Bilbar Construction Co. v. Easttown Township Board of Adjustment

393 Pa. 62

• Court: Supreme Court of Pennsylvania
• Decided: May 2, 1958
• Docket: Appeals, 3 and 4
• Status: Published

Opinions

Opinion by

Mr. Chief Justice Jones,

Tredyffrin Construction Co. and its grantee, Bilbar Construction Company, have separately appealed from the. order of the court below sustaining the action of the Zoning Board of Adjustment of Easttown Township, Chester County, which, in turn, had affirmed the Zoning Officer’s refusal of Tredyffrin Construction Co.’s application for a building permit. The applicant sought permission to erect a dwelling on a specified lot of a subdivision which it proposed to lay out from a portion of its 50-.acre tract of unimproved land in East-town Township. The refusal of the permit was based Qn.the fact that, the lot upon which the proposed dwelling was. to be built was patently deficient in area, as well as frontage, under the provisions of the township’s zoning ordinance. According to its title, the ordinance is known and cited as “The Easttown Township Zoning Ordinance of 1939” although enacted August 6, 1940. It is the same ordinance that was before us for interpretation and enforcement, in another connection, in Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 41 A. 2d 744 (1945).

As shown by the maps attached to and made part of the ordinance, property fronting on Greenlawn Road in Easttown Township is classified “A” residential. In such a district a single-family dwelling, inter alia, is a permissible structure on a lot of a minimum area of not less than 43,560 square feet (an acre) and having a frontage of 150 feet. For less restricted districts, the minimum lot areas and frontages are scaled downward by the ordinance and its incorporated maps. Greenlawn Road, which runs in a generally east-west direction, constitutes part of the northern boundary of Easttown Township and its center line is the division line between Tredyffrin Township on the north and Easttown Township on the south.

Tredyffrin Construction Co. acquired its land in Easttown Township in 1948. At least, a considerable part of the property abutted on Greenlawn Road and was, consequently, in an “A” residential zone. Nonetheless, the Tredyffrin Cónstruction Co. in 1955 applied to the Zoning Officer of Easttown Township for a building permit for the erection of a single-family dwelling on a lot fronting on Greenlawn Road, having an area of only 21,000 square feet and a frontage of 100 feet. The Zoning Officer understandably refused to certify the application as a compliance with the requirements of the ordinance.

On its appeal to the Board of Adjustment from the action of the Zoning Officer, Tredyffrin Construction Co. urged the Board to conclude from the facts adduced at a hearing before it that the requirements of the ordinance with respect to lot areas, as they relate to the applicant’s property, are arbitrary and unreasonable and that the Zoning Officer erred in not so concluding and in not certifying compliance with the established zoning regulations.

All that Tredyffrin Construction Co. offered in evidence at the hearing before the Board of Adjustment (in addition to the Easttown Township zoning ordinance) was the testimony of several witnesses that, under the Tredyffrin Township ordinance and its related maps, the minimum lot areas on the side of Greenlawn Road opposite Easttown Township were less than those prescribed for an “A” residential district under the Easttown ordinance, and that 21,000 squre foot lots, as proposed by Tredyffrin Construction Co., could be improved with dwellings with no greater burden to the township for the widening and improvement of streets or the disposal of sewage than one-acre lots would impose. The fact is that the lot area restrictions of the Tredyffrin Township ordinance to which the appellant thus made reference for comparative purposes, had been down-graded by a re-zoning made at the instance of Tredyffrin Construction Co., itself, which had owned, developed and sold the properties on the north side of Greenlawn Road in Tredyffrin Township to which it now pointed, first, as a reason for a requested down-grading by Easttown of its “A” residential zoning restrictions and, second, as proof of asserted unreasonableness and arbitrariness of, the Easttown ordinance as applied to the applicant’s property.

