Honey Brook Township v. Alenovitz, Appellant.
Supreme Court of Pennsylvania
July 1, 1968
reargument refused July 29, 1968
430 Pa. 614 | 243 A.2d 330
Before BELL, C. J., MUSMANNO, COHEN, EAGEN, O‘BRIEN and ROBERTS, JJ.
Edward N. Barol, with him Glenvar E. Harman, and Harman & Pine, and Kanner, Stein, Feinberg & Barol, for appellants.
John E. Good, for appellee.
Robert A. Mills, G. Thomas Miller, and McNees, Wallace & Nurick, for amicus curiae.
OPINION BY MR. JUSTICE O‘BRIEN, July 1, 1968:
This case arises out of a complaint in equity filed on October 26, 1966, by the Township of Honey Brook, County of Chester, against George C. Alenovitz, Jean E. Alenovitz, his wife, Clement Alenovitz and Elizabeth Alenovitz, his wife, in the Court of Common Pleas of Chester County, praying for an injunction enjoining the defendants from operating, establishing or constructing a trailer park on three tracts of land (about twenty-three acres) located in the Township of Honey Brook and to remove all facilities and equipment placed on the premises. A preliminary hearing was
The Township of Honey Brook is a second class township located in Chester County, Pennsylvania. On or about July 2, 1962 the supervisors of the township conferred upon the planning commission the power of a zoning commission, with the duty to prepare a comprehensive plan for the township.
On or about January 31, 1966, the planning commission delivered the comprehensive plan to the board of supervisors. Meetings were held on the comprehensive plan in March, and the plan was adopted in that month.
On June 2, 1966, at 3:54 p.m., there was filed in the office of the prothonotary of Chester County a petition purported to be signed by the owners of at least fifty-one percent of the assessed valuation of real estate of Honey Brook Township. The petition expressed opposition to the enactment of the proposed zoning ordinance and requested that it not be enacted into law. On the evening of June 2, 1966, between 8:00 p.m. and 10:00 p.m., the supervisors, despite the filing of the protest, enacted the zoning ordinance. By virtue of that zoning ordinance, the land owned and leased by appellants, the subject of this action, was zoned “Farm Residential.” Under the ordinance, trailer parks were permitted only in districts zoned “Neighborhood Commercial“, when allowed by special exception.1
On or about December 20, 1965, appellants commenced the establishment of the trailer park in question. However, by June 2, 1966, appellants had spent only $2,000 on construction of the proposed trailer park, although the total contemplated cost was between $300,000 and $400,000. On April 7, 1966 appellants applied to the township supervisors for a trailer park license. By letter dated October 11, 1966, the township supervisors, through their duly authorized agent, advised appellants that the application was denied. The reasons assigned in the letter for the refusal were the failure to comply with §7(k) of the trailer park ordinance, the failure to pay the license fees on other parks owned by appellants, and in general, a lack of good faith. Section 7(k) requires, in the case of trailer parks not established prior to the adoption of the comprehensive plan for the preparation of a zoning ordinance for Honey Brook Township, that a statement accompany the application for establishing a trailer park stating that the premises proposed to be occupied by the trailer park are located entirely within a district in which the establishment of trailer parks is to be permitted.
When appellants persisted in their establishing of the trailer park, appellee township brought the instant action in equity seeking an injunction. The court below, finding that appellants had failed to comply with both the zoning ordinance and the trailer park ordinance, granted the injunction.
Appellants urge upon us five separate arguments as to why no injunction should have issued. We find no merit in any of these. The first is the contention
Appellants’ second contention is that the zoning ordinance is unconstitutional since it allegedly in effect prohibits a legitimate business in the township and constitutes spot zoning. In the first place, we are of the opinion that the constitutionality of the zoning ordinance cannot be raised in this equity proceeding. In Jacobs v. Fetzer, 381 Pa. 262, 112 A. 2d 356 (1955), this Court indicated that questions involving the constitutionality of zoning ordinances should not be heard by courts of equity, but should be tested through the ordinary zoning channels—application to the board of adjustment, in the first
Moreover, it is clear that even if they properly raised it, they have failed to prove the unconstitutionality of the ordinance. The same presumption of constitutional validity that attends an act of the legislature is equally applicable to municipal ordinances whether they be enacted by the council of a city, town, or borough or by the commissioners or supervisors of a township. Nat. Land & I. Co. v. Easttown Twp. Bd. of A., 419 Pa. 504, 522, 215 A. 2d 597 (1965); Bilbar Const. Co. v. Easttown Twp. Bd. of A., 393 Pa. 62, 71, 141 A. 2d 851 (1958). That presumption has been expressed as follows: “An Act of Assembly will not be declared unconstitutional unless it clearly, palpably, and plainly violates the Constitution.” Daly v. Hemphill, 411 Pa. 263, 271, 191 A. 2d 835 (1963) (Emphasis in original. Appellants have come nowhere near meeting this burden. They rely heavily on Exton Quarries, Inc. v. Zoning Bd. of Adj., 425 Pa. 43, 228 A. 2d 169 (1967). That case is inapposite here. In Exton, we held that a zoning ordinance which totally excludes a particular business from an entire municipality must bear a more substantial relationship to the public health, safety, morals and general welfare than an ordinance which merely confines that business to a certain area in the municipality. Even in Exton, we stated that the ordinance was still presumed to be con-
Thirdly, appellants argue the invalidity of the trailer park ordinance.3 In their two-pronged attack, they assert (1) that the ordinance constitutes zoning under the guise of regulating and (2) that the ordinance is unreasonable in discriminating against a class and being unrelated to health, cleanliness, comfort and safety. As to the first contention, we again agree with the chancellor‘s reasoning. Under The Second Class Township Code, supra, §702, cl. xxix,
