Opinion by
Mr. Justice Horace Stern,
We are here called upon to deal with a type of controversy in which .two.interests, each in itself legitimate and wholly commendable, come into conflict merely by reason of the proximity of their locations. The one interest is that of a school devoted to the education of men
tally deficient, weak and abnormal children, and the other that of the inhabitants of a fine residential suburban section who oppose the housing therein of the pupils of such an institution.
The Devereux School, begun in 1918, was incorporated in 1938 as a non-profit corporation of the first class under the title of “The Devereux Foundation, Inc.” for the purpose of “studying, treating, engaging in and carrying on research and educational work in connection with functional and nervous disorders and for the educating, developing, and advancing of boys and girls of any age under required direction in addition to their intellectual and vocational needs along psychological and psychiatric lines, . . .”
The school now has a staff of 74 teachers and an enrollment of 366 pupils. In 1939 it purchased a large residential property in Devon, Easttown Township, Chester County, containing approximately 14 acres of land. This property, known as the “Academy”, is used by it as a girls’ dormitory and for other purposes.
On August 6, 1940, Easttown Township, in pursuance of the authority granted by the Act of July 1,1937, P. L. 2624, adopted a zoning ordinance under which the “Academy” was included within an “A residence District” ; however, as this property was already in use by the Foundation, it was not affected by the restrictions imposed by the ordinance. The ordinance provided that in an “A residence District” a building might be used, inter alia, for an “educational or religious use, including dormitory of an educational institution, but excluding cemeteries, hospital, homes, sanitarium, correctional institution or structure or other place for accommodating the insane or other persons mentally deficient, weak or abnormal, except as provided in Article X.” Article X, thus referred to, provided that the Board of Adjustment should have the power “. . . (b) To hear and decide special exceptions to the terms of this Ordinance in such cases as are herein expressly provided for, in
harmony with the general purpose and intent of this Ordinance, with power to impose appropriate conditions and safeguards, (c) To authorize, upon appeal, in specific cases, such variance from the terms of this Ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this Ordinance will result in unnecessary hardship, and so that the spirit of this Ordinance shall be observed and substantial justice done.”
In 1943 the Foundation purchased an additional tract known as the “Ilsley” property, consisting of a private residence and 4 acres of land, all included within the same road boundaries as the “Academy” and the same “A residence District” under the ordinance. The Foundation intended to use this property, not for educational work, but as a dormitory for boys. It applied for a certificate of occupancy, which application was denied by the Zoning Administrative Officer of the township. Upon appeal to the Board of Adjustment that body, after hearing testimony, found that the contemplated use of the property was a violation of the terms of the ordinance but that “the circumstances of this case warrant the granting of an exception which is hereby allowed,” and accordingly directed that an occupancy permit be issued. Thereupon residents of the District who had appeared before the Board of Adjustment in opposition to the application appealed to the Court of Common Pleas of Chester County. The court supported the conclusion of the Board that the proposed use of the property was prohibited by the ordinance, but overruled the action of the Board in granting an exception. The Foundation now appeals from that order of the court.
