*1 Appellant, Zoning Board of Anstine,
Adjustment. *2 J., Argued November 1962. Before C. Bell, Eagbn JJ, and Musmanno, Jones, Cohen, O’Brien, L. MeNeal, Jr., Miller, with him G. Thomas Harry Miller for appellants. Bailey, Bolton, & Pearson, for appellee. L. Raymond Hovis, W. John Byron Sorrell, and White, Breekinridge, Williamson, Bolton, Sorrell & Pearson Bailey, & curiae. for amicus Gerald T. Bolton, H.
Frederick Sajer, Bailey, curiae. amicus Bolton, Pearson & Benjamin Opinion April R. Mr. Justice Jones, 30,1963: from
This is an of the Court of appeal order Common Pleas of York de- which affirmed a County Adjust- cision of the York Township Board of Zoning ment Dale D. Anstine (Board) refusing grant and Vivian D. Anstine variance (appellants) the terms of the Township Zoning Ordinance 1960.
The appellants acres purchased two approximately of land in York At Township on December 19, the time of improved the land purchase, with block two-story chicken building, used as a formerly On hog pen. house York Town- February ship adopted (Township) effective zoning ordinance, *3 February ap- in designating the zone which pellants’ land located as an “R-Residential” dis- prohibited trict. This ordinance the location of trailers1 an within “R-Residential” except district in an author- ized trailer camp.
On February appellants placed their 27,1960, on land mobile-home trailer dwelling it as a used house. They applied to the Board on October for a variance to continue to use trailer occupy or mobile-home improve as residence and to placing on a concrete foundation and to its adding exterior a patio, awning other decorative features. A hearing was held and was taken. The testimony variance was refused because, to the according Board, had appellants failed show that the ordinance would an hardship work unnecessary upon them. Appellants appealed then the Board’s decision to the Court of Com- mon of York County Pleas and that court, without tak- ing sustained the testimony, refusal of the variance 1 The “trailers” or interchange terms “mobile-homes” are used ably opinion. in this order validity From that ordinance.
and the of the appeal has been taken. zon- whether this Court is before this The sole issue capricious, arbitrary, operates ing in an such ordinance confiscatory uncon- discriminatory manner so as appellants deprive of their stitutionally of the use Township zoning property. 704.1 of the Section provisions of as the “Insofar ordinance of 1960 states: R-Residential within are concerned, this ordinance particular as a he considered a trailer shall District only type dwelling with- be located and shall use, camp. permitted districts, In all other in a trailer family single detached as a shall he considered trailer regulations appli- dwelling, to all and it conform shall single family for district to a cable supplied) (Emphasis Section 301.1 it is located.” which regulations within the use ordinance sets forth Building may erect- “A district as: an R-Residential occupied may or land be used or and a lot ed or,used, following purposes, any other: and no Dwelling.” Family Single Semi-Detached Detached or permit provisions of such The effect single any- lots or mobile home location of a trailer except Township, “R-Residen- in an where within may only they in trailer be located tial” where district camps may camps. where, be located Trailer provided township, met. certain conditions are *4 proving clearly unmistakably of The burden legislative upon unconstitutionality of a enactment is asserting: Zoning person Best v. Board Ad so of Archbishop 141 A. 2d justment, 606; Pa. 106, 393 Pa. 131 A. 587; 389 2d v. 35, Loomis O'Hara's Appeal, Philadelphia Board District School Education, 376 of Flynn v. 769; A. 356 Pa. A. Horst, 103 51 20, 428, Pa. Accompanying this burden is the rule that 54. 2d constitutionality zoning of ordinances ". . where . presumed have we that attacked, the munici has been
