*1 Zoning Key Realty Case. Co. 1962. Before C. Mus-
Argued January 4, J., Bell, Eagen JJ. manno, Jones, Cohen, O’Brien, with him Lippincoit & Donaldson, B. H. Don- John appellant. for aldson, him Reed and Gibbons, with Gibbons, Barry
D. appellee.
Opinion Mr. 1962: Justice June 13, Cohen, Appellant, Key Realty purchased Company, a tract Borough comprising land two lots in the of Media. *2 upon three-story single family A residence was situate Subsequently, building one the lots. was con- the apartment permitted verted into a three unit a house, applicable. zoning use under the classification then appellant attempted a later to obtain a date, ... At permit apartment to erect an house on the second lot. application The because the side was denied, however, yard requirements borough zoning ordinance the proposed by zon- would not be met the structure. The ing subsequently, upgrading ordinance was amended permit single-family erection the area to the dwellings. detached passage rezoning
Eight ordi- after the of the months apart- appellant requested permit a to erect an nance, apartment Since houses ment house on the second lot. regu- prohibited applicable zoning under the were now permit sus- was refused. This action was the lations, the court. board and lower tained the . amendatory zoning Appellant that the or- maintains respect property in to its is not enforceable dinance apartment requested lot use as an that prior merely lawful extension exist- house is nonconforming ing use. though borough had council notice
Even apartment planning to erect a appellant second was improperly, upon did the council not act land, house Appellant prohibitory passing ordinance. ac- in right in the continuation zon-. of the quired no vested permitted the erection of an ing classification Philadelphia building. Zoning apartment Schmidt Adjustment, A. 2d 902 Board of proposed apart- of a erection second Nor (1955). nonconforming, extension of the natural house ment devoted. was it Rather, the land is an at-. to which use tempt entirely an subject question to new use. nonconforming serious
Appellant much more raises, however, question of the validity ordinance, of the amendatory adopt “in arguing borough did not it council “rea- comprehensive accordance with a nor with plan” dis- sonable ... consideration character trict” as required provision enabling (§3303), Borough P. L. Code, July 10, §93 53 P.S. amended, §48303. test- Courts have taken approaches innumerable re- ordinance complies whether a ing “in contained act that quirement enabling “In comprehensive accordance with a See plan.” Haar, L. Comprehensive With a Harv. Accordance Plan”, *3 Gwynedd Haar & The Lower (1955); Hering, Rev. Inflexible Case: Too Flexible Or An Township Zoning Re- L. 74 Harv. Rev. 1552 (1961); Haar, Judiciary?, IT. and Realism in Planning, Land-TJse gionalism L. J. 720 71 Yale Note, L. Rev. 515 (1957), Pa. (1962). Board Zoning Adjustment, In Eves v. of “ 2d 7 stated that (1960), ‘Zoning 164 A. we of a into each community division of areas
legislative per- designated of certain uses land which develop orderly in an that community so a mitted ” In comprehensive with a plan.’ in accordance manner ordinance board permitted township the local Eves, pieces rezone individual of so property of supervisors land in a con- the use manner not permit toas In applicable zoning classification. forming or “floating” of “flexible” was plan zoning this reality, quasi-spot-zoning than township. more nothing the ordinance. invalidated we Hence, properties individual of groups of prop- Selection if even authorized by an rezoning, ordinance, erties statutory with the mandate compliance is not zoning regulations “in com- must be accordance with a prehensive plan.” zoning requirement, fulfill To this implement legislation totality must reflect municipality’s program a consider- utilization, of land ing both the available and the needs and land resources contemplate community. desires of the This does not “master-plan” attempts rigid a to answer in every regarding land utili- minute detail last planning plan by a ; zation formulated whether zoning byor on Nor, ordinance itself. commission legisla- loose the other should as in be, Eves, hand, permissive of hoc determinations tion ad land comparatively com- small sections of the utilization munity. requirements en- to conform to the
Rather, (53 abling legislation §48303), PS ordinance account all the relevant studies into data, must take under- information which contribute towards an community’s standing must needs, constitute problems municipality’s solution a reasonable use. land attempt
