Concord Township Appeal

It is now to construe clause in the necessary light of these It clear principles. testimony seems from that the Sun or operation a successful store Sterling involves two elements—the products stocking consumer desires and the of those merchandising prod- ucts way will attract customers. It also seems clear from the a revolution occurred testimony that has as concerns be called the merchandising might what “health and aid” field beauty years. last few Ap- parently under from Sun, pressure de- competitors, cided to institute a discount and to em- pricing policy phasize words “health and beauty aids.” Thus, clear seemingly words store or “as drug proprietary medicine store” are actually because quite ambiguous of retail dynamics make the merchandising “drug store” of 1961 obsolete. Given the rule of con- strict struction of restrictive covenants and the policy favoring open this competition, Court should not grant a favored position Sun. That we is, should not take an undefined (actually undefineable) ambiguous term such as store” as a “drug basis protecting Sun when that term changes meaning constantly. If Sun desires rights nature, should have to spe- cify them more particularly this Court should not rewrite its agreement for it.

I would reverse each of the three decrees. Mr. Justice Jones and Mr. Justice join in O’Brien this opinion. Township Appeal.

Concord (cid:127) Jones, C. 1969. Before Bell, J., Argued May JJ. Roberts and Pomeroy, O’Brien, Cohen, Eagen, Petrikin Chadwick, him with W. Wellman, John for appellant. Wellman, <& Cinsburg Dunn Saulnier, him Clgss, F. Dunn, Jr., Harry appellee. for Abel, and Kras- Jan Calkins, J. Scott Trevaskis, Jr., P.

John Calkins and Shaffer, A Doyle, Trevaskis and nowiecki, curiae. amicus for & Balaban, Woodside, E. Robert Woodside,

Robert J. Rule 65. under filed a brief & Woodside, Woodside 24, Opinion February Roberts, Mr. Justice 1970: an into entered Builders, Inc., Kit-Mar

Appellee in Con- of land tract 140-acre purchase to agreement

469 was County. agreement cord Delaware The Township, permit on the tract rezoned contingent being on lots of one acre, construction of homes single-family no then zoned to lots require since tract was no than less acres roads along existing two Appellee’s request less than acres in the interior. three permit for application building rezoning board appealed it then denied; were would not seek adjustment and announced that it but to secure a variance prove hardship necessary would instead attack constitutionality question. ordinance applied to the requirements and upheld board the minimum lot appellee pleas. took case the court common but new That court no additional made testimony took board. Concord findings of fact and reversed ap- Township then filed allowance of an petition peal to this Court we granted. erred must note that the trial court

Initially we additional making taking of fact without findings new independent of evidence testimony. taking Without an the trial find court could not make its own properly decision of ings but could review the only fact, if error board to determine abuse discretion or an Land of law had committed. been e.g., See, and Investment v. Board Easttown Company 2d (1965); Pa. 215 A. Adjustment, 504, 2d Cleaver v. Board 414 Pa. A. Adjustment, 367, Tidewater Oil v. 395 Pa. ; Poore, (1964) Company 2d 636 with (1959). A. remains However, of in the of province this Court affirm action an the trial even if that action based on was court, independent grounds erroneous if there are procedure, v. 110, affirmance. See Sherwood 383 Pa. Elgart, A. 2d conclude even that, accept 117 899 We (1955). of the the ordinance here ing findings zoning board, forth in the test set question is unconstitutional under 470 Company

in onr in Land Investment decision v. Easttown Board 419 Pa. Adjustment, of 504, 215 A. 2d 597 (1965).

We decided in National Land that of zon- a scheme purpose an or ing exclusionary has result in acceptable Pennsylvania. We do not intend to say, of requirements that minimum lot in- size course, herently Planning unreasonable. considerations other interests can minimum justify reasonably varying lot sizes of given community.1 “At some areas point along the size of lots spectrum, however, ceases be a concern public requiring regulation and becomes of simply private preference.” matter 419 Pa. at 215 A. 2d at 608.2 The acre 524, two and three minimums imposed this case are no more reasonable than the four acre requirements struck down Nation- 1 proposition property- involving-' The fundamental in eases rights generally is that an individual should able utilize his V, Although own land he fit. sees U.S. Const. Amends. XIV. zoning is, power proper police general, exercise which can permissibly property Village rights, limit Euclid individual’s Realty Co., 365, goes (1926), Ambler v. 114 272 U.S. 47 S. Ct. right saying without restriction on to use the individual’s E.g., own cannot Eller v. Board his be unreasonable. Adjustment, 1, (1964). 414 A. 2d Pa. 863 Exclusionary Equal Sager, Tight Zoning, Little Islands: Cf. 767, Indigent, (1969) : L. Rev. Protection, and the 21 Stan. acknowledged quantum policy “The issue thus becomes one excluding injustice governmental unit in a formal social involved segregating people of their means. If the on the basis or constitutionality acting fashion in a of individuals is one neighborhoods—through poor covenants of from that excludes the balance whatever—the and structure or of land home value size assigned may in values because of the be different struck property. dispose It would seem that freedom to dividual’s pre accepted egalitarian would at ends least harm done to serious exclusionary promulgation de governmental land direct clude justification in effectua vices, find their devices unless those Compare importance.” overriding governmental ends tion of (1948). Kraemer, Shelley 68 S. Ct. v. U.S. al Land. As in pointed we out there Land, are advantages obvious community the residents of a in having houses built on four—or lots. three—acre minimum lot However, magnitude required sizes the this by great ordinance are a than deal what larger should be considered a for size build- necessary the of a and ing proper are therefore not house,3 the sub- jects public regulation. As a matter of house fact, fit can on a quite comfortably one-acre lot without being cramped.4 least bit Absent extraordi- some nary ordinance minimum justification, lot sizes such as in those this is un- completely case reasonable.

