Burd v. Borough of Brentwood Zoning Hearing Bd.

1

Raisa and Yevgeniy Burd, Raju and Kalpana Gurung, and Henry Pietkiewicz, Appellants v. Borough of Brentwood Zoning Hearing Board, Borough of Brentwood and Agile Development, LLC

No. 1049 C.D. 2021

Commonwealth Court of Pennsylvania

April 18, 2023

OPINION NOT REPORTED

Submitted: June 10, 2022

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

MEMORANDUM OPINION

RENÉE COHN JUBELIRER, PRESIDENT JUDGE

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.

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.

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.

(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.

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 Comprehensive Plan. (Appellants' Brief (Br.) at 23-24.) The ZHB and Agile^[5]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...