IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Golf Enterprises, Inc., :

Appellant :

v. : 

Newberry Township Board of : 

Supervisors :

v. : No. 97 C.D. 2016

Valley Green Residents Organization, : Argued: September 15, 2016

Anthony Miller, Mary Miller, :

LeeAnn Menut, Kenneth Menut, :

William Hendrickson, Edna :

Hendrickson, LeAnn Pague, :

Edward Pague, Stanley Olejarczyk, :

Nancy Olejarczyk, John Elliott, and :

Amy Elliott :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: April 25, 2017

Golf Enterprises, Inc. (GEI) appeals from an order of the Court of 

Common Pleas of York County (Trial Court) affirming a decision by the Board of 

Supervisors (Board) of Newberry Township (Township) denying an application for 

curative amendment of the Township’s Zoning Ordinance (Ordinance) filed by 

GEI. In the application, GEI sought to change the zoning designation of 100 acres 

of land it owns in the Township (Property) from the Open Space (OS) district to 

the Residential Growth (RG) district on the basis that the 2006 rezoning of the 
2

Property as OS was invalid spot zoning and arbitrary and irrational. For the 

following reasons, we affirm the order of the Trial Court.

The Property comprises 100 acres on which is situated the Valley 

Green Golf Course, a public course with a clubhouse and restaurant. (Board

Decision, Findings of Fact (F.F.) ¶¶2, 3.) The Property is bisected by Valley Green 

Road and connected to public sewer and water, and the adjacent parcels are mostly 

residential with some parcels that continue to be used agriculturally. (Id., F.F. ¶¶2, 

24, 40.)

Prior to 2006, the OS district did not exist in the Ordinance, and the 

Property was zoned within the Commercial Recreation (C-3) district, which 

allowed for recreational uses such as parks, playgrounds, agriculture and forestry 

and conditional uses such as campgrounds, commercial recreational facilities, golf 

courses and golf course cluster developments. (Id., F.F. ¶¶15-17; Prior Township 

Zoning Ordinance §§ 209.1-209.3.) Golf course cluster developments in the C-3 

district were required to have a minimum area of 100 acres with at least 60% of the 

development devoted to open space. (Board Decision, F.F. ¶¶54, 57; Prior 

Township Zoning Ordinance §§ 422.2, 422.6.) The cluster developments allowed 

for greater density, reduced minimum lot area and width, increased maximum lot 

coverage percentage and reduced setback distance compared to other uses in the C3 district. (Board Decision, F.F. ¶¶55-56; Prior Township Zoning Ordinance §§ 

422.4-422.5.) 

GEI applied for and received approval for two golf course cluster 

developments on parcels adjacent to the Property prior to 2006: Townes on the 

Green, a 30-townhouse condominium development, and Bent Water Crossing, a 

406-unit single-family and multi-family development. (Board Decision, F.F. ¶¶ 
3

53, 58-64.) The Townes on the Green townhouse development sits partly on the 

Property and therefore within the OS district. (Id., F.F. ¶21; June 6, 2013 Hearing 

Transcript (H.T.) at 32, Reproduced Record (R.R.) 1093a.) Though stormwater 

easements were placed on the Property as part of the prior land-use plans, no open 

space or conservation easements, covenants or deed restrictions were placed on the 

Property during the approval process for the two golf course cluster developments. 

(Board Decision, F.F. ¶65.) As of the date of the Board decision, no construction 

had begun on the Bent Water Crossing development and only 15 units had been 

approved, with none built, at Townes on the Green. (Id., F.F. ¶66.)

In 2006, the Ordinance was amended to create the OS district, which 

provides for by-right uses including agriculture, forestry, nature preserves, hiking 

or nature trails, open space, educational and scientific uses without structures, 

parks and picnic areas; golf courses are also included as a conditional use in the OS

district. (Id., F.F. ¶¶18, 20; Ordinance § 201.2.) In addition to the Property, the 

only other parcel zoned OS in the district is an adjacent 10-acre parcel to the west 

of the Property that is not owned by GEI. (Board Decision, F.F. ¶21.) 