As the primary justification ordi nance now before us lots township contends that lot, instance, A three-acre is tract on which enormous single by pointing to build a house. This best is illustrated encompass approximately some familiar landmarks and areas example, City Pittsburgh, three For in area acres. Cherry by Penn bounded Smithfiold Street and William and Place Way, stretching through and Fifth Avenue from Forbes Avenue Square half-way point approximately Mellon Avenue to Oliver Highway Harrisburg, Safe In about three and acres size. approxi plaza ty adjoining Building lot and is built on a lot, mately Philadelphia, the Lit Brothers Store three acres. In Street, up square Mar block bounded 8th which takes an entire only Street, slightly Street, Street, than more and Filbert ket 7th occupies less size; somewhat store three acres Wanamaker’s mid Square, acres; down the divided than and Rittenhouse three dle, each. of about three acres would create two lots Harrisburg—Ron- figures supported from: letters These Pennsylvania Planning Unit, Pontius, Space and Facilities ald S. Marsh, Pittsburgh—Samuel Supplies; Property Department Philadelphia—Paul F. Works; Department Pittsburgh of Public Develop- President, Philadelphia Industrial Croley, Vice Executive Prothonotary’s with the Corporation. on file letters are These ment office. Pittsburgh on built Department Store Kaufmann’s clearly on lot, built a house approximately one-acre supra. hardly note room. See for elbow want area would same n ofa smaller size potential probl will create a sewerage em.5 It was on board court trial made conflicting findings fact. Wheth potential problem er a exists not is irrele since we vant, however, explicitly argu rejected ment that sewerage problems could excuse exclusionary- in National zoning Land-. “We can not but note help also the that Second Class Township provides Code establishing regulations sanitary which can be enforced aby ‘sanitary board’ regardless the for the zoning area. The provides Code also for the installation and maintenance of sewer systems but the township has plans made no in this regard. In under the addition, township subdivision officer regulations, zoning may lots require than larger the minimum permitted by the zoning ordinance if percolation the result of tests upon land show that larger land area is needed for proper drainage disposal and of sewage. These sanctioned legislatively methods for with dealing 5 Appellant arguments also .offers some other which so are clearly makeweights barely require example, as to For comment. appellant township. notes that is in there one bus but hardly municipality rationale of National Land allows a to con indefinitely exclusionary zoning tinue scheme it refuses because purchase operate Likewise, to that a second bus. claimed present popula only road current network suitable for the why hardly tion, explains which new roads should not be built people. dealing same accommodate new As with the we said in argument Land, may in not avoid National be used “to responsibilities and increased economic burdens which time bring.” invariably 528, growth at at A. 2d natural 419 Pa. 215 College Community County Appeal, 264, Pa. See Delaware 435 610. Twp. Inc., (1969) ; Enokay, v. Merion Pa. A. 2d Lower 427 641 35, Archbishop 128, Appeal, (1967) ; 2d 883 O’Hara’s 389 Pa. 233 A. appellant Finally, (1957). unbelievably, almost 131 A. 2d in con three acre would be more two and maintains neighbor surroundings formity and historical with rural exactly aesthetic considerations the kinds of hood. These rejected d . explicitly Lan we sewage problem compel the conclusion that a four necessary acre minimum is neither a nor reasonable protect method which Easttown can itself from pollution.” menace of 2d Pa. at A. at 526, 609. quoted

Everything paragraph equally said applicable to the case now before us. We effect held in National Land that because there were alternative dealing problems nearly methods for all the growth including sewage prob population, attend a purpose lems, which had an exclusive effect could not be Estates, allowed. See Westwood Forest Village Nyack, Inc. v. South 23 N.Y. 2d 424, 428-29, say (1969) 244 N.E. 2d 702-03 : “This is not village may pursuant other not, general police powers impose zoning power], [i.e., granting other restrictions or conditions on permit building general plaintiff, such as a assess sewage grant ment for system, reconstruction of the ing building permits perhaps stages, ... or even permits, a any building moratorium on the issuance of reasonably right limited as to time. the But, whatever ‘ * * * municipality impose of a temporary to “a re * * * enjoyment straint of beneficial where inter the necessary promote good ference is ultimate municipality either the as a or whole of the immediate ‘ neighborhood” kept such restraint ’, must be “within necessity” may prevent perma limits ’, not nently private reasonable use for the only purposes adapted practically is [cita tions omitted].” recently exactly position

We reaffirmed County Community College Delaware Appeal, 435 Pa. (1969), 264, 254 270, A. 2d 641, Court, where this citing rejected explicitly Land, ex- a proper dealing clusion a sewerage method for with problems: pointed “The court below out once college re- exception granted,

special will still ‘appropriate arrangements quired [for sewer- to make regula- age] local ordinances and . . consistent with . disposal. pertaining to tions and state statutes expansion required, accom- then it should be ... If plished.’ in accordance with this view; areWe properly scale malee broad Board could prob- potential sewerage simply because decision again (Emphasis added.) We once lem the future.” past authority and refuse to our allow reaffirm permitted township precisely never to do what we have —keep community people, rather make im- out than provements. implication of our decision in National Land popu problems of communities must deal may growth. They to confront the

lation not refuse zoning regulations effectively by adopting re future any population present to near levels. not for strict It is township given say may may not live who within disregarding of the en its while the interests confines, If in un tire Concord is successful area. population through naturally limiting growth people zoning regulations, use of who exclusive posed township in the “The is whether the can stand way growing population of the natural forces which send our into place undeveloped live. in search hitherto areas comfortable primary purpose A whose have concluded not. ordinance We prevent avoid future in order to is to of newcomers entrance pub upon burdens, otherwise, administration economic Pa. at not be held valid.” 419 and facilities can lic services 2d at 612. A. pos- general, Land, problem Although is National and this rights process involving land- of constitutional due tured as adversely inter- best to his has been zoned whose owner rights realistically of other from ests, detached be it cannot moving of a comfortable “in search people into the area desirous Tight Exclu- generally Sager, Islands: Little place See to live.” Indigent, Rev. Protection, L. sionary Equal 21 Stan. and the Zoning, (1969). would normally live there will have to live inevitably in another and requirement they community, do so not a decision that should Concord alone be able to make.