Such was the extent of the evidence which Tredyffrin Construction Co. introduced before the Board of Adjustment and it offered no additional testimony on its appeal to the court below from the action of the Board of Adjustment. Nor did the Bilbar Construction Company, Tredyffrin’s subsequent grantee which, on stipulation, was joined as a party appellant months after the matter had been appealed to the court, ever offer any evidence at any time touching the alleged invalidity of Easttown’s one-acre lot requirement in an “A” residential zone. The evidence as to lot areas and frontages in Tredyffrin Township was, of course, of no relevancy or materiality whatsoever even had Tredyffrin Construction Co. been seeking a variance which, for obvious reasons, it was avowedly not doing.

In Michener Appeal, 382 Pa. 401, 406, 115 A. 2d 367, we approved the refusal of a variance to the owner of a dwelling in a residentially restricted area in Haverford Township, Delaware County, who sought to convert his house, which was on the northern side of a township road division line, into a commercial property, because, directly across the road, in Upper Darby Township, same County, there were two nearby gas stations and a diner, open twenty-four hours a day, with much attendant noise and loud and boisterous talk, in a district zoned by the latter township commercial. It was manifestly a case of great hardship. Yet, there was nothing to be done about it because of the disparity in the zoning regulations of the two political subdivisions on their respective sides of the same public thoroughfare. It is plain enough that zoning restrictions in one township cannot be permitted to control or impinge upon the zoning regulations which a contiguous township may see fit to adopt. See Gignoux v. Village of Kings Point, 99 N.Y.S. 2d 280, 286.

Equally irrelevant and immaterial to the appellants’ contention is the testimony as to what the applicant would do in the way of taking care of street require-meats and sewage disposal if permitted to lay ont lots each of a 21,000 square foot area in an “A” residential zone. Public issues, such as this case involves, are not to be resolved on either an ad hoc or personal basis.

The court below aptly epitomized the record before it as follows: “We do not understand the grounds of objection of appellants to the decision of the Board of Adjustment to be that the zoning regulations here involved have no substantial relation to public health, safety, morals or general welfare. Indeed, we find no evidence that they have no such substantial relation; and therefore, we may not interfere with their enforcement on that ground. See Gratton v. Conte, 364 Pa. 578, 584. Nor is there any evidence that the action of the Supervisors in establishing those regulations, or of the Board in its decision, was arbitrary or capricious.”

The contention which the appellants have sought to advance boils down to the bald proposition that, under the meagre and immaterial facts which they adduced, the minimum lot area of one acre, which the Easttown ordinance prescribed for an “A” residential district, is presumptively unconstitutional. Certainly, there is nothing else in this case upon which to attempt an argument that the lot area restriction, as applied to the appellants’ property, is arbitrary, unreasonable and confiscatory or that the restriction bears no reasonable relation to the health, safety, morals or general welfare of the community. The appellants contend, nonetheless, that the Easttown Township zoning ordinance is unconstitutional as applied to their property although the record, which the applicant presented to the Board of Adjustment and subsequently to the court below, and upon which the appellants now rest, affords no basis for the contention.

The rule is well established that the burden of proving clearly and unmistakably the unconstitutionality of a legislative enactment is upon the person so asserting. In Gottschall v. Campbell, 234 Pa. 347, 363, 83 A. 286, it was said, — “That one who asks to have a law declared unconstitutional takes upon himself the burden of proving beyond all doubt that it is so, has been so often declared that the principle has become axiomatic.” A legislative enactment can be declared void only when it violates the fundamental law clearly, palpably, plainly and in such manner as to leave no doubt or hesitation in the minds of the court. Sharpless v. Mayor of Philadelphia, 21 Pa. 147, 164. In Erie & North-East Railroad Company v. Casey, 26 Pa. 287, 300-301, it was recognized that “The right of the judiciary to declare a statute void, and to arrest its execution, is one which, in the opinion of all courts, is coupled with responsibilities so grave that it is never to be exercised except in very clear cases; one department of the government is bound to presume that another has acted rightly. The party who wishes us to pronounce a law unconstitutional, takes upon himself the burden of proving, beyond all doubt, that it is so.” Hadley’s Case, 336 Pa. 100, 104, 6 A. 2d 874, succinctly states as the practical effect of the rule, “All presumptions are in favor of the constitutionality of acts and courts are not to be astute in finding or sustaining objections to them. . . .”

