IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Raisa and Yevgeniy Burd, Raju : and Kalpana Gurung, and : Henry Pietkiewicz, : Appellants :

: v. : No. 1049 C.D. 2021

: Submitted: June 10, 2022 Borough of Brentwood Zoning : Hearing Board, Borough of : Brentwood and Agile : Development, LLC :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE COHN JUBELIRER FILED: April 18, 2023
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
O rdinance No. 2020

- 1286 (Ordinance) , B OROUGH OF B RENTWOOD , P A ., Z ONING O RDINANCE N O

. 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 discretion2

or commit an error of law in rejecting Appellants’ substantive validity challenge because substantial evidence supports the ZHB’s findings . Ther efore, 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 hearing s at which Appell ants 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’ C hallenge , concluding that the rezoning of the Property was not spot zoning, and ma k ing 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 MU N district, and the Wainwright Avenue right

- of

- way.
8. Agile’s expert, Andrew J.G. Schwartz [(Schwartz)] , of E nvironmental Planning & Design, testified he analyzed the boundary lines of [the Property] and concluded that a bout 50 [%] relate to the R

- 1 zoning district and 50 [%] relate to the MUN zoning district.3

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 S later 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 owne r 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. I n 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 199 8 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 s tates 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 i ntended 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.4

18. The MUN d istrict is intended to be a transitional district between the residentia l 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 White h all 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 residen t 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 argu ed 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 par k ing spaces they deem unnecessary.

26. Residents also testified that Agile had no need for additional parking b ecause 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.5

(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 ha d 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 o n Bank s ville 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

. ) T he ZHB vo ted three

- to

- two to deny the Challenge.

1 The ZHB’s Decision is attached to Appellants’ brief as Exhibit B.6

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 extens ion 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 the y contend the ZHB erred in rejecting the C hallenge. 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

2 Common pleas’ opinion is attached to Appellants’ brief as Exhibit A. 3 “ Because the parties presented no additional evidence after the ZHB’s decision, our review is limited to determining whether the ZHB committed an abuse of discretion or an error of law.” Plaxton v. Lycoming Cnty. Zoning Hearing Bd. , 986 A.2d 199, 204 n.2 ( Pa. Cmwlth. 2009) (citation omitted)

. “A conclusion that the [ZHB] abused its discretion may be reached only if its findings are not supported by substantial evidence.” Baker v. Chartiers T w p. Zoning Hearing Bd. , 677 A.2d 1274, 1276 (Pa. Cmwlth. 1996) (citations omitted)

.

4 We have reordered Appellants’ arguments for ease of discussion.7

C omprehensive 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; Agil e’s Br. at 25.) Further, the ZHB and Agile assert that the rezoning of the Property is consistent with the goals of the Comprehensive Plan. A review of the ZHB’s Decision reveals that the ZHB did not ignore the Comprehensive Plan , as it specifically re cognized that the Comprehensive Plan has not been updated since it was drafted and adopted in 1998 but not ed that such plans do not expire. (FOF ¶ 15 ; COL ¶ 34.) Further, it was not error for the ZHB to reject the C hallenge based on the Ordinance’s alleged nonconformity with the Comprehensive Plan. Section 303(c) of the Pennsylvania Municipal ities Planning
Code 6 (MPC) , 53 P.S. § 10303 (c), provides : “Notwithstanding any other provision of this act, no 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 .” ( E mphasis added

. )
I n CACO Three, Inc. v. Board of Supervisors of Huntington Township , 845 A.2d 991, 995 (Pa. Cmwlth. 2004 ) , we stated,
[a] lthough a comprehensive plan is a useful tool for properly guiding growth and development of the community, it is only intermediate and inconclusive steps in the lan d use planning [sic]

. Swinehart v. Upper Pottsgrove T [ wp. ] , . . . 351 A.2d 702 ( [ Pa. Cmwlth.] 1976); Saenger v. Plan [

. ] Comm [ ’ n ] of Berks C [ nty

. ] , 308 A.2d 175 (Pa. 1973).

