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Commonwealth Court upholds decision against West Pennsboro warehouse rezoning
West Pennsboro Township

Commonwealth Court upholds decision against West Pennsboro warehouse rezoning

1617 Newville Road West Pennsboro Township map

In June 2016, township supervisors voted to rezone roughly 130 acres of land located from 1525 to 1617 Newville Road in the township zoned agriculture to industrial to make way for the development of two 725,000-square-foot warehouses at the request of Allen Distribution.

The Pennsylvania Commonwealth Court has upheld a decision finding that the West Pennsboro Township Zoning Hearing Board was correct in striking the township supervisors’ controversial 2016 rezoning that would have made way for a warehouse project.

The ruling, issued May 11, is the second court setback for warehouse developer Allen Distribution, and adds to the growing volume of case law regarding the issue of spot zoning in Pennsylvania.

Spot zoning refers to the re-zoning of parcels for the benefit of a specific user in a way that is inconsistent with the broader surrounding land uses, creating an island of land designation that is not supported by the zoning powers enumerated in state law.

The allegation of spot zoning in the West Pennsboro case was brought by Nathan Wolf, an attorney representing homeowners adjacent to the proposed warehousing site, which would occupy two farm tracts located north of Newville Road (Route 641) and immediately west of Meadowbrook Road.

The West Pennsboro Township supervisors passed two ordinances in 2016 that would have rezoned roughly 125 acres at the request of Allen Distribution, which sought to purchase the parcels.

Following Wolf’s objection, a series of hearings was held in 2017, after which the township’s zoning hearing board decided it agreed with the objectors and overturned the township supervisors’ decision.

The properties are currently zoned R-2, which allows agricultural, residential, and some community service uses, such as churches and public utilities. Allen Distribution sought to move them to an industrial zoning.

The developer appealed the hearing board’s decision to court, but last year, Cumberland County Common Pleas Judge Thomas Placey upheld the action, finding that the zoning hearing board had not overstepped its authority and had provided sufficient justification “showing that the parcels in question are being treated unjustifiably differently from similar surrounding land,” Placey wrote in his April 2019 ruling.

Allen Distribution’s subsequent appeal to the Commonwealth Court netted largely the same response.

Writing for the three-judge panel that heard the case, Commonwealth Court Judge Christine Fizzano Cannon wrote that “we find no error or abuse of discretion in the board’s determination that the ordinances unjustifiably, arbitrarily, and unreasonably singled out land for treatment different than similar surrounding land of the same character for the economic benefit of Allen. As such, the ordinances constitute spot zoning and, therefore, are invalid.”

As Cannon wrote in the court’s opinion, the powers of zoning in Pennsylvania law are subject to constitutional limits and can be struck down as arbitrary. Precedent decisions in the Pennsylvania Supreme Court have defined spot zoning as “arbitrary where it is shown that it results in disparate treatment of similar landowners without a reasonable basis for disparate treatment.”

Allen Distribution’s key arguments, Cannon wrote, were the fact that the nearby Allen Road corridor contains 28 million square feet of warehousing — either existing or under development — and that the land-use map from the Western Cumberland Council of Governments, of which West Pennsboro is a part, shows the area as future industrial development.

But there are issues with this argument that the Commonwealth Court ultimately found credible.

Firstly, court precedents indicate that just because a piece of property borders another property of a particular zoning does not mean that property de-facto qualifies for the adjacent zoning.

Secondly, the farm tracts at issue border residential uses, and the proposed warehouse site is separated from the nearest of the existing Allen Road warehouses by Meadowbrook Road.

“We cannot attribute more significance to the use of more distant properties than those properties adjacent to the subject properties,” Cannon wrote, agreeing with Wolf’s argument that spot zoning “would have nothing to do with a spot or an island if the use of non-adjacent properties was more relevant than the adjacent properties.”

The Commonwealth Court also agreed that the supervisors’ initial decision to re-zone the properties would have carried more weight had the entire area been re-zoned in a cohesive manner, rather than re-zoning only the two farm tracts at Allen Distribution’s request.

While the re-zoning may fit the Western Cumberland map, “the fact that only the property was rezoned and the adjoining properties were not rezoned consistent with the map supports the board’s determination that the map’s significance is mitigated and, therefore, it is not determinative,” Cannon wrote.

The map actually furthers the spot zoning argument, since the map only appears to have been given weight when it came to the proposed warehousing.

“Although the rezoning is in conformance with the township comprehensive plan with respect to the property, the rezoning is not in conformance with the township comprehensive plan for the community,” Cannon wrote, emphasizing “for the community.” “As such, we cannot say that the board erred in determining that the property was singled out to benefit Allen to the exclusion of other properties.”

Allen Distribution could file a request to have the case heard by the state Supreme Court.

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