IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Chaffier, :

:

Appellant :

:

 v. : No. 907 C.D. 2022

: Argued: September 11, 2023

Hellertown Borough Zoning :

Hearing Board :

:

 v. :

:

James O’Brien, Andrea Goshen, :

John William Goshen, David :

Heffelfinger, and Alan Kunsman :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: January 10, 2024

Michael Chaffier (Owner)1 appeals from the order of the Northampton 

County Court of Common Pleas (trial court) that affirmed the decision of the 

Hellertown Borough (Borough) Zoning Hearing Board (Board) granting the 

substantive validity challenge of James O’Brien, Andrea Goshen, John William 

Goshen, David Heffelfinger, and Alan Kunsman (together, Objectors) to the 

1 The property in question is owned by Michael and Sarah Chaffier, but only Michael 

Chaffier is participating in this appeal. 
2

Borough’s Zoning Ordinance 834-2020 (Ordinance 834) that rezoned Owner’s 

property (Property) from R-1 Residential to R-2 Residential. The issue before the 

Court is whether the Board erred or abused its discretion when it invalidated 

Ordinance 834 as illegal spot zoning. After careful review, we affirm. 

The relevant facts as found by the Board are as follows. The Property,

located at 1527 Easton Road, consists of 6.7 acres, with 4.86 acres in the Borough, 

and the remaining acres located in Lower Saucon Township. Board Opinion, 

8/30/21, at 1.2 Owner’s Property contains two residential dwellings. Id. On 

November 1, 2019, Owner applied for a zoning map amendment with the Borough, 

requesting that Borough Council, in its legislative capacity, rezone the portion of the 

Property in the Borough from R-1 Residential to R-2 Residential.3 Id. The Borough 

Planning Commission reviewed Owner’s application and voted 4-3 to recommend 

that Borough Council deny Owner’s request. Id. The Lehigh Valley Planning 

Commission (LVPC) also reviewed the application and opined that the zoning 

amendment was “generally consistent with the County Comprehensive Plan.” Id. at 

2. See also Reproduced Record (R.R.) at 9a-10a. On January 21, 2020, Borough 

Council reviewed Owner’s application, voted 5-1 (with one abstention) to grant 

Owner’s application, and adopted Ordinance 834 to amend the Borough’s official 

2 The Board Opinion, 8/30/21, may be found in the Original Record (O.R.) at Item No. 15. 

3 Hellertown Borough, PA, Zoning Ordinance of 2002 (Zoning Ordinance), as amended, 

may be found in the Original Record at Item No. 15. Section 450-10(A) of the Zoning Ordinance 

governs permitted uses in the R-1 zone, which include in relevant part, without limitation, singlefamily detached dwellings and single-family semi-detached dwellings (duplexes). Section 450-

11(A) of the Zoning Ordinance governs permitted uses in the R-2 zone, which include in relevant 

part, without limitation, multi-family dwellings, single-family attached dwellings (townhomes), 

single-family detached dwellings, and duplexes. Sections 450-10 and 450-11 of the Zoning 

Ordinance may be found in the Reproduced Record (R.R.) at 44a-50a. 
3

zoning map to change the designation of Owner’s Property from R-1 Residential to 

R-2 Residential.4 Id. See also R.R. at 20a-21a. 

On March 5, 2021, Owner requested a preliminary opinion from the 

Borough Zoning Officer as to whether single-family attached homes (townhomes) 

are permitted on the Property in the R-2 zone, to which the Zoning Officer responded 

that townhomes are permitted. Board Opinion at 3. On April 21, 2021, Objectors, 

whose various properties are adjacent to or near the Property, filed a zoning appeal 

with the Board challenging the substantive validity of Ordinance 834, alleging that 

the rezoning of the Property from R-1 to R-2 constituted illegal spot zoning. Id. at 

2. The Board conducted three public hearings regarding Objectors’ appeal: on May 

19, 2021; June 16, 2021; and July 21, 2021, the last of which was for argument only. 

Id. The Board provided proper notice for these public hearings, the first of which 

was conducted remotely, and the others were conducted in-person with a remote 

option. Id. at 2-3. All five Board members were present (with one member 

participating remotely) at each public hearing, where they were represented by the 

Board’s solicitor, Matthew Deschler, Esquire. Owner, represented by counsel, was 

also present at each public hearing, as was the Borough, represented by its solicitor, 

Michael Corriere, Esquire. Id. at 3. Objectors were also present at each public 

hearing, represented by counsel. Id. at 3-4. Objectors’ various properties, which 

range in size from .36 to 2.75 acres, are all located in the R-1 zone. Id. R-1 and R2 zones are the two residential zoning districts in the Borough. Id. at 4. 

4 After Borough Council adopted Ordinance 834, the Borough Mayor vetoed it, after which 

Owner filed a declaratory judgment action with the trial court against the Mayor and the Borough, 

asserting that the Mayor did not have the legal authority to veto Ordinance 834. The trial court 

found as a matter of law that the Mayor did not have the authority to veto Ordinance 834, and the 

parties entered into a settlement agreement confirming the valid enactment of Ordinance 834 by 

Borough Council, effective January 21, 2020. See R.R. at 22a-25a. 
4

The Board reviewed Sections 450-10 and 450-11 of the Zoning 

Ordinance and found that “[m]ore intense residential uses, including, without 

limitation, single[-]family attached dwellings (townhomes) are not permitted in the 

R-1 zone.” Board Opinion at 4. The Board also made the following findings 

regarding the R-1 and R-2 zones at issue here. 