As above stated, the ordinance sanctions an educational use, “including dormitory of an educational institution”, but bars a “structure or other place for accommodating . . . persons mentally deficient, weak or abnormal.” That the Devereux Foundation .is an educa
tional institution, and a very splendid one, is admitted by the appellees, and therefore a dormitory for its pupils would seem to come within the express inclusion of the ordinance. On the other hand, both the Board of Adjustment and the Court of Common Pleas found as a fact that the pupils of the Foundation who would live in the dormitory were “mentally deficient, weak or abnormal” persons, and in that finding we concur in spite of the subtle distinctions sought to be made by appellant between various degrees of mentality, normal, abnormal and sub-normal; the testimony indicates that the students include neurotics, epileptics and other victims of psychopathic disorders. Nor can it be doubted that the proposed dormitory, whatever may be said as to others of the school buildings, is a place for “accommodating” its occupants, since its sole purpose is to supply them with shelter, ease and comfort in the same manner as a hotel is said to “accommodate” its patrons. The fact that they may be receiving education on an adjoining tract of land belonging to the Foundation is, in this regard, wholly immaterial. Reconciling, then, the inclusive and the exclusive provisions of the ordinance, the only reasonable conclusion to be drawn is that the “dormitory of an educational institution” must have been intended to refer to such a dormitory as is devoted to the accommodation of normal students ordinarily attending the usual type of educational institutions, and that the exclusion of a structure for accommodating mentally deficient or abnormal persons was intended to override the permissive provision if, as here, the two came into conflict. The Foundation contends that this interpretation creates an invalid discrimination between a dormitory of this school and those of other schools, public and private, all of which probably contain some pupils who are mentally retarded or deficient. But as Mr. Justice Holmes so frequently pointed out, most of the distinctions of the law are distinctions of degree, and there is a marked practical difference, justifying a
legal differentiation, between the dormitory of a school all of whose occupants are, from the standpoint of mentality, of the problem type which it is the very purpose and function of the institution to serve, and the dormitory of a school in which only a negligible percentage of the occupants are mentally sub-normal.
We come to the question whether the Board of Adjustment was warranted in granting what it terms an “exception”, and on that basis permitting the issuance of the certificate of occupancy requested by the Foundation. The Act of July 1, 1937, P. L.
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Opinion by
Mr. Justice Horace Stern,
We are here called upon to deal with a type of controversy in which .two.interests, each in itself legitimate and wholly commendable, come into conflict merely by reason of the proximity of their locations. The one interest is that of a school devoted to the education of men
tally deficient, weak and abnormal children, and the other that of the inhabitants of a fine residential suburban section who oppose the housing therein of the pupils of such an institution.
The Devereux School, begun in 1918, was incorporated in 1938 as a non-profit corporation of the first class under the title of “The Devereux Foundation, Inc.” for the purpose of “studying, treating, engaging in and carrying on research and educational work in connection with functional and nervous disorders and for the educating, developing, and advancing of boys and girls of any age under required direction in addition to their intellectual and vocational needs along psychological and psychiatric lines, . . .”
The school now has a staff of 74 teachers and an enrollment of 366 pupils. In 1939 it purchased a large residential property in Devon, Easttown Township, Chester County, containing approximately 14 acres of land. This property, known as the “Academy”, is used by it as a girls’ dormitory and for other purposes.
On August 6, 1940, Easttown Township, in pursuance of the authority granted by the Act of July 1,1937, P. L. 2624, adopted a zoning ordinance under which the “Academy” was included within an “A residence District” ; however, as this property was already in use by the Foundation, it was not affected by the restrictions imposed by the ordinance. The ordinance provided that in an “A residence District” a building might be used, inter alia, for an “educational or religious use, including dormitory of an educational institution, but excluding cemeteries, hospital, homes, sanitarium, correctional institution or structure or other place for accommodating the insane or other persons mentally deficient, weak or abnormal, except as provided in Article X.” Article X, thus referred to, provided that the Board of Adjustment should have the power “. . . (b) To hear and decide special exceptions to the terms of this Ordinance in such cases as are herein expressly provided for, in
harmony with the general purpose and intent of this Ordinance, with power to impose appropriate conditions and safeguards, (c) To authorize, upon appeal, in specific cases, such variance from the terms of this Ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this Ordinance will result in unnecessary hardship, and so that the spirit of this Ordinance shall be observed and substantial justice done.”