The heavy burden resting upon the person asserting unconstitutionality of legislation is one of the most firmly established principles of our law: Loomis v. Philadelphia School District Board of Education, 376 Pa. 428, 431, 103 A. 2d 769; Flynn v. Horst, 356 Pa. 20, 31, 51 A. 2d 54; Pennsylvania Company, etc., Trustee, Case, 345 Pa. 130, 137-138, 27 A. 2d 57; Hadley’s Case, supra; Penn Anthracite Mining Co. v. Anthracite Miners of Pennsylvania, 318 Pa. 401, 405-406, 178 A. 291; Busser v. Snyder, 282 Pa. 440, 449, 128 A. 80; Commonwealth v. Sweeney, 281 Pa. 550, 556-557, 127 A. 226; Commonwealth v. Grossman, 248 Pa. 11, 14, 93 A. 781; Gottschall v. Campbell, supra. In particular, where the constitutionality of zoning ordinances has been attacked we have presumed that the municipal legislative body acted with purpose to serve the public welfare and that all intendments are in favor of their action. Liggett’s Petition, 291 Pa. 109, 118, 139 A. 619; Whitpain Township v. Bodine, 372 Pa. 509, 511, 94 A. 2d 737. See, also, Lower Merion Township v. Gallup, 158 Pa. Superior Ct. 572, 576, 46 A. 2d 35.

The same presumption of constitutional validity that attends an act of the legislature is equally applicable to municipal ordinances whether they be enacted by the council of a city, town or borough or by the supervisors of a township. See New Orleans Public Service v. City of New Orleans, 281 U.S. 682, 686; Marrs v. City of Oxford, 32 F. 2d 134; Gilchrist Drug Co. v. City of Birmingham, 234 Ala. 204, 174 So. 609; In re Porterfield, 28 Cal. 2d 91, 168 P. 2d 706. The dictum in Allentown School District Mercantile Tax Case, 370 Pa. 161, 166, 87 A. 2d 480, that “the presumption of constitutionality of an ordinance is not as strong as that of an Act passed by the Legislature” has no support in the law and is, therefore, to be disregarded.

The clear import of the above is that the burden of proof, when legislation is under attack on constitutional grounds, is on the one so asserting and never shifts. Even where there is room for difference of opinion as to whether an ordinance is designed to serve a proper public purpose, or if the question is fairly debatable, the courts cannot substitute their judgment for that of the authorities who enacted the legislation. Kerr’s Appeal, 294 Pa. 246, 144 A. 81; South Carolina State Highway Department v. Barnwell Brothers, Inc., 303 U.S. 177, 190-191; and Simon v. Town of Needham, 311 Mass. 560, 42 N.E. 2d 516.

While the promotion of the public health, safety, morals or general welfare is the test for checking subjectively whether a municipality’s exertion of its constitutional power to zone has been exceeded, courts do not apply the criteria in a vacuum. . Someone must be injured by the ordinance’s restrictions in order to raise the constitutional question, and the applicable objective test is whether the ordinance operates in an arbitrary, capricious, discriminatory or confiscatory manner ás to the property of the complainant. The latter inquiry calls for judicial determination. But, as to the former, what serves the public interest is primarily a question for the appropriate legislative body in a given situation to ponder and decide. And, so long as it acts within its constitutional power to legislate in the premises, courts do well not to intrude their independent ideas as to the wisdom of the particular legislation. Specifically, with respect to zoning enactments, judges should not substitute their individual views for those of the legislators as to whether the means employed are likely to serve the public health, safety, morals or general welfare.