32. Prior to the zoning amendment [in Ordinance 834], 

Easton Road served as the boundary line between the R-2 

Zone to the West and the R-1 Zone to the east.

33. Prior to the zoning amendment [in Ordinance 834], 

the R-1 Zone was a single, contiguous zone on the 

Borough’s eastern edge that stretched from the Borough’s 

northeast point where Easton Road intersects with the 

Lower Saucon Township boundary line to the Borough’s 

southern boundary on Walnut Street.

34. Prior to the zoning amendment [in Ordinance 834], 

the R-2 Zone was located exclusively on the western side 

of Easton Road, directly across from the [] [P]roperty.

35. As a result of the zoning amendment [in Ordinance 

834], the use of Easton Road as the boundary line between 

the R-1 and R-2 Zones has been abandoned.

36. As a result of the zoning amendment [in Ordinance 

834], the R-2 Zone now juts out and extends to the eastern 

side of Easton Road for the sole purpose of including the 

[] [P]roperty in the R-2 Zone.

37. As a result of the zoning amendment [in Ordinance 

834], the former single, contiguous R-1 Zone has been 

severed into two separate R-1 Zones: an isolated, triangleshaped R-1 Zone in the northeast corner of the Borough 

that is bordered on the south by the northern property line 

of the [] [P]roperty, and a large contiguous R-1 Zone 

bordered on the north by the southern property line of the 

[] [P]roperty and extending to the Borough’s southern 

boundary on Walnut Street. 
5

38. There are no other physical characteristics or 

conditions associated with the [] [P]roperty that 

distinguish it from the properties which immediately 

surround it.

Id. at 5-6.5 

The Board summarized the testimony presented by the parties at the 

Board hearings. Objectors presented testimony from a professional civil engineer, 

Mark Bahnick (Bahnick), who prepared sketch plans and testified that it would be 

possible to fit 18 single-family detached dwellings or 26 duplexes on the Property if 

it was zoned R-1. Board Opinion at 6. Objectors also presented testimony from a 

licensed realtor, Joe D’Ambrosio (D’Ambrosio), who testified that single-family 

detached homes and duplexes, as shown on Bahnick’s sketch plans, would be 

marketable to potential buyers. Id. D’Ambrosio also testified that development of 

the Property with single-family homes or duplexes would increase the Borough’s 

tax base, but that developing the Property with “a townhome development would 

provide a higher tax ratable than either single-family detached dwellings or twin 

homes.” Id. Objectors testified, in essence, that their neighborhood consists of 

approximately one-acre lots where parents raise their children in “an ideal setting”; 

they expected the neighborhood to remain single-family homes when they purchased 

their properties; Ordinance 834 would “change the character of the neighborhood”; 

they are concerned that development of the Property in the R-2 Zone will cause “loss 

of privacy, noise, and increased traffic problems”; and, Ordinance 834 does not 

benefit “the Borough as a whole, but rather solely benefits [Owner].” Id. at 7. 

5 The Borough zoning maps, before and after the adoption of Ordinance 834, may be found 

in the Reproduced Record at 42a-43a. The color versions of these maps may be found in the 

Original Record at Item No. 15. 
6

The Board then reviewed the LVPC Comprehensive Plan, that purports 

to provide a “10-15[-]year vision of how development and conservation can 

contribute to the character and services” of the Borough, Lower Saucon Township, 

and the Saucon Valley School District. Board Opinion at 7. The Board reviewed 

the map contained in the LVPC Comprehensive Plan,6 and compared it to the 

Borough’s zoning map before the enactment of Ordinance 834. Id. The Board found 

that “[p]rior to the zoning amendment [Ordinance 834], the R-1 Zone corresponded 

to the area designated as planned future area of low intensity residential use, and the 

R-2 Zone corresponded to the area designed as the planned future area of higher 

intensity residential use.” Id. The Board found that Objectors’ properties and the 

Property were denoted in yellow [on the LVPC map], signifying the planners’ intent 

to maintain these properties as areas of low intensity residential use. Id. at 8. 

The Borough presented testimony from its Zoning Officer, Kris Russo 

(Zoning Officer), which the Board summarized as follows. The Zoning Officer 

testified that the Property, aside from the two homes already on it, is one of the “few 

undeveloped properties in the Borough.” Board Opinion at 9. The Zoning Officer 

testified that “streets are used as zoning district boundaries for all but three zoning 

districts in the Borough.” Id. The Zoning Officer testified that he believed that 

Ordinance 834 is “consistent with the surrounding area, which includes townhomes 

and apartments within the more densely used area on the [western] side of Easton 

Road.” Id. The Board noted and described the townhome developments and 

apartment complexes located in close proximity and directly across the street from 

the Property. Id. at 9-10. The Zoning Officer testified that, since 2015, there had 

6

See O.R. at Item 15, p. 1-17. 
7

been 5 plan submissions for single-family dwellings, 5 plan submissions for 

duplexes, and 14 plan submissions for townhomes in the Borough. Id. at 10. 

