easton Road and, therefore, he did not believe that the Property was treated
differently than the surrounding properties. Id. No Borough residents spoke in favor
of Ordinance 834, several Borough residents spoke in opposition to Ordinance 834,
and the Board reviewed the exhibits admitted into the record. Id. at 11-13. After
reviewing the evidence and arguments, on July 21, 2021, the Board voted 3-2 to
grant Objectors’ substantive validity challenge and to declare Ordinance 834 null
and void as unconstitutional spot zoning. R.R. at 546a-47a. The Board directed its
solicitor to prepare a written decision in support of its action. Id. at 541-42a.
In its written decision, the Board stated that Ordinance 834 is presumed
to be valid and constitutional, and Objectors’ bear the burden to show that Ordinance
834 is unconstitutional. Board Opinion at 14. The Board noted that there is “no
hard and fast test” to determine whether a situation constitutes spot zoning, and each
case is decided on its “own peculiarities,” citing Pollock v. Zoning Board of
Adjustment, 342 A.2d 815 (Pa. Cmwlth. 1975). Id. The Board reviewed our courts’
definition of spot zoning and the “two-prong test to determine whether a zoning

7
ordinance represents spot zoning,” namely, “whether differential treatment was
afforded the area in question, and if so, whether that differential treatment was
justified upon consideration of various factors,” citing Lower Allen Citizens Action
Group, Inc. v. Lower Allen Township Zoning Hearing Board, 500 A.2d 1253, 1260
(Pa. Cmwlth. 1985). Id. at 14-15. As to the first prong, the Board considered
whether Ordinance 834 reflects a difference in treatment of the Property “from
surrounding land similar in character,” in terms of topography, location, and
characteristics of the Property. Id. at 15. The Board concluded that “[t]he record
evidence demonstrates that there are no topographical or other physical
characteristics of the [] [P]roperty that distinguish it from the surrounding properties.
In fact, the [] [P]roperty is essentially indistinguishable from the surrounding
properties.” Id.
The Board also considered whether the Property is suitable for the uses
permitted in the R-1 Zone, before Ordinance 834 was enacted, and concluded that it
is. Board Opinion at 15-16. The Board credited the testimony of Bahnick, who
opined that it would be possible to fit 18 single-family dwellings or 26 duplexes on
the Property in the R-1 Zone, and the testimony of D’Ambrosio, who opined that
either single-family dwellings or duplexes on the Property would be marketable in
the Borough. Id. at 16. Therefore, the Board concluded that “while placement of
the [] [P]roperty within the R-2 Zone permits the more lucrative development of
townhomes, the record evidence demonstrates that the [] [P]roperty is perfectly
suitable for development in accordance with its prior R-1 zoning classification.” Id.
The Board next considered the Borough’s argument that the rezoned
Property was not afforded differential treatment because Ordinance 834 did not
create an “island.” Board Opinion at 16. The Borough argued that the Property was

8
not being treated differently than surrounding properties because the Property is
located across the street from, and in close proximity to, townhomes and apartments
in the R-2 Zone. Id. The Board rejected the Borough’s argument that spot zoning
requires the Property to be an “island” isolated from surrounding properties that are
treated differently and determined that a property may be singled out for special
treatment if it differs from an abutting property of a different zoning classification,
citing Bidwell v. Zoning Board of Adjustment of Pittsburgh, 286 A.2d 471 (Pa.
Cmwlth. 1972), and Schubach v. Zoning Board of Adjustment (Philadelphia), 270
A.2d 397 (Pa. 1970) (Schubach I). Id. at 16-17.
The Board then considered the second prong of the spot zoning test,
whether the differential treatment of the Property was “justified on health, safety,
morals, and public welfare grounds,” or whether it was “unjustified or irrational.”
Board Opinion at 17. The Board considered the Borough’s argument that the
number of plan submissions since 2015, as testified to by the Zoning Officer,
established a “need for properties on which townhomes may be developed,” that
justified Ordinance 834 as “rationally related to the public interest.” Id. The Board
rejected the Borough’s argument, concluding as follows: “However, evidence of the
number of plan submissions does not, by itself, necessarily reflect a ‘need’ for a
particular type of development within the Borough. The fact that there were 14 plan
submissions for townhomes since 2015 could simply reflect the developers’
preference for more lucrative townhome development.” Id.
The Board also considered the Borough’s argument that Ordinance 834
was rationally related to the public interest because it “permits the Borough to raise
additional tax revenue to pay for public services without the need for a tax increase.”
Board Opinion at 18. The Board acknowledged D’Ambrosio’s testimony that