Accordingly, do not herein to we evaluate group proper- single or a small whether program. not fit into the overall or would would ties par- merely the reasonableness decide of a do Nor we legislation piece our exclude from ticular significance pattern within the total consideration *4 program whole the of Indeed, use. land land of what determines that should done with utilization parcels. individual the regulation zoning assumed the form of Eves, ad
In parcels; rezoning individual hence, we deter- of hoc comprehen- in accordance with a it was that mined impact other plan. hand, on the the of Here, the sive prohibiting zoning amendatory ordinance the erection upon equally properties all falls the apartments community. the area wide a within in important, Moré' the constituted an ordinance part tegral general prograin munici of a land for. the pality wherein the continued existence of this section predominately single homes, or double as an area along already existing apartments, con was with the rezoning templated. amendatory act effected the borough frame of the within the a substantial area by the council of of an overall evaluation work ';bésí practical considering total of the land use municipality. cannot.say zon We that the needs of the question legislative re ing legislation in violated comprehen 'qhlfement “in it be with a accordance appendage plan” merely it was an because sive purpose and ef ordinance and has will, question güaranteeing con in fect of that the area neighborhood single predominately tinúe n houses. twin the ordinance is do not determine here that We change was décide wise—we compliance requirement accomplished in in with the (53 legislation Borough enabling PS of The Code prevented using Appellant §48303). not been from has apartment propérty be for an house thé might be done to harm that the owners cause occupants-of lots within the district. he other Rather, using prevented from so his because' was prohibiting- designating Zoning this use and ordinance family single double homes was rea aréa :'thé community that section of allocation sonable borough’s program framework total within hence, accordance and, with a utilization, land plan. coiáprehensivé affirmed.
Order Opinion Concurring Mr. Chief Justice Bell: :résült:-reached majority, but concur *5 strongly reasoning differ and with much of the expressed. therein standards questions very appeal important This raises some throughout Legislative vexing many which bodies are Pennsylvania, many property These owners. as well as any questions (a) whether include the zoning set and for are clear, certain definite standards particular zoning in this forth Act and (b) planning a commission is Ordinance; and whether required; required, (c) whether if a commission is comprehensive plan required, if whether so, a is adopt legislative accept may body modi- or must or reject plan; fy ignore (d) there whether such comprehensive plan is distinction and a between public pub- plan; (e) hearings and master whether approval required, if what extent so, lic binding; (f) approval disapproval their prescribes zoning whether ordinance which prescribe township, borough or it for the must entire (g) gen- city, whether a broad be; as the case comprehensive plan. ordinance can itself be the eral questions perplexing general These are some ap- by any decision of have been unanswered an They pellate in this Commonwealth. do not in- Court questions particular frequent- which are more clude ly the act ordinance whether valid such as raised, and/or whether it is valid constitutional, and/or applied appellant’s particular to the as constitutional in each whether individual case the property, and/or complied provisions has with the property owner a exception or is entitled to an ordinance, valid variance. or a law which field of the contains as is no much
There imperative zoning. It is that the Courts confusion attempt Legislative bodies cer- substitute clarity uncertainty, for tainty confusion, for and the goal planned Constitution of a .provisions n
“Land Utopia”. con- sea of constant However, this flict and confu- fluctuating but continually expanding sion there certain established are, believe, prin- well ciples ;'it is therefore wise at the outset to restate them. n In Cali v. 824 406 Pa. 177 A. 2d Philadelphia, 290, (1962), Court from Commonwealth ex rel. quoting Trusoott v. 2d 380 Pa. 111 A. Philadelphia, 367, 136, “ said : (pages 295-296) ‘We well-settled start principle municipalities sovereigns; they are not have no or original power fundamental of legislation; they have the to enact those ordinances which authorized are the Constitution or an act of enabling legislature: Allentown School [the] (cid:127)District Mercantile A. Tax 370 Pa. 87 Case, 171, 161, 2d 480; v. New A. 2d Genkinger Castle, 368 Pa. 84 547, 1 Dillon on Ed. 303;- Municipal 5th Corporations, 449.’”