All of the properties surrounding the OS district are zoned as RG

following the 2006 amendments to the Ordinance. (Id., F.F. ¶22.) The RG district 

permits forestry and various single-family and two-family dwellings (attached and 

unattached), parks, playgrounds and municipal uses by right and multi-family 

dwellings, schools and houses of worship by special exception. (Id., F.F. ¶23; 

Ordinance § 204.2.) The Ordinance provides that both the RG and OS districts are 

included within the “designated growth area” of the Township, which is defined as 

a region “within which residential and mixed use development is permitted or 

planned for at densities of one unit to the acre or more, commercial, industrial and 
4

institutional uses are permitted or planned for and public infrastructure services are 

provided or planned.” (Board Decision, F.F. ¶26; Ordinance § 114.C.82.) The 

Property is cited in the Township’s 2006 comprehensive plan as an area that the 

Township seeks to “protect” from development and is designated as part of an 

“Open Space Overlay District” in the future zoning map. (Board Decision, F.F. 

¶¶28-31; Comprehensive Plan: Future Land Use Map, R.R. 195a.) The Property is 

also located within the Township’s growth boundary on the “Growth Phasing and 

Development Potential Map” in the Township’s comprehensive plan and is 

identified as part of the “Established Primary Growth Area” in York County’s 

Growth Management Map. (Board Decision, F.F. ¶¶32, 35; York County Growth 

Management Map, R.R. 194a; Comprehensive Plan: Growth Phasing and 

Development Potential Map, R.R. 196a.)

GEI filed its application for a curative amendment, along with a 

proposed amendment to the Ordinance and a sketch plan proposing 355 residential 

units (336 of which were on the Property) on August 8, 2012.1 (Application, R.R. 

489a-513a.) The proposed amendment would amend the zoning map to rezone the 

Property as RG and amend the Ordinance to include a golf course as a by-right use 

in the RG district. (Id., Ex. E, R.R. 503a-504a.) The application was submitted to 

the Township Planning Commission, which voted to not recommend approval. 

(Board Decision, F.F. ¶9; Township Planning Commission Sept. 10, 2012 Minutes, 

R.R. 514a.) The application was also submitted to the York County Planning 

Commission, which recommended rezoning the Property and the 10-acre parcel to 

the west of the Property as RG and removing the OS district from the Ordinance,

but did not recommend accepting GEI’s proposed change of the Ordinance to 

 

1 GEI filed an initial curative amendment application on August 7, 2012, but amended it the 

following day. 
5

permit golf courses as a by-right use in the RG district. (Board Decision, F.F. ¶10; 

Oct. 3, 2012 Letter from York County Planning Commission, R.R. 516a-520a.)

Hearings were held by the Board of Supervisors on the application 

over four days. At the hearings, GEI presented the testimony of a professional 

land planner, a civil engineer and a traffic engineer. In addition, GEI presented the 

testimony of the surveyors who prepared the plans for the Townes on the Green 

and Bent Water Crossing projects. The Township presented the testimony of a 

member of the Township Planning Commission and the Township’s civil engineer. 

Valley Green Residents Organization, along with 12 neighbors, entered their 

appearances as objectors at the Board hearings and were joined as parties 

(Intervenors).2 Several of these neighbors testified at the hearings and the 

Intervenors presented the testimony of a civil engineer. 

On November 8, 2013, the Board issued its decision denying the 

application, concluding that GEI had not met its burden of showing that the OS

zoning designation of the Property was unreasonable, arbitrary or not substantially 

related to the Township’s police power interest the Ordinance serves. (Id., 

Conclusion of Law (C.L.) ¶31.) The Board concluded that preserving the Property 

as open space is in harmony and complimentary with surrounding uses, is 

compatible with the Township’s comprehensive plan and is in accordance with the 

previous golf course cluster development approvals that GEI received prior to the 

2006 rezoning. (Id., C.L. ¶¶18, 22, 23, 25-30.) The Board distinguished In re 

Appeal of Realen Valley Forge Greenes Association, 838 A.2d 718 (Pa. 2003), a 

case in which our Supreme Court ruled that the agricultural zoning of a golf course 

 

2

The individual objectors are: Anthony and Mary Miller, LeeAnn and Kenneth Menut, William 

and Edna Hendrickson, LeAnn and Edward Pague, Stanley and Nancy Olejarczyk, and John and 

Amy Elliot.
6

surrounded by intensive suburban development was unconstitutional spot zoning, 

because, unlike in Realen, the uses bordering the Property are not highly developed 

and intensive and are not incompatible with open space. (Board Decision, C.L. 