9
townhome developments would provide a “higher tax ratable” than single-family
dwellings or duplexes. However, the Board rejected the Borough’s argument
because “the courts ‘have consistently held that tax-based concerns cannot be
decisive in a zoning case,’” citing Baker v. Chartiers Township Zoning Hearing
Board, 677 A.2d 1274, 1279 (Pa. Cmwlth. 1996), and other cases. Id. The Board
rejected the Borough’s and Objectors’ attempts to rely on arguments made by
Attorney Joseph A. Fitzpatrick before the Borough in support of Ordinance 834,
because legal argument does not constitute evidence. Board Opinion at 18 n.6. The
Board concluded that even if this legal argument constituted evidence, “the state of
mind of a legislative body in amending a zoning ordinance is not relevant to
determining its validity, and the amendment must stand or fall on its own terms,”
citing Plaxton v. Lycoming County Zoning Hearing Board, 986 A.2d 199, 210 (Pa.
Cmwlth. 2009). Id. The Board further concluded that, although there was a “good
deal of discussion” during the June 16, 2021 Board hearing regarding the effect of
townhome development on the Borough’s tax revenue, as well as townhome
development creating an increased burden on the school district and public services,
“there is no competent record evidence that would permit the Board to determine the
actual impact of townhomes on the Borough budget.” Id.
The Board further considered the Borough’s argument that Ordinance
834 was rationally related to the public interest because it was consistent with the
policy goals of the County Comprehensive Plan as determined by the LVPC. Board
Opinion at 19. The Borough asserted that it could have relied on the LVPC letter to
support Ordinance 834, to promote “a variety of attainable housing in locations that
maximize social and economic opportunities.” Id. The Board rejected this argument
for several reasons. First, the Board found no evidence that the Borough Council

10
actually relied on the LVPC’s opinion when it passed Ordinance 834. Further, the
Board concluded that the state of mind of Borough Council was not relevant, and
Ordinance 834 must stand or fall on its own terms. Id. The Board acknowledged
that the LVPC letter was admitted into evidence, but it found no evidence in the
record to establish the grounds upon which the LVPC’s conclusions were based.
The Board found no evidence to support the conclusion that townhome
developments would maximize social and economic opportunities. Id. The Board
found no evidence that townhome development on the Property would promote
reuse of vacant property, because the Property is not vacant. Id. The Board further
found that if the Property is “underutilized,” it is underutilized by Owner’s choice,
and not because of any physical characteristics or conditions on the Property. Id. at
20. Therefore, the Board concluded that the record does not demonstrate that
Ordinance 834 was justified on health, safety, morals, and public welfare grounds,
but was, instead, “the product of an ‘unjustified or irrational’ exercise of legislative
power.” Id.
The Board also evaluated the role of streets separating zoning districts
in the Borough, to determine whether Ordinance 834 was a rational exercise of the
Borough’s legislative authority, or whether it was enacted to benefit Owner. The
Board acknowledged the Zoning Officer’s testimony that streets are used as zoning
district boundaries in the Borough in all but three zoning districts and found that
“streets are the predominate means of separating zoning districts within the
Borough.” Board Opinion at 20. The Board found that Easton Road, “a state route
with a double yellow line,” served as a “clear and natural boundary between the R-
1 and R-2 Zones” before Ordinance 834 was enacted. Id. The Board found that,
before Ordinance 834, the R-1 Zone was a “single, contiguous zoning district on the