In A. 2d Colligan 401 Pa. 162 Zoning Case, 125, 652 from Medinger (1960), Court, quoting Appeal, Pa. 377 2d Pa. 104 A. and Lord 368 217, 118, Appeal, 81 A. 2d own- 121, said : . an 533, (page 131) er of cer- is still entitled in Pennsylvania tain unalienable constitutional liberty These include a home property. right to use his own in any provided he he does not violate way desires, (1) n provision of the Federal or or Constitutions; State or (2) nuisance; (3) create a violate any covenant, or or zon- easement; (4) restriction violate or any laws police regulations or are constitutional. It ing well settled that acts and (cid:127)is now" ordinances valid and passed under them are constitutional as struc- or whenever general legislation they tural are necessary of public preservation for the morals health, safety, unjustly general welfare, discriminatory, unreasonable, confiscatory ap- their arbitrary* specific particular, piece to a of property: plication 287 Pa. 134 A. 259, Taylor v. Appeal, 409; White’s
105 Pa. Moore, 303 469, 154 A. 799; Harrisburg, Kline v. 362 Pa. 68 A. 2d 330 438, 451, 182; Jennings’ Appeal, Pa. 198 A. 154, 137 621; Appeal, Ward’s Pa. 458, 289 A. 630; 259, v. Bryan 212 A. City Chester, Pa. 61 894; Taylor Haverford 149 Township, 402, A. 639; Perrin’s 305; A. Appeal, 305 42, 48, Village Euclid v. Ambler S. Realty 365, U. Co., S. Ct. 114; Coal Co. v. Penna. 260 U.S. Mahon, 158; 43 S. Ct. St. Louis Poster Co. v. St. Advertising 249 U. S. Rich 274; 39 S. Ct. Eubank v. Louis, ’ ” 226 U. S. S. Ct. 76.” mond, Zoning constitutional ordinances presumptively *7 “ and ordi- imposed but valid, ‘Restrictions by zoning nances of law are, derogation the common however, privileges and of (at times) and liberties, guaranteed the Constitution of States the United therefore and Constitution of and Pennsylvania Board of strictly must be construed: Lukens v. Zoning Harris- A. 2d Kline 765; Adjustment, 608, 182:’” Medinger 68 A. 2d 438, Ap- burg, 451, supra, page 377 Pa., peal, to in mind turn general principles these we
With Bor inter Code which to Borough applies, The alia, 1621, The L. Act of P. July 10, of Media. ough L. Code of P. Borough May 4, 1927, §93, amended en XXXIII.* Article is Article This adding pertinent of Section 3301 this Article “Zoning”. titled of purpose “For promoting health, ly provides: bor councils of morals or general safety, welfare** to regulate and restrict empowered hereby oughs and and buildings number of size stories, height, . . . and yards, the size courts other structures, other and buildings, location use of . . . and the spaces open land for residence trade, industry, structures, * seq. et §48301 53 PS ** throughout, ours. Italics purposes, maintain
other also establish upon any building building and set back lines lines public all streets.” part §3301 which Councils
That authorizes height, regulate Boroughs number restrict to buildings other structures, sizes of stories, spaces required, reason- open and set-back lines general ably necessary welfare the health and community constitu- therefore valid and is tional. important appellant’s is that the contentions
ofOne September in- amendatory 1958 was ordinance of adopt Borough did not Council because valid, comprehensive plan . . “in accordance with Borough required by §3303 of The XXXIII, Article 3303—Pur- That as follows: “Section Section Code. regulations pose shall be made accord- in view—Such designed comprehensive plan, to lessen ance awith safety from fire congestion to secure streets, promote dangers, panic to health and other adequate provide light and air, welfare, overcrowding con- prevent avoid undue land, adequate pro- population, to facilitate the centration sewerage, transportation, water, schools, vision *8 regulations requirements. public Such parks, other among reasonable consideration, made be shall things, character of district and its to the other particular suitability for and with a peculiar uses, conserving buildings and encour- the value view throughout appropriate use of land aging most borough.” “Purpose is denominated which in section,
This regulations which shall he in provides made view”, comprehensive plan. hodge- It is a awith accordance attempts things “all to be to all men”; it. podge which merely or definite it standard; no clear lays down overlapping inconsistencies and con- compendium produce only ambiguity I flicts, and confusion. nearly parenthetically, note, this section refers importance everything except basic, or value to the property guaranteed fundamental which are by Pennsylvania the Constitution of Constitu and the tion of the United States. would hold this section meaningless surplusage, vague, con or so indefinite, flicting confusing as to be unconstitu invalid and Joseph sty tional: Bur 495; Inc. v. 343 U. S. n, Wilson, Hallmark Inc. v. 384 Pa. Productions, Carroll, 348, 356, Murray Philadelphia, 121 A. 2d 364 Pa. 584; 157, 2d 71 A. Willcox v. Penn Mutual Ins. 280; Life A. 2d Miller 521; 357 Pa. v. Belmont Co., 581, 595, Packing For Rubber Co., & A. irrespective comprehensive this of whether a reason, plan adopted (as had ever been to which formulated silent), Borough record is Council’s failure to adopt regulations in accordance would be therewith, immaterial and would invalidate the ordinance appellant. aid Borough in