While our mu decision requires Land nicipalities to meet the population challenge growth without our closing their doors we have indicated it, willingness respond give communities the ability with great flexibility problems to the sub caused by expansion. urban notable in our Most this regard decision at New Village Inc. Hope, Appeals, Pa. 241 A. 2d 81 approved which we (1868), planned development. unit “It would seem that this decision is a forerunner of a in the necessary change of planned development. law Caught between increas population pressure ing and urban re sprawl and the luctance of the rural fair communities to absorb their share of the planners have load, been faced with unpleasant choice. They equipped now proper instrument to meet the scope The challenge.

this decision no means by limited to and residential It can ancillary usage. just as applied effectively be to commercial and industrial development as well as to new of land combinations use which are limited only planner ingenuity Effec developer. tive interrelations between the component various needs can now be community more For realized. easily various types instance, recrea housing, schools, tional planned facilities can be not only the imme diate needs of the but community, also to effectuate broad purposes. social impact adverse economic of large-scale development can mitigated be if en tirely eliminated judicious juxtapositioning revenue-producing development with residential public In uses. traf manner, good achievement fic public separation, visual transportation, enjoyment, and a host of other desiderata can realized as [sic] Su cost.” Zucker and Wolffe, reduced economic

much from New Hope PUD: New Legalizes Court preme 33-34 (1968). 2 Land Use Controls 32, Hope, to these approach back on the not turn our We will Vil- Land and adopted we problems which techniques at New and Hope. exciting 2 New lage Common- governing available to the local bodies problems population for with dealing wealth nor Easttown Neither Concord Township growth. re- unit may nor other local any governing fully of exclusive We zoning. treat behind a cover lies problems realize that the overall solution these time but until greater regional planning, must confront system comes that have such a we we power The resides currently the situation as it is. will of each local and we governing hands unit, attempting not their that abusing power tolerate com- at expense zone out growth neighboring munities. in the nar- we cannot the fact that

Finally, ignore Township’s of the row confines ease before Concord us, necessary minimum is argument three-acre for ridiculous. adequate on-site is sewerage patently township sewerage does not argue on-site main- impossible for the lots in instead it question; if tains that houses are built on lots one acre, on- envisioned not on lots of three acres, appellee, argument will become unfeasible. site This of the lot assumes that all where the house is what for waste is not necessary simply effluence, The difference in size between a three-acre happens. problem lot a one-acre lot is irrelevant of a house sewage disposal, absent construction magnitude. enormous unimaginably proposition This borne out fully Pennsyl- Department vania of Health Regulations the Ad- Act, Facilities Pennsylvania ministration Sewage Act of January P. L. 24, 1966, (1965) 35 P.S. 1535, et Regulation seq., Chapter §750.1 Article 423, Standards Individual Sewage Disposal Systems This regulation percola- tells us if §7.1-1. the soil tion rate on a given lot per exceeds 60 minutes no inch on-site sewage disposal permitted. will be Let us as- sume that the lots in question have the bare minimum percolation rates support necessary on-site sewerage. Section 7.3 indicates that on a lot with the minimum acceptable percolation rate the required absorption area is only 330 square per feet bedroom. See §7.3, Table IV.7 Adding the maximum isolation distances provided for in I §2, Tables and II,8 required ab- 7 Absorption Requirements “7.3 Area for Private Residential (Provides Garbage Automatic-Sequence for Washing Grinder and Machines)

TABRE IV Septic Tank Effluent Aerobic Tank Effluent Required Absorption Required Absorption Percolation Rate Area Area (time Sq. (Standard trenches, for water seepage ft./bedroom min.) seepage fall 1 in. in beds, pits) 15 or less 175 *120 -16 30 250 *210 - 45 31

-46 60 * absorption required Indicates reduced area than for other septic sys- sewage conventional tank effluent. Aerobic treatment utilizing absorption disposal tems reduced areas for effluent experimental permit.” and shall be so indicated on

8 “2. Isolation Distances minimum isolation in Tables I and II distances shown system disposal sewage shall be maintained between the respective itemized in the war- features tables. Where conditions rant, may greater required. isolation distances be I

TABRE Septic Tank-Minimum Isolation Distances Property 10 feet Rine lot with on a for three bedroom house area a

sorption only rate would be acceptable percolation minimum conclude feet. can than We square little more 1,000 Health Department regulations these from on-site sewer- built with house cannot be three bedroom than more require would disposal system if age such One absorption area. foot square approximately 1,000 contain and three acres square feet 43,560 acre contains fantasy obviously It is sheer feet. square 130,680 of an on-site sewer- because township to claim that, lot, one-acre built on a houses cannot be age problem, three-acre lot. can be built on a but exclusionary Thinly justifications veiled rejected this Court. We countenanced by will recent decision very Land and our them National supra, Community College Appeal, in Delaware County them here. reject and we

Decree affirmed.

Concurring Opinion Chief Bell: Mr. Justice an Ordinance which The basic is whether than of not a minimum lot less requirement imposes than existing and no less along roads, two acres of is Constitu- in the interior the township, three acres tional. Sec- of Article Pennsylvania, I, Constitution the Constitution of United States, and 1,

tion Occupied Buildings feet ..................... 10 Supply feet ............... 50 Individual Water II

TABLE Leaching System-Minimum Distances Isolation Supply ............... feet 100 Individual Water Streams, feet 50 Surface Water Lakes or Other feet Occupied Buildings 10 .................... feet’ Property 10 . Lines

479 and the Fourteenth Amend- Fifth Amendment private of prop- ordain and guarantee right ment, except due protect “taking,” further erty. They public pay- if without process taken law, use, or, ment of just compensation.