11
eastern side of Easton Road,” and that the R-2 Zone, “a less restrictive zoning district
than the R-1 Zone,” was located “exclusively on the western side of Easton Road.”
Id. The Board found that Ordinance 834 “abandons the use of Easton Road as a
clear and natural boundary between the R-1 and R-2 Zones.” Id. The Board
described the new R-2 Zone as jutting out and extending to the eastern side of Easton
Road “for the sole purpose of including the [] [P]roperty in the R-2 Zone.” Id. After
Ordinance 834 was enacted, the rezoning of the Property resulted in a severing of
the former contiguous R-1 Zone into “two separate R-1 Zones” comprised of an
isolated, triangle shaped R-1 Zone in the northeast corner of the Borough, and a large
R-1 Zone below the Property. Id. The Board then concluded that the result of
Ordinance 834 was to sever “the R-1 Zone into two separate and distinct areas” and
to abandon “Easton Road as a natural boundary line between zoning districts,” which
“demonstrates the intent of [Ordinance 834] to benefit [Owner] while disregarding
the relationship of zoning restricts to the general health, safety, and welfare of the
community.” Id. at 21. Finally, the Board noted that it did not consider Objectors’
argument that Ordinance 834 was invalid because it is inconsistent with the County
Comprehensive Plan, because Section 303(c) of the Pennsylvania Municipalities
Planning Code (MPC), 53 P.S. §10303(c),7 prohibits the invalidation of an ordinance
on the basis that it is inconsistent or fails to comply with the provisions of a
comprehensive plan. Id. at 21 n.8.
Therefore, the Board concluded that Ordinance 834 “reflects
differential treatment of the [] [P]roperty from surrounding land similar in character,
and a lack of justification for such differential treatment.” Board Opinion at 22. The

7
Act of July 1, 1068, P.L. 566, as amended, 53 P.S. §§10101-11202.
12
Board concluded that Ordinance 834 “constitutes spot zoning, and therefore, is
unlawful.” Id.
Owner appealed the Board’s decision to the trial court, which heard
argument and took no additional evidence. The trial court discerned “no legal error
or abuse of discretion” in the Board’s decision and affirmed it. Trial Court Opinion,
7/19/22, at 3. 8 Owner then appealed to this Court.9, 10
Substantive validity challenges to a zoning ordinance are governed by
Section 916.1 of the MPC, 53 P.S. §10916.1.11 When presented with such a
challenge, we must presume the ordinance is “‘constitutionally valid unless a
challenging party shows that it is unreasonable, arbitrary, or not substantially related
to the police power interest that the ordinance purports to serve.’” Allen Distribution
v. West Pennsboro Township Zoning Hearing Board, 231 A.3d 90, 94 (Pa. Cmwlth.
2020) (internal citations omitted). Generally, “‘spot zoning . . . is an arbitrary
exercise of police powers that is prohibited by our Constitution.’” In re Realen

8
The Trial Court Opinion, 7/19/22, may be found in the Original Record at Item No. 19.

9
“Because the parties presented no additional evidence after the [Board’s] decision, our
review is limited to determining whether the [Board] committed an abuse of discretion or an error
of law.” Allegheny Tower Associates, LLC v. City of Scranton Zoning Hearing Board, 152 A.3d
1118, 1121 n.3 (Pa. Cmwlth. 2017). We may find an abuse of discretion only where the Board’s
findings are not supported by substantial evidence. Human Services Consultants, Inc. v. Zoning
Hearing Board of Butler Township, 587 A.2d 40, 41 (Pa. Cmwlth. 1991). Given the Board’s role
as factfinder, the Court may not substitute its judgment for that of the Board and is bound by the
Board’s determinations of “witness credibility and evidentiary weight.” In re Rural Route
Neighbors, 960 A.2d 856, 860 (Pa. Cmwlth. 2008).