The Borough also presented testimony from Bryan Smith, the Borough 

Engineer (Borough Engineer). The Borough Engineer testified that there are no 

other properties of the same size as the Property that can be developed for residential 

purposes in the Borough. Board Opinion at 10. The Borough Engineer opined that 

“[b]ased on the number of townhome plan submissions received by the Borough in 

recent years, . . . there is a demand for townhomes in the Borough.” Id. The 

Borough Engineer further opined that the uses permitted for the Property in the R-2 

Zone, such as townhomes, “would be consistent” with the townhome developments 

across Easton Road and, therefore, he did not believe that the Property was treated 

differently than the surrounding properties. Id. No Borough residents spoke in favor 

of Ordinance 834, several Borough residents spoke in opposition to Ordinance 834, 

and the Board reviewed the exhibits admitted into the record. Id. at 11-13. After 

reviewing the evidence and arguments, on July 21, 2021, the Board voted 3-2 to 

grant Objectors’ substantive validity challenge and to declare Ordinance 834 null 

and void as unconstitutional spot zoning. R.R. at 546a-47a. The Board directed its 

solicitor to prepare a written decision in support of its action. Id. at 541-42a. 

In its written decision, the Board stated that Ordinance 834 is presumed 

to be valid and constitutional, and Objectors’ bear the burden to show that Ordinance 

834 is unconstitutional. Board Opinion at 14. The Board noted that there is “no 

hard and fast test” to determine whether a situation constitutes spot zoning, and each 

case is decided on its “own peculiarities,” citing Pollock v. Zoning Board of 

Adjustment, 342 A.2d 815 (Pa. Cmwlth. 1975). Id. The Board reviewed our courts’ 

definition of spot zoning and the “two-prong test to determine whether a zoning 
8

ordinance represents spot zoning,” namely, “whether differential treatment was 

afforded the area in question, and if so, whether that differential treatment was 

justified upon consideration of various factors,” citing Lower Allen Citizens Action 

Group, Inc. v. Lower Allen Township Zoning Hearing Board, 500 A.2d 1253, 1260 

(Pa. Cmwlth. 1985). Id. at 14-15. As to the first prong, the Board considered 

whether Ordinance 834 reflects a difference in treatment of the Property “from 

surrounding land similar in character,” in terms of topography, location, and 

characteristics of the Property. Id. at 15. The Board concluded that “[t]he record 

evidence demonstrates that there are no topographical or other physical 

characteristics of the [] [P]roperty that distinguish it from the surrounding properties. 

In fact, the [] [P]roperty is essentially indistinguishable from the surrounding 

properties.” Id. 

The Board also considered whether the Property is suitable for the uses 

permitted in the R-1 Zone, before Ordinance 834 was enacted, and concluded that it 

is. Board Opinion at 15-16. The Board credited the testimony of Bahnick, who 

opined that it would be possible to fit 18 single-family dwellings or 26 duplexes on 

the Property in the R-1 Zone, and the testimony of D’Ambrosio, who opined that 

either single-family dwellings or duplexes on the Property would be marketable in 

the Borough. Id. at 16. Therefore, the Board concluded that “while placement of 

the [] [P]roperty within the R-2 Zone permits the more lucrative development of 

townhomes, the record evidence demonstrates that the [] [P]roperty is perfectly 

suitable for development in accordance with its prior R-1 zoning classification.” Id. 

The Board next considered the Borough’s argument that the rezoned 

Property was not afforded differential treatment because Ordinance 834 did not 

create an “island.” Board Opinion at 16. The Borough argued that the Property was 
9

not being treated differently than surrounding properties because the Property is 

located across the street from, and in close proximity to, townhomes and apartments 

in the R-2 Zone. Id. The Board rejected the Borough’s argument that spot zoning 

requires the Property to be an “island” isolated from surrounding properties that are 

treated differently and determined that a property may be singled out for special 

treatment if it differs from an abutting property of a different zoning classification, 

citing Bidwell v. Zoning Board of Adjustment of Pittsburgh, 286 A.2d 471 (Pa. 

Cmwlth. 1972), and Schubach v. Zoning Board of Adjustment (Philadelphia), 270 

A.2d 397 (Pa. 1970) (Schubach I). Id. at 16-17. 

The Board then considered the second prong of the spot zoning test, 

whether the differential treatment of the Property was “justified on health, safety, 

morals, and public welfare grounds,” or whether it was “unjustified or irrational.” 

Board Opinion at 17. The Board considered the Borough’s argument that the 

number of plan submissions since 2015, as testified to by the Zoning Officer, 

established a “need for properties on which townhomes may be developed,” that 

justified Ordinance 834 as “rationally related to the public interest.” Id. The Board 

rejected the Borough’s argument, concluding as follows: “However, evidence of the 

number of plan submissions does not, by itself, necessarily reflect a ‘need’ for a 

particular type of development within the Borough. The fact that there were 14 plan 

submissions for townhomes since 2015 could simply reflect the developers’ 

preference for more lucrative townhome development.” Id. 

The Board also considered the Borough’s argument that Ordinance 834 

was rationally related to the public interest because it “permits the Borough to raise 

additional tax revenue to pay for public services without the need for a tax increase.” 

Board Opinion at 18. The Board acknowledged D’Ambrosio’s testimony that 
10

townhome developments would provide a “higher tax ratable” than single-family 

dwellings or duplexes. However, the Board rejected the Borough’s argument 

because “the courts ‘have consistently held that tax-based concerns cannot be 

decisive in a zoning case,’” citing Baker v. Chartiers Township Zoning Hearing 

Board, 677 A.2d 1274, 1279 (Pa. Cmwlth. 1996), and other cases. Id. The Board 

rejected the Borough’s and Objectors’ attempts to rely on arguments made by 

Attorney Joseph A. Fitzpatrick before the Borough in support of Ordinance 834, 

because legal argument does not constitute evidence. Board Opinion at 18 n.6. The 

Board concluded that even if this legal argument constituted evidence, “the state of 

mind of a legislative body in amending a zoning ordinance is not relevant to 

determining its validity, and the amendment must stand or fall on its own terms,” 

citing Plaxton v. Lycoming County Zoning Hearing Board, 986 A.2d 199, 210 (Pa. 