In 1943 the Foundation purchased an additional tract known as the “Ilsley” property, consisting of a private residence and 4 acres of land, all included within the same road boundaries as the “Academy” and the same “A residence District” under the ordinance. The Foundation intended to use this property, not for educational work, but as a dormitory for boys. It applied for a certificate of occupancy, which application was denied by the Zoning Administrative Officer of the township. Upon appeal to the Board of Adjustment that body, after hearing testimony, found that the contemplated use of the property was a violation of the terms of the ordinance but that “the circumstances of this case warrant the granting of an exception which is hereby allowed,” and accordingly directed that an occupancy permit be issued. Thereupon residents of the District who had appeared before the Board of Adjustment in opposition to the application appealed to the Court of Common Pleas of Chester County. The court supported the conclusion of the Board that the proposed use of the property was prohibited by the ordinance, but overruled the action of the Board in granting an exception. The Foundation now appeals from that order of the court.
As above stated, the ordinance sanctions an educational use, “including dormitory of an educational institution”, but bars a “structure or other place for accommodating . . . persons mentally deficient, weak or abnormal.” That the Devereux Foundation .is an educa
tional institution, and a very splendid one, is admitted by the appellees, and therefore a dormitory for its pupils would seem to come within the express inclusion of the ordinance. On the other hand, both the Board of Adjustment and the Court of Common Pleas found as a fact that the pupils of the Foundation who would live in the dormitory were “mentally deficient, weak or abnormal” persons, and in that finding we concur in spite of the subtle distinctions sought to be made by appellant between various degrees of mentality, normal, abnormal and sub-normal; the testimony indicates that the students include neurotics, epileptics and other victims of psychopathic disorders. Nor can it be doubted that the proposed dormitory, whatever may be said as to others of the school buildings, is a place for “accommodating” its occupants, since its sole purpose is to supply them with shelter, ease and comfort in the same manner as a hotel is said to “accommodate” its patrons. The fact that they may be receiving education on an adjoining tract of land belonging to the Foundation is, in this regard, wholly immaterial. Reconciling, then, the inclusive and the exclusive provisions of the ordinance, the only reasonable conclusion to be drawn is that the “dormitory of an educational institution” must have been intended to refer to such a dormitory as is devoted to the accommodation of normal students ordinarily attending the usual type of educational institutions, and that the exclusion of a structure for accommodating mentally deficient or abnormal persons was intended to override the permissive provision if, as here, the two came into conflict. The Foundation contends that this interpretation creates an invalid discrimination between a dormitory of this school and those of other schools, public and private, all of which probably contain some pupils who are mentally retarded or deficient. But as Mr. Justice Holmes so frequently pointed out, most of the distinctions of the law are distinctions of degree, and there is a marked practical difference, justifying a
legal differentiation, between the dormitory of a school all of whose occupants are, from the standpoint of mentality, of the problem type which it is the very purpose and function of the institution to serve, and the dormitory of a school in which only a negligible percentage of the occupants are mentally sub-normal.
We come to the question whether the Board of Adjustment was warranted in granting what it terms an “exception”, and on that basis permitting the issuance of the certificate of occupancy requested by the Foundation. The Act of July 1, 1937, P. L. 2624, which authorizes townships of the second class to adopt and enforce zoning ordinances, provides in Section 7 that the board of township supervisors may appoint a board of adjustment and may provide that “said board of adjustment may in appropriate cases, and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with the general or specific rules therein contained.” As far as the terms of the Easttown Township ordinance appear in the record there are no rules therein contained in accordance with which special exceptions may be made. An “exception” in a zoning ordinance is one allowable where facts and conditions detailed in the ordinance, as those upon which an exception may be permitted, are found to exist. But zoning ordinances usually provide, as does the present one, for another kind of dispensation, also permitted by the statute, by which a “variance” from the terms of the ordinance may be authorized in cases where a literal enforcement of its provisions would result in unnecessary hardship. Presumably, therefore, it is such a variance which the Board of Adjustment intended here to authorize.