I also note that The con- Code, §3302, procedures Borough powers, and directions for tains in connection with Councils in their which, grants power. general provisions, valid principal important very brings to the us That appellant validly deprived has been of whether property rights any which are ordained of its guaranteed the Constitution this Commonwealth namely, of the United Constitution States, property right in and use one’s manner to own injure provided does not another’s desired, public safety, injuriously health, affect morals, general welfare. Pennsylvania, everyone Nearly and we assume planning* Country, nearly believes entire our * not, believe, something Planning zealous advocates as some *9 proponents talk and áct as if it' something' were These new. as' like have bor- everyone would a city, township, and a which combines the ough, community therein, prosperous attractive and the with the well ordered, For uncovered permit the utilitarian. the law to be on indus- left or a garbage lawn, noisy, smoky trial or a to be erected in a completely plant, pigsty other residential suburban or to permit any community, would health or seriously endanger safety, acts ma- shock seems me that everyone. However, Opinion in in Opinion part this like jority case, Board Eves Zoning Adjustment, in- 2d has reducing A. instead of eliminating, in field of zon- the confusion which exists creased too main is because The reason ing. this, believe, zon- Courts and too bodies and many many legislative forgotten commissions boards have ing ignored in spite many which, present-day the Constitution, lead- proclaimed often been world has critics, great document as the most wonderful ever written by ers in the The Federal Constitu- years. mankind last 1900 similarly 14th) in the 5th Amendment (and tion deprived shall... person life, “No liber- provides: process of law.” Consti- due property without ty provides Article I, Pennsylvania tution of §1—“All and indefeasible have inherent rights, . . . certain men and defending life enjoying are those among which they space and, as Plan- as wise Solomon. science novel Hannibal, Great, Genghis ning Alexander the as the hills. is as old Washington, Wellington, Grant, Eisenhower, Napoleon. Khan, Lee. history great nearly planned Generals of cam- all their plan paigns men their Business advance inventories and battles. every business; great plans operation; doctor a serious future lawyer argument important every plans cases; the trial or able day. plan Nevertheless, planning meals their their housewives many in too a fetish which instances is become carried to ex- has tremes, given no consideration with little to the constitution- possible ally owners, or to lack of .ordained temporary planners. vision of judgment and *10 and liberty, protecting and acquiring, possessing . .. .” property Article “. nor shall provides: . . I, §10 private property applied public taken or with- use, out and authority just compensation law without first being made or secured.” and The ownership pos- session of private is of property little value unless the owner can use hence it, and possession acquiring, protection of private property includes necessarily lawful use if public deprive authority wishes to an owner of his lawful use it must just compensa- pay tion therefor. See addition to the Constitutional pro- visions supra, the cases cited herein. principle private right unalienable old
property is centuries and underlies several articles of Magna Carta. The of private to- right property, gether with the right freedom of freedom of speech, religion, freedom of the press are the hallmarks of western civilization. These consti- Basic Freedoms tute the fundamental differences which distinguish— and create the unpassable great gulf which divides— western civilization and free from Communists peoples, from other peoples despotic who are ruled by a dictator. The historical origin our development our Country, Birthright Heritage Freedom and (so-called) inalienable privi- fundamental rights, and immunities guaranteed our leges Constitution are too often forgotten The natural today. or zealous many desire of planners, commissioners, zoning to protect boards and bodies legislative improve their so as develop community to make it peaceful and beautiful prosperous, economically utilitarian, property values as to conserve well as the “tone” is—when community reasonably of that applied high-— But should they commendable. remember that ly prop- have certain basic owners fundamental erty inalienable which were obtained property only after cen- against hardship struggle turies Gov- Sovereign objectives worthy highly de eminent, neither nor goals validly destroy sirable abolish curtail, Constitutionally guaranteed rights. property these As Appeal, (cid:127)this Court in Lord said 368 Pa. 81 A. 2d page quoting Appeal, from White’s at “ 130: . all is held in subordination right regulation by government of its reasonable preserve clearly necessary safety or the health, people There [or welfare] morals .... *11 quite power matter that is to thus one certain, is regulate unnecessary arbitrary, to an does not extend private intermeddling owner with the or unreasonable ship though property, such acts for of even be labeled safety general preservation of welfare. health, regulations physically not take such ... While deprive regulate they property, do so to use as right com therein without of a substantial the owner danger forgetting pensation. are in of “We that a improve public public strong to desire condition achieving enough the desire a shorter to warrant way paying of for the constitutional than Cut Pennsylvania Coal Co. v. S. change?’: Mahon, 260 U. their . “To secure was one . . 