Cmwlth. 2009). Id. The Board further concluded that, although there was a “good 

deal of discussion” during the June 16, 2021 Board hearing regarding the effect of 

townhome development on the Borough’s tax revenue, as well as townhome 

development creating an increased burden on the school district and public services, 

“there is no competent record evidence that would permit the Board to determine the 

actual impact of townhomes on the Borough budget.” Id. 

The Board further considered the Borough’s argument that Ordinance 

834 was rationally related to the public interest because it was consistent with the 

policy goals of the County Comprehensive Plan as determined by the LVPC. Board 

Opinion at 19. The Borough asserted that it could have relied on the LVPC letter to 

support Ordinance 834, to promote “a variety of attainable housing in locations that 

maximize social and economic opportunities.” Id. The Board rejected this argument 

for several reasons. First, the Board found no evidence that the Borough Council 
11

actually relied on the LVPC’s opinion when it passed Ordinance 834. Further, the 

Board concluded that the state of mind of Borough Council was not relevant, and 

Ordinance 834 must stand or fall on its own terms. Id. The Board acknowledged 

that the LVPC letter was admitted into evidence, but it found no evidence in the 

record to establish the grounds upon which the LVPC’s conclusions were based. 

The Board found no evidence to support the conclusion that townhome 

developments would maximize social and economic opportunities. Id. The Board 

found no evidence that townhome development on the Property would promote 

reuse of vacant property, because the Property is not vacant. Id. The Board further 

found that if the Property is “underutilized,” it is underutilized by Owner’s choice, 

and not because of any physical characteristics or conditions on the Property. Id. at 

20. Therefore, the Board concluded that the record does not demonstrate that 

Ordinance 834 was justified on health, safety, morals, and public welfare grounds, 

but was, instead, “the product of an ‘unjustified or irrational’ exercise of legislative 

power.” Id. 

The Board also evaluated the role of streets separating zoning districts 

in the Borough, to determine whether Ordinance 834 was a rational exercise of the 

Borough’s legislative authority, or whether it was enacted to benefit Owner. The 

Board acknowledged the Zoning Officer’s testimony that streets are used as zoning 

district boundaries in the Borough in all but three zoning districts and found that 

“streets are the predominate means of separating zoning districts within the 

Borough.” Board Opinion at 20. The Board found that Easton Road, “a state route 

with a double yellow line,” served as a “clear and natural boundary between the R1 and R-2 Zones” before Ordinance 834 was enacted. Id. The Board found that, 

before Ordinance 834, the R-1 Zone was a “single, contiguous zoning district on the 
12

eastern side of Easton Road,” and that the R-2 Zone, “a less restrictive zoning district 

than the R-1 Zone,” was located “exclusively on the western side of Easton Road.” 

Id. The Board found that Ordinance 834 “abandons the use of Easton Road as a 

clear and natural boundary between the R-1 and R-2 Zones.” Id. The Board 

described the new R-2 Zone as jutting out and extending to the eastern side of Easton 

Road “for the sole purpose of including the [] [P]roperty in the R-2 Zone.” Id. After 

Ordinance 834 was enacted, the rezoning of the Property resulted in a severing of 

the former contiguous R-1 Zone into “two separate R-1 Zones” comprised of an 

isolated, triangle shaped R-1 Zone in the northeast corner of the Borough, and a large 

R-1 Zone below the Property. Id. The Board then concluded that the result of 

Ordinance 834 was to sever “the R-1 Zone into two separate and distinct areas” and 

to abandon “Easton Road as a natural boundary line between zoning districts,” which 

“demonstrates the intent of [Ordinance 834] to benefit [Owner] while disregarding 

the relationship of zoning restricts to the general health, safety, and welfare of the 

community.” Id. at 21. Finally, the Board noted that it did not consider Objectors’ 

argument that Ordinance 834 was invalid because it is inconsistent with the County 

Comprehensive Plan, because Section 303(c) of the Pennsylvania Municipalities 

Planning Code (MPC), 53 P.S. §10303(c),7 prohibits the invalidation of an ordinance 

on the basis that it is inconsistent or fails to comply with the provisions of a 

comprehensive plan. Id. at 21 n.8. 

Therefore, the Board concluded that Ordinance 834 “reflects 

differential treatment of the [] [P]roperty from surrounding land similar in character, 

and a lack of justification for such differential treatment.” Board Opinion at 22. The 

7 Act of July 1, 1068, P.L. 566, as amended, 53 P.S. §§10101-11202. 
13

Board concluded that Ordinance 834 “constitutes spot zoning, and therefore, is 

unlawful.” Id. 

Owner appealed the Board’s decision to the trial court, which heard 

argument and took no additional evidence. The trial court discerned “no legal error 

or abuse of discretion” in the Board’s decision and affirmed it. Trial Court Opinion, 

7/19/22, at 3. 8 Owner then appealed to this Court.9, 10 

Substantive validity challenges to a zoning ordinance are governed by 

Section 916.1 of the MPC, 53 P.S. §10916.1.

