89 Pa. Super. 548 | Pa. Super. Ct. | 1926
Re-argued October 22, 1926. A short time after our decision in this case was filed a petition was presented to this court by John T. Costello, the owner of premises No. 804 Bellaire Avenue, involved in the case, setting forth that no notice of the appeals taken by Charles O. Junge to the Court of Common Pleas of Allegheny County and to this court, respectively, had ever been given him and no copy of appellant's paper book served upon him, and praying for a reargument of the appeal in order that he might intervene and attack the constitutionality of the Zoning Ordinance in question, and especially of the section thereof involved in this case, on the ground that it is not a lawful exercise of the police power or justified by any consideration of the public welfare, but is unreasonable, discriminatory and void and deprives him of property rights protected by the Constitution of the United States and of this State; and also that the Board of Appeals provided for therein is an unconstitutional body, created in violation of Article III, Section 20 of the Constitution of Pennsylvania.
While we felt it was improbable that the petitioner did not know that appeals had been taken from the action of the Board of Appeals to the Court of Common Pleas and from the Court of Common Pleas to this court, with ample opportunity to intervene in protection of his property interests, we were of opinion that formal notice of the appeal to the Court of Common *551 Pleas from the order of the Board of Appeals should have been given him as a party in interest, and we accordingly ordered a re-argument — to be confined to the constitutionality of the Zoning Acts and the ordinance in question, with leave to the said petitioner to intervene and attack the constitutionality of said acts and ordinance. As a matter of practice, in the future care should be taken that notice of appeal to the Common Pleas be given all parties appearing in the proceeding appealed from and proof thereof be filed among the records of the appeal in the Common Pleas.
The intervener does not attack the constitutionality of the statutes authorizing the enacting of zoning ordinances in cities of the second class, except in one particular which will be considered later. He evidently concedes that the general assembly has the power to authorize general municipal legislation of this character provided the ordinances are reasonable and not discriminatory, and have a rational relation to the public safety, health or general welfare. The attack, in this respect, is directed against the ordinance enacted by the City of Pittsburgh pursuant to such authority.
The ordinance is the same that came before the appellate courts in White's Appeal,
The clause complained of in this case is part of the same section but relates to side yards and is as follows:
"Side Yard: There shall be a side yard on each side of a One Family Dwelling or Double House, one of which shall be at least three (3) feet wide and the total width of both side yards shall be not less than ten (10) feet. In the case of a Two Family Dwelling there shall be a side yard on each side of the building, one of which shall be at least five (5) feet wide and the total width of both side yards shall be not less than thirteen (13) feet."
The constitutional provisions involved are the fifth and fourteenth amendments to the Federal Constitution and Sections 1 and 10 of Article I of the State Constitution. They are along parallel lines and protect the individual in his enjoyment of his property by forbidding (1) the taking of private property without compensation, and (2) depriving him of such property without due process of law.
In the White case,
The power of the legislature to regulate the construction of buildings, etc., within the limits of municipalities, *553 or authorize the municipalities themselves so to regulate them, in the interest of the public health, safety and welfare, was early claimed in this Commonwealth and early sustained. By the Act of April 18, 1795, 3 Sm. L. 246, the authorities of the City of Philadelphia were empowered to pass ordinances preventing the erection of any wooden buildings within a specified area. The act was declared constitutional in Respublica v. Duquet, 2 Yeates 493, the brief of Mr. Ingersoll in its support (pp. 497-499) being especially interesting. See also Douglass v. Com., 2 Rawle 262. This was followed by the Act of April 10, 1826, 9 Sm. L. 194, Sec. 3, which authorized the councils of Pittsburgh and Philadelphia, respectively, to pass general ordinances preventing the erection of wooden buildings within such limits as the said councils might fix.