5 T he Borough filed a Statement in Lieu of Brief, adopting and incorporating the ZHB’s Findings of Fact and March 20, 2021 Decision, and request ing that this Co urt affirm the Opinion and Order of common pleas.

6 Act of July 31, 1968, P.L. 805, as amended , 53 P.S. § 10303(c).8

Unlike a specific and regulatory zoning ordinance, a comprehensive plan is, by its nature, an abstract recommendation as to desirable approaches to land utilization and development of the community. Michaels Dev [

. ] Co. v. Benzinger T [ wp

. ] B [ d

. ] of Supervi sors , . . . 413 A.2d 743 ( [ Pa. ] 1980).

Thus, we held that inconsistencies with a comprehensive plan, by themselves , were insufficient to, in that case, deny a land development plan. Id. I n Briar Meadows Development, Inc. v. South Centre Township Board of Supervisors , 2 A.3d 1303, 1307 (Pa. Cmwlth. 2010), this Court held, citing Section 303(c) and CACO Three , that a substantive challenge to a zoning ordinance could not be based on the ordinance’s alleged inconsistency with a comprehensive plan

. Under Section 303(c) of the MPC, Briar Meadows Dev elopment , Inc. , and
CACO Three , Appellants’ contention that the ZHB’s determination must be
reversed due to the Ordinance’s alleged inconsistency or noncompliance with the Comprehensive Plan is not a proper basis up on which to challenge the Ordinance’s validity. 53 P.S. § 10303(c); Briar Meadows Dev., Inc. , 2 A.3d at 1307; CACO
Three , 845 A.2d at 995. Moreover, a review of the Comprehensive Plan reveals
that one of its goals is to promote the development of adequate off

- street parking for existing and new development

. ( Reproduced Record ( R.R. ) at 494a.) Here, the ZHB credited Mr. Slater’s testimony that additional off

- street parking was needed and would be provid ed on the Property as rezoned. ( Id. at 965a .) Further, a s Mr. Schwartz credibly testified, the Ordinance advances the public health , safety, and welfare of the community because it frees the streets from excessive cars and prevents the nuisance of someon e parking in or blocking access to someone else’s driveway. ( Id

. at 199a

- 200a.) Mr. Schwartz also explained the Ordinance is
consistent with the Comprehensive Plan ’s goal of requiring businesses to provide
additional off

- street parking to prevent their p atrons from “inundating the streets.”9

( Id. ) Based on the foregoing, we conclude that the ZHB neither ignore d the Comprehensive Plan nor erred in not granting the C hallenge on this basis

.
B. Did the ZHB err in finding that the Ordinance was not invalid ? Appellants also argue that the Ordinance is invalid as impermissible spot zoning because it create s a peninsula of commercial property surrounded by residential property that has no relevan t differences from its neighboring , residential properties and because the Ordinance is arbitrary, capricious, and exceeds the Borough’s constitutionally

- derived police power. 7 As part of these arguments, Appellants assert that two of the ZHB’s findings used in concluding
that no spot zoning occurred

– t hat there were residential dwellings on only two sides of the Property and that additional parking is needed

– are not supported by
substantial evidence. On the legal issues , A ppellants maintain that the Ordinance

creat ed a peninsula of “ commercial ” property , which constitutes impermissible spot zoning under Knight v. Lynn T o w nshi p Zoning Hearing B oar

d , 568 A.2d 1372 (Pa. Cmwlth. 1990) and C.L. Associates v. Board of Supervisors of Montgomery
Tow nship , 415 A.2d 134 (Pa. Cmwlth. 1980) , 8 wherein the rezoning of a single property created a peninsula that was found to be spot zoning

. (Appellants ’ Br. at 18.) A ccording to A ppellants , the Ordinance also is invalid because it exceeds the Borough’s authority
, in that the rezoning is for the sole benefit of Agile, rather than the community, as reflected in the 260 signatures of residents opposing the rezoning, a fact that the ZHB should have considered, but did not. The ZHB

7 Although Appellants’ brief contains separate sections for these issues, their arguments on the se issues overlap considerably. Therefore, we will address them together to avoid repetition

.