¶¶13-14, 16-19.) 

The Board further rejected the argument advanced by GEI that the 

zoning classification of the Property was arbitrary and irrational because it was not 

in accordance with the Property’s inclusion in the Township’s and County’s

designated growth areas on the grounds that Section 303(c) of the Municipalities 

Planning Code (MPC)3prohibits claims based upon inconsistency with a 

municipality’s comprehensive plan. (Board Decision, C.L. ¶24.) Finally, the 

Board concluded that GEI had not met the criteria set forth in Section 609.1(c) of 

the MPC4for showing that it was entitled to site-specific relief. (Board Decision, 

C.L. ¶¶32-36.) In particular, the Board found that GEI’s proposed development 

would not address the regional housing needs, particularly in light of the fact that 

GEI has already obtained approval for at least 415 housing units that have not yet 

been built, and that there would be a negative effect on area roads leading to a 

significant increase of crashes at three intersections because Valley Green Road, 

the principal road that provides access to the Property, has insufficiently narrow 

shoulders and road width with no opportunity for expansion. (Id., F.F. ¶¶47-52, 

C.L. ¶¶35-36.) GEI appealed the Board’s decision to the Trial Court, which 

 

3 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10303(c) (“[N]o 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.”).

4 Added by Act of June 1, 1972, P.L. 333, as amended, 53 P.S. § 10609.1(c).
7

affirmed without taking additional evidence. GEI thereafter filed a notice of 

appeal of the Trial Court’s order to this Court.5 

Pursuant to the MPC, “[a] landowner who desires to challenge on 

substantive grounds the validity of a zoning ordinance or map or any provision 

thereof, which prohibits or restricts the use or development of land in which he has 

an interest may submit a curative amendment” along with site-specific plans for 

the property. 53 P.S. § 10609.1(a); Section 916.1(c)(2) of the MPC, added by Act 

of Dec. 21, 1988, P.L. 1329, as amended, 53 P.S. § 10916.1(c)(2); Piper Group, 

Inc. v. Bedminster Township Board of Supervisors, 30 A.3d 1083, 1097 (Pa. 2011). 

The governing body of the municipality has exclusive jurisdiction to hear curative 

amendment petitions and must provide notice to the planning agency of the 

municipality to submit its recommendations. Section 609(c) of the MPC, 53 P.S. § 

10609(c); Section 909.1(b)(4) of the MPC, added by Act of Dec. 21, 1988, P.L. 

1329, as amended, 53 P.S. § 10909.1(b)(4). If the governing body determines that 

the substantive validity challenge has merit, the governing body shall then consider 

the site-specific plans submitted by the landowner and shall also consider the 

impact of the proposed amendment on the natural resources and natural features of 

the municipality, other land uses within the municipality and the public resources 

of the municipality, including roads and sewer facilities. 53 P.S. §§ 10609.1(c), 

10916.1(c)(5); Piper Group, 30 A.3d at 1097. The governing body “may accept a 

landowner’s curative amendment, with or without revision, or may adopt an 

 

5 Where the court of common pleas has not taken additional evidence, our standard of review of 

an appeal of a denial of a curative amendment petition is limited to determining whether the 

governing body of the municipality abused its discretion or committed an error of law. Larock v. 

Board of Supervisors of Sugarloaf Township, 866 A.2d 1208, 1211 n.7 (Pa. Cmwlth. 2005).
8

alternative amendment which will cure the challenged defects.” 53 P.S. § 

10609.1(c); see also Piper Group, 30 A.3d at 1097. 

