Beaver Gasoline Co. v. Zoning Board of Borough of Osborne

275 A.2d 702, 1 Pa. Commw. 458, 1971 Pa. Commw. LEXIS 543

• Court: Commonwealth Court of Pennsylvania
• Decided: March 19, 1971
• Docket: Civil Division, No. S.A. 1219
• Status: Published

Opinions

Opinion by

Judge Crumlish, Jr.,

The individual appellants are the owners of a certain piece of ground which is zoned “C” Commercial in the Borough of Osborne, Allegheny County. On March 12, 1969, they entered into an agreement of sale with the corporate appellant, Beaver Gasoline Co., whereby Beaver agreed to purchase the aforesaid lot contingent upon the issuance of a gasoline service station building permit.

Beaver’s application for a permit to erect a one-story masonry gasoline service station building was presented to the Borough Council on July 12, 1969. The Borough zoning ordinance, No. 186, specifically prohibits gasoline service stations in “C” Commercial Districts. Accordingly, the permit was refused and the Borough Secretary so advised Beaver on June .14, 1969. On June 25, 1969 Beaver appealed the Refusal and a hearing was held on August 1, 1969 by the Borough Zoning Hearing Board.

The minutes of that hearing disclose that the Board Chairman raised several questions relative to the appeal. Essentially, these questions involved three basic issues: (1) the qualifications of Beaver Gasoline as a service station operator; (2) tbe relationship of traffic safety to the ordinance prohibition; (3) the existence of the prohibition and the appellant’s knowledge thereof. However, Beaver and the Borough at that time agreedjthat the sole issue before the Zoning Hearing Board was. the constitutionality of the ordinance. The only entry of record'was a statement by the appellant setting •forth, for the purposes of the record its application and building plan. The Borough took the position that it need not explain the basis for the refusal. Hence, the record is devoid of further evidence.

On November 3, 1969, the Zoning Board upheld the refusal by concluding that "the prohibition in the ordinance was binding. Petition for appeal to the Court of Common Pleas of Allegheny County was filed and granted November 10, 1969. The court after oral argument :'at which no evidence de novo wás presented, denied the appeal. That order is now before this court under the'provisions of Section 402 of the Appellate Court-Jurisdiction Act, Act-of July 31, 1970, P. L. , No. 223, 17 P.S. §211.402.

The court'below, relying on the principle that those who would challenge the constitutionality of' zoning provisions must overcome a heavy presumption of their : validity, found that Beaver had not presented sufficient evidence to' meet the burden. In addition, the court foiuid that' an examination of the record and the ordinance supports the conclusion that the township had considered factors attendant to the health, safety and general' welfare of its community when it enacted the Service station prohibition. ’ Wé do not disagree with the conclusion that the minutes of thé zoning- board hearing may indicate that the “C” Commercial prohibition was enacted in consideration'of the health, safety-and genéral welfare óf the Borough residents. We hold' that the- eourt below erred in its ■ findings that: (1) tbe relationship to the health, safety and general welfare alleged by the Borough is sufficient to support a use prohibition and (2) Beaver failed in that it had not presented sufficient evidence to overcome the presumption of constitutionality.

“[T]he municipal power for zoning purposes absolutely to forbid a use in a particular district ordinarily presupposes the allowance or permission of the use , in another district . . .” McQuillin, 8 The Law of Municipal Corporations §25.1196 (3rd ed., 1965 rev.) “[A] zoning ordinance which totally excludes a particular business from an entire municipality must bear a more substantial relationship to the public health, safety, morals and general welfare than an ordinance which merely confines that business to a certain area in,the municipality.” Exton Quarries, Inc. v. Zoning Bd. of Adj., 425 Pa. 43, 228.A. 2d 169 ,(1967).

. While the lot 'owned by appellants was situated in a “C” Commercial District making the' “C” Commerr cial District prohibition applicable,, we find it significant that gasoline service stations are either expressly or impliedly prohibited from all other use districts in the Borough by reason of other clauses in Ordinance No. 186. See also Girsh Appeal, 437 Pa. 237, 263 A. 2d 395 (1970). The prohibition in question excludes this business from the entire municipality and may under Exton require the most severe scrutiny by this court.. .

“This court has become increasingly aware that, it is neither a super board of adjustment nor a planning commission of last resort. . . . Instead, the court acts as a judicial overseer, drawing the limits beyond which local regulation may not go, but loathing to interfere, within those limits, with the discretion of local governing bodies. . . . The zoning power is one of the tools of government which, in order to be effective, must not be subjected to judicial interference unless clearly necessary. For this reason, a presumption of validity attaches to a zoning ordinance which imposes the burden to prove its invalidity upon the one who challenges it.-'. . .