8 Appellants refer to this case as Montgomery Township Appeal

.10

ignored, Appellants argue, “ that the only reason the [r]ezoned [P] roperty borders
the MUN [d] istrict at all is because of the rezoning of three residential parcels owned by Agile in conjunction with the 2015 Expansion.” ( Id. at 20.) Because the Property will be used for parking, rather than for residential purposes, Appellants argue that the Property’s use is now different from the surrounding properties without justification. ( Id . at 21.) The ZHB and Agile respond that th e Ordinance does not create a peninsula,
but rather is a natural extension of an existing MUN d istrict , and that there is substantial evidence for the ZHB’s findings . (ZHB ’s Br. at 10; Agile’s Br. at 10
, 28

- 29 .) Agile argues that the rezoning of the Prop erty was not spot zoning because the Property is not being treated unjustifiably different from similar surrounding land, and that, in reviewing the “surrounding” land, more than just the immediately adjacent properties should be considered. (Agile’s Br. at 14, 18.) The ZHB and Agile further argue that the ZHB was not required to engage in an analysis of whether the Ordinance benefited the community’s health, safety, and welfare once the ZHB determined that t he Property was not being treated unjustifiably differently from similar surrounding land because Appellants did not establish that the Property was spot zoned. (ZHB’s Br. at 14 ; Agile’s Br. at 14 .) “Nonetheless, the ZHB gave [Appellants] ample opportunity to verbalize their disagreement with
the Borough’s rezoning decision.” ( ZHB’s Br. at 14. ) The ZHB highlights that Appellants “testified at length about their opposition when the three lots behind the funeral home were rezoned MUN, while admitting that no validity challenge was
raised in 2015 [ , ] ” but notes that such rezoning was not before the ZHB or relevant to the rezoning of the Property. ( Id. at 15.) Agile asserts that the rezoning “was consistent with, upholds, and facilitates the community development objectives11

outlined in the Comprehens ive Plan,” (Agile’s Br. at 30), and
, as such , was not arbitrary or unreasonable.

1. Substantial Evidence In reviewing Appellants’ substantial evidence challenges , we are mindful
that “ t his Court may not substitute its interpretation of the evidence for th at of the zoning hearing board.” Taliaferro v. Darby T w p. Zoning Hearing Bd. , 873 A.2d 807, 811 (Pa. Cmwlth. 2005) (citation omitted). “ The board is the sole judge of the credibility of witnesses and the weight afforded their testimony.” Id. (citation

o mitted)

. “Assuming the record contains substantial evidence, we are bound by the board’s findings that result from resolutions of credibility and conflicting testimony rather than a capricious disregard of the evidence.” Id. (citation omitted). “ Substantial evid ence is such relevant evidence that a reasonable mind would accept as adequate to support a finding of fact.” Czachowski v. Zoning Bd. of Adjustment , 271 A. 3d 973, 979 n.9 (Pa. Cmwlth. 2022) (citation omitted)

. When determining whether there is substanti al evidence to support a finding, “we must view the evidence in the light most favorable to the party that prevailed before the fact[ ]finder.” Renaissance Real Est

. Holdings, L.P. v. City of Phila. Zoning Bd. of Adjustment , 199 A.3d 977, 983 (Pa. Cmwlth. 2018) (citation omitted)

. “It is irrelevant whether the record contains evidence to support findings other than those made by the fact finder.” Id. (citation omitted).
Our review of the record reveals that the challenged ZHB’s findings are supported by substantial evidence. As to the ZHB’s finding s that the Property
borders 50% on the R

- 1 district and 50% on the MUN district, and has residential dwelling s to the southeast and southwest, with the land to the northwest and
northeast consisting of MUN and CRD along Brownsville Road, (FOF ¶¶ 8

- 9),12

th ese findings are supported by the map s and Mr. Schwartz’s testimony. The maps show that one side of the Property is zoned MUN and a second side of the Property abuts the right

- of

- way for Wainwright Road. (R.R. at 309a, 1005a

- 08a .) The other sides of the Property are zoned R

- 1 and have residential dwellings thereon. ( Id. at 309a

. ) The map of the larger area demonstrates that there are MUN and
CRD districts to the northwest and northeast of the Property . ( Id. at 1005a