A zoning ordinance is presumed to be valid, and the party challenging 

the ordinance bears the burden of showing that it is unreasonable, arbitrary or not 

substantially related to the police power interest that the ordinance purports to 

serve. Realen, 838 A.2d at 728; C & M Developers, Inc. v. Bedminster Township 

Zoning Hearing Board, 820 A.2d 143, 150-51 (Pa. 2002). When a landowner 

challenges the substantive validity of a zoning ordinance, courts employ a 

substantive due process inquiry, requiring a balancing of the landowner’s rights 

against the public interest sought to be protected by the police power. Realen, 838 

A.2d at 728; Penn Street, L.P. v. East Lampeter Township Zoning Hearing Board, 

84 A.3d 1114, 1120 (Pa. Cmwlth. 2014). Thus, an ordinance will be found 

unreasonable and not related to the police power if it is unduly restrictive or 

exclusionary; similarly, an ordinance may be found arbitrary where it results in 

disparate treatment of similar landowners without a reasonable basis for such 

disparate treatment. Realen, 838 A.2d at 728; C & M Developers, 820 A.2d at 151. 

“[T]he function of judicial review, when the validity of a zoning ordinance is 

challenged, is to engage in a meaningful inquiry into the reasonableness of the 

restriction on land use in light of the deprivation of landowner’s freedom thereby 

incurred.” Realen, 838 A.2d at 729 (quoting Hopewell Township Board of 

Supervisors v. Golla, 452 A.2d 1337, 1342 (Pa. 1982)). 

GEI argues that the 2006 rezoning of the Property in the OS district to 

create an island of preserved open space constitutes invalid spot zoning. Spot 

zoning is the “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 
9

the economic benefit of the owner of that lot or to his economic detriment.” 

Realen, 838 A.2d at 730 (quoting Appeal of Mulac, 210 A.2d 275, 277 (Pa. 1965)). 

The most important factor in a spot zoning analysis is whether the parcel at issue 

“is being treated unjustifiably different from similar surrounding land.” Realen, 

838 A.2d at 730 (quoting Schubach v. Silver, 336 A.2d 328, 336 (Pa. 1975)); see 

also Penn Street, 84 A.3d at 1121. “There is no precise formula for determining 

whether a classification of property constitutes spot zoning and cases should be 

decided on the facts guided by case law.” Penn Street, 84 A.3d at 1121 (quoting 

Sharp v. Zoning Hearing Board of Radnor Township, 628 A.2d 1223, 1228 (Pa. 

Cmwlth. 1993)); Atherton Development Co. v. Township of Ferguson, 29 A.3d 

1197, 1204 (Pa. Cmwlth. 2011). 

“Spot zoning challenges have at their conceptual core the principle 

that lawful zoning must be directed toward the community as a whole, concerned 

with the public interest generally, and justified by a balancing of community costs 

and benefits.” Realen, 838 A.2d at 729. As this Court further explained in 

Township of Plymouth v. County of Montgomery, 531 A.2d 49 (Pa. Cmwlth. 1987)

(en banc):

The key point is that when a municipal governing body 

puts on blinders and confines its vision to just one 

isolated place or problem within the community, 

disregarding a community-wide perspective, that body is 

not engaged in lawful zoning, which necessarily requires 

that the picture of the whole community be kept in mind 

while dividing it into compatibly related zones by 

ordinance enactments. In other words, legislation as to a 

spot is the antithesis of zoning, which necessarily 

functions within a community-wide framework.... 

[Z]oning, to be valid, must be in accordance with a 

rational and well considered approach to promoting 

safety, health and morals and a coordinated development 

of the whole municipality.
10

Id. at 57. “Spot zoning must be clearly established; if the validity of the rezoning 

ordinance is debatable, it must be permitted to stand.” Penn Street, 84 A.3d at

1121 (quoting Atherton Development, 29 A.3d at 1204).

