8 Pa. Commw. 399 | Pa. Commw. Ct. | 1973
Lead Opinion
Opinion by
This is an appeal from an order of the Court of Common Pleas of Delaware County which sustained preliminary objections filed by Thornbury Township (Thornbury) to the petition for appointment of viewers and the order appointing a board of view to ascertain and award just compensation to William F. Gaebel and Virginia E. Gaebel (Gaebels).
Gaebels own certain land in Thornbury Township which was zoned commercial. On March 6, 1972, Thorn-bury amended the zoning classification, and approximately three acres of Gaebels’ property were rezoned as a flood plain, which limits the use of the land in question to such activities as cultivating and harvesting crops, grazing animals, an outdoor plant nursery, orchard, arboretum and, by special exception, recreation
The land involved here has a history of being flooded by waters overflowing the banks of Chester Creek. Following the reclassification of a portion of their land, the Gaebels petitioned, under Section 502(a) of the Eminent Domain Code, Act of June 22, 1964, P. L. 84, art. V, §502(a), 26 P.S. §1-502(a), for appointment of viewers, asserting damages against Tbornbury for the loss of the usages permitted under the prior commercial zoning.
We arc confronted with the contention of the Gaebels that they can seek damages under the Eminent Domain Code for the effect upon their property of a change in a zoning ordinance. Thornbury counters with the contention that the exclusive procedure for challenging a zoning regulation, on the basis that it is confiscatory, is under the provisions of the Pennsylvania Municipalities Planning Code. We must agree with Thorn-bury’s position and affirm the lower court.
In White’s Appeal, 287 Pa. 259, 264-65, 134 A. 409, 411 (1926), we find the guideline for the correct disposition of this case where Justice Kephart (later Chief Justice) stated:
“Police power should not be confused with that of eminent domain. Police power controls the use of property by the owner, for the public good, its use otherwise being harmful, while eminent domain and taxation take property for public use. Under eminent. domain, compensation is given for property taken, injured’ or destroyed, while under the police power no payment is made for a diminution in use, even though it amounts to an actual taking or destruction of property. . . .
“. . . If there is doubt as to whether the statute is enacted for a recognized police object, or if, conceding
Gaebels contend the amended zoning ordinance takes their property without just compensation by severely restricting its use. This may be said of every valid zoning ordinance. Justice Kephart also spoke to this contention in White’s Appeal when he stated:
“No matter how seemingly complete our scheme of private ownership may be under our system of government, all property is held in subordination to the right of its reasonable regulation by the government clearly necessary to preserve the health, safety or morals of the people. Obedience to such regulation is not taking property without due process; that clause does not qualify the police power. . . .” 287 Pa. at 265, 134 A. at 411.
The procedure statutorily prescribed for testing the validity of substantive provisions of a zoning ordinance is the exclusive remedy available to one aggrieved by those provisions. Pittsburgh Outdoor Advertising Company v. Clairton, 390 Pa. 1, 133 A. 2d 542 (1957). In Taylor v. Moore, 303 Pa. 469, 476, 154 A. 799, 801 (1931), the Supreme Court stated that “[a] 11 questions involved in zoning ordinances, whether they relate to confiscation of property or to the effect of any of the provisions of an ordinance, must be heard and considered under the remedy provided by the Zoning Acts of assembly.”
Where a remedy or method of procedure is provided by an act of assembly, the directions of such act must be strictly pursued and such remedy or procedure is exclusive. Knup v. Philadelphia, 386 Pa. 350, 126 A. 2d 399 (1956). Here articles IX
We are certainly aware that private property may not be taken for public use without just compensation. Likewise, we recognize that a taking may well occur indirectly through excessive regulation under the police power. Although property may be regulated, if regulation goes beyond reasonable limits, it must be recognized as a taking of private property which can only be effectuated by eminent domain. Here we have a case where public acquisition, rather than regulation, may well be the necessary route to gain the desired dominion over the property needed for flood control. Howevér, we do not have that question before us in this appeal. What we decide today is that the Gaebels’ exclusive recourse is to challenge the constitutionality of Thorn-bury’s zoning ordinance under the provisions of review established by the MPC, and they cannot at this time avail themselves of compensation under the provisions of the Eminent Domain Code.
If Thornbury’s zoning ordinance is constitutional as a reasonable regulation in the exercise of the police power, then Gaebels are not entitled to monetary compensation, but if it is determined to be unconstitutional and invalid, then Gaebels, property will not be
It would only be when Thornbury, clothed with a power ’of condemnation given to it by statute, substantially deprived the Gaebels of the beneficial use and enjoyment of their property by the statutorily provided condemnation procedure, or otherwise, that the Gaebels would have access to the remedies and provisions of the Eminent Domain Code. Griggs v. Allegheny County, 402 Pa. 411, 168 A. 2d 123 (1961), rev’d, 369 U.S. 84 (1962), reh. denied, 369 U.S. 857 (1962).
Order affirmed.
53 P.S. §10901 et seq.
53 P.S. §11001 et seq.
See Levitt and Sons, Inc. v. Kane, 4 Pa. Commonwealth Ct. 375, 285 A. 2d 917 (1972); Clover Hill Farms, Inc. v. Lehigh Township Board of Supervisors, 5 Pa. Commonwealth Ct. 239, 289 A. 2d 778 (1972).