- 08a.)
Mr. Schwartz credibly explained that the perimeter of the P roperty is 370 feet in length, that approximately 50 % is adjacent to the R

- 1 properties, a “small leg on
Wai nwright,” approximately 40 to 45 feet, is on a right

- of

- way, and that to the northwest “adjoins the existing mixed use neighborhood district .” ( Id. at 163a

64a .) Mr. Schwartz also testified that 50 % of the rezoned P roperty adjoins an existing MUN distric t or Wainwright Avenue, and approximately 49.25 % adjoins
the R

- 1 district. ( Id. at 165a.) Viewing this evidence in the light most favorable to Agile, “ a reasonable mind would accept [it] as adequate to support [the challenged] finding of fact,” Czachowsk i , 271 A.2d at 979 n.9, and, therefore, the ZHB’s findings are supported by substantial evidence.
T he ZHB’s finding that additional parking is needed likewise is supported by substantial evidence. Although Appellants provided pictures purporting to show sufficient parking and testified that the funeral home has 107 parking spaces, Mr. Slater does not need more, and the parking “is more than enough” because Mr.
Slater allow ed third parties to park in the lot daily, (R.R. at 65a), Agile presented contrary evidence. Mr. Slater testified that there are occasions when parking at the funeral home is inadequate. ( Id. at 231a.) On these occasions, Mr. Slater explaine d, patrons park on neighboring streets or in parking lots of neighboring businesses. ( Id. at 231a

- 32a.) Mr. Slater testified that there have been instances13

where patrons have complain ed about having to park far away from the funeral home, and that there is occasionally a hazard on Brownsville Road when “people are trying to get into the parking lot.” ( Id. at 232a

- 33a.) Mr. Slater acknowledged that parking is not an issue when only one family is at the funeral home, but where there are “two huge families ” or “many times, three or four families, sometimes five, [] parking is definitely an issue.” ( Id. at 234a.) The ZHB, acting in its role as fact finder, weighed the evidence and found Mr. Slater’s testimony more convincing , and we are bound by that deter mination. Taliaferro , 873 A.2d at 811

. Because “ a reasonable mind would accept [Mr. Slater’s credible testimony] as adequate to support [the] finding of fact” at issue, Czachowski , 271 A.2d at 979 n.9, the ZHB’s findings are supported by substantial evidence.

2. Spot Zoning
We now turn to Appellants ’ legal challenge to the Ordinance’s validity
b ecause it created a peninsula of differently treated property that directly benefits Agile

. Z oning ordinances are presumed to be valid , and a cha llenger has a heavy burden of establishing the ordinance’s invalidity

. Woll v. Monaghan T wp

. , 948 A.2d 933, 938 (Pa. Cmwlth. 2008). Spot zoning has historically been defined as “zoning provisions adopted to control the use of a specific area of land with out regard to the relationship of those land use controls to the overall plan and the general welfare of the community.” Twp

. of Plymouth v. Cnty

. of Montgomery , 531 A.2d 49, 57 (Pa. Cmwlth. 1987). As explained by this Court , [s] pot zoning is a singli ng 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 lo t

. In re Realen Valley Forge Greenes Assoc [ s. ] , . . . 838 A.2d 718, 729 ( [ Pa ]

. 2003 )

. The most determinative factor in an analysis of spot zoning is whether the14

parcel in question is being treated unjustifiably different from surrounding land, thus creating an “island” having no relevant differences fr om its neighbors. BPG Real Estate Investors

- Straw Party II, L.P. v. B [ d. ] of Supervisors , 990 A.2d 140, 150 (Pa. Cmwlth. 2010). To establish improper spot zoning, the challenger must prove that the provisions at issue are arbitrary and unreasonable and h ave no relation to the public health, safety, morals and general welfare. Id. If the validity of a zoning ordinance is debatable, it must be permitted to stand. Id. Spot zoning cases should be decided on the facts, guided by case law, [and] there is no precise formula for determining whether a rezoning of property constitutes spot zoning. Id.