The broader attack is on the constitutionality of the ordinance as being special legislation and unrelated to health, cleanliness, comfort or safety.4 The discussion above of the burden upon one who asserts the unconstitutionality of an ordinance is relevant here
Fourth, appellants claim that the application of the two ordinances to them is arbitrary and capricious. They point to the reason stated in the denial of the permit that appellants had been uncooperative in the past, and to the fact that a permit for a trailer park was granted on May 6, 1966, after the date of appellants’ application. Actually, uncooperativeness was only one of a number of reasons given for the denial, and a perfectly valid reason was failure to comply with §7(k) of the trailer park ordinance, which required the statement that the proposed use was not violative of proposed zoning. Section 7(k) was only applicable, however, after a comprehensive plan had been adopted. The application granted on May 6, 1966 was made on March 4, 1966, whereas appellants’ application was
Finally, appellants contend that the court below erred in issuing the injunction because appellants are entitled to a nonconforming use. As the chancellor pointed out, such a principle could only apply with regard to the zoning ordinance, for it is totally inapposite to enforcement of a trailer park ordinance. The court below held, and appellee argues, that on the authority of dictum in Philadelphia v. Budney, 396 Pa. 87, 151 A. 2d 780 (1959), the defense of nonconforming use cannot be raised at all in an equity action. Budney was a case where the City brought an action to enjoin the operation of a junkyard as violative of a zoning ordinance. Defendant set up the defense of nonconforming use. The Court held that he had already litigated the matter when he applied to the board of adjustment for a variance or a permit for a nonconforming use, and appealed from the board to the court of common pleas. Yet the court pointed out that it would have made no difference even if the defendant had not sought the variance or permit. The Court stated, at page 89: “... However, even if appellant had never sought a variance, he could not raise the defense of a nonconforming use in a proceeding in equity. The legislature has provided that zoning matters are to be heard exclusively by administrative tribunals which were created for that express purpose. Baederwood Center, Inc. v. Putney, 390 Pa. 53, 133 A. 2d 836 (1957); Pittsburgh Outdoor Advertising Company v. Clairton, 390 Pa. 1, 133 A. 2d 542 (1957). After determination by the administrative agency, the most effective way a zoning ordinance can be enforced is through an equity action. If we were to permit a person, sought to be restrained from violating the ordinance, to introduce testimony of a nonconforming use, we would have equity courts replacing boards of adjustment. Instead of people seeking to enforce their rights through the proper administrative procedures, we would have them continue to violate the ordinances waiting for the city to bring an equity action ...“.
Budney, however, is not controlling in the instant case. The precise issue involved here was considered in Buckingham Township v. Bary, 22 Pa. D. & C. 2d 274 (1960). The court in that case pointed out that the Buckingham Township Zoning Ordinance, unlike that involved in Budney, contained no provisions for the registration of nonconforming uses, and required permits only for new uses or changes in use occurring after the effective date of the ordinance. The Buckingham ordinance provided no administrative machinery whereby the defendants’ right to continue the same nonconforming use might be determined. Thus, the court concluded that the property owner was entitled to raise the defense of nonconforming use in the equity action, for there was no other way for the matter to be litigated. The instant ordinance, like that in Buckingham, also contains no provisions for registration or permits for nonconforming uses. It is thus proper for the defense of nonconforming use to be raised in this equity action.
However, it little avails appellants, for they have failed to establish a nonconforming use. The issue is controlled by the recent decisions of this Court in Penn Twp. v. Fratto, 430 Pa. 487, 244 A. 2d 39 (1968) and Penn Twp. v. Yecko Bros., 420 Pa. 386, 217 A. 2d 171 (1966). By substituting trailer park for golf course, the language in Fratto can be applied with equal force to the instant case: “[N]ot only have the appellants failed to demonstrate that they acted in good faith in proceeding with their commercial project in the face of the zoning regulations that were in the process of enactment by the township supervisors, but also the record demonstrates beyond any doubt that they were guilty of ‘racing’ in an effort to acquire their property and construct a [trailer park] thereon before the ordinance was finally adopted.”5
In addition to their arguments as to why no injunction at all should have issued, appellants urge that the scope of that which did issue was too broad. The decree of the court below, in addition to enjoining the trailer park, ordered the removal from the premises of “all water, sewage and electrical facilities installed thereon.” Inasmuch as these improvements were not
As so modified, the decree is affirmed, each party to bear own costs.
Mr. Justice COHEN and Mr. Justice ROBERTS concur in the result.
Mr. Justice JONES took no part in the consideration or decision of this case.
CONCURRING OPINION BY MR. CHIEF JUSTICE BELL:
I strongly disagree with Jacobs v. Fetzer, 381 Pa. 262, 112 A. 2d 356 (see my dissenting Opinion, page 268), which holds that the constitutionality of a zoning ordinance cannot be determined in an action in equity. Moreover, I strongly disagree that the same presumption of constitutional validity that attends an Act of the Legislature is equally applicable to municipal ordinances, whether they be enacted by the council of a city, town or borough, or by the commissioners or supervisors of a township. See my dissenting Opinion in Bilbar Const. Co. v. Easttown Twp. Bd. of A., 393 Pa. 62, 77, 84, 141 A. 2d 851. However, because I am an ardent disciple of stare decisis, I believe I must follow the aforesaid principles of law which the majority of this Court have adopted in several prior decisions. Because of these and other reasons, I concur instead of joining in the majority Opinion.