Was it justified in so doing? It was said in
Kerr’s Appeal,
294 Pa. 246, 253, 144 A. 81, 84: “The difficulties and hardships, which move the board of adjustment to depart from the strict letter of the ordinance, should be
substantial and of compelling force.” And in
Valicenti’s Appeal,
298 Pa. 276, 283, 148 A. 308, 310, 311, it was said: “It is true that variations may be permitted, but only in cases of practical necessity, and for reasons that are 'substantial, serious and compelling’ ”. To the same effect is
Jennings’ Appeal,
330 Pa. 154, 159, 160, 198 A. 621, 623. In
Junge’s Appeal (No. 1),
89 Pa. Superior Ct. 543, 546, the late, lamented Judge Kellek said: “The authority thus placed in the Board is not an arbitrary one. The discretion vested in the Board is subject, to review if abused or not exercised in accordance with the provisions of the Act. The statute does not give the Board power to do whatever they feel inclined to, regardless of the provisions of the statute. . . . The strict letter of the ordinance may be departed from only where there are practical difficulties or unnecessary hardships in the way of carrying it out; and in such manner that the spirit of the ordinance may be observed, the public health, safety and general welfare secured and substantial justice done. No other considerations should enter into the decision.” This case was cited, and the principle which it enunciated was followed, in Appeal of
Heman Johnson,
93 Pa. Superior Ct. 599, and
Huebner v. Philadelphia Saving Fund Society,
127 Pa. Superior Ct. 28, 192 A. 139. It is true that ordinarily the grant or the refusal by the Board of Adjustment of a variance from the terms of a zoning ordinance should not be reversed unless its action was “a manifest and flagrant abuse of discretion”:
Jennings’ Appeal,
330 Pa. 154, 157, 198 A. 621,
622; Perelman v. Yeadon Borough,
144 Pa. Superior Ct. 5, 10, 18 A. 2d 438, 440. But we agree with the court below that in this case the Board of Adjustment did abuse its discretion in allowing a so-called “exception” or variance, for there was no evidence to support such a grant. It is of some significance that the Board did not state facts or advance reasons for its action. Mere hardship is not sufficient; there must be
unnecessary
hardship, and there is nothing in the record to indicate that
the Foundation will be subject to such hardship by denial of the right to use the Ilsley property as a dormitory for its pupils. It bought the property with full knowledge of the terms of the ordinance, and certainly the mere curtailment of its ambition to expand its work over forbidden territory is not an unnecessary hardship within the statutory meaning of that phrase; to hold otherwise would be to nullify the entire purpose and effect of the zoning regulations. Moreover, the power given by the statute and by the ordinance to authorize a variance is limited by the provision that it must be such “as will not be contrary to the public interest”; this presumably is intended to insure protection of the interests of that portion of the public which is affected by the variance, namely, the owners and occupants of the neighboring properties. The objections raised by the latter cannot be dismissed as capricious or unduly selfish. While it is true that the Foundation will, in any event, continue to operate its school on the “Academy” property, it is natural that the creation of a dormitory on the Ilsley tract should arouse added apprehension among the neighbors, for the close presence of persons who are below the normal standards of mental capacity and are subject to psychological and psychiatric aberrations not only constitutes a depressing factor calculated to interfere with the enjoyment of home life but even involves the potential danger of physical disturbances.
We do not believe that it was the intention of the legislature, nor of the township supervisors, to empower a board of adjustment to set at naught the zoning statute and ordinance under the guise of a variance. The power to authorize such a variance is to be sparingly exercised and only under peculiar and exceptional circumstances, for otherwise there would be little left of the zoning law to protect public rights; prospective purchasers of property would hesitate if confronted by a tribunal which could arbitrarily set aside the zoning provisions designed to establish standards of occupancy in the neigh
borhood. Indeed, if such power were to be interpreted as a grant to the board of the right to amend or depart from the terms of the ordinance at its uncontrolled will and pleasure, it might well be challenged as being an unconstitutional delegation of legislative authority to a purely administrative tribunal.
Order affirmed; costs to be paid by appellant.