11

 When presented with such a 

challenge, we must presume the ordinance is “‘constitutionally valid unless a 

challenging party shows that it is unreasonable, arbitrary, or not substantially related 

to the police power interest that the ordinance purports to serve.’” Allen Distribution 

v. West Pennsboro Township Zoning Hearing Board, 231 A.3d 90, 94 (Pa. Cmwlth. 

2020) (internal citations omitted). Generally, “‘spot zoning . . . is an arbitrary 

exercise of police powers that is prohibited by our Constitution.’” In re Realen 

8 The Trial Court Opinion, 7/19/22, may be found in the Original Record at Item No. 19. 

9

“Because the parties presented no additional evidence after the [Board’s] decision, our 

review is limited to determining whether the [Board] committed an abuse of discretion or an error 

of law.” Allegheny Tower Associates, LLC v. City of Scranton Zoning Hearing Board, 152 A.3d 

1118, 1121 n.3 (Pa. Cmwlth. 2017). We may find an abuse of discretion only where the Board’s 

findings are not supported by substantial evidence. Human Services Consultants, Inc. v. Zoning 

Hearing Board of Butler Township, 587 A.2d 40, 41 (Pa. Cmwlth. 1991). Given the Board’s role 

as factfinder, the Court may not substitute its judgment for that of the Board and is bound by the 

Board’s determinations of “witness credibility and evidentiary weight.” In re Rural Route 

Neighbors, 960 A.2d 856, 860 (Pa. Cmwlth. 2008). 

10 On January 5, 2023, our Court granted the Borough’s motion to withdraw as a party to 

the appeal and excused the Borough from filing a brief. 

11 Added by the Act of December 21, 1988, P.L. 1329.
14

Valley Forge Greenes Associates, 838 A.2d 718, 729 (Pa. 2003) (internal citation 

omitted).

“Spot zoning is a 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 

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

“The most determinative factor in analysis of spot zoning 

is whether the parcel in question is being treated 

unjustifiably different from similar surrounding land, thus 

creating an ‘island’ having no relevant differences from its 

neighbors.” In other words, we must first determine 

whether the property is being treated differently from the 

land surrounding it; if so, our inquiry then turns to the 

issue of whether there exists justification for such 

differential treatment. “To establish improper spot zoning, 

the challenger must prove that the provisions at issue are 

arbitrary and unreasonable and have no relation to the 

public health, safety, morals and general welfare.” “If the 

validity of a zoning ordinance is debatable, it must be 

permitted to stand.” “Spot zoning cases should be decided 

on the facts, guided by case law; there is no precise 

formula for determining whether a rezoning of property 

constitutes spot zoning.” 

Allen Distribution, 231 A.3d at 95. (internal citations omitted). 

Although some of Owner’s arguments overlap, as to the first prong of 

the spot zoning standard, Owner argues that the Board erred or abused its discretion 

when it concluded that the Property is indistinguishable from the properties 

surrounding it. Owner argues that the Board erred when it failed to account for the 

size of the Property, failed to recognize the Property’s frontage on Easton Road, and 

failed to include the properties across Easton Road in the R-2 Zone as part of the 

area surrounding the Property. Objectors and the Board respond that substantial 

record evidence exists to support the Board’s conclusion that the Property is 

indistinguishable from the properties surrounding it. 
15

Owner argues that the Board abused its discretion by failing to 

distinguish the Property based on its size. Owner argues that the Property, with 4.86 

acres in the Borough, is larger than Objectors’ properties, which range from .36 to 

2.75 acres. Owner argues that because the Property is larger than Objectors’ 

properties, and similar in size to the properties containing townhomes across Easton 

Road, the Board should have found the Property to be distinguishable based on its 

size. Objectors and the Board respond that the Property’s size does not distinguish 

it from the surrounding properties, and that size has not been held to be determinative 

of whether spot zoning occurred. Objectors and the Board cite In re Realen, 838 

A.2d at 730, where our Supreme Court determined that reverse spot zoning occurred 

with respect to a 135-acre golf course. “First, the large size of the tract is not 

determinative. Zoning unjustifiably discriminatory is beyond the municipality’s 

police power, and ‘[i]t makes no difference whether it is a 1⁄4 acre lot or a 50[-]acre 

industrial complex area.’” Id. (internal citation omitted). Objectors further respond 

that the property of Mr. Kunsman, one of the Objectors, is partly situated in the 

Borough’s R-1 District, was originally 18 acres in size, and he was able to subdivide 

it and develop lots for single-family detached homes. See R.R. at 196a-98a. 

Owner next argues that the Property is unique from the surrounding 

properties because it is the only property that has frontage on Easton Road, making 

it more attractive for a townhome development. Owner argues that our Supreme 

Court concluded that no spot zoning had occurred regarding a property that was 

distinguishable from surrounding properties because it fronted on “two heavily 

traveled traffic arteries.” Schubach v. Silver, 336 A.2d 328, 336 (Pa. 1975) 

(Schubach II). Objectors and the Board respond that the Board considered the 

Property’s frontage on Easton Road but was unpersuaded that this militated in favor 
16

of differential treatment. The Board noted that most spot zoning challenges arise 

with respect to properties adjacent to a different zoning district, and the fact that the 

Property borders the townhome development across Easton Road is not a 

distinguishing characteristic that justifies differential treatment. 