37 purpose acted with pal township] legislative body [or all intendments public to serve the welfare and that Co. in are favor of their action." Bilbar Construction v. Easttown Board 393 Pa. Twp. 62, 71, Adjustment, of A. 141 A. 139 851; 2d 291 Pa. Liggett's 109, Petition, A. 94 v. 372 Pa. 619; Whitpain Township 509, Bodine, 2d of consti proof 737. The burden an attack of a can tutionality zoning ordinance, although heavy, supra In maintained. O'Hara's Archbishop Appeal, A. (p. Pa. 81 57), quoting Lord 368 Appeal, 121, 2d 533 White's 287 Pa. 134 A. Appeal, 409, 259, " ` was stated ". held (pp. 58): . . all 57, property regulation subordination to the of right its reasonable government clearly preserve necessary safety (or morals of health, general welfare) people . . . . There is one matter that is quite certain, to thus not power regulate does extend to an with unreasonable arbitrary,unnecessary intermeddling such private even ownership property, though acts be labeled the preservation safety, health, for ' " . . ." In general Schmalz v. Buckingham welfare Board Twp. A. Zoning 389 Pa. 132 Adjustment, 2d the Court held that was the of a duty court, before which the ordinance reasonableness of a zoning has been questioned, determine whether ordi power. nance constituted a valid exercise of the police While the are bound accept courts the judgment the legislative body concerning necessity the courts classifications, however, inquire as to may or not a particular whether zoning classification bears relationship a substantial public morals or welfare. Bilbar general Construction v.Co. Board Twp. Easttown supra; Adjustment, Best v. Board Zoning Adjustment, supra; Tidewater Oil Co. Pa. 2d A. Poore, township Section in- provides, ordinance is enacted for ter alia: “This the purpose of *5 38 general
promoting safety, morals and .” In- . . . welfare of the inhabitants of York objects specifically among cluded of this com- elimination of conditions inimical to the are the encouragément munity’s safety, health and prop- appropriate most use of the conservation land, erty values aesthetic considerations. appellants on that
The burden was to show pro- improved as maintenance of their mobile home, posed, not be- inimical the “health, would general inhabitants of morals and Township welfare of the- appellants’ . . . .” The record shows long 41' accord- mobile is S' wide and has, home space; housing ingly, square living con- feet of a expert average conven- testified that struction tional-dwelling square he
house but contains feet, appellants’ dwelling but small home, classified as “a height extremely small interior not an one.” The dwelling steel 2"T and there a structural their expert siding aluminum; with an exterior frame ap- compared frame witness construction pellants’ dwelling conventional home and to that of a structurally them to be similar. Likewise, declared ap- plywood covering floor of interior on the walls and pellants’ dwelling ex- and the insulation between basically covering covering terior and the interior are building used to the materials which would similar space living conventional house. The a room-dining living the mobile home consists of a within run- a kitchen -with a double hot and cold sink, room, gas ning bathroom with a four-burner a stove, water, lavatory, regular bath commode and hot size tub, Appellants’ sleep running children water. two cold appellants sleep roll-out x bedroom the 8' 8' adequately living room. mo- furnished in the bed city equipped with water elec- home-is facilities, bile septic telephone tricity, tank beneath located service, *6 heating the mobile home and a fuel oil unit and it presently by rests on concrete blocks is surrounded Appellants two specifically acres of land. have re- quested permission the for to remove the presently undercarriage wheels attached to the the of place mobile home to the structure on a concrete block foundation. ren- mobile home will Thus, permanently dered immobile and will be affixed to patio block A 12' 2' structure. x 15' cement with a awning wall constructed on either side and an cover to patio planned. is The record shows that this struc- improvements ture could be moved after these ef- are only degree fected difficulty with the same harm accompany moving to the structure as would aof conventional house.