10
On January 5, 2023, our Court granted the Borough’s motion to withdraw as a party to
the appeal and excused the Borough from filing a brief.

11
Added by the Act of December 21, 1988, P.L. 1329.
13
Valley Forge Greenes Associates, 838 A.2d 718, 729 (Pa. 2003) (internal citation
omitted).

“Spot 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.”
“The most determinative factor in analysis of spot zoning
is whether the parcel in question is being treated
unjustifiably different from similar surrounding land, thus
creating an ‘island’ having no relevant differences from its
neighbors.” In other words, we must first determine
whether the property is being treated differently from the
land surrounding it; if so, our inquiry then turns to the
issue of whether there exists justification for such
differential treatment. “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.” “If the
validity of a zoning ordinance is debatable, it must be
permitted to stand.” “Spot zoning cases should be decided
on the facts, guided by case law; there is no precise
formula for determining whether a rezoning of property
constitutes spot zoning.”
Allen Distribution, 231 A.3d at 95. (internal citations omitted).
Although some of Owner’s arguments overlap, as to the first prong of
the spot zoning standard, Owner argues that the Board erred or abused its discretion
when it concluded that the Property is indistinguishable from the properties
surrounding it. Owner argues that the Board erred when it failed to account for the
size of the Property, failed to recognize the Property’s frontage on Easton Road, and
failed to include the properties across Easton Road in the R-2 Zone as part of the
area surrounding the Property. Objectors and the Board respond that substantial
record evidence exists to support the Board’s conclusion that the Property is
indistinguishable from the properties surrounding it.

14
 Owner argues that the Board abused its discretion by failing to
distinguish the Property based on its size. Owner argues that the Property, with 4.86
acres in the Borough, is larger than Objectors’ properties, which range from .36 to
2.75 acres. Owner argues that because the Property is larger than Objectors’
properties, and similar in size to the properties containing townhomes across Easton
Road, the Board should have found the Property to be distinguishable based on its
size. Objectors and the Board respond that the Property’s size does not distinguish
it from the surrounding properties, and that size has not been held to be determinative
of whether spot zoning occurred. Objectors and the Board cite In re Realen, 838
A.2d at 730, where our Supreme Court determined that reverse spot zoning occurred
with respect to a 135-acre golf course. “First, the large size of the tract is not
determinative. Zoning unjustifiably discriminatory is beyond the municipality’s
police power, and ‘[i]t makes no difference whether it is a ¼ acre lot or a 50[-]acre
industrial complex area.’” Id. (internal citation omitted). Objectors further respond
that the property of Mr. Kunsman, one of the Objectors, is partly situated in the
Borough’s R-1 District, was originally 18 acres in size, and he was able to subdivide
it and develop lots for single-family detached homes. See R.R. at 196a-98a.
Owner next argues that the Property is unique from the surrounding
properties because it is the only property that has frontage on Easton Road, making
it more attractive for a townhome development. Owner argues that our Supreme
Court concluded that no spot zoning had occurred regarding a property that was
distinguishable from surrounding properties because it fronted on “two heavily
traveled traffic arteries.” Schubach v. Silver, 336 A.2d 328, 336 (Pa. 1975)
(Schubach II). Objectors and the Board respond that the Board considered the
Property’s frontage on Easton Road but was unpersuaded that this militated in favor