Although some of our recent cases appear to have ignored “general welfare” as a consideration in adjudging whether the police power has been constitutionally exercised in a given instance, it is not open to serious question that it is one of the important elements to be reckoned with in any such inquiry. Its importance lies partly in the fact that it admits of aesthetic considerations when passing upon the validity of a zoning ordinance. As long ago as Kerr’s Appeal, 294 Pa. 246, 250, 144 A. 81, this court recognized that “while a zoning ordinance cannot be sustained merely on aesthetic ground, that may be considered in connection with questions of general welfare.” Since, with the passing of time, urban and suburban planning has become an accredited adjunct of municipal government, aesthetic considerations have' progressively become more and more persuasive- as sustaining reasons for the exercise of the police power.

In Berman v. Parker, 348 U.S. 26, 32, the Supreme Court of the United States, in unanimously upholding the constitutionality of the District of Columbia Redevelopment Act of 1945, said with respect to the scope of the police power: “Public safety, public health, morality, peace and quiet, law and order — these are some of the more conspicuous examples of the traditional application of the police pówer to municipal affairs. Yet they merely illustrate the scope , of the power and do not delimit it. See Noble State Bank v. Haskell, 219 U.S. 104, 111. . . . The concept of the public Avelfare is broad and inclusive. See Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424. The values it represents are spiritual as well as physical, aesthetic as Avell as monetary. It is -within the power of the legislature to determine that the community should be beautiful as Avell as healthy, spacious as well, as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a Avide variety of values. It is not for us to reappraise them.” This clearly expressed concept of the public welfare is not to be disregarded on the question of the constitutionality of a zoning ordinance simply because the properties utilized in the redevelopment in the Berman case were acquired by the municipality through eminent domain. The Supreme Court itself points out that the use of eminent domain to acquire the properties was merely, “the means to the end.” The end was the redevelopment and the basic question was whether “the object”, i.e., the redevelopment, was “within the authority of Congress.” In other words, was the redevelopment a valid exercise of the federal government’s police power in respect of the District of Columbia? To that inquiry, how the properties were obtained was wholly immaterial.

• We ourselves have a number of times upheld the constitutionality of zoning ordinances which bore no reasonable relation to the health, safety, or morals of the community but whose constitutional validity rested alone upon their promotion of the general welfare. In Landau Advertising Co., Inc. v. Zoning Board of Adjustment, 387 Pa. 552, 128 A. 2d 559, we sustained as constitutional a zoning ordinance which prohibited certain types of outdoor advertising signs from being erected on buildings even in commercial zones of the city involved. An ordinance which prohibited the erection of billboards in residential districts was held to be constitutional in Liggett’s Petition, 291 Pa. 109, 139 A. 619. The exclusion of buildings devoted to business uses from residential districts was deemed a constitutional exercise of the police power: Ward’s Appeal, 289 Pa. 458, 137 A. 630. A zoning ordinance which prohibited the construction of row housing was upheld in Dunlap Appeal, 370 Pa. 31, 87 A. 2d 299. Residential districts restricted by a zoning ordinance to one-family dwellings is permissible: Jennings’ Appeal, 330 Pa. 154, 198 A. 621. And, just recently, in Swade v. Zoning Board of Adjustment of Springfield Township, 392 Pa. 269, 140 A. 2d 597, we affirmed the refusal of a variance to an applicant who sought to conduct a prohibited business enterprise in the barn on his property in a residential zone although it was expressly found as a fact by the court below that “the business carried on by the appellant did not adversely affect the health, safety, or morals of the public . . .' In short, the prohibition of the business use was deliberately sustained solely on the ground that the restriction promoted the general welfare in the given case. The following excerpt from the opinion of the court below, whereon we affirmed per curiam, is peculiarly apposite here: “If we were to hold that the Zoning Ordinance of Springfield Township was unconstitutional as applied to the appellant’s property, then we would throw every zone open to prohibited uses if it could be shown that the prohibited use did not offend against the public health, safety or morals, and we would in effect put an end to all zoning.”