The reversal by the United States Supreme Court was on the question of whether there was a “taking” in the constitutional sense.
Dissenting Opinion
Dissenting Opinion by
.I most respectfully dissent for the reason that my review of the record in this case leads me to believe that there may have been a taking of the Gaebel property by the municipality within the meaning and intent of the Pennsylvania Constitution of 1968.
The principle of law that the sovereign shall not take private property for public use without compensation is as deep-seated in the common law as any other principle of law. As far back as June 15, 1215 A.D., we find in the Magna Charta several references to this principle (e.g., Section 39). Blackstone (at 1 Blackstone Commentaries 139) in commenting on what was the “third absolute right,” viz., property, highlighted the principle when he wrote: “And by a variety of ancient statutes it is enacted, that no man’s lands or goods shall be seized into the king’s hands, against the great charter,. and the law of the land; . . . unless ... it shall be redressed. ... So great moreover is the regard of the
As this writer views the record in this case, there could be a difference between zoning regulations (such as setbacks) which are equally applicable to all within the zoning area for the benefit of the municipality and all the property owners in the municipality, and a zoning regulation applicable to but one property owner (not applicable to all the property owners in the municipality) which is for the benefit of all the property owners in the municipality excepting only the property owner against whom the regulation is applicable. In this latter case, I believe such a regulation is in fact a taking. Until we have all of the facts, we cannot determine this issue. Obviously, the facts cannot be determined until there is a hearing. If it could be developed in this case that the Gaebels’ property has been singled out as the sole property to be used as a flood plain for the protection of the municipality and its property owners, and the restrictive regulations are imposed in such a way that for all practical purposes the Gaebels have no use of this property, then it is clear to me that there has been a taking.
It seems to this writer that if a property owner is entitled to an eminent domain proceeding for the taking of his property by virtue of the fact that airplanes cross over and invade his property in the vicinity of an airport, thereby reducing the use of his property to a
(1) What is the nature of the harm caused by the owner’s use of the property and the manner of causing that harm?
(2) What is the nature or character of the “taking” or “regulation”?
(3) What is the magnitude of the “taking” or extent of interference with the property interest?
(4) What is the extent of the public interest being protected?
In the case of Morris County Land Improvement Company v. Township of Parsippany-Troy Hills, 40 N.J. 539, 193 A. 2d 232 (1963), the New Jersey court determined that there was a compensable taking where the municipal government, through á zoning ordinance, restricted the use of certain swampy land for, among other things, flood control purposes. Although that court declared the zoning ordinance unconstitutional, it recognized that where such governmental actions treated the land as a public facility for the benefit of the local government and its people, there was a compensable taking despite the facade of a mere regulation. See also Andress v. Zoning Board of Adjustment, 410 Pa. 77, 188 A. 2d 709 (1963).
In the case before us, why should the Gaebels be forced to subsidize and bear the cost of a resource acquisition of Thornbury Township? If the Township needs their property to protect the municipality) it may take the property, but it must also pay for such taking.
Applying the facts of this case, as we háve them to the proffered four part test, I suggest:
(1) Neither the-Gaebels’ property nor its use creates a nuisance or harm to neighboring properties. Natural precipitation causes the problems.
(3) The magnitude of the taking should be recognized as onerous and oppressive. The Gaebels cannot make reasonable use of their property.
(4) The public interest is found in a governmental functional use of Gaebels’ land as a public facility for the benefit of the municipality and other land owners, without any apparent reciprocal benefit in the Gaebels.
If further proof were needed, reference should be made to Section 413 of the Pennsylvania State Highway Law, Act of June 1, 1945, P. L. 1242, as amended, 36 P.S. §670-413, where the Legislature recogized as a compensation matter under eminent domain the taking of one’s land for a “free and unobstructed view” across lands at intersections of highways, as a matter of highway safety. The clincher for the purposes of this case is that Section 413 includes a provision for permitting the owner of such land to use same for pasture and the growing of certain crops, much like the provision of Thornbury Township’s flood plain zoning ordinance.
We should never permit pilferage through the police power. Would we ever permit property to be taken for a police station, without compensation, just because of the great need for police protection in the area? In Goldblatt v. Town of Hempstead, 369 U.S. 590, 8 L. Ed. 2d 130 (1962), Mr. Justice Clark stated:
“If this ordinance is otherwise a valid exercise of the town’s police powers, the fact that it deprives the property of its most beneficial use does not render it unconstitutional. . . .
“This is, not to say, however, that governmental action in the form of regulation cannot be so onerous as to constitute a taking which constitutionally requires compensation.” 369 U.S. at 592, 594.
In conclusion, I would hold the zoning ordinance constitutional since no party has even suggested other
Judge Crumlish, Jr., joins in this Dissenting Opinion.
Griggs v. Allegheny County, 402 Pa. 411, 168 A. 2d 123 (1961), rev'd, 369 U.S. 84 (1962), reh. denied, 369 U.S. 857 (1962).