Catholic Cemeteries Association of the Diocese of Pittsburgh Zoning Case
Supreme Court of Pennsylvania
November 22, 1954
379 Pa. 516
Moving fairly, cautiously and legally, Silverco applied for a Use Registration Permit. After a hearing duly advertised, a Zoning Board granted that permit. On the basis of that Permit, Silverco expended $80,000. Despite inflation, high prices and the exorbitant cost of living, it still cannot be said that $80,000 is an insignificant sum which can indifferently be charged to experience with a Zoning Board.
Catholic Cemeteries Association of the Diocese of Pittsburgh Zoning Case.
Joseph R. Doherty, with him McCloskey, Best & Leslie, J. Frank McKenna, Jr., Clair V. Duff and Charles E. Hawkins, for appellees.
OPINION BY MR. JUSTICE ALLEN M. STEARNE, November 22, 1954:
The appeal of the Township of Upper St. Clair is from the order of the court below directing the Board of Adjustment of Upper St. Clair Township to grant a certificate and permits to the Catholic Cemeteries Association of the Diocese of Pittsburgh and of Margaret E. Houston, Florence C. Riles and John R. Houston (appellees), for the use of approximately 185 acres of land in the Township as a cemetery. It is contended that the court below did not properly exercise its reviewable powers within the scope statutorily prescribed for appeals from a zoning board of adjustment.
On December 27, 1952, the Catholic Cemeteries Association of the Diocese of Pittsburgh, an appellee, acquired an option to purchase an area of approximately 185 acres of land known as the Houston Farm in the southwestern part of the Township containing in all about ten square miles. The Association then filed with the Board of Supervisors its application for a permit to lay out and establish a cemetery. At a regular meeting of the Board, a public hearing was held on a proposed ordinance which would amend the zoning law to allow non-profit cemeteries within the area “at such location as shall be permitted by the Board of Supervisors“. The Board of Supervisors, by vote, refused to pass or adopt the proposed ordinance. An appeal was then taken to the Board of Adjustment. The permit was again
The Zoning Ordinance provides for three use districts: (a) Single Family Dwelling Districts (b) Multiple Dwelling Districts and (c) Commercial Districts. The Houston Farm is within the Single Family Dwelling District. In such district it was provided that land may be used and buildings may be erected, altered or used for single family dwellings, with garages, fences, and similar uses. Also, within the district, land may be used for farming with all of its necessary incidents. Churches and public schools are permitted at such locations authorized by the Board of Supervisors. Cemeteries are not mentioned in the Ordinance. Certain uses, such as slaughter houses, fertilizer manufacture, etc., are prohibited within the Township.
The grant of a certificate for the intended use must be predicated on a valid variance from the terms of the ordinance. The distinction between a variance and an
The power to grant variances is given to the Board of Adjustment by the
Furthermore, there is no evidence in the record to support the finding of the court below that to deny the requested use would result in unnecessary hard-
All question of financial hardship is effectively eliminated because the appellant Cemeteries Association had but an option to purchase the land, taken
The single question, however, properly before the court below was whether or not the Board of Adjustment, in refusing the variance requested, was guilty of a manifest and flagrant abuse of discretion: Reininger Zoning Case, 362 Pa. 116, 66 A. 2d 225. Such request was, in effect, an application for re-zoning. Furthermore, there is no evidence to support the finding of the court below that a denial of the use as a cemetery would result in unnecessary hardship. It was error to direct the issuance of the requested certificate and permits.
The order of the court below is reversed, at cost of appellees.
DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
It is almost a waste of paper to write that there is nothing more certain than death. It is equally superfluous to say that no one wants to die. And it follows with the same inevitability that proper interment of the dead has an important bearing on the survival of the living. During action in the field in World War II, I always noted (with awe) that one of the vital items in battle directives carried the saddening words: “Burials will be prompt.” In civilian life, reasonably prompt burials are also necessary. As death is certain and sepulture is imperative, the question propounded in this appeal is not one that can be disposed of by technical legalistic formulae and procedural rites. Values which cannot possibly be surpassed in the whole scheme of life are involved here, and we must study the record meticulously to see if law has supported reason and judicial decision has confronted fact.
Margaret E. Houston, Florence C. Riles and John R. Houston own some 185 acres of farmland in Upper
Why?
Fundamentally, the Houstons can sell their property to whomever they wish. Basically, the Catholic Cemeteries Association has the right to purchase what it may pay for and to use it as it desires, so long as the use is a legal one. No one contends that there is anything illegal about a cemetery.