416. 393, society. right men entered for great ends property, and to deal it and acquire with and own long so chooses as the use harms the owner as use right. origin It does not owe its nobody, natural ais part before them. It It existed is a constitutions. liberty, expression of natural his citizen’s —an by every inviolate guaranteed American freedom,-— Spann v. 111 rights’?: Tex. Dallas, 350, 235 S.W. bill or ordinance with a statute interferes Where .... 513 property without rational rela control use safety, morals health, public welfare, tion secured palpable invasion funda is a cannot be enactment sustained as law, mental police ....’” See to the exercise legitimate'1
Ill same effect v. Griggs 369 S. Allegheny County, U. 84 (1962); see also same case 402 Pa. page United 420; States v. 328 U. S. Causby, 256; Miller Beaver Falls, 368 Pa. 82 A. 2d 189,
From the leading cases Euclid v. Village Am bler 272 U. S. Realty Co., White’s 365, 287 Appeal, Lord Pa., supra, through 368 Appeal, Pa., supra; — Club Rolling Green 374 Pa. Case, 97 A. 2d 450, Golf 523; Medinger Appeal, supra; Pa., Volpe Appeal, 384 Pa. A. 2d 374, 97; Schmalz v. Buckingham Township Zoning 389 Pa. Board, A. 2d 295, 233; Archbishop O’Hara’s 389 Pa. 131 A. 2d Appeal, 587; Colligan Zoning Case, A. 2d 652 standards and (1960) tests for valid and consti —the tutional were firmly established in the law and were adhered to in Pennsylvania a myriad deci The standards as therein sions. interpreted could be expressed thus a nutshell —an Act or a Ordi nance was valid constitutional provided it was reasonably necessary clearly the health or safety in connection and also morals, the general wel *12 community. of These cases and fare the standards interpreted and thus down were laid never expressly but were they overruled, effectually changed by a new of and a concept zoning, realistically new standard for in Bilbar Construction Co. v. Easttown Town Adjustment, Board Pa. ship A. 2d 851 companion case Best and (1958), Zoning Board 141 A. 2d 606 Adjustment, (1958). The expressed: thus can be Although change some decisions general to reference no welfare, made almost all required expressed decisions standard must be ordinance clearly or or statute reasonably nec safety, health, public for or essary morals, general wel the word Notwithstanding “or”, fare. Court in all Bilbar Best until (1958) cases devoted near to opinion discussing entire their ly determining whether the Act or in necessary ordinance question was for. the commu health safety particular and/or nity, (township, be), as the case borough city, might with a secondary sentence or two only dealing with question and connected of general Moreover, welfare. Bilbar even in the Court : (page 72) “Although said some our appear ignored ‘gen recent cases have eral welfare’ as in whether a consideration adjudging police in been exercised power constitutionally has given open question it is serious instance, it is one of the elements to be reckoned with important these inquiry.” emphasis such The all of on health cases was, repeat, and/or weight given consideration or only slight safety, “general but connected secondary welfare”. for this were two-fold: words (1) basic reasons ejusdem with health “general generis welfare” were (2) conviction that safety Court’s morals, ordained and guaranteed rights the constitutionally restricted by could be curtailed private property application police pursuance government* pos but impliedly necessarily government which extent of and measures to the Acts only but sessed, for health necessary safety reasonably and/or and/or if then also reasonably necessary even morals, welfare. Court in Best the) said v. Zon the (majority . As : supra 393 Pa., (page 110) Board Adjustment, ing * (or builder) validly, large landowner or small can Con A by stitutionally zone his land restrictive covenant restrict deed, deeds, validly and landowners Constitution in a agreements ally land deeds or written restrict or zone con land, taining- run with the but can covenants Government *13 except not’Constitutionally by taking just paying so do and com they partially pensatiotf' whose lawful use have Griggs destroyed. Allegheny County, 84; -Cf. 369 taken or U. S. n , case, page 402 also same see
113 zoning of legislature permit “The authority from authority, land is is all legislative as derived, Commonwealth —the tlie of the governmental power of the . . . . . . considerations ‘police power.’ Hence constitutionality alone general support welfare concept of the ordinances. The broad scope of the is decision by welfare illustrated general Parker,* in Berman v. Supreme United States Court S. (1954).”** 348 U. and and were either safety
