41 A.2d 744 | Pa. | 1945
Lead Opinion
We are here called upon to deal with a type of controversy in which two interests, each in itself legitimate and wholly commendable, come into conflict merely by reason of the proximity of their locations. The one interest is that of a school devoted to the education of mentally *480 deficient, weak and abnormal children, and the other that of the inhabitants of a fine residential suburban section who oppose the housing therein of the pupils of such an institution.
The Devereux School, begun in 1918, was incorporated in 1938 as a non-profit corporation of the first class under the title of "The Devereux Foundation, Inc." for the purpose of "studying, treating, engaging in and carrying on research and educational work in connection with functional and nervous disorders and for the educating, developing, and advancing of boys and girls of any age under required direction in addition to their intellectual and vocational needs along psychological and psychiatric lines, . . ."
The school now has a staff of 74 teachers and an enrollment of 366 pupils. In 1939 it purchased a large residential property in Devon, Easttown Township, Chester County, containing approximately 14 acres of land. This property, known as the "Academy", is used by it as a girls' dormitory and for other purposes.
On August 6, 1940, Easttown Township, in pursuance of the authority granted by the Act of July 1, 1937, P. L. 2624, adopted a zoning ordinance under which the "Academy" was included within an "A residence District"; however, as this property was already in use by the Foundation, it was not affected by the restrictions imposed by the ordinance. The ordinance provided that in an "A residence District" a building might be used, inter alia, for an "educational or religious use, including dormitory of an educational institution, but excluding cemeteries, hospital, homes, sanitarium, correctional institution or structure or other place for accommodating the insane or other persons mentally deficient, weak or abnormal, except as provided in Article X." Article X, thus referred to, provided that the Board of Adjustment should have the power ". . . (b) To hear and decide special exceptions to the terms of this Ordinance in such cases as are herein expressly provided for, in *481 harmony with the general purpose and intent of this Ordinance, with power to impose appropriate conditions and safeguards. (c) To authorize, upon appeal, in specific cases, such variance from the terms of this Ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this Ordinance will result in unnecessary hardship, and so that the spirit of this Ordinance shall be observed and substantial justice done."
In 1943 the Foundation purchased an additional tract known as the "Ilsley" property, consisting of a private residence and 4 acres of land, all included within the same road boundaries as the "Academy" and the same "A residence District" under the ordinance. The Foundation intended to use this property, not for educational work, but as a dormitory for boys. It applied for a certificate of occupancy, which application was denied by the Zoning Administrative Officer of the township. Upon appeal to the Board of Adjustment that body, after hearing testimony, found that the contemplated use of the property was a violation of the terms of the ordinance but that "the circumstances of this case warrant the granting of an exception which is hereby allowed," and accordingly directed that an occupancy permit be issued. Thereupon residents of the District who had appeared before the Board of Adjustment in opposition to the application appealed to the Court of Common Pleas of Chester County. The court supported the conclusion of the Board that the proposed use of the property was prohibited by the ordinance, but overruled the action of the Board in granting an exception. The Foundation now appeals from that order of the court.
As above stated, the ordinance sanctions an educational use, "including dormitory of an educational institution", but bars a "structure or other place for accommodating . . . persons mentally deficient, weak or abnormal." That the Devereux Foundation is an educational *482 institution, and a very splendid one, is admitted by the appellees, and therefore a dormitory for its pupils would seem to come within the express inclusion of the ordinance. On the other hand, both the Board of Adjustment and the Court of Common Pleas found as a fact that the pupils of the Foundation who would live in the dormitory were "mentally deficient, weak or abnormal" persons, and in that finding we concur in spite of the subtle distinctions sought to be made by appellant between various degrees of mentality, normal, abnormal and sub-normal; the testimony indicates that the students include neurotics, epileptics and other victims of psychopathic disorders. Nor can it be doubted that the proposed dormitory, whatever may be said as to others of the school buildings, is a place for "accommodating" its occupants, since its sole purpose is to supply them with shelter, ease and comfort in the same manner as a hotel is said to "accommodate" its patrons. The fact that they may be receiving education on an adjoining tract of land belonging to the Foundation is, in this regard, wholly immaterial. Reconciling, then, the inclusive and the exclusive provisions of the ordinance, the only reasonable conclusion to be drawn is that the "dormitory of an educational institution" must have been intended to refer to such a dormitory as is devoted to the accommodation of normal students ordinarily attending the usual type of educational institutions, and that the exclusion of a structure for accommodating mentally deficient or abnormal persons was intended to override the permissive provision if, as here, the two came into conflict. The Foundation contends that this interpretation creates an invalid discrimination between a dormitory of this school and those of other schools, public and private, all of which probably contain some pupils who are mentally retarded or deficient. But as Mr. Justice HOLMES so frequently pointed out, most of the distinctions of the law are distinctions of degree, and there is a marked practical difference, justifying a *483 legal differentiation, between the dormitory of a school all of whose occupants are, from the standpoint of mentality, of the problem type which it is the very purpose and function of the institution to serve, and the dormitory of a school in which only a negligible percentage of the occupants are mentally sub-normal.