Related to the frontage issue, Owner further argues that the Board erred 

when it found the Property to be indistinguishable from surrounding properties in 

the R-1 Zone and ignored the townhome developments across Easton Road as part 

of the surrounding properties. Objectors and the Board respond that the Board did 

not ignore the fact that the Property bordered the R-2 Zone across Easton Road, but 

it gave that fact less weight than the natural boundary between the R-1 and R-2 Zones 

provided by Easton Road. Objectors and the Board reiterate that most spot zoning 

challenges involve properties adjacent to another zoning district, and our courts have 

routinely rejected arguments that a property is distinguishable simply because it is 

adjacent to a different zoning district. 

In Schubach I, 270 A.2d 397, our Supreme Court considered whether a 

zoning amendment that rezoned a two-acre parcel from R-4 (residential) to C-2 

(commercial) to permit the owner to construct a nursing home was spot zoning. At 

the time of the rezoning, the property was surrounded by properties zoned 

residential, and the Court determined that the case presented “a classic case of ‘spot 

zoning’—the entire area was zoned residential, the lot is in the midst of detached 

dwelling houses that are in the $25,000 price range, and the lot does not differ from 

its neighbors by either location or topography.” Id. at 399. The Court also addressed 

the fact that there was a “very large commercially[]zoned area within a few hundred 

feet to the north of the premises,” but not contiguous with it, and the argument that 
17

the area was not “truly residential in nature.” Id. at 400. The Supreme Court stated 

as follows:

We are not persuaded by such an argument since it would 

mean that every borderline area in the city could be 

subjected to such down zoning. The extension of this 

reasoning could lead to one tract after another falling into 

the C-2 classification: since A is C-2, then B should be C2; since B is C-2, then C should be C-2; since C, then D; 

and so on, ad infinitum.

Id.

Owner further argues that the Property was not subject to illegal spot 

zoning because Ordinance 834 created a peninsula of R-2 property, but not an island 

of R-2 property within the surrounding properties. Owner relies on Schubach I, 

where the Supreme Court stated as follows. 

The record very clearly indicates that City Council has 

created an ‘island’ of commercial zoning in the midst of a 

residential area, that the change in zoning is not required 

for any reasons particular to the lot in question, and that 

the general welfare of this community is adversely 

affected thereby.

Schubach I, 270 A.2d at 400. Owner argues that because Ordinance 834 created a 

peninsula, but not an island, of rezoned property, the Board erred in concluding that 

the Property was not distinguishable from the townhomes in the R-2 Zone across 

Easton Road. Objectors and the Board respond that a peninsula, as well as an island, 

of rezoned property may constitute spot zoning, when the property is treated 

differently from the surrounding tracts, citing cases including Knight v. Lynn 

Township Zoning Hearing Board, 568 A.2d 1372 (Pa. Cmwlth. 1990), and Atherton 

Development Co. v. Township of Ferguson, 29 A.3d 1197 (Pa. Cmwlth. 2011). The 

Board further notes that Ordinance 834 not only created a peninsula of the Property, 
18

but it created a triangle-shaped island of R-1 property in the northeast portion of the 

R-1 Zone that is now unconnected to the rest of the R-1 Zone. 

In Knight, 568 A.2d at 1373, our Court considered whether rezoning a 

10.067-acre property from Agricultural to Rural Center constituted illegal spot 

zoning. The record showed that the property in question, after rezoning, was “a 

peninsula zoned Rural Center jutting from the existing Rural Center zone into the 

Agricultural zone.” Id. at 1375. Relevant here, the Court held that “[a]lthough an 

amendment which creates a peninsula does not necessarily constitute spot zoning 

. . . we conclude that the action here did constitute spot zoning.” Id. at 1376. In 

Atherton, 29 A.3d at 1202, the Court considered the validity of a zoning ordinance 

that zoned a portion of the owner’s property Townhouse Residential-R-3, when 

another portion of his property, as well as properties surrounding his property on 

three sides, were zoned General Commercial-C. The owner sought to have the 

residential portion of his property rezoned for commercial use, arguing that the 

zoning ordinance constituted illegal reverse spot zoning. Id. at 1199. Although the 

Court concluded that the zoning ordinance did not constitute reverse spot zoning, 

relevant here, the Court agreed with the trial court’s observation that “‘[w]hile 

Pennsylvania case law clearly demonstrates that a peninsula, in addition to an island, 

may constitute spot zoning in the appropriate case [see Knight; C.L. Associates v. 

Board of Supervisors of Montgomery Township, 415 A.2d 134 (Pa. Cmwlth. 1980)], 

the law is silent as to whether or not a peninsula may form the basis for a claim of 

reverse spot zoning.’” Atherton, 29 A.3d at 1209. See also C.L. Associates, 415 

A.2d at 136, where the Court held that a zoning amendment constituted classic illegal 

spot zoning when the rezoning drew “an indentation in the line separating the C-
19

Commercial and R-2-Residential zoning districts tailored to the [owner’s] property 

as a peninsula of residentially zoned land in a sea of commercial zoning.” 

As to the second prong of the spot zoning standard, Owner argues that 

the Board erred in concluding that Ordinance 834 was unreasonable and had no 

relation to the public health, safety, morals, and general welfare of the community. 

Owner argues that the Board erred when it ignored the need for townhomes in the 

Borough, failed to acknowledge Ordinance 834 as establishing a transition zone 

between the R-1 and R-2 zoning districts, ignored the LVPC determination that 

Ordinance 834 was consistent with the County Comprehensive Plan, and failed to 

acknowledge that increased tax revenue from townhomes would benefit the entire 

community. Objectors and the Board respond that the Board committed no error 

when it concluded that Ordinance 834 was unreasonable and operated to benefit 

Owner, not the general welfare of the Borough.