GEI contends that the Township has not put forth any justifiable 

reason to treat the Property differently than the land surrounding it. GEI argues 

that the Property’s history of use as a golf course for several decades and the 

community’s desire to preserve it as such does not justify its current zoning in the 

OS district because what is relevant in a spot zoning analysis is the physical 

characteristics of the land, not the history of the land’s development or its current 

uses. GEI asserts that there is no evidence that the Property has any distinguishing 

physical characteristics compared to the land surrounding it that would make it 

unsuitable for residential development, noting that the Board found that the 

Property has similar geography and topology as the surrounding parcels and is also 

connected to public sewer and water. (Board Decision, F.F. ¶¶38-40.) GEI further 

argues that the approvals for the Townes on the Green and Bent Water Crossing 

golf cluster developments on surrounding tracts are irrelevant because the golf 

cluster development provisions were removed in the 2006 amendments to the 

Ordinance and because these approvals were not based on a distinct physical 

characteristic of the land that would justify the drawing of a zoning border. 

GEI relies on our Supreme Court’s decision in Realen where the 

Court ruled that a golf course was invalidly spot zoned in an agricultural district in 

order to preserve it as open space. In Realen, the 135-acre golf course was located 

in Upper Merion Township at the confluence of four major highways and “entirely 

surrounded by an urban landscape, and immediately adjacent to what is currently 

the world’s largest shopping complex at one discrete location.” 838 A.2d at 721. 
11

The golf course was founded in the 1920s and was originally zoned in the 

Agriculture zoning district in 1953, which permitted only agricultural, municipal 

and single-family detached home uses. Id. at 721-22. Over the ensuing decades 

the vast majority of the township was rezoned to allow for more intensive 

commercial, residential and office uses so that only two other parcels remained in 

the Agricultural district: a 7.3 acre parcel containing a turnpike interchange and a 

.5 acre parcel improved with a non-conforming residential structure. Id. at 722.

The equitable owner of the golf course in Realen, seeking to develop 

the property with a mix of hotel, retail, commercial and either residential or office 

uses, brought a substantive validity challenge to the zoning of the golf course but 

the Township denied the challenge. Id. at 726. The Supreme Court reversed this 

determination, holding that “the agricultural zoning [of the golf course], designed 

to prevent development of the subject property and to ‘freeze’ its substantially 

undeveloped state for over four decades in order to serve the public interest as 

‘green space,’ constitutes unlawful ‘reverse spot zoning’ beyond the municipality’s 

proper powers.”

6

 Id. at 721. The Court disagreed with Upper Merion Township’s 

contention that the large size of the golf course parcel made it more amenable to 

agricultural use than the smaller surrounding parcels, noting that the size of the 

tract at issue is irrelevant in a spot zoning analysis. Id. at 730. The Court further 

rejected the township’s other principal rationale for the golf course’s agricultural 

zoning – that the golf course was surrounded by major roadways – observing that it 

would turn “reason and land planning precepts on their head to assert, as the 

zoning board’s decision implies, that this tract’s restricted, agricultural zoning is 

 

6 Reverse spot zoning occurs where an “island” develops as a result of a municipality’s failure to 

rezone a portion of land to bring it into conformance with similar surrounding parcels that are 

indistinguishable. Penn Street, 84 A.3d at 1121; Atherton Development, 29 A.3d at 1204.
12

justified by its ready access to the region’s primary arterial roads on every hand.” 

Id. (emphasis in original). Thus, the Court concluded that “no characteristic of the 

Golf Club’s property justifies the degree of its developmental restriction by zoning 

as compared to the district designation and use of all of the surrounding lands both 

within the Township and in the adjoining municipality. This is spot zoning.” Id.

GEI argues that in this case, as in Realen, the Township forced a 

single private landowner to bear the burden of the community’s desire to preserve 

a tract of open space for the surrounding developed land. GEI contends that the 

Property here, like the golf course in Realen, contains similar physical 

characteristics to the surrounding parcels and that the only distinguishing factor is 

that the Property was developed as a golf course decades ago. Furthermore, GEI 

asserts that, just as in Realen, the zoning amendment that it seeks would only 

match the surrounding land and would lead to no more intensive uses than already 

exist. 