We come to the question whether the Board of Adjustment was warranted in granting what it terms an "exception", and on that basis permitting the issuance of the certificate of occupancy requested by the Foundation. The Act of July 1, 1937, P. L. 2624, which authorizes townships of the second class to adopt and enforce zoning ordinances, provides in Section 7 that the board of township supervisors may appoint a board of adjustment and may provide that "said board of adjustment may in appropriate cases, and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with the general or specific rules therein contained." As far as the terms of the Easttown Township ordinance appear in the record there are no rules therein contained in accordance with which special exceptions may be made. An "exception" in a zoning ordinance is one allowable where facts and conditions detailed in the ordinance, as those upon which an exception may be permitted, are found to exist. But zoning ordinances usually provide, as does the present one, for another kind of dispensation, also permitted by the statute, by which a "variance" from the terms of the ordinance may be authorized in cases where a literal enforcement of its provisions would result in unnecessary hardship. Presumably, therefore, it is such a variance which the Board of Adjustment intended here to authorize.
Was it justified in so doing? It was said in Kerr's Appeal,
We do not believe that it was the intention of the legislature, nor of the township supervisors, to empower a board of adjustment to set at naught the zoning statute and ordinance under the guise of a variance. The power to authorize such a variance is to be sparingly exercised and only under peculiar and exceptional circumstances, for otherwise there would be little left of the zoning law to protect public rights; prospective purchasers of property would hesitate if confronted by a tribunal which could arbitrarily set aside the zoning provisions designed to establish standards of occupancy in the neighborhood. *486 Indeed, if such power were to be interpreted as a grant to the board of the right to amend or depart from the terms of the ordinance at its uncontrolled will and pleasure, it might well be challenged as being an unconstitutional delegation of legislative authority to a purely administrative tribunal.
Order affirmed; costs to be paid by appellant.
Dissenting Opinion
I am unable to agree with the conclusions reached by the majority of the court in this case. Because of the general public importance of the underlying principles involved, I deem it appropriate to state the reasons for my differing views.
The ordinance in question permits educational institutions and dormitories of educational institutions in a Class "A" Residence District. The property for which the occupancy permit in this case was sought is located in such a district.
Devereux Foundation, the applicant for the permit, is a non-profit corporation formed for the purpose quoted in the majority opinion. "That the Devereux Foundation is an educational institution, and a very splendid one, is admitted * * *." The children accepted by the school are, what is termed, "maladjusted", — a condition which may exhibit itself either emotionally or intellectually. The aim of the training is to fit the pupils for full participation in normal social, intellectual and gainful pursuits and activities. The work of the school has been attended by notable success. No children are accepted who need custodial care. Most of the pupils come and go, as they please, in their free time without chaperonage of anyone. None of them is confined and no bars are used for purposes of restraint. Devereux Foundation is not a correctional institution. It is, as everyone concedes, an educational institution. A former Associate *487 Superintendent1 of the Philadelphia Public Schools testified that the same types of children who receive special education at Devereux are given similar training in the Philadelphia Public Schools, the only difference being that at Devereux the children board and live at the school.
Because the same paragraph of the ordinance which permits educational institutions and dormitories in connection therewith also excludes, inter alia, a "structure or other place for accommodating the insane or other persons mentally deficient, weak or abnormal," the learned court below held that the Zoning Board of Adjustment *488 erred in granting Devereux's application for an occupancy permit. I think that was plainly error for any one of the three following reasons.
If the ordinance, here involved, is to be construed as denying to an owner the right to occupy a property for an educational use or as a dormitory of an educational institution on the ground that the pupils of the institution are mentally "weak" or "deficient", I think the criteria thus set are so vague, indefinite and uncertain as to admit of an arbitrary, capricious and unreasonably discriminatory exercise of the police power in violation of both State and Federal Constitutions.
The degree of mentality of the pupils of an educational institution alone cannot justifiably be made the basis for differentiating between a permissive and an excluded use of property by such institutions. Sanity is a relative term at best. But, when you come to mental weakness or deficiency, the shades of difference are so varying, and therefore so many, as to preclude either term from being used as an arbitrary norm. The exclusion by a zoning ordinance of one educational institution and the inclusion of another on the basis of the mentality of their respective pupils must rest upon some "rational relation to the health and safety of the community"; it must bear a "substantial relation to the public health, safety, morals or general welfare". See Village of Euclid v.Ambler Realty Company,
In order that mental weakness or deficiency of pupils may have bearing on the reason for discrimination between *489 educational institutions within the contemplation of the same zoning ordinance, there must be something in connection with the mental condition which offers or fairly suggests a threat to the health, safety or morals of the community. That I fail to find in this record.