Article of the Constitution of Penn Section I, 1, sylvania property assures fundamental these basic “All . certain inherent rights by men . . have providing: and indefeasible which are those en among rights, and life joying pos defending liberty, acquiring, v. sessing protecting . . . Parker property See, Hough, 420 Pa. A. Cleaver Board 667; 215 2d v. 7, 10-11, 414 Pa. Adjustment, 408; 200 A. 2d 367, 371-372, Andress v. Board Zoning 410 Pa. 87, Adjustment, 77, 188 A. 709; 2d Village Co., Euclid v. Ambler Realty 272 U.S. 47 S. Ct. 114 365, (1926).

In Parker v. 420 Hough, ac- Pa., supra, Court curately succinctly said : (pages 10-11) “An owner of in this Commonwealth has a tremendously prized and fundamental Constitutional right to use his property as he cer- pleases, subject tain exceptions hereinafter forth. set Cleaver Board v. 414 Adjustment, Pa. 408; 200 A. 2d 367, 371-372, Andress Zoning v. Board 87, 410 Pa. Adjustment, 77, 188 A. 2d 709; Key Co. Realty Pa. Zoning 408 Case, 98, 104, A. 2d 187; Siciliano v. Misler, Pa. 406, 2d 409, A. 422; Park Sandyford Civic Assn. v. Lunnemann, 396 Pa. 2d 537, 539, A. Lened 898; Inc. v. Homes, Department of Licenses, 386 Pa. 50, 123 A. 2d 406; Lord Appeal, 368 Pa. 2d 121, 125, A. 533. “As the Court aptly said Cleaver v. Board of Ad ‘

justment, supra Pa., (pages : 371-372) . ‘“An “. . owner of property still entitled in Pennsylvania certain unalienable constitutional of rights liberty and

* Italics, ours. home own to use his right include These

property. does he provided he desires way in any property] [or or State Federal provision not* (1) any violate violate or nuisance; (3) create a or Constitutions; (2) or violate (4) easement; restriction or covenant, any con which are police regulations or or laws any ’" ’** . ." stitutional." . fall present one, including Many cases, it was For century zone. over a into a twilight person Commonwealth every of this law or- Constitutionally America had United States prop- protect and use his dained possess, right own, not injure it did he so erty way long any desired, or or the health or morals safety affect adversely be- basic differences others. This one the two was Then came Communism. along tween America and objectives. with its desirable and worthwhile “zoning” all aforesaid fundamental result basic was Ju- restricted of an owner of were rights general created wel- dicially higher right, namely, knows, fare of the of that No one people community. and the Courts have been unable to define what meant welfare.” To it means by “general some, liberty Constitutional absolute, unqualified, right restric- subject the above-mentioned property, it or a Zoning tions. To means what Board some, township Court believes or is best the community or county right involved. To it means the others, our expanding population place to live in any county they may our desire. To Country others, still purchase means the to have the Government right set for the open aside millions acres land benefit Country. rights indefinite, our These sometimes sometimes sometimes overlapping, conflicting. * Adjustment Opinion. in Cleaver v. Board Italics ** Italics, ours. me cases which leave of debatable

This is one those in “no man’s land.” has a worthwhile always almost

Although zoning deprivation on and a it is a restriction since objective, rights ordained of Constitutionally owner’s if nec- it is clearly it can be sustained only property, or or gen- health or morals protect safety to essary Cleaver v. Board people. Adjust- eral of the welfare supra; Parker v. supra; Hough, Pa., ment, Pa., Eller 198 A. 2d 863. v. Board Pa. Adjustment, I no sub- believe that this has zoning ordinance, or stantial health or relationship safety to morals, an upon unconstitutional restriction an owner’s basic his ownership and use of and right property, cannot be sustained under the theory principle “general welfare.” by

Dissenting Opinion Jones: Mb. Justice opinion I agree majority with the writer our Common- communities of rural and suburban all share problems wealth we may ignore unjustified respect to and that population any growth, problems to avoid these attempt these communities by our courts. by be resisted zoning should exclusionary most in mind that zoning does, we must bear However, laudable have a and even often, legitimate purpose, hold a ordinance we should therefore, not, nonexclusionary if it have a legitimate, invalid does an is part the ordinance where particularly purpose, designed overall which is plan specifically face problem population growth. served on the Delaware K. who

William Davis, from 1960 to 1966 Commission County Planning gave four Executive Director the last years, was its of the new Concord assessment his adopted township “It follows: was plan as departure change recognize need for from township preceded zoning pattern that this one. The stage development. transitory There itself is in a growth housing in there is new and around trends, township. represents move This to me effort provide directly growth patterns, into to relief future place growth to town- and land areas take where the appropriate.” ship (Emphasis officals think it most supplied) begin my appeal by

I consideration of this reiterat ing salutary principle judicial of self-restraint this area of forth in Investment the law set National Land and Twp. Adjustment, Co Easttown . v. Board of (here (1965) 419 Pa. 215 A. 2d 606-07 504, 521-22, 597, Land) days inafter cited as national : fast “The zoning disappearing judiciary look when the can at a nearly ordinance a with as much confidence as and, professional xipon zoning expert, of decide the merits zoning plan safety, a contribution its to the health, general community. This morals welfare of the increasingly Court has become neither aware that it is super adjustment planning board of nor a commis a [Citing sion of authorities]. last resort. Instead, judicial drawing Court limits acts as a overseer, beyond regulation may go, which local loath but ing within those interfere, the discretion limits, governing [Citing authority]. of zon local bodies. The power ing government is one of the tools which, subjected judicial order to be must not be effective, necessary. clearly interference unless For reason, presumption validity zoning attaches a a ordi imposes prove invalidity nance the burden to upon challenges [Citing the one who it. authorities].” (Emphasis supplied) v. See also: Bilbar Const. Co. Twp. Adjustment, Easttown Bd. 393 Pa. 141 62, 72, (1958). 851, A. 2d 856