“While recognizing this presumption, we must also appreciate the fact that zoning involves governmental restrictions upon a landowner’s constitutionally guaranteed right to use his property, unfettered, except in very specific instances, by governmental restrictions. The time must never come when, because of frustration with concepts foreign to their legal training, courts abdicate their judicial responsibility to protect the constitutional rights of individual citizens. Thus, the burden of proof imposed upon one who challenges the validity of a zoning regulation must never be made so onerous as to foreclose, for all practical purposes, a landowner’s avenue to redress against the infringement of constitutionally protected rights.” National Land and Investment Co. v. Easttown Twp. Bd. of Adj., 419 Pa. 504, 521-22, 215 A. 2d 597 (1965).

The presumption of validity “of most restrictions on property rights imposed by [zoning] ordinances . . . [is] . . . premised on the fundamental reasonableness of allocating to each type of activity a particular location in the community.” (Emphasis added). Exton, supra at p. 59. While it may in some instances be reasonable for a municipality to “totally prohibit [some] legitimate businesses” while permitting others, such a practice “cannot be premised on the fundamental reasonableness” which supports the presumption of validity of zoning regulations. (Emphasis added). Exton, supra. Indeed we know of no fundamental reasonableness attendant to the practice of discriminating between legitimate businesses for the purpose of prohibiting their use. “The constitutionality of [such] zoning ordinance . . . should be regarded with particular circumspection.” Exton, supra.

National Land and Exton Rave both, recognized the reasonableness of presuming that a zoning ordinance bears a reasonable relationship to the public health, safety, morals or general welfare, and therefore have upheld the presumption of validity of such ordinances. However, we do not believe Exton requires that we presume a prohibitory ordinance to bear a “more substantial” relationship to the police power than a regulatory ordinance. Indeed Exton held the existence of this “more substantial” relationship to be suspect.

Where a governmental regulation infringes upon the rights of the individual citizens of this Commonwealth, that governmental regulation should only enjoy a presumption of validity vis-a-vis the individual where there exists some fundamental and reasonable principle of governmental control which has been consistently demonstrated to bear sufficient relationship to the police power of the Commonwealth. The discrimination between legitimate businesses by prohibiting only certain ones without identifying with specificity the ends thereof is not supported by such a fundamentally reasonable principle. Therefore we cannot hold, nor do we believe the Supreme Court to have held, that such a prohibition must be presumed to be valid.

This is not to say that prohibitory statutes are not presumed valid. We recognize the presumption that the statute was intended to prohibit an illegitimate business. However, in the case before us the prohibited use is that of a gasoline service station. Such a business is capable of being regulated so that its operations are not inherently nor consequentially injurious to the general welfare. See Sun Oil Co. v. Zoning Bd. of Adj., 403 Pa. 409, 109 A. 2d 294 (1961) ; Appeal of Shell Oil Co., 18 Ches. Co. Rep. 270 (1970). Therefore, even if the municipal authorities or this court were to presume this ordinance prohibits an illegitimate business, it is clearly rebutted by the case law. Moreover, we are not forsaking the presumption that this prohibition is based upon some relationship to the health, safety, morals or general welfare. The findings of the court below would show that as relates to traffic control this relationship dues exist. We only hold that we cannot presume this relationship to be of such magnitude so as to justify prohibition of the general use.

■, The applicability of Exton depends upon the existence of three requisites: (1) Appellants’ business must be “legitimate”; (2) the prohibition must be “total” as to the municipality; and, (3) the appellants’ plans must conform to all other requirements of the zoning and building codes so as to permit the relief sought. Appellants must meet the burden of proof as to these factors.

. Beaver has met this burden. As we have said previously, the legitimacy of gasoline stations is dependent upon their ability to function under regulation without causing injury to the community. The ability of gasoline stations as a class to function under proper regulation has been consistently recognized by our courts. Sun Oil Oo.j supra. We do not say that gasoline stations possess per se the ability to function under regulation in Osborne Borough. We say only that as a class of business they generally have this capability and are therefore a legitimate operation under Exton.

As to the second requisite, the ordinance as stated prohibits gasoline service stations .totally in Osborne Borough.

Finally, Beaver’s president for the record submitted the plans for the service station which would comply with all applicable Borough ordinances.

Accordingly, considering the. three requisites, we find the appellant has adequately met his burden of proving that this ordinance is prohibitory within the meaning of Exton.

“Recent cases decided by [tbe Supreme] Court on tbe constitutionality of zoning ordinances bave followed tbe procedure of considering a challenge to tbe' constitutionality of a zoning ordinance as a whole without first exhausting tbe question of tbe constitutionality of tbe ordinance as applied.” Exton, supra at p. 57. The' initial question of constitutionality before us involves-tbe prohibition of gasoline service stations as a class. Tbe reasons for this prohibition must be examined as they relate to gasoline stations generally. Therefore it is of no moment whether tbe specifics of tbe applicants’ plans are unobjectionable so long as tbe requested use is “a gasoline service station.”