The Houston farm is located in what is known, under the Zoning Ordinance of Upper St. Clair Township, as District U-1. The Board of Adjustment of the Township, to which application had been made for the necessary certificate and permits which would authorize the use of the land as a cemetery, held that District U-1 limited permitted uses to: “... single family dwellings with appurtenant buildings, and accessory uses incident thereto and not involved in the conduct of a business, use for farms under certain conditions and use for churches and public schools at such locations as permitted by the Board of Supervisors upon application and hearing. The use requested in said application is clearly not included within the above permitted uses.” The Board made no findings of fact or of law to justify its refusal of the application. Given the legitimateness and sociological correctness of a cemetery, some disabling feature must be shown before application for a variance for the purpose indicated may be summarily rejected. In the case of Imperial Asphalt Corp. Zoning Case, 359 Pa. 402, the Board of Adjustment of Manheim Township, refused the request of the owner of a grist mill to remodel and change its use. The owner appealed to the Court of Common
In the case at bar, the County Court of Allegheny County (which has taken over the jurisdiction of the Court of Common Pleas in actions of this kind) took
The Majority Opinion points out that the
The need for a Catholic cemetery in the area known as the South Hills is acute. There are 22 parishes in the South Hills with 19,634 known Catholic families. On the basis of an average of 4 persons to a family, cemetery space for some 78,000 inhabitants must be anticipated. Rev. Daniel A. Gearing, assigned by the Bishop of Pittsburgh to the task of finding suitable ground for a Catholic cemetery in the area under discussion, testified: “In order to serve those Catholics there are seven small Parish cemeteries which have a total of only seventeen and one-half acres of unused ground, which is woefully inadequate to provide for the future cemetery needs of the Catholic members of the Community.” Rev. Gearing testified further that he
Rev. Oliver D. Keefer, Pastor of Our Lady of Grace Parish, Bower Hill Road, Scott Township, testified: “... The newer families and the bulk of the people who are new people who have moved out into that area have no such opportunity and when there is a burial they invariably come to me and say, ‘Where can we go for a cemetery?’ And I tell them they might try Bridgeville, but those are very small cemeteries and I cannot give them much encouragement because there [are] no facilities there and the only thing is to send them to a distant section in some other section of the City.”
Samuel Easton, resident and property owner in Upper St. Clair Township and who owns a piece of property 1,000 feet away from the Houston Farm, testified that there was no suitable place in the area other than Houston Farm for a cemetery: “I think it right to tell you there is no suitable site in that community for a cemetery. I happen to be in business in that township and I know all the farms generally in Peters Township and I don‘t think there is a site you can buy for cemetery purposes there.”
The Majority Opinion says that “there is no evidence in the record to support the finding of the court below that to deny the requested use would result in unnecessary hardship.” I find in the record an abundance of evidence that the denial of the variance imposes hardship. Of course, there must be a meeting of the minds on what is meant by hardship. Hardship is
Proper burial among civilized people, and even among the most primitive tribes as well, has a spiritual significance which is as important to the survival of the human race as the hygienic considerations which call for orderly interment. Into the closed heart of the most absolute atheist and into the mind of the most uncompromising agnostic there comes, as he stands before the grave of a loved one, the promise of another springtime and the assurance of a reunion that no winter will blight.* Even without articulation, faith in immortality is natural to man. When that support fails, something weakens inside. Decent burials, comforting ceremony, scenic and restful surroundings with flowering shrubs and friendly trees are all part of the therapeutics which assuage the pain and eventually cure the wound of bereavement. All this is civilization. Thus, a well-cared-for cemetery is as necessary to the inhabitants of any community as a well-equipped hospital.
As already stated, District U-1 allows for churches, and it is not to be disputed that anything which forms part of a church‘s function is thus necessarily within the compass of permitted religious uses authorized in District U-1. A cemetery, which is made part of a church organization, is, because of that attachment, a religious institution in itself, even though the cemetery is not physically attached to the church. This subject came before the United States Court of Appeals (Third Circuit) in the case of O‘Leary v. Social
“In a chapter delineating the rights of the Catholic Church it is said, ‘Nevertheless sepulture is a religious act and the cemetery is deputed a religious place.‘... ‘Truly then, the cemeteries, in which the bodies of the faithful departed are laid to rest in such a becoming manner accompanied by the sacred rites, are intimately connected with the end of the Church. In the first place, the character of these places is sacred. The Church demands that they be blessed according to her sacred ceremonial and to be held in reverent repute. Over “res sacrae” her dominion must be supreme. ...’ Catholic cemeteries to be recognized as such must receive constitutive blessing, either simple or solemn, and * * * Constitutive blessing may be defined as—“that invocation of the Divine Name by which persons and things are detached from profane use and their condi-
tion, so as to be dedicated in perpetuity to Divine Cult as sacred persons and sacred things.“’ In this light we understand by the blessing of the cemetery—that segregation of the place from its former condition by rendering it a sacred place.’ ...