In Bilbar health Best, was welfare de-emphasized obliterated, general but test paramount not dominant and only made Bil In other constitutionality. words, the sole test standard bar not of the changed language and Best a new emphasized but its It substituted meaning. under or safety embodied not health standard which power government of limited police virtue new American doctrine in lieu thereof a but erected derivative police unlimited and its power, absolute unlimit Absolute and known as welfare. general child on pillars*** is one the twin ed police regime totalitarian every every Communism * case. In Berman the Governmental This was (after Authority land it took it eminent domain owned the it) redeveloped paid just compensation for then and beautified Why property. right? shouldn’t landowner own have
** on values— then went to add that “aesthetic” This Court prior Appeal, contrary Pa., decisions this Court —White’s Archbishop Appeal, Medinger supra, supra, Ap Pa., O’Hara’s Pa., supra, peal, cases cited be considered therein — determining factors in wel one It; imagine more variable, fare. is difficult uncertain fluctuat ing many scarcely instances, “aesthetic” value. In than standard agree people on what a dozen is not de aesthetic —it entirely pends personal predi on each individual’s artistic tastes lections, paint views, these like the and even views on modernistic fleeting ings, “a moment’s have duration”. * * * pillar military might. The other
114 power. maintained and dictatorship kept is based, It is a doctrine and a which to our power repugnant of our our traditions Birthright Constitution, Liberty, our American of Life. Way In this harried hurried world of there is too today little time for deep and mature thought reflection, policies adopted with the result that views or often are little or no realization of their likely long-term with consequences. forgotten It is sometimes that ours republic it balances; checks is a government form of with three inde government co-equal an* branches of none pendent co-ordinate yet government, absolute unlimited possess power. powers branch —the Executive, each Legislative, cir limited and clearly indisputably Judicial —are Constitution. To neither repeat, cumscribed nor of private the right property, Government nor speech press, nor freedom of of the free any ordained the Constitution are abso doms which v. Textile Workers U. Mills A., lute: Wortex and a dozen cases cited 2d therein. 851, A. 359, L. v. U. S. Ry. C. & St. Walters, In Nashville speaking said Mr. Justice Court, 405, Brandeis, subject power is to the constitu police “The 415), (p. not be exerted arbitrarily limitation tional approval with [citing unreasonably.”, Pennsylvania U. S. where the Court held Mahon, Coal Co. v. Pennsylvania Act of (May 1921) Kohler * weekly speakers Many daily and writers refer times democracy. government aas This error arose from form our slogan President Woodrow Wilson in devised connection war, democracy.” “Make the world safe for first world misinterpreted slogan (unwittingly) appealing has been This government, repeat, American form of Our since. ever distorted language republi- actuality Constitution, under inis system government way American form life is —our democratic. under coal
which forbade the of anthracite mining streets such a as to a subsidence way cause uncon- an was structure used human habitation, power]. of the police stitutional exercise Jus In Mr. Coal Co. Pennsylvania Mahon, supra, for the (pp. 413, tice said speaking Court, Holmes, *15 admitted : “As to this case is applied the statute 415) of property to destroy previously existing rights police power is whether the contract. The be stretched far. so extent could if to some hardly go
“Government on to not diminished values incident could be property in the for every change without such paying un- enjoyed recognized, law. As some values are long police limitation the implied der an and must to yield have implied limitation must power. But obviously process the contract and due clauses limits, such for consideration in determining One fact gone. of the diminution. When it reaches is extent limits in if not in cases there most all a certain magnitude, compensa- of eminent domain and an exercise must be So the question depends upon the act. tion to sustain .... facts particular that act cannot sustained opinion is our be “It far police so it affects as power, an exercise coal under streets or in cities mining places mine to such coal has been reserved. right where 'For practical pur- Pennsylvania case, in a As said in to coal consists to mine right right poses, . it.’ . . of private Fifth property protection . The
“. . it for public wanted presupposes Amendment it not be taken shall for such provides but use, A similar compensation. assumption is use without upon Fourteenth the decisions Amendment. made & Western Ry. Co., 208 U. Danville S. 598, v. Hairston protection absolute seemingly this is found When ten- qualified police tbe tbe natural power, of human dency nature is to qualification extend the more and more until last private property disap- at pears. But accomplished that cannot be in this way under the Constitution of the United States.”