Takacs v. Indian Lake Borough Zoning Hearing Bd

. , 11 A.3d 587, 594 (Pa. Cmwlth. 2010). When considering whether the subject property has been accorded unjust ifiable differential treatment, the courts have considered the size of the property, along with the topography, location, and characteristics of the tract at
issue. Knight , 568 A.2d at 1375. Our Supreme Court cautioned in Schubach v.
Silver , however, that
a reviewing court cannot take too constrained a view of the surrounding neighborhood . To discuss a zoning measure by merely looking at the nature of the particular city block on which the rezoned [] land is located is simply incorrect. Although the court must focus its attention on the immediately surrounding land, . . . we are mindful that in this immediate area there is an industrial tract, multi

- family apartment structures and shopping areas. If on[e] stood on the [property] and made a 360 [

- ] degree turn, within a few blocks of the land, [one] would find many different land uses

.

336 A.2d 328, 337 n.16 (Pa. 1975) (emphasis added)

. Applying these standards, we discern no error in the ZHB’s denial of Appellants’ Challenge

.15

Appellants argue that the Ordinance is invalid spot zoning because Agile requested the rezonin g and will benefit from that rezoning. However, spot zoning does not occur simply because the rezoning occurs at the request of the landowner , Schubach , 336 A.2d at 33 7 ; Appeal of McWilliams , 198 A.2d 538, 540 (Pa. 1964) , or because the landowner will benefit from the rezon ing , Lyons v. Zoning Hearing
B oar d of Borough of Sewickley (Pa. Cmwlth., No. 178 C.D. 2014, filed Nov. 10, 2014), slip op. at 17. 9 Further, to the extent that Appellants’ arguments could be read as challenging the Borough’s rationale for enacting the Ordinance
, a municipality’s state of mind in enacting an ordinance is irrelevant to the ordinance’s validity. Plaxton v. Lycoming Cnty. Zoning Hearing Bd. , 986 A.2d 199, 21 0 (Pa. Cmwlth. 200 9)

. Therefore, these are not reasons to conclude that the
ZHB erred. In asserting that the Ordinance created a peninsula of property that was being treated differently, Appellants focus on the Property’s connection with their own residential properties a nd argue, essentially, that the Property’s connection
with the MUN d istrict should be disregarded because of how that MUN district came into existence and how Agile has used or will use its propert ies in the MUN
d istrict

. The ZHB held that the Property wa s located in an area of mixed
residential and non

- residential uses and was not being treated differently from other properties because its rezoning was an extension of the existing MUN
d istrict , a district that , like the R

- 1 d istrict , allows residential us es. (COL ¶¶ 32

- 33.) P recedent has held that the most determinative factor is whether the rezoned

9 While not binding, unreported opinions of this Court may be cited for their persuasive authority pursuant to Penn sylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and Section 414(a) of our Internal Operating Procedures, 210 Pa. Code. § 69.414(a).16

property is being treated unjustifiably different from surrounding properties,
result ing i n an “island” or “peninsula” with no relevant differences from its neighbors

. Takacs , 11 A.3d at 594 (citing BPG Real Estate Investors

- Straw Party
II , 990 A.2d at 150). I n reviewing such determinations, we must be mindful that
we do not take a “ too constrained a view of the surrounding neighborhood

. ”
Schubach , 336 A.2d at 337 n.16. In focusing only on their own residential uses and the proposed parking use of the rezoned Property, Appellants dis count that the focus is on the zoning classifications of the properties around the rezoned property and whether t he rezoning creates a different classification without justification. The Property, as rezoned, allows for residential dwellings, just as the adjacent R

- 1 d istrict does. That the Property may also be used for a non

- residential use, which is also permitte d in the MUN d istrict , does not result in a peninsula of commercially zoned property in a sea of residentially zoned property. The fact remains that the
rezoned P roperty permits residential and commercial uses

. Appellants’ argument s and focus on their re sidential properties further ignore the transitional purpose of
the MUN d istrict , whi ch , per Section 210

- 26 of the B RENTWOOD Z ONING O RDINANCE , “is to provide areas for a mix of residential and neighborhood
commercial facilities intended to serve the immediate area with goods and
services .” (R.R. at 362