The Act of April 21, 1855, P.L. 265, relating to the City of Philadelphia, provided in Section 6 that, "every new dwelling house shall also have an open space attached to it in the rear or at the side, equal to at least twelve feet square, and no building of any kind shall be permitted to be erected on any street, court or alley hereafter to be laid out, or if laid out and wholly unimproved by brick or stone buildings before the passage of this act, of a less width than twenty-five feet." See Brice's App.,
Statutes authorizing zoning ordinances go a step beyond the ordinary regulation and inspection of *554 buildings. The Act of June 21, 1919, P.L. 570 authorizes cities of the second class in the interest of public health, safety and general welfare to regulate and limit by ordinance the height and bulk of buildings thereafter erected or altered, and the areas of yards, courts and open spaces in connection with buildings thereafter erected or altered, and to regulate and restrict the location of trades and industries and the location of buildings designed for specified uses; and for each of the above purposes to divide the city into districts, provided that the regulations relative to the height of buildings and the area of yards, etc., shall be uniform for each class or grade of buildings throughout each district.
The ordinance here complained of (No. 372, approved August 9, 1923) divided the city into Use Districts, Height Districts and Area Districts. The use districts are five: Heavy industrial, light industrial, commercial, "A" residence and "B" residence, the last named being the most restricted. The height districts are five: ranging from the first, 35 feet (2 1/2 stories) to the fifth, 265 feet (21 stories). The area districts are likewise five, with varying restrictions not necessary to be recited at length. Intervener's property is located in an "A" residence district, First height district and First area district. The building which he planned to erect on his lot was a one-family dwelling, two and a half stories high. It did not conflict in any manner with the regulations of the ordinance as respects use or height. It was not in accord, however, with the regulations fixing the width of side yards required for such dwelling in such an area district. As pointed out in our first opinion the Superintendent of the Bureau of Building Inspection refused the permit because it did not comply with the regulation as to side yards above quoted. Costello appealed to the Board of Appeals created by the ordinance *555 which reversed the Superintendent mid directed a permit to issue under a plan calling for a side yard of three feet on the west side and six feet on the east side. In his actual building operations he disregarded the limits fixed by the Board and built a stone structure completely across the west side of his lot and reduced the width of the side yard on the east side to three and a half feet. Again the Superintendent stopped him and again he appealed to the Board, which again reversed the Superintendent and directed the construction to proceed, without any finding, declaration or suggestion that the plans as first approved by it involved any practical difficulty or unnecessary hardships, requiring their alteration so that substantial justice might be done. It is not necessary to go over again what is contained in our former opinion. It is enough to say that we held that the action of the Board was arbitrary and without legal justification and constituted an abuse of discretion.
We have recited these facts at some length for the purpose of showing that the intervener's only ground of complaint as respects the ordinance is its requirement as to the side yards of a one-family dwelling in an "A" residence district. Alleged imperfections or defects in the ordinance touching the regulations for other height and use districts do not affect him; they do not interfere with intended use of his property, or the height of the dwelling he proposed erecting. It is a well recognized rule that a court will never heed objections to the constitutionality of an act of assembly unless the complainant is affected by the particular features alleged to be in conflict with the constitution: Mesta Machine Co. v. Dunbar Furnace Co.,
(1) It may be admitted that such zoning ordinance without a statute authorizing it would be void in this State. Whatever may be the law in other states the decisions of our Supreme Court make it clear that in the absence of a grant of power from the Legislature the municipalities of this Commonwealth do not possess the authority to pass such ordinance: Kneedler v. Borough of Norristown,
(2) The constitutionality of zoning ordinances, or certain provisions of them, have been considered by the Supreme Court of the United States and by the courts of last resort of many states, and with a great diversity of opinion; in fact, some of the courts have with the lapse of time and the growth of authority changed their own views on the matter. The last expression on the subject is the decision of the Supreme Court of the United States in Village of Euclid v. Ambler Realty Co., ___ U.S. ___ (71 L. Ed.), handed down November 22, 1926 (See Advance Opinions December *557 15, 1926, p. 171), which reversed the decree of the District Court for the Northern District of Ohio, 297 Fed. 307, relied upon by the intervener, and decided authoritatively that zoning ordinances which establish residence districts from which buildings devoted to trade and business are excluded are not because of that fact violative of the Federal Constitution. The ordinance in that case was framed upon lines very similar to this one, and the opinion is therefore peculiarly pertinent, so much so that whole pages from it might properly be incorporated into this opinion were it not for the fact that its length would be still more unduly extended.