In Panhandle E. P. L. Co. v. State Com Highway mission, 294 U. S. after quoting Court, approval from Coal Pennsylvania supra, Co. Mahon, said : (page “The 622) police power while State, susceptible definition pre with circumstantial must cision, be exercised within limited ambit and is subordinate constitutional limitations. It springs from the obligation protect State to its citizens provide safety society. order of good Under there is no accom unrestricted authority plish whatever the public may presently desire. It the governmental permits of self protection, reasonable regulation rights and particu *16 preservation lars essential to the of the community from New York & N. injury. E. R. Co. v. Bristol, U.S. 556.”
In Commonwealth v. Zasloff, 338 13 A. 2d through Mr. Court, speaking later Chief Justice, said Justice, (page “But in : 460) Horace Stern, as in all the police these, cases, power is not unre- its stricted; governmental like other exercise, to constitutional powers, limitations and subject ju- dicial otherwise we would have an in- absolute review, stead. a constitutional scheme government.” the doctrine of police
Furthermore, power and gen absolute and eral as unlimited welfare was re utterly completely and demolished jected by the recent deci Court of Supreme sion of the United States Co. & Tube Sheet Youngstown S. Sawyer, U. welfare were general If unlimited, virtually every right every liberty, and right property, every to a frée and due press, as right process, well as all the other fundamental ordained rights and super- Constitution guaranteed by could wel- seded, abrogated extinguished “general fare”.
If power- welfare were all and all genera] inclusive supra, held in Best and in ful, majority Bilbar, it would have been include totally unnecessary to in our guar- ordain Constitutions any provisions process anteeing property rights or due protecting or human rights inter freedom including, alia, press. freedom freedom speech, religion, Executive The Constitution would have just given unre- omnipotent absolute unlimited Congress power stricted derivative welfare. police general gives Federal nor Neither the State Constitution or the Congress any Legislature Executive power absolute and unlimited do anything “gen- either both believe is for the everything all eral which is the reason welfare”, underlying Con- for all executive (usually) actions; laws and them each of them definite, stitution certain gives “in and limited order powers circumscribed prescribed, welfare.” if general repeat, promote omnipotent unlimited and absolute, welfare were meaningless surplusage but have been would certain the Constitutions guarantee to ordain basic fundamental of liberty enumerated, process. due will further analysis demonstrate Thoughtful is limited. This is illustrated police even *17 government’s limit the police which cases a myriad fields involving safety other health or many power property rights or inter (see, alia, human or Pa., 338 Zasloff, v. supra, and cases Commonwealth House K. Market Co., F. Inc. v. therein; Reading, cited A. and cases cited 398, therein; Hertz 165 493, Pa. 310 v. Stations, Inc. Siggins, 359 Pa. 58 A. 25, Drivurself 118 ex rel.