15
of differential treatment. The Board noted that most spot zoning challenges arise
with respect to properties adjacent to a different zoning district, and the fact that the
Property borders the townhome development across Easton Road is not a
distinguishing characteristic that justifies differential treatment.
Related to the frontage issue, Owner further argues that the Board erred
when it found the Property to be indistinguishable from surrounding properties in
the R-1 Zone and ignored the townhome developments across Easton Road as part
of the surrounding properties. Objectors and the Board respond that the Board did
not ignore the fact that the Property bordered the R-2 Zone across Easton Road, but
it gave that fact less weight than the natural boundary between the R-1 and R-2 Zones
provided by Easton Road. Objectors and the Board reiterate that most spot zoning
challenges involve properties adjacent to another zoning district, and our courts have
routinely rejected arguments that a property is distinguishable simply because it is
adjacent to a different zoning district.
In Schubach I, 270 A.2d 397, our Supreme Court considered whether a
zoning amendment that rezoned a two-acre parcel from R-4 (residential) to C-2
(commercial) to permit the owner to construct a nursing home was spot zoning. At
the time of the rezoning, the property was surrounded by properties zoned
residential, and the Court determined that the case presented “a classic case of ‘spot
zoning’—the entire area was zoned residential, the lot is in the midst of detached
dwelling houses that are in the $25,000 price range, and the lot does not differ from
its neighbors by either location or topography.” Id. at 399. The Court also addressed
the fact that there was a “very large commercially[]zoned area within a few hundred
feet to the north of the premises,” but not contiguous with it, and the argument that

16
the area was not “truly residential in nature.” Id. at 400. The Supreme Court stated
as follows:

We are not persuaded by such an argument since it would
mean that every borderline area in the city could be
subjected to such down zoning. The extension of this
reasoning could lead to one tract after another falling into
the C-2 classification: since A is C-2, then B should be C-
2; since B is C-2, then C should be C-2; since C, then D;
and so on, ad infinitum.
Id.
Owner further argues that the Property was not subject to illegal spot
zoning because Ordinance 834 created a peninsula of R-2 property, but not an island
of R-2 property within the surrounding properties. Owner relies on Schubach I,
where the Supreme Court stated as follows.

The record very clearly indicates that City Council has
created an ‘island’ of commercial zoning in the midst of a
residential area, that the change in zoning is not required
for any reasons particular to the lot in question, and that
the general welfare of this community is adversely
affected thereby.
Schubach I, 270 A.2d at 400. Owner argues that because Ordinance 834 created a
peninsula, but not an island, of rezoned property, the Board erred in concluding that
the Property was not distinguishable from the townhomes in the R-2 Zone across
Easton Road. Objectors and the Board respond that a peninsula, as well as an island,
of rezoned property may constitute spot zoning, when the property is treated
differently from the surrounding tracts, citing cases including Knight v. Lynn
Township Zoning Hearing Board, 568 A.2d 1372 (Pa. Cmwlth. 1990), and Atherton
Development Co. v. Township of Ferguson, 29 A.3d 1197 (Pa. Cmwlth. 2011). The
Board further notes that Ordinance 834 not only created a peninsula of the Property,

17
but it created a triangle-shaped island of R-1 property in the northeast portion of the
R-1 Zone that is now unconnected to the rest of the R-1 Zone.
In Knight, 568 A.2d at 1373, our Court considered whether rezoning a
10.067-acre property from Agricultural to Rural Center constituted illegal spot
zoning. The record showed that the property in question, after rezoning, was “a
peninsula zoned Rural Center jutting from the existing Rural Center zone into the
Agricultural zone.” Id. at 1375. Relevant here, the Court held that “[a]lthough an
amendment which creates a peninsula does not necessarily constitute spot zoning
. . . we conclude that the action here did constitute spot zoning.” Id. at 1376. In
Atherton, 29 A.3d at 1202, the Court considered the validity of a zoning ordinance
that zoned a portion of the owner’s property Townhouse Residential-R-3, when
another portion of his property, as well as properties surrounding his property on
three sides, were zoned General Commercial-C. The owner sought to have the
residential portion of his property rezoned for commercial use, arguing that the
zoning ordinance constituted illegal reverse spot zoning. Id. at 1199. Although the
Court concluded that the zoning ordinance did not constitute reverse spot zoning,
relevant here, the Court agreed with the trial court’s observation that “‘[w]hile
Pennsylvania case law clearly demonstrates that a peninsula, in addition to an island,
may constitute spot zoning in the appropriate case [see Knight; C.L. Associates v.
Board of Supervisors of Montgomery Township, 415 A.2d 134 (Pa. Cmwlth. 1980)],
the law is silent as to whether or not a peninsula may form the basis for a claim of
reverse spot zoning.’” Atherton, 29 A.3d at 1209. See also C.L. Associates, 415
A.2d at 136, where the Court held that a zoning amendment constituted classic illegal
spot zoning when the rezoning drew “an indentation in the line separating the C-

