OPINION NO. 98-24
December 2, 1998
Honorable John F. Street
President, City Council
Room 494 City Hall
Philadelphia, PA 19107
Dear Council President Street:
On November 17, 1998 we received via fax your request for an opinion concerning Bill No. 960696 (the "Bill"). The Bill would change the zoning of a City block (22nd to 23rd Streets and Arch Street to Cuthbert Street) (the "Site") from C-5 Commercial to C-4 Commercial. The net effect of this change would be to alter the floor area ratios permitted on the Site. You have asked in particular whether the Bill would constitute an impermissible instance of "spot zoning."
In an August 21, 1997 opinion considering a proposed zoning change at another location, we discussed at some length the legal standards applicable to a determination of "spot zoning." A copy of that opinion is attached for your ready reference. The key question, as discussed in greater length at page 4 of the earlier opinion, is whether the Bill singles out 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. Obviously, applying that definition is not an easy task, since there is no precise formula to apply and the question depends heavily on the facts. In this instance, there is a relative dearth of facts to analyze in connection with this determination. To our knowledge, there are no development plans currently under consideration that we can review to determine the impact of the proposed rezoning. We have examined the zoning history and current zoning of the site. The area was changed from "G-2" General Industrial to "C-5" Commercial by Bill No. 755, enacted May 1, 1986. Attached hereto behind the August 21, 1997 opinion is a zoning map provided by the Planning Commission. The Site (circled in yellow) is zoned C-5. It borders on an area zoned RC-4 and R-10A and R-10B. Although bordered on the south by a number of properties zoned C-5, it is bordered on the east by several properties zoned C-4. Planning Commission staff has suggested that at the time of the remapping in 1986, this site could have been zoned C-5 or C-4 without too much difference other than the permissible floor area ratios. (C-4 zoning would require more open area around a building in order to achieve greater height; C-5 would permit a taller building without as much surrounding open area). However, at the time of the remapping, this property was examined and considered. The redesignation to C-5 presumably reflected discussion regarding what zoning designation was appropriate for the Site. It is my understanding that there were a number of requests and discussions regarding amendments (i.e. changes to zoning designations other than what was proposed in Bill No. 755 as introduced at that time) but no change for this property was requested or discussed. No basis for the proposed change from the 1986 remapping has been suggested.
As we said at the time of our August 21, 1997 opinion, it is true that a zoning ordinance is entitled to a presumption of validity. A challenger asserting "spot zoning" will have a heavy burden to overcome that presumption. For that reason, as before, I cannot conclude with any certainty that a court will invalidate the Bill as discriminatory spot zoning. However, there are other factors present here that make it impossible to conclude that the Bill will not constitute spot zoning. The fact that the Site is a single parcel owned by one owner militates in favor of a determination of spot zoning (see page 8 of the August 21 opinion). The absence of any stated basis of the objective factors leading to the proposed change from the zoning classification established after much deliberation at the time of the 1986 remapping also militates in favor a determination of spot zoning. I therefore must advise that it is very possible that a court might determine that the Bill constitutes spot zoning.
Please do not hesitate to call me if you have any questions.
STEPHANIE L. FRANKLIN-SUBER