“The Christian religion has elevated sepulture to a religious office; sepulture is considered as a ‘res religiosa‘. Secondly it is recognized that the cemetery need not be a physical part of or adjacent to the church property.”
It is thus apparent that the Board of Adjustment, in addition to other errors, overstepped its authority in refusing a permit to a religious institution which comes clearly within the scope of regulations which govern District U-1.
The Majority Opinion states that “the single question, however, properly before the Court below was whether or not the Board of Adjustment, in refusing the variance requested, was guilty of a manifest and flagrant abuse of discretion.” I do not believe that that was the only question before the lower court, but accepting for the moment that proposition to be true, the fact is that the lower court did find that the Board was guilty of a manifest and flagrant abuse of discretion, and there can be no doubt that the record justifies such a finding. Section 2 of the Zoning Ordinance permits in District U-1 the storage and sale of live stock, poultry, farm products, timber and farm machinery. It permits also “the drilling for oil or gas and the operation of wells supplying these products and the quarrying of stone from quarries already operated or for domestic use.” The
As I indicated above I do not believe that the only question before the lower court was whether the Board had abused its discretion because, by statute and by pronouncement of this Court, the lower court had the duty to consider and dispose of the whole case on its merits. In Dooling‘s Windy Hill v. Springfield Twp., 371 Pa. 290, 296, this Court said: “No procedural restriction, such as the appellants presently urge, impinges upon the jurisdiction of a court of common pleas on an appeal from an order of a board of adjustment. In such situation, the court is authorized by the statute (Sec. 3107) to ‘reverse or affirm, in whole, or in part,’ the action of the board as, to the court, ‘may appear just and proper.’ In short, it is the province of a court of common pleas upon an appeal from an order of a board of adjustment, to consider and dispose of the matter on the merits: Lindquist Appeal, supra. This is what the learned court below did in the present instance and no mistake of law in the proceeding before it is apparent.”
However, whatever may have been the question before the lower court, there can be no question that the major and real question before us is whether the lower court was justified in its findings because, as already stated, the County Court heard the case de novo, took testimony, examined the property and entered findings of fact and conclusions of law.
In my opinion the Majority has passed over rather lightly the crucial function of this Court in review, namely, determination as to whether a lower Court has met its responsibilities in the legal issue before it. There can be no doubt that a variance was properly authorized under the findings of the Court below. The only manner in which, under our decisions, this Court
As recently as November 15, 1954, this Court, speaking through Mr. Justice BELL, said in the case of Silverco, Inc. v. Zoning Board of Adjustment et al., 379 Pa. 497, that where a zoning matter comes before this Court in certiorari this Court will not reverse unless it is established that there was not sufficient evidence to support the findings of the Court below or that there was error in law or manifest abuse of discretion. None of this has happened in the case at bar. In the Rolling Green Golf Club Case, 374 Pa. 450, 458, Mr. Justice BELL, again speaking for the Court, said: “On appeal from a decision of a Court of Common Pleas in a zoning matter the case comes before an appellate Court as on certiorari, and where there is adequate evidence to support the findings of the Court below and the proceeding is free from error of law and there has been no manifest abuse of discretion, the decision will not be reversed.”
The Majority here does not say that there is not adequate evidence to support the findings of the court below, nor does it say that the court below committed an error of law or that it was guilty of a manifest abuse of discretion. How then, under the authority quoted, can the Majority reverse the decision of the Allegheny County Court?
The Opinion of the Majority declares “That it may probably be impossible to find another suitable tract is not the necessary hardship envisioned by the Act.”
It is to be noted that the contemplated cemetery
There can be no cognizable fear that the presence of the cemetery contemplated in this litigation could in any way depreciate surrounding real estate values. Hugh A. Murphy, real estate broker since 1917 and member of the Real Estate Board of Pittsburgh, testified that the proposed use of the Houston Farm for cemetery purposes would not adversely affect the real estate values of property in the neighborhood. John P. Monteverde, member of the Board of Governors of the Pittsburgh Real Estate Board, testified to the same effect.
The appellant, Upper St. Clair Township, has argued and apparently convinced the Majority, that to allow a variance in this case is in effect to re-zone the Township. This argument lacks substance because, carried to its logical extreme, it would mean that variances should never be allowed. The very purpose of providing for variances in both the enabling statute and in the ordinance is to alleviate in specific cases the hardship which would result from strict compliance with the ordinance. In Gilfillan‘s Permit, 291 Pa. 358,
Justice KEPHART well stated the principle involved here when he said in White‘s Appeal, 287 Pa. 259, 266: “There is one matter that is quite certain, the power to thus regulate does not extend to an arbitrary, unnecessary or unreasonable intermeddling with the private ownership of property, even though such acts be labeled for the preservation of health, safety and general welfare. The exercise must have a substantial relation to the public good within the spheres held proper. It must not be from an arbitrary desire to resist the natural operation of economic laws or for purely aesthetic considerations.”