18
Commercial and R-2-Residential zoning districts tailored to the [owner’s] property
as a peninsula of residentially zoned land in a sea of commercial zoning.”
As to the second prong of the spot zoning standard, Owner argues that
the Board erred in concluding that Ordinance 834 was unreasonable and had no
relation to the public health, safety, morals, and general welfare of the community.
Owner argues that the Board erred when it ignored the need for townhomes in the
Borough, failed to acknowledge Ordinance 834 as establishing a transition zone
between the R-1 and R-2 zoning districts, ignored the LVPC determination that
Ordinance 834 was consistent with the County Comprehensive Plan, and failed to
acknowledge that increased tax revenue from townhomes would benefit the entire
community. Objectors and the Board respond that the Board committed no error
when it concluded that Ordinance 834 was unreasonable and operated to benefit
Owner, not the general welfare of the Borough.
Owner first argues that Ordinance 834 was rationally related to the
health, safety, and welfare of the Borough because it allowed the Borough to meet
the need for townhomes. Owner argues that the Board erred when it failed to
recognize the need for townhomes as testified to by the Zoning Officer and Borough
Engineer. Owner argues that the Board abused its discretion by substituting its
judgment for that of the Borough Council, which enacted Ordinance 834 to address
the need for townhomes. Objectors and the Board respond that Owner is attempting
to attribute the need for townhomes to the Borough as the reason to enact Ordinance
834 when there was no evidence that Borough Council considered this need when it
rezoned the Property. Objectors note that, if the Borough recognized the need for
townhomes, it would have considered rezoning more properties in the R-1 Zone to
accommodate this need, rather than only rezoning the Property at Owner’s request.

19
 Owner next argues that Ordinance 834 was rationally related to the
health, safety, and welfare of the Borough by establishing a transition zone between
the R-1 and R-2 Zones as they existed before the rezoning. Owner argues that
transition zoning has long been recognized as a legitimate exercise of municipal
zoning authority, citing in support Schubach II, 336 A.2d 328, and Appeal of
McWilliams, 198 A.2d 538 (Pa. 1964). Objectors and the Board respond that the
cases cited by Owner are inapposite here, and that just because the Property borders
the R-2 Zone does not justify rezoning it for transition purposes, citing Schubach I.
Some years after the Court’s decision in Schubach I, where it held that
spot zoning had occurred with respect to the proposed nursing home project, the
Court again considered whether spot zoning occurred with respect to the same
project in Schubach II, 336 A.2d 328. Since the earlier decision in Schubach I, the
property owner had acquired several additional parcels contiguous to the original
site of the nursing home project, now comprising land making up “approximately
one-half of a city block,” which was now surrounded by numerous commercial
properties, except for one side that retained residential properties. Schubach II, 336
A.2d at 332. Under these changed circumstances, the Court found that the character
of the neighborhood had changed, and that it was now more commercial in nature.
Id. at 334. The Court held that, with the increase in size of the property and the
changed character of the properties surrounding the property, the zoning amendment
did not constitute spot zoning, but was rather a “natural extension of a previously
existing commercial use.” Id. at 337. The Court clarified, however, that

[t]his “transition zone” theory, as recognized in [Cleaver
v. Board of Adjustment of Tredyffrin Township, 200 A.2d
408 (Pa. 1964),] in no way erodes the rejection of the
argument in [Schubach I,] that because this land was on
the border line between the two uses it should be rezoned.