- 63a (emphasis added) .) Mr. Schwartz credibl y testified, consistent with that section, that the MUN district is to serve as a buffer between
residential and “the more intense commercial areas, like on the other side of Brownsville where the Giant Eagle and the McDonald ’ s ” are located. ( Id. at 171a.) Reviewing the broader area surrounding the Property, which includes both the nearby residences, but also the MUN district and the intense commercial areas17

of the CRD, it cannot be said that the Property is being treated unjustifiably
different ly

. Accordingly, these are not reasons to find that the ZHB erred. Appellants’ argument that the rezoned property will be “clearly a different
use from the properties located to the North, South, and East of the rezoned property , ” (Appellants’ Br. at 21 ) , is similarly unpersuasive. First, Appellants’ view of the surrounding area is too constrained , a s , in accordance with the Supreme Court directi ve in Schu ba ch , we must view the surrounding area more broadly than just the block on which the rezoned property is located

. In that broader surrounding area, t here is a MUN d istrict and a right

- of

- way immediately adjacent to the Property and, nearby, the re is a CRD, which Mr. Schwartz credibly
described as “ more intense commercial

. ” (R.R. at 171 a.) Second, i n Appeal of McWilliams , our Supreme Court recogniz ed the importance of allowing the natural extension of a n already

- existing , adjacent zoning district in analy zing the validity of an ordinance , even if it allows for
different uses

. 198 A.2d at 540. In that case , the Supreme Court concluded that
the ordinance at issue did not constitute the illegal spot zoning of a property and
had a reasonable relationshi p to the health, safety, and general welfare, explain ing :

The tract of land here in question, slightly less than an acre in area,

w as rezoned at the request of appellee s ’ grantor. This fact do e s not in and of itself invalidate the rezoning. . . . Nor does the limited size of the plot and the fact that all other properties fronting on Marshall Road .

. . are zoned B

- Business, necessarily force the conclusion that the enactment is invalid. Reference to the township zoning map discloses that the area zo ned is a n atural extension of an already existing R

- 3 Residential district, adjoining to the north and west.

. . . .18

Nor can we brand the ordinance as illegal spot zoning. The area rezoned is not an “ island of more or less restricted use within a distr ict zoned for a different use or uses[.]” As previously stated herein, the area rezoned is adjoined on the north and west by a large R

- 3 Residential district and no residential island has been created by the ordinance.
Id. (footnote omitted). Here, the rezoned P roperty is 6,225 square feet

– much less than the almost

acre 10 being rezoned in McWilliams , (FOF ¶ 5) , and there are adjoining properties
that are zoned R

- 1 . However, the limited size of the lot and the fact th at the other properties are zoned R

- 1 does not “necessarily force the conclusion that the
enactment is invalid.” McWilliams , 198 A.2d at 540. Similar to the rezoning i n McWilliams , the Property was rezoned to an already existing district, the MUN
distric t, 11 adjoin ing the Property , which , like the R

- 1 district, allows residential

uses

. As such, t he rezoned P roperty is a natural extension of the already existing
MUN district and it is not a peninsula or “island of more or less restricted use
within a dist rict zoned for a different use or uses.” Id

. The rezoned P roperty shares the same and similar uses to its surrounding properties, and, therefore, Appellants’ arguments on this point do not establish error by the ZHB. Knight and C.L. Associates , upon which Appellants rely , are distinguishable

. In Knight , we held that an ordinance constituted illegal spot zoning , citing as “a conclusive factor” a contract in which the landowner agree d to record a restrictive

covenant limiting development of the la nd. 568 A.2d at 1 376. We explained that

10 An acre is 43,560 square feet. See https://www.unitconverters.net/area/square

- feet

- to

acres.htm (last vis ited Apr. 17 , 2023).