483 reason of the nature of technical factual By scope in a review involved zoning issues appeal, whether court limited to determining reviewing its discretion adjustment hoard abused error of Land, or committed an law. e.g., See, Cleaver Pa. 215 A. (1965); 2d 607 504, 523, 597, 2d v. Board 414 Pa. 200 A. Adjustment, 380, 367, Pa. (1964) ; Tidewater Oil Co. v. Poore, 408, my 2d I from (1959). A. conclude 93, 636, examination of this evidence before record supported uphold the board its decision to amply minimum I would lot and, accordingly, requirements, reverse order the court below. ordinance has majority stated disposal not be

may upheld sewage because of a solely ques- problem, presently ordinance tion was enacted such exclusively solve If is invalid. problem this ordinance and, therefore, majority’s points incorrect, either the two first then its fall. conclusion must also support

Two cases have been cited Pennsylvania as per proposition that sewerage problems cannot, In requirements. excuse se, minimum-acreage zoning National of these the town- Jjand, first two cases, township ship regulations subdivision authorized the than the minimum zoning require officer to lots larger in zoning disposal as stated ordinance if sew- so This age required. Court that since therefore, held, prob- other were available to sewerage means solve any ordi- township’s use of a minimum-lot lem, zoning evi- unnecessary improper. nance was no There is in might dence the instant case which indicate Township’s and, such Concord authorities have power, Ijand on its National is distinguishable accordingly, facts. position now

Moreover, by majority, taken if in Land, totally it the same as even were appears which ignores intervening legislation spe- reject proposition the broad now stated. cifically as ’National Land handed ap- was down when the 1965, state act plicable was Act zoning May 1933, 1, P. L. art. added 10, Act 103, XX, §2001, by July P. L. 1947, 1481, P.S. §47, amended, §§67001-10. this Act was 1968 and However, repealed replaced the Act of P. L. July 53 P.S. 31, 1968, , §§10601- 20. objectives

The former which, statute listed several proper purpose zoning delineated the collectively, The under that statute. regulations 53 P.S. §67003. follows: comparable section of the 1968 Act reads as provisions designed: “The shall be zoning ordinances To (1) protect and facilitate one more promote, . . . . . .” 53 P.S. following: sewerage . §10604 (Pocket Parts) (Emphasis supplied). legisla- The new tion from specifically differs the 1947 Act problems states that one of the listed any be may township’s basis for a ordinance. In contradis- tinction to the 1968 states opinion the majority Act, be- upheld ordinance not solely may cause of a problem. support second case cited majority as

for the first as stated Delaware proposition, above, 254 A. County Community College 435 Pa. Appeal, 2d 641 That (1969). dealt with a situa- case, however, sewer existing amply facilities could tion handle the there proposed facilities. The board anticipated possible merely problem at some future expansion as the result of other which had time, in been In proposed. the case at how- yet, fact, bar, problem ap- the will be caused ever, sewerage by plication; “potential prob- we do not have a in the future.” paren- lem It should also be noted, the the Community College case thetically, Director Planning Executive of the Delaware County col- (the use proposed testified that the Commission compre- applicable the 'mould be consistent with lege) applicant of the position the supporting hensive plan, in that case.1 majority the suggested by

The first proposition can- disposal problem sewage the alleviation ordi- per justify minimum-acreage not, se, I indicated this suggestion nance. As have above, state the most recent only contrary to directly applied but it support (as is also without legislation, cases only the instant either of the two re- case) upon opinion. lied in the authority majority as premise suggested The second syllogism to the Concord majority is effect that the prob- enacted zoning ordinance was solve solely sup- no disposal. point lem This finds more sewage in the port premise in the record than the first does zon- law. Several other factors were considered hearing. fully board were testified to at ing network One of these is that the local road surround- in question the tract taxed to its ca- ing already one at certain times of the There is but pacity day. route in train township bus and no and, service, resi- we must assume that additional therefore, any will use their community dents automobiles transportation. sur- most the residences Moreover, the tract are built on five-acre lots. Two- rounding conformity and three-acre would be more in the rural and neigh- with historical surroundings borhood. there is no to the guarantee Finally, source of a supply development. water the new municipal There is a from water main 1000 feet but is no record that there evidence 1 Compare testimony K. that situation William case, opposes position wherein Davis instant he Supra applicant. pages at 481-2. this be for the de- source water will available new velopment.2 zoning map passing

We note in that was a new adopted Township by conduct- the while the board was ing hearings. three its Land which had been zoned map, acre under the old and which constituted 80% Township, in was reduced area to 10% map substantially Township, en- and the new also larged light industry the one-acre and While areas.3 germane necessarily in- this information is not to the litigation, Township stant it does reveal that is readjust responsibility zoning aware of its classi- population. increasing fications meet the needs of an present Evidence the record indicates that under the zoning Township adequate- classification the can absorb population ly year all increases This until the 1980. Township suggests evidence the officials of the making develop Town- conscientious effort to ship systematic according plan, should be we upset plan zoning by striking loath to down a absolutely required classification unless to do so. controversy The real crus of in- in this case is following majority dicated opinion: statement in ignore

“Finally, we cannot the fact that the narrow confines of the case before Concord us, Township’s argument that three-acre minimum necessary adequate patently on-site (Emphasis supplied) ridiculous.” there If, fact, support Township’s no for on contentions this is- which, previously noted, As Act the 1908 lists several factors individually may support collectively, ordinance. In sewage disposal, the Act addition to refers to “coordinated and community practical development, proper density population, ... evacuation, transportation, §10604(1) water . . . P.S. disaster .” 53 (Pocket Parts). 3 By way contrast, zoning ordinance in National involved upzoned four from one to acres. Land might argued then it situation does sue, justify type zoning, con- this and must, therefore, we by the sider the evidence which was offered judged. and how that evidence is to be general determining constitution- rule ality of a act or forth ordinance was set Colligan Zoning Court in 401 Pa. 162 Case, 131, 125, (1960) : zon- A. 654 “It well settled that 2d is now 652, passed ing and under them are valid acts ordinances legislation general and as structural or constitutional preservation they necessary of whenever public the safety, general or and welfare, morals health, unjustly discriminatory, arbitrary, or or unreason- application particular confiscatory in or their able, proof piece specific property.”4 burden of upon applicant attacking constitutionality of the the prove the meet act it does not these ques- majority proper standards.5 has As noted, reviewing tion court board is whether abused its discretion or error of law in committed deciding that the ordinance is constitution- ally sound. petition