We agree with the Trial Court and the Board that GEI did not meet its 

heavy burden of demonstrating that the Property was spot zoned. While this case 

at first glance appears similar to Realen, the Property here is not located in the 

midst of dense development, adjacent to multiple highways and a large suburban 

shopping mall as in Realen. Instead, as the Board explained in its decision, a 

significant portion of the Township is forest, agriculture or open space, with 4,014 

acres of undeveloped land representing 22% of the Township’s total land area. 

(Board Decision, F.F. ¶37; Dennis Glackin Expert Witness Report at 6, R.R. 182a.) 

Furthermore, not all of the parcels surrounding the Property are developed, with 

several parcels to the east of the Property currently undeveloped or with 

agricultural uses, and the surrounding developments are almost entirely single-
13

family detached residential properties, unlike the intensive commercial and 

residential development bordering the golf course in Realen. (Board Decision, F.F. 

¶24, C.L. ¶19; Aerial Map, R.R. 200a.) 

Furthermore, the Board explained in its decision that, unlike in Realen

where the agricultural zoning of the golf course was clearly incompatible with the 

surrounding commercial and residential development, the OS zoning district is 

consistent with and complimentary to the RG district that it borders. (Board 

Decision, F.F. ¶36, C.L. ¶17); see Atherton Development, 29 A.3d at 1209 

(rejecting spot zoning challenge in part because property owner failed to show that 

property could not be used in a manner consistent with the challenged zoning 

classification). The record is devoid of evidence that the residential properties 

surrounding the Property hinder its current use as a golf course in line with its OS 

zoning. In addition, the OS and RG districts share several overlapping uses, 

permitting forestry, municipal uses and parks. (Ordinance §§ 201.2, 204.2.) The 

compatibility of the Property as a golf course was demonstrated by GEI’s prior 

approvals for the Bent Water Crossing and Townes on the Green golf course 

cluster developments under the pre-2006 zoning ordinance, which used the 

Property for the open space and 100-acre minimum development area 

requirements. (Aug. 22, 2013 H.T. at 105-29, R.R. 1770a-1794a.) GEI affirmed 

in its conditional use applications for the Bent Water Crossing and Townes on the 

Green that these proposed developments and the golf course were “compatible 

with the existing development of the vicinity.” (Board Decision, F.F. ¶64; 

Conditional Use Applications, R.R. 538a, 547a; see also Sept. 10, 2013 H.T. at 87, 

144, R.R. 1442a, 1499a.) 
14

The instant case is also distinguishable from Realen because the 2006 

rezoning of the Property as OS was consistent with the Township’s comprehensive 

plan. As the Court in Realen noted, consistency with a municipality’s 

comprehensive plan and a community-wide framework for land use regulation has 

long been held to be a key factor in the spot zoning analysis. Realen, 838 A.2d at 

729; see also Schubach, 336 A.2d at 337-38; Fisher v. Cranberry Township Zoning 

Hearing Board, 819 A.2d 181, 186 (Pa. Cmwlth. 2003); Sharp, 628 A.2d at 1228. 

The Township’s comprehensive plan was adopted in 2004 following an extensive, 

three-year process involving town hall hearings, studies and reports from various 

professionals and review of the responses to surveys sent to 4,000 households. 

(Board Decision, F.F. ¶28; Aug. 22, 2013 H.T. at 80-81, R.R. 1745a-1746a.) The 

comprehensive plan cited the goal of providing a “comprehensive system of parks, 

recreation, and open space that will meet all active and passive recreational needs 

of all residents in the Township and enhance the community design, identity and 

vitality.” (Board Decision, F.F. ¶30.) In order to further the goal of protecting

recreational and open space locations, the comprehensive plan stated that the 

Property should be included within an Open Space Overlay District. (Board 

Decision, F.F. ¶31; June 6, 2013 H.T. at 50-53, R.R. 1111a-1114a.)

The comprehensive plan also noted the significant stress on the local 

and regional road network, specifically Valley Green Road, the road which would 

provide access to all development on the Property. Valley Green Road is only 22 

feet wide with no shoulders in the vicinity of the Property and, as a collector road, 

falls short of state standards that require a 24-foot wide roadway with 8-foot wide 

shoulders. (Board Decision, F.F. ¶¶47-48; Sept. 10, 2013 H.T. at 15, R.R. 1230a.) 