20
 We in no way retreat from the view that simply because a
piece of property rests on the border of a commercial zone
it automatically can be rezoned commercial.
Schubach II, 336 A.2d at 338. See also Appeal of McWilliams, 198 A.2d 538, in
which the Court found no illegal spot zoning occurred when a property was
reclassified from business to residential use, when the rezoned area was bordered on
two sides by a large residential district and did not create a residential island in an
otherwise commercial district.
Owner next argues that Ordinance 834 was rationally related to the
health, safety, and welfare of the Borough because it was consistent with the County
Comprehensive Plan, as recommended by the LVPC. Owner does not argue that the
Board was required to find Ordinance 834 valid because it was consistent with the
LVPC recommendation, but that Borough Council could have relied upon the LVPC
recommendation when it enacted Ordinance 834, thus providing a rational reason
for rezoning the Property. Owner’s argument here echoes the argument made by the
Borough before the Board, which the Board rejected. Here, Objectors and the Board
respond that although the LVPC recommendation was made part of the record, the
Board was neither obligated nor persuaded to accept the LVPC’s conclusion.
Objectors and the Board reiterate that the record contains no evidence that Borough
Council considered the LVPC recommendation when it passed Ordinance 834,
Borough Council’s state of mind when passing legislation is irrelevant, and the text
of Ordinance 834 must stand on its own. See Plaxton, 986 A.2d at 210.
Owner next argues that Ordinance 834 was rationally related to the
health, safety, and welfare of the Borough because townhome development on the
Property would generate increased tax revenue to benefit the entire Borough. Owner
argues that the Board erred when it found that there was no competent evidence in
the record to determine the actual impact of townhomes on the Borough budget.
21
Objectors and the Borough reject this argument based on the lack of evidence in the
record to demonstrate the specific revenues or tax burdens generated by townhome
development. Objectors and the Borough again cite Baker, 677 A.2d at 1279, and
Putney v. Abington Township, 108 A.2d 134, 137 (Pa. Super. 1954), for the
proposition that a zoning ordinance cannot be justified solely because it will produce
more tax revenue.12
Based on the foregoing, we affirm the trial court and hold that
Ordinance 834 is invalid as illegal spot zoning. As to the first prong of the spot
zoning analysis, whether the Board erred or abused its discretion when it found that
the Property was not distinguishable from the surrounding properties, we may not
substitute our judgment for that of the Board, so long as substantial evidence in the
record supports the Board’s findings. Human Services Consultants, Inc., 587 A.2d
at 41, and In re Rural Route Neighbors, 960 A.2d at 860. Further, we must analyze
the particular facts of this case, guided by case law, to determine whether Ordinance
834 constitutes spot zoning, because “no precise formula” exists to determine
whether rezoning of a property constitutes spot zoning. Allen Distribution, 231 A.3d
at 95 (quoting Takacs v. Indian Lake Borough Zoning Hearing Board, 11 A.3d 587,
594 (Pa. Cmwlth. 2010)).
The size of the Property does not distinguish it from neighboring
properties in the R-1 Zone. The Property is not so large that it cannot be subject to
illegal spot zoning. In re Realen, 838 A.2d at 730. The Property is not
distinguishable because it fronts on Easton Road, making it more attractive for