Zoning ordinances of the same general character as this one have been sustained in Massachusetts (Opinion of Justices,
On the other hand zoning ordinances have been held invalid in whole or in part in the following states: New Jersey (Ignaciunas v. Risley,
While in Massachusetts an amendment to the state constitution, (the 60th), gives to the General Court the power to limit buildings according to their use or construction to specified districts of cities and towns, the Supreme Judicial Court in Opinion of the Justices, supra, pointed out that the same question arose and had to be considered as respects the Federal Constitution, and that despite the state amendment the ordinance must fall if it violated the Federal amendments; and in the Euclid case it was stated that the question was the same under both constitutions.
In our own State Mr. Justice KEPHART has pointed out (White's App., supra, p. 266) that the attempted exercise of the police power under zoning regulations "must have a substantial relation to the public good within the spheres held proper. It must not be from an arbitrary desire to resist the natural operation of economic laws or for purely aesthetic considerations."
The trend of authority seems to be that reasonable *560
regulations fixing the minimum area of side yards in residential districts is likely to promote the public health, safety and general welfare and therefore furnish justification for the exercise of the police power in that respect. In the Euclid case Mr. Justice SUTHERLAND said: "There is no serious difference of opinion in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must be left open in order to minimize the danger of fire or collapse, the evils of overcrowding and the like, and excluding from residential sections offensive trades, industries and structures likely to create nuisances." In State ex rel. Carter v. Harper, supra, the court said, "Fresh air and sunshine add to the happiness of the home and have a direct effect upon the well being of the occupants....... If such regulations stabilize the value of property, promote the permanency of desirable home surroundings and if they add to the happiness and comfort of the citizens, they thereby promote the general welfare." In State ex rel. Civello v. City of New Orleans, supra, the court held such comprehensive zoning regulations might be sustained "on considerations of public health, safety, comfort or general welfare in view of better police protection, economy in street paving, lessening of fire hazard and likelihood of business establishments being a genuine nuisance." In Wulfsohn v. Burden, supra, the court sustained the provisions of an ordinance restricting the height of apartment houses and prescribing the open area surrounding them, saying: "The open spaces not only tend to minimize the danger of fire to adjoining buildings and thus a spreading conflagration, but they also afford a greater opportunity for access by fire departments to a burning building and thus increase the possibility of successfully stopping a *561
conflagration before it spreads to other buildings." In Brett v. Brookline, supra, an ordinance was sustained which created a residence district in which only detached one-family dwellings could be constructed, the court saying: "The space between buildings likely to arise from the separation of people into a single family under one roof may rationally be thought also to diminish the hazard of conflagration in a neighborhood. Statutes designed to minimize this hazard by regulations as to mechanical construction, air spaces, and similar contrivances are familiar and have been upheld." In Bebb v. Jordan,
In view of the relation of sufficient light and air to the health of a community, the increased protection from fire hazard which results from the erection of separate dwellings with open spaces between, the relief from overcrowding, with its consequent increase in traffic and confusion, assured by such separation, as well as other considerations not necessary to detail, we are not satisfied that the restriction complained of *562 by the intervener is clearly arbitrary and unreasonable and bears no substantial relation to the public health, safety, or general welfare, such as to require us to declare it unconstitutional and void: Village of Euclid v. Ambler Realty Co., supra (p. 178 of Advance Opinions). We do not attempt, however, in this case to pass upon all the provisions of the ordinance. Many questions may arise under it not necessary to be disposed of now and we leave them for consideration when presented. It is, however, proper to say that one feature of the ordinance attacked by the intervener as unreasonable and arbitrary has been misunderstood by him. The ordinance does not provide that a one-family dwelling must have a lot of 4,000 square feet and a two-family dwelling a lot of only 2,500 square feet, but that the lot area of a two-family dwelling must be 2,500 square feet per family, or 5,000 square feet, which is in keeping with the side yard requirements for a two-family dwelling as stated above.