Certain conclusions flow this evidence. question public pri- of what best serves the interest is marily question appropriate a for the decision of the legislative body given in a but whether a situation, operates capricious, arbitrary, in an discriminatory confiscatory prop- manner as to the erty question judicial for calls determination: Bil- bar Twp. Construction Co. v. Easttown Board Ad- supra. justment, opinion, In our a review of the rec- grant appellants ord permis- shows that the refusal improve sion their arbitrary mobile home is and dis- criminatory. Only single family dwellings are allowed appellants within permitted R-Residential District if and, are go forward improvements, with their resulting clearly structure single family would be a dwelling, dwelling, albeit a small within the definition plans of the ordinance. Their involve the removal undercarriage the mobile home’s to which the wheels bolting are attached and the con- structure to a proposed crete block foundation and the addition of patio concrete covered a awning aluminum clear- ly creates rather than a mobile structure. The fixed
record shows that the structural construction only differs from home home a conventional scale; degree of that it is of a smaller extent The. difficulty physically moving structure Setting moment all' niceties same.- aside appellants’ request mainte- envisions definition, permanent within this nance of immobile house residential area. every Township, a
In other zoned in York district single trailer or a mobile-home to be considered family dwelling merely by ordinance's house fiat of the *7 arbitrary, deny definition. It this status to therefore, fact to a mobile in an which in home R-Residential area longer by mo to is no able to be drawn a vehicle and structurally in bile-home rendered immobile. There is or this ordinance no restraint of trailers use by way there other than of definition and mobile-homes single square footage minimum for all established no family dwelling a valid as been held to be houses has zoning Merion standard in this Commonwealth: Lower Township Gallup, Supe v. A. 158 Pa. r. 46 many been 2d On home has a mobile occasions, existing, therein under the circumstances held, "dwelling" by of this Commonwealth: courts Supe Appeal, 72 2d Palumbo 166 Pa. r. A. a.Supe McLaughlin, v. P Commonwealth 168 789; A. Commonwealth 73 880; r. 2d v. Helmuth, 2d Hunter D. & Pa. & C. v. 9 Pa. C. 370; Richter, D. Hickory Township Co. J. Mercer L. 58; Wooddell, arbitrary at it 282. In the case we deem most bar, apply "trailer" structure to a classification improved, in will not be a "trailer" when which, fact expressly by impliedly, or or the ordinance defined, as sense. common Township presumptively acting within -its The power delegated when classified mobile-homesdiffer- ently conventional The than homes. us, record before any indirectly, directly sub- does not or however, show, in classification reason differentiation stantial this clearly free a condition and the evidence shows safety home in this or The health hazards. facilities any clearly adequate physical and its structure are likely be dwelling dangers would most inherent dimensions. found in a conventional home of the same apply to all If this is ordinance should so, irrespective of dwellings of the or same similar size, any be- construction. record differences basic appel- improvement of does not that the fore us show greater congestion in will cause traffic lants’ any showing nor will is there danger greater risk conventional create a of fire than per- contemplated dwellings. Nor does it reveal the property which formance of activities on the noxious subject nui- would not be to restraint under the law patently, The instant not sance. does show that record, permanently af- the maintenance this mobile home realty manner to the will be inimical in fixed occupants of its morals possessors adjoining property "in an “R-Residential” speculate may Town- District: This Court not as to the ship’s underlying special reasons *8 but, this classification of the absence evidence are bound thereof, we pertains appellants’ classification hold that this .as improvement discriminatory requested arbitrary powers police Township and unrelated to the of the ... legislative body. Assuming that this unre- classification is generally to standards as- the considered, lated such public morals we its must consider “general Township. welfare” relation to of York upon only Township justify The basis which the could of exclusion mobile homes from the' this área on' the ground “general presence of would bé welfare” that the aesthetically injure would of mobile home this adjoining neighborhood or would lower the values of properties. posture this on the record, However, of There neither our consideration. element need receive not aesthetic is impact a scintilla evidence an unfavorable evi-