The comprehensive plan and the Township’s Subdivision and Land Use Ordinance 
15

provide that collector roads, such as Valley Green Road, have a 60-foot wide rightof-way, wider than Valley Green Road’s 33-foot right-of-way in the area where it 

runs through the Property. (Subdivision and Land Use Ordinance § 603-12; Board 

Decision, F.F. ¶49; Comprehensive Plan at 7-3, R.R. 598a; Sept. 10, 2013 H.T. at 

16-17, R.R. 1231a-1232a.) Furthermore, the comprehensive plan also identifies

several intersections of Valley Green Road and other Township roadways in the 

immediate vicinity of the Property as being among the most problematic areas of 

the Township. (Board Decision, F.F. ¶34; Comprehensive Plan at 7-7, 7-8, R.R. 

664a-665a; June 6, 2013, H.T. at 126-27, R.R. 1187a-1188a.) These problems 

would be exacerbated by the increase in traffic as a result of GEI’s proposed 

development of the Property: the Board found that, based upon the traffic data 

produced by GEI for the curative amendment and other proposals, there would be a 

440% increase in Valley Green Road traffic if GEI entirely built out the area based 

on earlier proposals and the Property’s proposed change to RG zoning. (Board 

Decision, F.F. ¶45; Grove Miller Engineering Traffic Impact Assessment, R.R. 

245a-300a; Sept. 10, 2013 H.T. at 15, R.R. 1230a.) In addition, the Intervenors’ 

expert determined that Valley Green Road would lead to a significant increase in 

the traffic crash rate at area intersections and “far reaching detrimental impacts” on 

the safety of local roads. (Joseph Fiocco Report at 8, R.R. 577a, Aug. 22, 2013 

H.T. at 43-54, R.R. 1708a-1719a.)

In sum, we conclude that, in light of the reasonable justification 

articulated by the Board for treating the Property differently than other similarly 

situated nearby parcels, GEI did not demonstrate that the Property was spot zoned. 

GEI further argues, however, that, separate and apart from its contention that the 

Property was spot zoned, the zoning of the Property was arbitrary and irrational 
16

because the surrounding property had the same characteristics as surrounding 

parcels and there was no reason for the distinction drawn between the OS zoning 

for the Property and the RG zoning for its neighbors. We also reject this argument. 

As described above, the rezoning of the Property in the OS district in 2006 was not 

arbitrary or irrational because this rezoning was in accordance with the Township’s 

comprehensive plan, which was the result of a lengthy, considered process, 

involving input from professionals and residents. The comprehensive plan 

provided a reasonable justification for including the Property as part of the Open 

Space Overlay District, including the need of the community for open space and 

recreational areas within the township and concerns regarding road access to the 

Property. Furthermore, the OS zoning designation was consistent with the 

conditional use approvals incorporating the Property in the golf course cluster 

developments that GEI obtained under the Ordinance prior to the 2006 

amendments.

Accordingly, we affirm the Trial Court’s conclusion that the Board 

did not abuse its discretion or commit an error of law in rejecting GEI’s 

substantive validity challenge to the Ordinance. In light of this determination, we 

do not address the proposed curative amendment to the Ordinance or the sitespecific plans that GEI submitted with its application. 

____________________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Golf Enterprises, Inc., :

Appellant :

v. : 

Newberry Township Board of : 

Supervisors :

v. : No. 97 C.D. 2016

Valley Green Residents Organization, : 

Anthony Miller, Mary Miller, :

LeeAnn Menut, Kenneth Menut, :

William Hendrickson, Edna :

Hendrickson, LeAnn Pague, :

Edward Pague, Stanley Olejarczyk, :

Nancy Olejarczyk, John Elliott, and :

Amy Elliott :

O R D E R

AND NOW, this 25th day of April, 2017, the order of the Court of 

Common Pleas of York County in the above-captioned matter is AFFIRMED.

____________________________________

JAMES GARDNER COLINS, Senior Judge