12
Owner also argues that Ordinance 834 is rationally related to the Borough’s health,
safety, and welfare because it met some of the stated objectives of the Zoning Ordinance, as stated
in Section 450-3 of the Zoning Ordinance. Because this argument relies on Owner’s contentions
that Ordinance 834 met a need for the development of townhomes in the Borough, which has
already been addressed, we will not separately address it again.
22
townhome developments. Although a property may be distinguishable because it
fronts on “two heavily traveled traffic arteries,” Schubach II, 336 A.2d at 336, this
conclusion is not mandated, and any conclusion must consider the specific
circumstances of the Property. We discern no abuse of discretion in the Board’s
decision to give less weight to the Property’s frontage on Easton Road, when the
record contains substantial evidence that Easton Road served as a boundary between
the R-1 and R-2 Zones. We reject Owner’s argument that because the Property is
adjacent to the R-2 Zone across Easton Road, that the townhome developments in
the R-2 Zone must be considered part of the properties surrounding the Property,
and that the Board erred in not making such a finding. Rezoning requests often
involve a property that is located in one zoning district and is adjacent to a different
zoning district. Our Supreme Court has rejected the argument that because a
property borders another zoning district, that we must conclude the property is
indistinguishable from those in the adjacent district. Schubach I, 270 A.2d at 400.
Relatedly, we discern no error in the Board’s finding that the Property is not
distinguishable from the surrounding properties, when Ordinance 834 created a
peninsula, but not an island, of rezoned property. A peninsula of rezoned property
may constitute spot zoning, depending on the specific circumstances of the property
and its surroundings. C.L. Associates, 415 A.2d at 136; Knight, 568 A.2d at 1376;
Atherton, 29 A.3d at 1209.
As to the second prong of spot zoning analysis, we discern no error in
the Board’s conclusion that Ordinance 834 was not rationally related to the health,
safety, and welfare of the Borough, but was enacted to benefit Owner. Although the
Zoning Officer testified that the Borough received more townhome submissions
since 2015 than submissions for single-family dwellings or duplexes, the Board

23
found that “the number of plan submissions” did not, by itself, demonstrate a “need”
for townhomes, but could “simply reflect the developer’s preference for more
lucrative townhome development.” Board Opinion at 17. The Board did not err
when it considered the evidence but weighed it differently than Owner advocates.
Therefore, we discern no error in the Board’s failure to conclude that Ordinance 834
was justified to create a transition zone between the R-1 and R-2 Zones. Case law
recognizes that establishing a transition zone between different zoning districts may
relate to the health, safety, and welfare of the community, but does not require this
result. Schubach I, 270 A.2d at 400. We further discern no error in the Board’s
giving less than Owner advocates regarding the LVPC recommendation that
Ordinance 834 was consistent with the County Comprehensive Plan. The record
contains no evidence that Borough Council considered the LVPC recommendation
when it passed Ordinance 834, and even if it did, Borough Council’s state of mind
when passing legislation is irrelevant, and the text of Ordinance 834 must stand on
its own. Plaxton, 986 A.2d at 210. Further, we note that the LVPC recommendation
in favor of Ordinance 834 was in conflict with the Borough Planning Commission
recommendation against Ordinance 834. We are bound by the Board’s
determination of witness credibility and evidentiary weight. In re Rural Route
Neighbors, 960 A.2d at 860. Finally, we conclude that the Board did not abuse its
discretion when it found that the impact of townhome development on the Borough’s
budget was too speculative to make a specific finding. It is well established that a
zoning ordinance may not be justified as rationally related to the general health,

24
safety, and welfare of the community, simply because it will raise revenue for the
municipality. Putney, 108 A.2d at 137,13 and Baker, 677 A.2d at 1279.
The Borough maps, before and after Ordinance 834, demonstrate a
classic example of spot zoning as applied to the Property. The Board made findings
based on substantial evidence in the record, supported by case law applied to the
particulars of the Property and the properties surrounding it. As a result, the Board
did not err or abuse its discretion in holding that Ordinance 834 constitutes
impermissible spot zoning of the Property.
Accordingly, the trial court’s order is affirmed.

MICHAEL H. WOJCIK, Judge

13
“In general, Superior Court decisions are not binding on this Court, but they offer
persuasive precedent where they address analogous issues.” Lerch v. Unemployment
Compensation Board of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
25
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Chaffier, :
:
Appellant :
:
v. : No. 907 C.D. 2022
:
Hellertown Borough Zoning :
Hearing Board :
:
v. :
:
James O'Brien, Andrea Goshen, :
John William Goshen, David :
Heffelfinger, and Alan Kunsman :

ORDER

AND NOW, this 10th day of January, 2024, the Order of the Court of
Common Pleas of Northampton County dated July 19, 2022, is AFFIRMED.

__________________________________
MICHAEL H. WOJCIK, Judge