of mobile home on this area while there is en- dence that the location of mobile home will property. surrounding hance the value of the Township argues presumption that there is a preserve question that the ordinance enacted to Township. beauty property values of presume Thus, style would have us design per a mobile home se detracts community the aesthetic ac- characteristics of the and, cordingly neighboring property and that reduces values a conventional no matter its unattrac- house, will not have clear tiveness, the same effect. This is error. We are bound to look no further than the record appel- before us. This record does not reveal whether requested improvement lants’ enhance will or will not neighborhood the aesthetic characteristics of the only relating concept evidence of aesthetics testimony is the realtor to the effect that im- provement appellants’ dwelling would an exist- hide ing shop hobby concrete block structure used as a aesthetically to that extent enhance the area. An ex- pert appellants testifying improved stated that the appellants’ prop- structure would increase the value of erty and that it “will tend to make immediate [the óf a area] more residential area”. In this testi- effect, expert’s mony opinion to an amounted favorable impact property neigh- of this on use this immediate party protesting permit A borhood. testified that properties adjoining had heard that he the value of had depreciated placing since the $2,000 home mobile appellants’ property. competent This is not evi- improvement dence that of such mobile home will *9 property adversely the affect values of the entire com-
43 Zon- See : Best v. or the infinity adjoining properties. Board absence ing p. The supra, Adjustment, of of preserva- evidence on this record the relating of element tion aesthetic characteristics removes this proper our consideration as a exercise Township power promote general welfare.2
It often held ordinances must been that zoning has in where comprehensive be enacted accord with a plan manner develop in an municipality may orderly v. 401 164 (Eves Zoning 211, Board Pa. Adjustment, of 2d must provisions A. and that of an ordinance 7) objectives of of pertinent the attainment or su be invalid v. plan (Whitpain Township Bodine, v. pra; O'Hara's Archbishop supra; Menger Appeal, A. 367 Pa. 2d Pass, 702; Swade Springfield Pa. Township Board Zoning Adjustment, 140 A. Zon 597; Buckingham Township 2d Schmalz v. supra). Board A ing reading Adjustment, Town of 1960 that the shows future ship envisions that legislative body will designated agri "R-Residential" district remain cultural with detached semi-detached single family In Schmalz v. Board Zoning Adjustment, dwellings. must p. at it was stated: "We determine the supra, applies condi regulation reasonableness as existent." record the area tions now shows con a surrounding appellants' is presently property agricultural and residential commercial, glomeration is appellants' To east and south of land properties. To and wheat upon grown. farm land which corn are land with properties: (1) improved are three west upon truck which family dwelling garage single a conducted; is land which (2) upon business baking with a lot for is located together parking ruling in no wise The iustant determines that aesthetics zoning. not factor *10 equipment upon ponies are which trucks and farm landscaping (3) land conducted; raised and a upon business two-story chicken is which a located, coops housing and a stable for horses 6,000 chickens, ponies ponies pasturing together with areas township sheep. inescapable that The conclusion is the appellants' property and en as affects develop agricultural attempting virons is to presently out of what a commercial, residential area is agricultural argue and residential area. To that improvement appellants' home will lower mobile neighborhood by character of the nonconformance its properties argue against physi adjoining with is to cal facts revealed this record. opinion
We are of the that Section 704.1 of the Township Zoning places Ordinance of 1960 an unrea- ap- arbitrary discriminatory sonable, pellants’ restriction on property. use of their The record does not specific show that this ordinance as it relates to this property proper power Township’s exercise regulate, through zoning, protection public to- iii safety general or health, morals welfare of com- munity.
The order
the court below is reversed.
Dissenting
Opinion
by Mr.
Justice
Cohen:
majority
held
has
that
insufficient evidence
presented
demonstrate that the
classifi
cation herein involved
relationship
bears a substantial
public
general
morals,
welfare
community.
of the
I am
holding may
fearful that this
be misconstrued to mean that under no circumstances
community regulate
placement
can a
and existence
opinion
majority
points
of trailer homes. The
out that
competent
produced
no
evidence was
to show
that
placement
any
trailer
had
up
deleterious effect
it had
on the
community,
aesthetics
Since we
values.
impact upon property
unfavorable
uncon
application
of a statute
only
should
declare
I
to do so,
absolutely necessary
stitutional when
court below
would remand
proceedings
Robinson
hear
Cf.
additional
evidence.
School Pa. District Houghton, *11 v. Allentown Retirement Altieri Pa. Board, (1956); 81 A. 2d 176, 180, (1951).
I dissent.
Ross Nomination Petition. Before C. Mus- April J., Bell, Argued O’Brien Cohen, Eagen, Roberts, Jones, manno, JJ.