I agree with the learned President Judge of the County Court of Allegheny County that there is no excuse whatsoever for refusing a variance here. This is not the case of disrupting a highly developed commercial area, or of encroaching upon the organized routine of a built-up area, or of interfering with the enjoyment of domestic privacy in a highly residential section. President Judge LENCHER, after inspecting the Houston Farm, said of it: “The acreages we looked at are poorly worked and undeveloped farm land. It is overrun over large areas with bushes, underbrush and wooded land. The building of the Dormont-Mt. Lebanon Sportsmen‘s Association on the shooting range in the interior of the property is of frame construction. Such other buildings, farm buildings near Washington Road are old, also of frame construction. The land, terrain, vicinity generally, is utterly and completely rural except that the westerly side of Washington Road (State
To prohibit the use of land of this character for so exalted, healthful and necessary a purpose as an estimable cemetery of the type described, can be described only in the words of Justice KEPHART as the “arbitrary, unnecessary and unreasonable intermeddling with the private ownership of property.”
In Gilfillan‘s Permit, supra, the owner of a retail lumber business applied to the proper city officials in New Castle for a permit to erect a cement block warehouse. The permit was refused by the City Engineer and this refusal was upheld by the Zoning Board of Appeals appointed under the city zoning ordinance. The Court of Common Pleas of Lawrence County, after taking testimony, (as was done here) reversed the action of the Zoning Board and directed the issuance of the permit for the construction of the building. The City of New Castle appealed to this Court which, speaking through Justice FRAZER, said: “... inasmuch as the natural effect of ordinances of this description is to limit private rights in the interest of the public welfare, the exercise of the power must be carefully
I believe that, up to this point, I have shown by citation of precedent and recitation of fact, that the lower court‘s decision should be affirmed rather than reversed. However, if I have failed in proving my position up to this juncture, there is still another reason why, in my judgment, the plaintiffs are entitled to the relief prayed for. A township or other municipal body can constitutionally restrain or deprive an owner of the use of his land without compensation only if it is necessary for the preservation of the health, safety or morals of the community. The court below found, based upon overwhelming evidence, that the proposed cemetery will not affect or endanger the health or safety of the community. Denying, therefore, the owners of the land in question the right to sell their property for cemetery purposes is denying them the full enjoyment of their property without compensation and such an action flies in the face of constitutional prohibitions.
“The natural or zealous desire of many zoning boards to protect, improve and develop their community, to plan a city ... or a community that is both practical and beautiful, and to conserve the property values as well as the ‘tone’ of that community is commendable. But they must remember that property owners have certain rights which are ordained, protected and preserved in our Constitution and which neither
zeal nor worthwhile objectives can impinge upon or abolish.” In conclusion, Mr. Justice BELL wrote: “We therefore hold that neither aesthetic reasons nor the conservation of property values or the stabilization of economic values in a township are, singly or combined, sufficient to promote the health or the morals or the safety or the general welfare of the township or its inhabitants or property owners, within the meaning of the enabling Act of 1931, as amended, or under the Constitution of Pennsylvania. ... This ordinance flies in the face of our birthright of Liberty and our American Way of Life, and is interdicted by the Constitution.”
In Lord Appeal, 368 Pa. 121, 125, this Court, again speaking through Mr. Justice BELL, stated categorically: “Both our Federal and State Constitutions provide for and guarantee to every citizen certain unalienable rights and liberties; and with respect to property limit the paramount right of the Sovereign State to take an owner‘s land for a public use only, and even then, only if it pays the owner just compensation: Fifth and Fourteenth Amendments to the Constitution of the United States; Article I, § 10, Article XVI, § 8, Constitution of Pennsylvania.”
“It is now well settled that zoning acts and ordinances passed under them are valid and constitutional as structural or general legislation whenever they are necessary for the preservation of public health, safety, morals or general welfare, and not unjustly discriminatory, or arbitrary, or unreasonable, or confiscatory in their application to a particular or specific piece of property.” (Italics in original decision.)
Since, therefore, the ordinance in this case, as interpreted by the Majority, limits the use and enjoyment of the property in an unconstitutional manner (because it is not necessary for the preservation of
Does this decision end the current litigation? Apparently it does because, rightly or wrongly, all legal controversies eventually reach the point of no return. That, however, does not necessarily place an immovable tombstone on the living body of a living cause. Perhaps through legislative action, since judicial processes sometimes temporarily barricade the entrance to the cemeteries which will one day open to all, a way may be found to utilize the neglected farmland in Upper St. Clair Township for the most sacred purpose to which land may be dedicated—a repose for the sainted dead.
Argued June 3, 1954. Before STERN, C. J., STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.