11 Although Appellants assert arguments based on the 2015 rezoning that resulted in the MUN district, no challenges to that rezoning were filed at that time . We agree with the ZHB and Agile that the time to challenge the validity of that rezoning has passed.19

“t he contract, which the governing body tailored to ensure particular use restrictions of the tract, [was] evidence of the [s] upervisors’ intent to adopt a unique classification for a particular parcel [] ” and that such classification did not “further the purpose of the zoning ordinance or the comprehensive plan.” Id. Conversely , here, there is neither a contract nor agreement between the Borough , Agile , and/or Mr. Slater that the rezoned P roperty be used only for parking. Appellants acknowledge this but a ssert that the Ordinance “was tied together with the land development plan for the parking lot expansion so that it became the functional equivalent of Mr. Slater promising to only use the Property for p arking and not any other authorized use in the MUN [d] istrict.” (Appellants ’ Br. at 17

- 18.) However, there is no evidence that the rezoned P roperty can be used only for parking purposes , which distinguishes this matter from Knight

. Als o , unlike the
chal lenged ordinance in Knight , the Ordinance , and Agile’s intended use of the Property, furthers the C omprehensive P lan ’s goal of promoting the development of adequate off

- street parking for existing and new development

. (R.R. at 472a, 494a.) Thus, Knight does not require a different result.
C.L. Associates is similarly distinguishable. In that case, a landowner sought rezoning of its property consisting of two 100

- foot wide lots, so that the entirety of
the lots was zoned C

- Commercial, rather tha n three

- fourths of the lots as it was
zoned. The remaining one quarter of the lots was zoned R

- 2 R esidential, in which no commercial uses were permitted. Adjoining and/or within a few hundred feet of the two lots were a fast food restaurant (adjoining to the east), a motel (adjoining on the south), and a large shopping mall (300 feet to the south and southwest). The owner of the lot immediately to the west of the two lots asked to
have his 100

- foot wide lot rezoned but subsequently sought to retain its R

- 220

R esidential zoning. After the hearing, the board of supervisors did not grant or deny the requested relief but rezoned the two lots R

- 2 R esidential “by redrawing the line marking the boundary of the C

- Commercial and R

- 2 Residential zoning districts,” a nd enacted an ordinance to amend the zoning map to reflect the change.
C.L. Assoc s. , 415 A.2d at 13 6

. On appeal, we upheld the trial court’s findings of impermissible spot zoning, that the two lots should be zoned C

- Commercial , because the amendment created “a peninsula of residentially zoned land in a sea of commercial zoning (and uses) , ” and singled out these properties for treatment
different than other similar surrounding land to the economic detriment of the

owner. Id. We noted that the amendment, which related only to the appellee’s property, interrupted the otherwise “perfectly straight lines marking the C

Commercial zoning” along the Route 309 corridor, even though “those lines pass[ed] through many other properties, large and smal l ,” and questioned whether the zoning was designed to prevent a permitted use of the land after an application for that use had been made to the township. Id

. The instant case is distinguishable from C.L. Associates

. T he rezoning in
C.L. Associates pr ecluded the lots from being used for commercial uses, as they
had been zoned before and which were consistent with the “sea” of adjoining and nearby commercial properties

. Id. at 13 6. T he Ordinance still permits residential
use of the P roperty, which is consistent with its previous zoning and with its neighboring R

- 1 district , but also permits additional uses that are consistent with the adjoining MUN district and nearby CRD district

. Accordingly, C.L.
Associates , likewise , does not require a different result.21

3. Unreasonable, Arbitrary, and Unrelated to the Borough’s Police Power Finally, Appellants assert that the Ordinance is invalid because it is unreasonable, arbitrary, and not substantially related to the Borough ’s police

power. Appellants argue “substantial evidence exists that th e . . . Ordinance is an unconstitutional exercise of the Borough’s police power to zone for the benefit of one landowner at the expense of many.” (Appellant s’ Br. a 22.) Appellants r ely on the 260 Borough residents who signed a petition in opposition to the enactment
of the Ordinance , and their claims that Whitehall House is not permitted in the
MUN d istrict and no additional parking is needed . ( Id. at 22

- 23 ; R.R. at 671a

88a.)
We have already addressed Appellants’ claims regarding the lack of need for additional parking, holding that the ZHB’s contrary findings are supported by
substantial evidence , as well as those relating to how the rezoning was based on Agile’s request and ben efitt ed Agile , which does not reflect that impermissible spot zoning has occurre d under our precedent. See
, e.g., Schubach , 336 A.2d at
330