None of the adjoining property owners, who appeared in protest of Devereux's application for an occupancy permit for its lately acquired Ilsley property, testified to a single instance where the Devereux pupils had created any sort of a public disturbance or had breached the peace in the five years prior to the hearing during all of which time the school was occupying its immediately contiguous (Welsh) property which is not subject to the ordinance. At most, the protesting property owners objected to the fact that the Devereux pupils walked along the roads of the locality, which they termed a "depressing" sight, and to the possible embarrassment of having to explain to their own children what was "wrong" with the Devereux pupils should the former see them and curiously inquire concerning them. None of them testified to even any annoyance caused by the presence of the Devereux pupils except for the protestants' own unpleasant mental reactions. Such objections constitute no more than aesthetic reasons which are not a proper basis for discriminating restrictions in a zoning ordinance. White's Appeal, supra, at p. 266; Miller v. Seaman,
In the second place, I fail to see wherein the ordinance in terms makes any distinction between educational institutions or dormitories of educational institutions on the basis of the mentality of the pupils or on any other basis. The ordinance provides, in part here material, that "In an A Residence District * * * A building may be * * * used * * * for any of the following purposes and for no other: * * * 3. Educational or religious use, including dormitory of an educational institution, but excluding cemeteries, hospital, *490 homes, sanitarium, correctional institution or structure or other place for accommodating the insane or other persons mentally deficient, weak or abnormal, * * *."
Thus, the ordinance expressly permits the occupancy of a building for an educational use, including a dormitory in connection therewith, and then follows the exclusion of certain specified other uses. It is not apparent to me how the excluding clause can be thought to cut down the prior specific inclusion. In short, it is unreasonable to deduce from the ordinance an intention that would permit Devereux Foundation, for instance, to erect a building anywhere within the "A Residence District" for educational purposes and, yet, not allow it to house its pupils in that or any other building. The construction necessary in order to relate back to "dormitory of an educational institution" the subsequent exclusion of a "structure or other place for accommodating * * * persons mentally deficient, weak or abnormal", not only seems patently unwarranted but, even if admissible, it should be discarded because of the constitutional frailty which it would impute to the ordinance, as already indicated. As between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, a court's plain duty is to adopt that which will save the enactment. And, the rule is the same even where the necessity is no more than to avoid a serious doubt as to constitutionality. No extended citation of authority is needed to support that rule. See National LaborRelations Board v. Jones Laughlin Steel Corp.,
The zoning ordinance here involved, pursuant to authority conferred by Act of Assembly upon Second *491 Class Townships, empowers the Board of Adjustment "To authorize, upon appeal, in specific cases, such variance from the terms of this Ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this Ordinance will result in unnecessary hardship, and so that the spirit of this Ordinance shall be observed and substantial justice done."
The Zoning Administrative Officer of the Township having refused Devereux an occupancy permit for the Ilsley property, upon appeal by Devereux, the Board of Adjustment held that Devereux's occupancy of that property as a dormitory was prohibited by the ordinance but that "circumstances of this case warrant the granting of an exception" which the Board allowed.
The learned court below held that the granting of the exception constituted a "manifest and flagrant abuse of discretion". The Board had neglected to make specific findings of fact from the "circumstances" upon which it relied as warranting the exception. See Appeal of Heman Johnson,
The record contains plenty of evidence which to my mind would support findings justifying the variance. *492
Out of a block of land of approximately eighteen acres in suburban Easttown Township, Devereux, since 1939, has owned and occupied approximately fourteen acres, improved with a large modern dwelling (known as the Welsh property), which it uses for its school purposes. As that use antedates the effective date of the ordinance, it is not subject to the provisions of the ordinance. The remaining four acres, likewise improved with a large modern dwelling (known as the Ilsley property), was purchased in 1943 by Devereux which desires to use it as a dormitory in connection with its school on the Welsh property. The ordinance having been enacted in 1940, an occupancy permit for the use of the latterly acquired property was required in ordinary course.
The Welsh and Ilsley properties together form a single tract, which is bounded on its four sides by public roads. The whole of the property, thus enclosed by highways, is not traversed by any road for public use. Devereux can build all over the Welsh property (three-quarters of its whole tract) without let or hindrance from the zoning authorities, so long as the buildings are intended and used for school or incidental dormitory purposes. In fact, Devereux may even now, under the construction of the majority, use the Ilsley property for school purposes. The only restriction imposed is that it keep its dormitory facilities over the line on the Welsh property.
From a zoning aspect, how insignificant and unimportant becomes the fact that Devereux's pupils are broadly termed mentally "weak" and "deficient"! In the shadowy presence of that vague and indefinite reason for excluding Devereux's use of the Ilsley home as a dormitory, the hardship appears all the more "unnecessary" when Devereux has need of the dormitory for its boys and finds building construction out of the question because of costs, not to mention war-time restrictions on private building, of which a court may well take judicial notice. *493
I would reverse the order of the court below, however, on the ground that the ordinance does not prohibit the use of a building in an "A" Residence District as a dormitory in connection with an educational use, which is the use to which the Ilsley home would be put.