2d Commonwealth therein; cases cited 464, Ray Drug A. 2d v. Woodside Sun Co., 833). Drug Ray the In involved the Sun Co. which case, 10-11) regulation (pages : “The Court said the milk, type applied in well standard to be of case was this case recent stated Mr. Chief Justice Steen the Corporation Beverage Pa. 113 of Cott Horst, (1955), In 110 A. 2d Chief Justice, case the quoting from Gambone v. Commonwealth, ‘ p. By au- A. 2d at 118: “. stated . . a host and State held that Federal it has been thorities, alike, police purports which to be an a law exercise of oppressive, power unduly must not or unreasonable, beyond 'patently the necessities and the case, employs means must have substan- a real and objects sought tial relation to the to be attained. Under public legisla- protecting guise of interests, arbitrarily private ture interfere busi- impose unnecessary up- unusual ness restrictions occupations. par- on lawful whether statutory provision public is so related ticular to the prescribes good in the and so reasonable means it police justify power, the exercise is one for judgment, law-making first in the of the instance, government, but its final branch determination courts.” ’.” example. another Where a defendant Consider who perpetrated vilest and most brutal murder con- has caught red-handed in his ceivable, crime—even though has committed dozen he similar crimes— apply not invoke do doctrine Courts unlimit- police its derivative, ed welfare, safety protect welfare of aid commu- process apply Courts invoke and nity. Instead, due right every other Constitutional which is ordained person justifica- of a protect accused crime. What logically, justly and be, there tion Constitution^ *18 ally, adoption for the of a for double standard —one Constitutionally rights liberty due ordained process, exactly opposite pro- for the standard prop- Constitutionally rights tection of ordained erty. regret Opinion say* majority
I in this that the together Opinions, in case, with the Bilbar and Best expands wide is creases confusion which so spread zoning. sev enables difficult field of It planners appointed eral elected commissioners or or — deprive every home for a short time—-to American guar Constitutionally community owner that of his rights property; anteed for these and it substitutes rights clear Constitutional limitation or —without or ideas and Constitutional standard —their individual (is personal predilections ephemerally of what aes what) they thetic and believe is best borough community, township, of that or welfare building property every I therein. know home, popular zoning presently very that full that is well Constitutionally protection ordained unpopular. very But Constitution is changes and turns each not a weathervane rock Gibraltar it is a which was blows; that wind even hurricane winds. to withstand built principles I reaffirm the laid would summarize, To interpreted Rolling Meding- in Lord, Green, down Archbishop Oolligan, Yolpe, O’Hara, Schmalz, er, approval (a) I therein. would hold cited with cases factor in the considera- values aesthetic constitutionality validity of a tion (b) “general welfare” ordinance, Act to validate or constitutionalize not sufficient alone regulation. ordinance To this ex- Act or disapprove supra. Bilbar and Best, I would tent intending any * disrespect. say without this IAnd would also reaffirm the principles following general standards: A zon- councilmanic body exercise *19 powers Legislature, which are
ing authorized the by powers and the Legislature grant zoning those only Certain permitted. are 2. constitutionally pre- definite and valid standards must be zoning ordi- in the Act Legislative zoning scribed the the within nances. 3. classifications are Zoning largely pertinent legisla- discretion and judgment sound the subject and limita- or zoning body, provisions tive morals Constitution. Health tions and safety nature in connection with general also, welfare, are neighborhood and character and the district, zon- by must be considered important factors which Legislature legisla- authorities. 1. Unless the or the ing body otherwise com- clearly provides, planning tive not a town- often but is necessary is wise mission reject or or city adopt modify or ship borough may prepared plan or master which is comprehensive commission. A comprehensive plan planning 5. by an but separate and distinct from ordinance ordinarily for an ordinance in and of itself to be a possible it is legis- unless comprehensive plan, Legislature A provides. otherwise 6. or- zoning body clearly lative modi- amended, may supplemented, changed, dinance legis- sound discretion of the repealed fied —in in accordance with and other statutory body lative and Constitutional requirements legal pertinent —as require. changing circumstances conditions public approval often hearings wise, are 7. Public required when Legisla- mandatory are but and if body; Legislative hearings or ture or disapproval expressed thereat approval held, legislative upon body, Legis- unless the binding legislative body clearly pro- or the otherwise lature is unconstitutional. Spot vides. standards and the principles
The aforesaid confusion up clear some would above enunciated home back us bring and would field of Heritage our American Constitution to the Freedom. Mr. Justice O’Bbien Musmanno
Me. Justice opinion. concurring in this join Township District. School Baldwin
Breslow v.