In determination that instant in- majority opinion problem, no volves to- tally present- unjustifiably ignores and all the evidence question by appli- by ed on this and upon com- cant. Whenever we are called to decide a plex upon rely question, scientific must we the testi- experts mony give great weight to the scientific they conclusions which reach. Where is a conflict there 4 Adjustment, Quarries, Zoning v. also Exton Inc. Bd. See Land, 43, 58-59, (1967) ; 425 228 A. 2d 419 Pa. Pa. 169 522, 504, (1965) ; v. East Binar Const. Co. 511-12, A. 2d 215 597 Twp. Adjustment, 62, 72, (1958). Bd. town Pa. 141 A. 2d 851 393 Adjustment, See, e.g., 367, 373, v. Board Cleaver 414 Pa. Twp. Easttown (1964) ; Bilbar Const. Co. v. Bd. 2d 200 A. 70, (1958). Adjustment, 62, 141 A. 2d 851 393 Pa. between the offered of testimony one by side fered opposing con side, board must both positions sider carefully at arrive its conclusion as to which is correct. once the has However, board made its of fact findings and reached a conclusion, function of a court reviewing is to evi examine the dence before the board to determine whether the board’s results are reasonably supported by the facts and the law. The question is not whether ap Ave—at the pellate level—would have reached the same but result, rather whether the zoning board’s determination was arbitrary contrary weight the evidence. Gilden Appeal, Pa. 178 A. 484, 2d 487, (1962).

At this it is point, necessary to briefly delineate the means by which the majority has concluded that possibility a sewerage problem is ridicu- “patently lous.” I first note that there had been no reference whatsoever in the at record, stage of any pro- these to ceedings, the Pennsylvania Department Health of Regulations until the promulgation of the majority opinion. The majority refers to opinions the scientific contained in these Regulations as determinative on the of question whether a sewerage problem although exists, the Regulations were never offered in ei- evidence by ther Concord ToAvnship petitioner. or the patent The impropriety a basing decision on these Regulations which are the beyond scope of the record in this case too is clear to require elucidation. It should suffice point to out merely that scientists are ques- continually opinions the tioning and conclusions of other scientists, opinions even those and conclusions which have been legislatively accepted. it is im- Therefore, extremely portant that such evidence subjected be to cross-exami- and that the nation, opposing party (i.e., the Town- ship) be the given to opportunity present rebuttal evi- dence. These Regulations must certainly great carry weight in our consideration. I believe it Nevertheless, improper upon solely is to base a scientific conclusion Regulations by which have not been to referred parties, or the lower board, where court, a substantial amount other evidence has been offered safeguards open-court with all the examination. Regulations point Moreover, themselves out the wag disputed actually parties. issue which Ac- cording system §7.1-1 sewerage to an on-site thereof, impermissible percolation tbe in the rate immediate if sixty per controversy area is over inch.6 minutes The hearing point at the in the instant on case, parties which the is whether and to what extent differ, comprised the 140-acre tract of land with percolation per sixty rate of over minutes inch. It is clear to me that Township, as if, claimed portion support substantial of the land cannot on-site sewerage systems, dangerously then we would be dere- duty protect lict in our citizens this Com- permit monwealth if we this tract of 115 one-acre lots system.7 be Accordingly, each lot built, with its own 6 By way clarification, percolation test most eom is the monly-used deciding system means whether an on-site may safely length required installed. It tests the time Generally speaking, requires the soil to absorb water. if it more sixty absorbed, than minutes for one inch of water to be then it is likely system up operate—i.e., will back not the sew age might come surface of land and collect there instead dissipating. majority opinion fantasy” The “sheer states claim, Township, although does lot would one-acre support sewage disposal, on-site a three-acre lot would. Township simply witnesses for the sub have reasoned because rates, high percolation portions stantial tract have this 140-acre including lay lots, possible each it would to out lot three-acre be percolation although acceptable rate, this could an area with an nothing this fantastic about lots. I find not be done with one-acre extremely any -per case, adopt and, any hesitant to would he testimony expert witnesses. sonal over the unrebutted assessment 490 question on this decisive reach should he the

we what support appeal: con- record on the Can the evidence portion Zoning Board that a substantial of the clusion support on-site cannot of this 140-acre tract systems? applicant, only Kit- offered

The evidence question of whether on the Mar Inc., Builders, sewerage systems if for be suitable on-site land would given by David Clark. divided into one-acre was lots, professional engineer well as Mr. Clark is a president applicant. He of Kit-Mar Builders, Inc., percolation tests to the results of thirteen testified as personally these tests indicat- he conducted, satisfactory for ed that the entire would be sewage disposal,8 9although admitted, Clark Mr. on-site on that at least seven acres cross-examination, building because tract not even suitable would ground low and was wet. percolation On the rates, testimony Harry has who H. offered Curtin, years twenty conducting these been tests president Boy Company, an F. Weston now vice consulting engineers. independent Mr. Cur- firm of percolation his fifteen under tin’s firm conducted tests, personal supervision. He testified that five completely unsatisfactory gave that seven tests results,® disposal possibility prob- indicated tests indicate that and that three of the tests “would lems,10 particular systems might area.”11 on-site work in that 8 ranged percolation 2.8 Mr. from rates obtained Clark The per up per inch. incb minutes minutes 26.0 up ranged per percolation inch minutes rates from 80 The per inch. 160 minutes per up ranged percolation inch minutes rates from 30 The per inch. minutes per up ranged percolation inch from 12 minutes rates per inch. minutes By summarizing way lengthy testimony, of Mr. Curtin’s following exchange I refer to the on direct examina- developed “Q. tion : If in fact it lots was into one-acre opinion sewerage your systems, with on-site what standpoint? sanitary would I be the results from a A. predict high percentage would that there would be a years systems of failures within ten five to after these put Q. were into use. And a failure consists of what? clay type probably A. Failure in a of soil this would back-up sewage first mean of into or the the house systems yards overflow these into and streets.” percolation which offered evidence, therefore, was as although parties contradictory, agreed rates was both measuring that this was the standard method of feasibility installing sewerage systems. on-site potential sewerage