. This leaves Appellants’ argument based on the 260 signatures of residents who opposed the Ordinance and assertions related to the impermissible use of
Whitehall House in the MUN d istrict. A zoning ordinance is presumed valid and constitutional and the c hallenging party “must clearly establish the provisions are arbitrary and unreasonable and
have no relation to the public health, safety, morals, and general welfare and if the validity is debatable the legislative judgment is allowed to control. Id. at 3 35 (emphasis added) . While Appellants presented evidence that 260 residents opposed the Ordinance, it cannot be said that the Ordinance has “ no relation to the public health, safety, morals, and general welfare , ” id. (emphasis added), where it22

is consiste nt with the purpose of the MUN d istrict , which reflects the Borough’s legislative judgment to creat e a buffer area between commercial and residential

uses . The Ordinance is also consistent with the Comprehensive Plan’s goals of ensuring sufficient off

- str eet parking for existing and new development , which Mr. Schwartz credibly testified protects the public health, safety, and welfare by freeing the streets of excessive cars and preventing the nuisance of people parking
in or blocking access to the driveway s of residences nearby . (R.R. at 199a

- 200a.) It is neither arbitrary nor unreasonable to enact an ordinance that is consistent with a comprehensive plan (even if such consistency is not required for the legislation to be valid per CACO Three , 845 A.2d at 995). Thus, th ese are not reason s to find the
ZHB erred or abused its discretion. Appellants’ arguments that the ZHB erred because Whitehall House is not a permitted use in the MUN d istrict but is being used as an exhibition center or nightclub are unpersuasive. T o the extent that Appellants’ argum ents appear to argue that the 2015 rezoning was in error, (Appellants’ Br. at 24), no validity challenge was ever filed to th e 2015 rezoning , (FOF ¶ 20), and that rezoning, having gone unchallenged, i s not relevant to the question currently before the ZHB

– the rezoning of the Property. Further, there is a question regarding how the use of Whitehall House is relevant to whether the Ordinance constitutes impermissible spot zoning of the Property. As common pleas’ noted, the Borough ’s Solicitor acknowledged “that a substantive validity challenge is the wrong way to address [the] concerns” that Appellants have about being negatively impacted by the development of Whitehall House . (Common pleas O p. at 4 ; R.R. at 955a

- 56 a .) Finally , although Appellants charac terize Whitehall House as a n “exhibition center[] and/or nightclub[],” (Appellants’ Br. at 8), the ZHB found that Whitehall23

House w as “a hospitality venue for the funeral home that also [is] available for rent by the public for social events , ” (FOF ¶ 13)

. Appellants do not allege, nor provide support for their proposition from the Borough Zoning Code, the MPC, or any relevant law, that the use identified by the ZHB is no t permitted in the MUN
district. Thus, Appellants have not established that the Ordina nce is unreasonable , arbitrary , or has no relations hip with the public health, safety, morals and general welfare resulting in the Borough exceed ing its police powers in enacting the
Ordinance.

III. CONCLUSION Based on the foregoing, the ZHB’s findings of fact are supported by substantial evidence and those findings, as well as precedent, support the
conclusion s that Appellants did not establish that the Ordinance constituted impermissible spot zoning by creating a peninsula of property being tr eated unjustifiably different ly or that the Ordinance was unreasonable , arbitrary, and
bore no relationship to the public health, safety, morals, and general welfare such that the Borough exceeded its police power. Accordingly, we affirm.

__________________________________________ RENÉE COHN JUBELIRER, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Raisa and Yevgeniy Burd, Raju : and Kalpana Gurung, and : Henry Pietkiewicz, : Appellants :

: v. : No. 1049 C.D. 2021

: Borough of Brentwood Zoning : Hearing Board, Borough of : Brentwood and Agile : Development, LLC :

O R D E R

NOW , April 18, 2023 , the August 26 , 2021 O rder of the Court of Common
Pleas of Allegheny County is hereby AFFIRMED

.

__________________________________________ RENÉE COHN JUBELIRER, President Judge