Agenda - Planning Commission - 12/06/2012

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November 10, 2012 I Volume 6 I Issue 21 Zoning Bulletin In finding a curative amendment was unwarranted, the court rejected the Trust's argument that the 2006 Ordinance was arbitrary and unreason- able with respect to the Property because it ignored the historic use of the Property and the commercial nature of other nearby properties. The court explained that a curative amendment would be granted where necessary to make a zoning ordinance valid. Thus, to obtain a curative amendment, the Trust had to establish that the 2006 Ordinance was invalid in that it was "unreasonable, arbitrary or not substantially related to the police power interest." The 2006 Ordinance would only be found arbitrary or unreason- able if it was "obvious that the classification ha[d] no relation to public health, safety, morals or general welfare." The court found the 2006 Ordinance was valid in that it was reasonable given that it was consistent with the stated purpose of the Residential Urban District which was to preserve the residential character of the neighborhood. "To protect the residential character of the neighborhood, the City Council made the legislative judgment that prohibiting profes- sional offices would discourage commercial development that detracts from the `residential character' of the neighborhood." Moreover, the court noted that the Property's prior uses as an apartment building and profes- sional office were not dispositive or inconclusive given that the Property had also been used as a single-family house in the past. Also, noted the court, zoning district lines "must be fixed somewhere; and "[d]istrict lines drawn in the past do not control the future placement of zoning district lines." In finding the 2006 Ordinance was not confiscatory, the court explained that the Trust had failed to prove that the Property had no value or only distressed value (i.e., was valueless) as a result of the 2006 Ordinance. To succeed on its claim, the Trust had to demonstrate one of three things, said the court: (1) physical features prevented the use of the Property as permit- ted under the 2006 Ordinance; (2) conforming the Property to a permitted use could be done only at a prohibitive expense; or (3) the Property had no value under any of the permitted uses. The court found that the Trust had not argued that the Property's physical features prevented its use in the manner zoned or that it could be done only at prohibitive expense. Instead, the Trust had argued that the Property was valueless under the 2006 Ordinance because the Property was not suitable for use as a single-family home or duplex. However, the court found that the Trust had "never ex- plored the costs of using the Property as a duplex or as a single-family residence." The court also noted that the Property had been used as a single-family residence for many years. "An ordinance is not invalid merely because it does not permit the most lucrative use of property," said the court. The court concluded that the Trust's evidence did not prove that the Property has been rendered valueless. Thus, the Trust's claim that the 2006 Ordinance was confiscatory failed. See also: Briar Meadows Development, Inc. v. South Centre Tp. Bd. of Sup'rs, 2 A.3d 1303 (Pa. Commw. Ct. 2010). 8 © 2012 Thomson Reuters