On the of whether a problem may also offered exist, the tes- timony consulting geologist of Walter Satterthwaite, Roy Company. F. Weston Mr. Satterthwaite utilized map” map question, a “base of the area in had prepared by Department Ag- been the United States riculture. On the basis of criteria established Department Agriculture guide as lines to determine acceptability disposal, soil for on-site waste Mr. Satter- thwaite testified as to the extent to which the tract support systems. findings could on-site His accepta- were as follows: the area would not be 40% sewerage; ble for on-site of the area would nor- 51%% mally problems right, might be all but cause at some and on time; process the area the normal oxidation 7%% be effective. Mr.

would sum- Satterthwaite testimony marized his on cross-examina- follows, you saying by your testimony “Q. tion: aren’t Now, consequence any happen any- here that dire would possibly up living one who would end on one-acre you? very likely property, on lot A. It could quite you Q. become a health hazard. Would tell me accept inability soil to A. how, By sir? rapid too sew- altogether passage effluent or by soil into surface through wastes age and springs or to the surface of streams ground threat sanitation potential are in the area.” The to attributable the drainage problem a compounded by the the where terrain the interior of tract steep to bed. descends a creek land of Oliver offered Township testimony

The also the and appraiser a real estate broker Armitage, licensed profession- Mr. stated his Armitage for fourteen years. surrounding nature of the upon al based opinion, for sub- area and the market that “a residential houses, is the most desirable or three acres division two point- In property.” this he developing fact, method of there in more urbanized area although ed out that one-acre to a much demand greater tend be would market 140-acre tract, area such as this in an lots, His tes- or three-acre lots. two- stronger would be referred of William with that timony agreed Davis, zoning present pointed also out that who above, all increases population absorb adequately would plan made been No estimates had population 1980. through 1980. beyond board, before zoning all the evidence

Considering guilty the board was impossible say I find it committing an abuse of discretion of either ordinance. this upheld zoning error of law when no notice majority opinion takes fact dis- Township particularly offered evidence validity “presumption because tressing which to a ordinance attaches [and] [which] one invalidity upon to prove the burden imposes 522, it” 419 Pa. challenges Land, 504, who (1965). 2d 215 A. re- minimum-acreage at times aware that

I am well be a crude way dealing might quirements potential I sewerage problem. feel that a Nevertheless, problem be a factor sewerage may very important be considered evaluating par- ordinance, Act. Of ticularly light Zoning if hold potential problem we that a course, sewerage one factor to be en- we well be considered, might couraging municipalities certain desire to main- tain high-acreage requirements their feet drag far as municipal constructing systems is con- sewerage If appears cerned. this to be the then in evaluat- case, ing such a zoning ordinance would we be forced to dis- count the potential problem. On sewerage the other we should not hand, say problem sewerage must be overlooked entirely. Concord has no municipal If system. we strike down problem ordinance and if the sewerage is such that on-site systems would then the feasible, will be to expense forced incur of in- a stalling municipal system. Rural and suburban townships have limited tax for the relatively resources obvious reason that composed they are primarily single-family properties which do residences, not yield high real estate tax To require revenues. mu- these nicipalities to incur great expense of installing sewerage systems and to augment their limited munici- pal to population services meet a which is increasing more than rapidly does anticipated, appear not me to to be a sound toway face what is a admittedly serious problem of residential providing for a communities population. rapidly-growing

I dissent. Mr. Justice Cohen in this joins opinion. dissenting Dissenting Opinion Pomeroy Mr. Justice : While in agreeing opin- the main with the dissenting ion of Mr. Justice I deem desirable to make Jones, separate explanation I am unable of the reasons

a brief opinion. majority to concur Twp. Adj., Bilbar Co. v. Easttown Bd. Const. up- (1958) decision 141 A. 2d was a 393 Pa. validity holding minimum lot of one-acre size opinion Chief Justice written Charles Alvin (Mr. Bell dissent- Chief Justice, now Justice, Jones. joined by length, Justice Musmanno ed at and was Benjamin me Bilbar seems and Justice R. Jones.) opinion ju- area delicate to have been a wise legislative prerogatives. Court: Said the dicial versus safety, promotion public health, of the “While checking general sub- morals is the test for or welfare municipality’s jectively con- exertion whether a power courts do to zone has been stitutional exceeded, apply must in a vacuum. Someone the criteria injured by raise in order to restrictions ordinance’s applicable objec- question, and the constitutional operates the ordinance in an arbi- tive test is whether capricious, discriminatory confiscatory trary, man- complainant. The latter ner as to the judicial inquiry to the calls for determination. as But, public primarily what serves the interest is former, appropriate legislative body given for the ponder long it acts and decide. so And, situation power legislate prem- in the within its constitutional independent not to intrude courts do well their ises, particular legislation. to the wisdom of the ideas as Specifically, respect judges enactments, their should not substitute individual views those for employed legislators whether the means as to public likely safety, or to serve the morals health, welfare(Italics supplied.) p. general 72. presumption of Court in Bilbar reiterated the legislative validity enact- that attends