As to the zoned minimum lot size in an “A” residential district under the Easttown Township ordinance, Volpe Appeal, 384 Pa. 374, 121 A. 2d 97, may be cited as analogous in principle. We there upheld as constitutional a zoning ordinance’s minimum lot restriction of 20,000 square feet in the “AA” residential district in Cheltenham Township on the ground that the requirement bore a reasonable relation to the health, safety, morals or general welfare of the community. Since the 20,000 square foot minimum lot size requirement in the more highly developed and more densely populated Cheltenham Township was constitutional, what possibly could make the 43,560 square foot prescription of the Easttown ordinance unconstitutional without any allowance for considerations of topography, area or character of existing realty development in the zoned district as a whole? The supervisors of rural and agricultural Easttown Township can hardly be said to have acted unreasonably or arbitrarily in prescribing a minimum lot area of one acre in the township’s “A” residential district which, moreover, embraced property not acquired by the appellants until years after the enactment of the ordinance. In.any instance, a question as to prescribed lot areas under a zoning ordinance involves a relative matter which depends for its just solution upon the character of the particular locality and the type of structural improvements best designed to promote the health, safety; morals or general welfare of the community.

In other jurisdictions, which have considered the problem of zoned lot sizes, minimum areas of approximately an acre or greater have been upheld as bearing a reasonable relation to the problem of public health, safety, morals or general welfare. The following furnish pertinent examples: Gignoux v. Village of Kings Point, 99 N.Y.S. 2d 280 (40,000 square feet) ; Dilliard v. Village of North Hills, 94 N.Y.S. 2d 715 (2 acres) ; Fischer v. Township of Bedminster, 21 N. J. Super. 81, 90 A. 2d 757 (5 acres); Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W. 2d 771 (3 acres). In the few instances where minimum lot areas have been invalidated — one a case of two and one-half acre lots (County of Du Page v. Halkier, 1 Ill. 2d 491, 115 N.E. 2d 635) and another three acre lots (Hitchman v. Township of Oakland, 329 Mich. 331, 45 N.W. 2d 306) — the rationale of the decisions was that the prescribed area was excessive in view of the properties already developed in the same zoning jurisdiction on considerably less area per lot. And, of course, minimum lot areas may not be ordained so large as to be exclusionary in effect and, thereby, serve a private rather than the public interest. Certainly a residénce lot area of one acre in a rural and agricultural locality such as East-town Township cannot justifiably be adjudged zoning for exclusiveness.

Our decision in Medinger Appeal, 377 Pa. 217, 104 A. 2d 118; which the appellants cite,' has no pertinency to the question involved in the instant case. Basically, Medinger was an attempt by municipal authorities to prescribe floor areas in rooms inside private dwellings— an exertion of zoning power which could hardly be thought to promote public health, safety, morals or welfare. There is no logical relation between “a minimum habitable floor area” inside a dwelling and a minimum lot area outside. It is the latter which comes peculiarly within zoning’s competency.

The only thing which the applicant asserted in the way of suggested hardship was that dwellings built on half-acre lots would be more readily salable than dwellings built on acre lots and that, as a consequencé, the development of half-acre lots would prove relatively more profitable. There was neither allegation nor proof that houses built on acre lots would entail a loss to the owner or developer. In any event, both Tredyffrin Construction Co. and Bilbar Construction Company entered into the development project fully aware, or at least bound with knowledge, of the existing zoning regulations affecting the property in question. See Volpe Appeal, supra, at p. 378. The Board of Adjustment found, and the conclusion has not been seriously questioned either below or here, that “The district of which the lot here in question is a part can be developed under.the present requirements of the East-town Township Zoning Ordinance of 1939 and would be, if so developed, a creditable development.”

The order of the court below is affirmed at appellants’ costs.