Where, as here, tbe prohibition’s validity involves tbe equal protection of tbe prohibited business as well as those which enjoy the blessing of tbe municipality, tbe salient fact to be determined by tbe Court is tbe validity of tbe reasons advanced, by which tbe Borough Council justified tbe class prohibition. It is this factor which must be scrutinzed to determine if it supplies tbe “more substantial relationship” which Exton demands. As we held in Daikeler v. Zoning Bd. of Adj., 1 Comm. Ct. 445 (1971), if the reasons advanced apply also to permitted uses, or if they can be alleviated by proper regulation of the use, they may not be used to support total prohibition.

This raises a perplexing problem: Which party has the burden of presenting evidence that this ordinance did or did not bear a more substantial relationship to the police powers of the Borough? Judge Rowley of the Court of Common Pleas of Beaver County spoke to this issue in Ours Appeal, 61 Mun. L. Rep. 80, 85 (1969) : “We are aware of the fact that the burden is on those challenging the constitutionality of such legislation to establish that fact. However, we believe that where the legislative enactment must bear a ‘more substantial relationship’ to tlxe public health, safety, morals and general welfare, then the property owner’s burden is accordingly lightened.”

We hold that the validity of the ordinance depends upon the finding by the Borough Council that gasoline stations, if established in that Borough would have caused undesirable effects upon the health, safety, morals and general welfare of that community, and that these undesirable effects are not caused by other ‘permitted uses nor wre they capable of cure by regulation. The only issue dependent upon evidentiary support was the existence and propriety of the Council’s findings. Is it reasonable to expect the challenger of the prohibition to have the competence to produce the evidence necessary to support the Council’s findings? Is it reasonable to expect him to expend his energy and money to uncover and relate the strongest reasons for the prohibition? Is it reasonable to expect the applicant to build a fortress which he is unable to conquer? To require him to be the moving party presenting testimony to support the prohibition would be unreasonable, time consuming, inconclusive, and confusing. And with what result? Does this not mean that the burden has shifted to the Council to patch up the defects in the challenger’s case? We conclude that the result of this gyration is impractical. We believe that a careful reading of Exton and Ours Appeal allows no other conclusion than that the burden must rest with the Borough.

In Exton, the applicant did not attempt to speculate the reasons for enacting the ordinance. The township went forward with its reasons in an attempt to justify the prohibition. Are we to assume the township in Exton would have been successful in defending the ordinance by remaining silent in expectation that the applicant was required to present the evidence in support of the prohibition? Such an interpretation of Ex-ton is clearly without merit. We must believe that the court placed the burden on the township.

In Ours Appeal, Judge Rowley noted that unlike in Exion, the township offered no evidence on the propriety of its prohibition. The applicant’s only testimony was that his use would be properly operated and not detrimentally affect the township’s welfare. We have said that while this testimony is relevant to establishing the applicability of Exton, it is not relevant to the question of the township’s reasons for the prohibition until the Council’s precise reasons have been established. Therefore, when the court concluded that the township, as in Exton, had “failed to sufficiently establish the need” for its prohibition, the only burden placed on the applicant was to prove that Exton was applicable. This was the “lightened” burden of which Judge Rowley was spealdng and which we have held that Beaver has met. Both Exton and Ours Appeal lead to the inescapable conclusion that the burden of bringing forward its reason for the prohibition is shifted to the municipality.

The court below took notice of the statements in the minutes of the Zoning Hearing that the prohibition was justified by the potential traffic congestion. If this be the reason advanced by the township for its prohibition, it is insufficient in light of Exton. Unless it is determined that the congestion is caused by the density of businesses, our courts have held that traffic problems are properly the subject of police regulation and blanket prohibition is not a legally justifiable solution. See, e.g., Sun Oil Co., supra. We cannot speculate that traffic congestion will be any greater as a result of a gasoline station operation than from any other legitimate business or residential use.

In summary, we find the following: (1) the appellant has met his “lightened” burden of proving the applicability of the reasoning of Exton to the case before us; (2) the remaining issue of constitutionality is whether the Borough’s ■ reasons for its prohibition provide a “more substantial relationship” to health, safety, morals and general welfare without being arbitrary or discriminatory; and, (3) the Borough has failed to establish either legally and factually constituted reasons for its prohibition or, that they would properly provide the required relationship. Total use prohibitions, such as we find here are inherently discriminatory and therefore in violation of the Constitutional rights of the citizens of the municipality which create them. The courts of this Commonwealth should not and will not permit such an ordinance to exist without clearly substantiated proof of its relationship to the governmental police power. Since this prohibition has not been so substantiated, it must fall. Insofar as Ordinance 186 of Osborne Borough prohibits all gasoline service stations in that Borough, it is unconstitutional.

■ The order of the court below is reversed.