constitutional municipal including in those of bodies the form ments, proof, the rule that burden of “the ordinances, on under attack constitutional is legislation when and never shifts.” is on the one so asserting grounds, “Even where there The Court went on to observe: for an ordi- room difference of as to whether opinion is designed proper public purpose, nance to serve a if cannot the courts fairly debatable, their authorities substitute judgment who enacted the 71-2. legislation.” (Citing cases.) pp. East Land and Investment Company v. town Board 419 Pa. Adjustment, A. 2d 597 a decision with which I struck (1965), agree, down as pre under the facts unconstitutional, there a four-acre minimum In so vailing, lot size. doing, Court cited Bilbar several and ac approvingly times, that “The knowledged power is one of the tools of government in order to be must which, effective, be subjected judicial interference unless nec clearly For this essary. at presumption reason, validity taches a zoning imposes ordinance which the burden to prove upon its invalidity challenges the one who it.” (pp. 521-22) itself to the of a Addressing requirement minimum area for residential the Court said: building, “There is no doubt in Pennsylvania is a density legitimate police exercise of power. Bilbar and [Citing Volpe 384 Pa. Appeal, Every 374.] case involves a different set of facts cir in cumstances light which the constitutionality a zoning ordinance must be tested. Therefore, impossible for us say any acreage minimum requirement is unconstitutional per (p. se.” Yet 523) it is difficult see, light opinion majority in the case at bar, how minimum any acreage require ment for suburban residential use excess acre one can henceforth be sustained. minimum Any lot re almost quirement is, exclusive in name, some de gree purpose and effect. if Indeed, the minimum lot present size case had been one acre, and in question tract develop liad to

appellee planned reasoning lots, acre acre lots, % % applica- appear equally to be majority opinion would Perhaps significant use. it is permitting ble to such not in the case at bar does opinion that majority Bilbar a time. single cite put

In all the Court has previous zoning cases, in- of the legislation burden of on the proof challenger Court appears By present volved. decision extraor- some that “Absent burden, says reverse the minimum ordinance dinary justification, unrea- lot completely sizes such as those this case is Township sonable.” The then holds that majority its justification not extraordinary shown such has that and 3 acre minimum lot size requirements, unconstitutional. such requirements accordingly appears to be Con- holding The rationale population “unnaturally limiting cord its regula- the use exclusive growth through would people with the result that “the who tions,” an- live will have to there live normally inevitably other community.” I read does not indicate record, it, one, it still had

appellee burden, assuming sustained its If the now showing unconstitutionality. burden has minimum re- justify shifted to its municipality prob- I think it quirement, though was sufficiently met, which the ma- justification ably by showing any would jority say “extraordinary.” was satisfaction The record at shows, my least, area, Concord rural Township, essentially heretofore been aware to deal with has responsibility responded and has con- problem population growth, than a “retreat behind Bather structively. executing ordi- of exclusive it has liberalized zoning,” cover it acre to malee less the three exclusive, changing nance minimum from of the total area land 80% 10% for one substantially increasing area zoned acre or rather less; “attempting growth than to zone out at expense neighboring pro- has communities,” jected pattern its for chart- growth the next and decade, ed its pattern accommodate rather than it;1 disposal a using problem waste as “a veiled jus- thinly tification for it has exclusionary zoning,” presented, competent but one relevant testimony to indi- factor, that cate the tract in because is, 40% and soil topography an “severe composition, area limitation” for on-lot disposal. sewage

It is true that Concord not utilized Township has Development Planned approved Unit technique by the Court in 2 at Village New Inc. 429 Hope, Appeals, Pa. 241 A. 2d 81 but that it also true (1968), is it has appointed Township Commission Planning which since has 1966 been engaged, help with the of a community planning in conjunction consultant, with the Delaware County Planning Commission, planning land use feasibili- including development, ty studies relative to disposal. water supply sewage process This is not complete. Township Indeed, properly recognizes proc- is planning a continuous In ess. the words of Township’s Wil- consultant, liam K. Township “The is to em- Davis, endeavoring bark on a comprehensive full, new, planning program I am . . . confident lead will proposals new in land development new areas use, variety perhaps, other things. Because is in period this I think the transition, town must be guarded against development of parcels at random . .”2 . Township’s population 4,081 persons. was It an ticipating growth by double, 1980 of more than 8 to thou sand. Sager, interesting Professor his several article cited times by majority Exclusionary opinion (Sager, “Tight Tittle Islands: Zoning, Equal Protection, Indigent,” Rev. and the 21 Stanford T. appeal, no additional where

Our function on look at testimony is to the lower court, was taken Adjustment to determine Board of of the decision constitutionality acre upholding two inif zoning, committed Board acre minimum and three reading My or error of law. of discretion an abuse not. it did me that of the record satisfies ma- holding, stated Land’s as now substantive jority, methods of alternative existence population upon problems dealing attendant purpose growth “an forbids which has exclusive appears bar Town- It the case at effect.” exploring ship been the alternative methods, has part con- less exclusive as has made population thrust which to absorb the scious effort anticipates. particular here involved That the tract minimum lot size zoned two and three-acre does appellee contrary, de- or even that the demonstrate veloper go community, another since would have to Township. one available in the acre, less, I the decree of Court would reverse below Adjustment. Board reinstate the decision joins opinion. dissenting Mr. Jones in this Justice acknowledges (1969) number of that “The restraint on the by large-lot-size restraint households effectuated restrictions [public] may permit more services and on the total demand absorption systematic goes on of new residents.” He rational and argument implies planned and conviction “this to state his posture op- change area, firm affected not a controlled change.” position to Commonwealth, Young, Petitioner. v.

Case Details

Case Name: Concord Township Appeal

Court Name: Supreme Court of Pennsylvania

Date Published: Feb 24, 1970

Citation: 268 A.2d 765

Docket Number: Appeal, 218

Court Abbreviation: Pa.