Owner first argues that Ordinance 834 was rationally related to the 

health, safety, and welfare of the Borough because it allowed the Borough to meet 

the need for townhomes. Owner argues that the Board erred when it failed to 

recognize the need for townhomes as testified to by the Zoning Officer and Borough 

Engineer. Owner argues that the Board abused its discretion by substituting its 

judgment for that of the Borough Council, which enacted Ordinance 834 to address 

the need for townhomes. Objectors and the Board respond that Owner is attempting 

to attribute the need for townhomes to the Borough as the reason to enact Ordinance 

834 when there was no evidence that Borough Council considered this need when it 

rezoned the Property. Objectors note that, if the Borough recognized the need for 

townhomes, it would have considered rezoning more properties in the R-1 Zone to 

accommodate this need, rather than only rezoning the Property at Owner’s request. 
20

Owner next argues that Ordinance 834 was rationally related to the 

health, safety, and welfare of the Borough by establishing a transition zone between 

the R-1 and R-2 Zones as they existed before the rezoning. Owner argues that 

transition zoning has long been recognized as a legitimate exercise of municipal 

zoning authority, citing in support Schubach II, 336 A.2d 328, and Appeal of 

McWilliams, 198 A.2d 538 (Pa. 1964). Objectors and the Board respond that the 

cases cited by Owner are inapposite here, and that just because the Property borders 

the R-2 Zone does not justify rezoning it for transition purposes, citing Schubach I. 

Some years after the Court’s decision in Schubach I, where it held that 

spot zoning had occurred with respect to the proposed nursing home project, the 

Court again considered whether spot zoning occurred with respect to the same 

project in Schubach II, 336 A.2d 328. Since the earlier decision in Schubach I, the 

property owner had acquired several additional parcels contiguous to the original 

site of the nursing home project, now comprising land making up “approximately 

one-half of a city block,” which was now surrounded by numerous commercial 

properties, except for one side that retained residential properties. Schubach II, 336 

A.2d at 332. Under these changed circumstances, the Court found that the character 

of the neighborhood had changed, and that it was now more commercial in nature. 

Id. at 334. The Court held that, with the increase in size of the property and the 

changed character of the properties surrounding the property, the zoning amendment 

did not constitute spot zoning, but was rather a “natural extension of a previously 

existing commercial use.” Id. at 337. The Court clarified, however, that 

[t]his “transition zone” theory, as recognized in [Cleaver 

v. Board of Adjustment of Tredyffrin Township, 200 A.2d 

408 (Pa. 1964),] in no way erodes the rejection of the 

argument in [Schubach I,] that because this land was on 

the border line between the two uses it should be rezoned. 
21

We in no way retreat from the view that simply because a 

piece of property rests on the border of a commercial zone 

it automatically can be rezoned commercial.

Schubach II, 336 A.2d at 338. See also Appeal of McWilliams, 198 A.2d 538, in 

which the Court found no illegal spot zoning occurred when a property was 

reclassified from business to residential use, when the rezoned area was bordered on 

two sides by a large residential district and did not create a residential island in an 

otherwise commercial district. 

Owner next argues that Ordinance 834 was rationally related to the 

health, safety, and welfare of the Borough because it was consistent with the County 

Comprehensive Plan, as recommended by the LVPC. Owner does not argue that the 

Board was required to find Ordinance 834 valid because it was consistent with the 

LVPC recommendation, but that Borough Council could have relied upon the LVPC 

recommendation when it enacted Ordinance 834, thus providing a rational reason 

for rezoning the Property. Owner’s argument here echoes the argument made by the 

Borough before the Board, which the Board rejected. Here, Objectors and the Board 

respond that although the LVPC recommendation was made part of the record, the 

Board was neither obligated nor persuaded to accept the LVPC’s conclusion. 

Objectors and the Board reiterate that the record contains no evidence that Borough 

Council considered the LVPC recommendation when it passed Ordinance 834, 

Borough Council’s state of mind when passing legislation is irrelevant, and the text 

of Ordinance 834 must stand on its own. See Plaxton, 986 A.2d at 210. 

Owner next argues that Ordinance 834 was rationally related to the 

health, safety, and welfare of the Borough because townhome development on the 

Property would generate increased tax revenue to benefit the entire Borough. Owner 

argues that the Board erred when it found that there was no competent evidence in 

the record to determine the actual impact of townhomes on the Borough budget. 
22

Objectors and the Borough reject this argument based on the lack of evidence in the 

record to demonstrate the specific revenues or tax burdens generated by townhome 

development. Objectors and the Borough again cite Baker, 677 A.2d at 1279, and 

Putney v. Abington Township, 108 A.2d 134, 137 (Pa. Super. 1954), for the 

proposition that a zoning ordinance cannot be justified solely because it will produce 

more tax revenue.12

Based on the foregoing, we affirm the trial court and hold that 

Ordinance 834 is invalid as illegal spot zoning. As to the first prong of the spot 

zoning analysis, whether the Board erred or abused its discretion when it found that 

the Property was not distinguishable from the surrounding properties, we may not 

substitute our judgment for that of the Board, so long as substantial evidence in the 

record supports the Board’s findings. Human Services Consultants, Inc., 587 A.2d 

at 41, and In re Rural Route Neighbors, 960 A.2d at 860. Further, we must analyze 

the particular facts of this case, guided by case law, to determine whether Ordinance 

834 constitutes spot zoning, because “no precise formula” exists to determine 

whether rezoning of a property constitutes spot zoning. Allen Distribution, 231 A.3d 

at 95 (quoting Takacs v. Indian Lake Borough Zoning Hearing Board, 11 A.3d 587, 

594 (Pa. Cmwlth. 2010)). 

