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by Ron Davis
The owners of prime commercial property located near two major Pennsylvania highways may as well abandon their plans to build a big regional shopping center there. That’s because Pennsylvania’s courts have sided with local government officials who changed the zoning of the property to prevent development of the shopping center.
The property at issue, located north of Pittsburgh, is some 100 acres whose western boundary is Interstate Highway 79 near the State Highway 228 exchange. That property has until recently been zoned SU-1, which permits the construction of regional shopping centers.
But local officials of the town of Cranberry, under whose jurisdiction the property falls, decided to change that zoning, as well as the zoning of six other Cranberry properties, to BPK. That designation allows business park developments, but prohibits shopping center construction. The purpose of the rezoning, the officials explained, was primarily to create a mix of uses in the I-79/Highway 228 corridor and “to address traffic concerns.”
The landowners protested that the actions of the local officials represented an illegal taking of property because of the random and pointless rezoning. They also noted that during the past few years local roadway improvements and a new bridge and ramps at the I-79/Highway 228 interchange had greatly improved traffic flow.
Under Pennsylvania law, however, a landowner alleging an illegal taking of property by government must show that he was “substantially deprived of all beneficial use and enjoyment of his property.” A Pennsylvania court discovered that the landowners in this case had in fact applied for a development plan for a business park on their property. Therefore, the court ruled, “the rezoning of their property did not deprive them of all viable economic uses, i.e., it may be used for business park purposes.”
The landowners appealed, arguing that they were singled out for rezoning and as such were subjected to unlawful “spot zoning.”
A Pennsylvania appellate court upheld the lower court ruling, explaining, “The landowners in this case failed to establish that they were treated any differently from the six other owners whose property was rezoned from SU-1 to BPK. The rezoning was in keeping with Cranberry’s comprehensive development plan for the area…and therefore did not constitute spot zoning.” (Fisher v. Cranberry Township Zoning Hearing Board, 819 A.2d 181)
Decision: April 2003
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