The owner of adjacent or nearby property is a person aggrieved by the action of the Board of Appeals: Ayer v. Cram,
The intervener also attacks the constitutionality of the Act of May 1, 1923, P.L. 122, which empowers the mayor with the approval of the council to appoint a board of appeals, as well as those sections of the ordinance making provisions for such a board pursuant to the Act, as being in conflict with Art. III, Section 20 of the State Constitution which forbids the General Assembly to delegate to any special commission any power to make, supervise or interfere with any municipal improvement, money, property or effects, or to levy taxes or perform any municipal function whatever. The intervener is scarcely in a position to raise this point. It was he, not the City or Junge, who appealed to the board he now attacks and asked it to set aside the action of the Superintendent of Building Inspection, and who set in motion its activities in the case. It was held in Dewhurst v. City of Allegheny,
But we are not convinced that the authority thus given the city by statute is unconstitutional. The purpose of the above mentioned provision in the Constitution was to prohibit the Legislature, either directly or indirectly, from taking away
municipal powers from the municipal authorities and conferring them on outside bodies, as had been done by the General Assembly from time to time prior to the adoption of the Constitution of 1873, notably when the Legislature in 1870 created and appointed the Public Buildings Commission of Philadelphia (Act of August 5, 1870, P.L. (1871) 1548). The Legislature did not appoint the Board of Appeals nor has it delegated to it the municipal function of establishing zoning regulations and restrictions nor of enforcing them. The council enacted the ordinance and the Superintendent of Building Inspection, an officer of the city, is charged with the duty of enforcing it. The Board of Appeals is a body created by the city (appointed by the mayor and confirmed by council — pursuant to an ordinance of the city) as an arm or bureau of the city government to pass upon cases where it is alleged there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance, and if it find such to exist to modify the requirement, provided it can be done in such a way that the spirit of the ordinance is observed and without injury to the public health, safety and general welfare. The city council is not forbidden to perform certain of its functions by the aid of agents or commissions appointed by it. This is especially the case where new municipal powers or functions are conferred on the city. The Board of Appeals does not make zoning regulations *565 for the city; it can only, as the authorized agent of the city, modify the regulations in individual cases where the circumstances warrant the application of the relief under the provisions of the ordinance.
This is the construction put on Art. III, Sec. 20, which has resulted in legislation authorizing the municipalities of the Commonwealth to use boards and commissions to assist in performing many of the details of municipal government. Under these acts authority has been given cities, boroughs, etc., to appoint: Boards of Health (Acts of June 1, 1885, P.L. 37, Art. III, Sec. 1; May 23, 1889, P.L. 277, Art. XI, Sec. 2); Civil Service Commissions (Acts of June 25, 1919, P.L. 581, Art. XIX, Sec. 5; May 23, 1907, P.L. 206, Sec. 2; May 3, 1917, P.L. 138, Sec. 2; June 20, 1917, P.L. 618, Sec. 2; July 16, 1917, P.L. 1002, Sec. 2); Boards of Appeals in Building Inspection and Examining Commissions (Acts of May 5, 1899, P.L. 193, Sec. 9; June 7, 1895, P.L. 135, Sec. 5, pp. 137, 138); Boards of Revision of Assessments (Act of July 9, 1897, P.L. 219, Sec. 2); Sinking Fund Commissions (Act of June 27, 1913, P.L. 644, Sec. 1), and many similar agencies all of which would fall if the contention of the intervener were sustained. The construction of this section of the constitution accepted in practice for many years should be adhered to unless clearly in opposition to the constitutional provision. We do not think it is so opposed. The members of the Board of Appeals are appointed by the city authorities and are removable by the power which appointed them. The Constitution so provides in Art. VI, Sec. 4. It applies to municipal officers: Houseman v. Com.,
On full consideration of the case we are satisfied that the ordinance is not unconstitutional in its general scope or in the particular feature affecting the intervener. *566 We do not at this time pass upon any other of its specific provisions.
For the reasons set forth in our former opinion in this case, which it is not necessary to repeat, the order of the Court of Common Pleas appealed from is reversed and the record is remitted to the court below with directions to enter an order consistent with our opinion of February 26, 1926; and to require the building constructed on said lot to conform therewith.