The size of the Property does not distinguish it from neighboring 

properties in the R-1 Zone. The Property is not so large that it cannot be subject to 

illegal spot zoning. In re Realen, 838 A.2d at 730. The Property is not 

distinguishable because it fronts on Easton Road, making it more attractive for 

12 Owner also argues that Ordinance 834 is rationally related to the Borough’s health, 

safety, and welfare because it met some of the stated objectives of the Zoning Ordinance, as stated 

in Section 450-3 of the Zoning Ordinance. Because this argument relies on Owner’s contentions 

that Ordinance 834 met a need for the development of townhomes in the Borough, which has 

already been addressed, we will not separately address it again. 
23

townhome developments. Although a property may be distinguishable because it 

fronts on “two heavily traveled traffic arteries,” Schubach II, 336 A.2d at 336, this 

conclusion is not mandated, and any conclusion must consider the specific 

circumstances of the Property. We discern no abuse of discretion in the Board’s 

decision to give less weight to the Property’s frontage on Easton Road, when the 

record contains substantial evidence that Easton Road served as a boundary between 

the R-1 and R-2 Zones. We reject Owner’s argument that because the Property is 

adjacent to the R-2 Zone across Easton Road, that the townhome developments in 

the R-2 Zone must be considered part of the properties surrounding the Property, 

and that the Board erred in not making such a finding. Rezoning requests often 

involve a property that is located in one zoning district and is adjacent to a different 

zoning district. Our Supreme Court has rejected the argument that because a 

property borders another zoning district, that we must conclude the property is 

indistinguishable from those in the adjacent district. Schubach I, 270 A.2d at 400. 

Relatedly, we discern no error in the Board’s finding that the Property is not 

distinguishable from the surrounding properties, when Ordinance 834 created a 

peninsula, but not an island, of rezoned property. A peninsula of rezoned property 

may constitute spot zoning, depending on the specific circumstances of the property 

and its surroundings. C.L. Associates, 415 A.2d at 136; Knight, 568 A.2d at 1376; 

Atherton, 29 A.3d at 1209. 

As to the second prong of spot zoning analysis, we discern no error in 

the Board’s conclusion that Ordinance 834 was not rationally related to the health, 

safety, and welfare of the Borough, but was enacted to benefit Owner. Although the 

Zoning Officer testified that the Borough received more townhome submissions 

since 2015 than submissions for single-family dwellings or duplexes, the Board 
24

found that “the number of plan submissions” did not, by itself, demonstrate a “need” 

for townhomes, but could “simply reflect the developer’s preference for more 

lucrative townhome development.” Board Opinion at 17. The Board did not err 

when it considered the evidence but weighed it differently than Owner advocates. 

Therefore, we discern no error in the Board’s failure to conclude that Ordinance 834 

was justified to create a transition zone between the R-1 and R-2 Zones. Case law 

recognizes that establishing a transition zone between different zoning districts may 

relate to the health, safety, and welfare of the community, but does not require this 

result. Schubach I, 270 A.2d at 400. We further discern no error in the Board’s 

giving less than Owner advocates regarding the LVPC recommendation that 

Ordinance 834 was consistent with the County Comprehensive Plan. The record 

contains no evidence that Borough Council considered the LVPC recommendation 

when it passed Ordinance 834, and even if it did, Borough Council’s state of mind 

when passing legislation is irrelevant, and the text of Ordinance 834 must stand on 

its own. Plaxton, 986 A.2d at 210. Further, we note that the LVPC recommendation 

in favor of Ordinance 834 was in conflict with the Borough Planning Commission 

recommendation against Ordinance 834. We are bound by the Board’s 

determination of witness credibility and evidentiary weight. In re Rural Route 

Neighbors, 960 A.2d at 860. Finally, we conclude that the Board did not abuse its 

discretion when it found that the impact of townhome development on the Borough’s 

budget was too speculative to make a specific finding. It is well established that a 

zoning ordinance may not be justified as rationally related to the general health, 
25

safety, and welfare of the community, simply because it will raise revenue for the 

municipality. Putney, 108 A.2d at 137,13 and Baker, 677 A.2d at 1279. 

The Borough maps, before and after Ordinance 834, demonstrate a 

classic example of spot zoning as applied to the Property. The Board made findings 

based on substantial evidence in the record, supported by case law applied to the 

particulars of the Property and the properties surrounding it. As a result, the Board 

did not err or abuse its discretion in holding that Ordinance 834 constitutes 

impermissible spot zoning of the Property.

Accordingly, the trial court’s order is affirmed.

MICHAEL H. WOJCIK, Judge

13 “In general, Superior Court decisions are not binding on this Court, but they offer 

persuasive precedent where they address analogous issues.” Lerch v. Unemployment 

Compensation Board of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018). 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Chaffier, :

:

Appellant :

:

 v. : No. 907 C.D. 2022

: 

Hellertown Borough Zoning :

Hearing Board :

:

 v. :

:

James O'Brien, Andrea Goshen, :

John William Goshen, David :

Heffelfinger, and Alan Kunsman :

O R D E R

AND NOW, this 10th day of January, 2024, the Order of the Court of 

Common Pleas of Northampton County dated July 19, 2022, is AFFIRMED. 

__________________________________

MICHAEL H. WOJCIK, Judge