*1 Opinion June 1955: Pee Curiam, above in each of the Decree of Court below Pres- Adjudication affirmed on entitled cases is Raymond parties each Judge ident MacNeille; costs. pay respective Appeal. Argued April 22, 1955. Before C. J., Stern, and Ar- Stearns, Jones, Bell, Chidsey, Musmanno JJ. nold, *2 M. Lutz, H. him Howard
Edward with Bryant, Jr., Warner Joseph and Lutz, Eronefield, T. Jr. Labrum, Intervenor. & for Bryant, appellant, E. for Raymond appellee. Larson, Opinion June Chief Justice Hoeace Steen, Me. 27, 1955:
The decision of the correct hold- court below was a but plaintiff is not entitled to ing variance, for reason other than on which the decision was predicated.
Charles W. recent prior death, to his Michener, the owner of four of front- lots land a combined having of 215 feet Line age on north side of Road a depth of 169 feet on the east Bewley side of Road, in Haverford Delaware A County. dwell- Township, house on occupied by and his for family more than 30 but he moved years, away 1952, having entered into an to sell agreement to E. C. The Bierkamp. agreement was conditioned on the purchaser able to obtain the being right to build a on zoning law store one of the lots.
The premises are in a district classified as “C” Resi- dential under the Haverford Township Ordi- nance of July as whien does amended, business use of in such district. permit any as own- Michener, owner, equitable Bierkamp, for a er, applied Township Building Inspector to erect feet permit brick store one-story building, on one of the of con- purpose feet, lots, therein a retail for the of ducting establishment sale and other In- The linoleum, tile, flooring. Building refused the Board spector permit. on refused a on the Adjustment, appeal, that the ground had not shown the existence applicants hardship by reason of zoning regulations that was different from that of the other property own- ers in the district.
Michener and Bierkamp from the appealed order *3 the Board to the Court of Common Pleas. While were there proceedings Michener died and his pending Hazel S. who succeeded to the owner- widow, Michener, ship tenant the entire- surviving by was allowed to ties, intervene. The court at first de- cided Board should have a variance granted but in its final subsequently, affirmed the decree, Board’s order and dismissed the This was be- appeal. cause its attention had been called to the fact each of the three deeds which Michener acquired title to the lots contained a covenant he whereby agreed his himself, heirs, executors, administrators and with the assigns, and grantor, heirs assigns, to erect never upon any part certain enu- ground merated kinds of them a buildings, among and store, not to convert any thereon building into a store. The court held that therefore the hardship complained applicants did out of grow ordi- zoning nance but out of these in restrictions the deeds of title, and since the court could not remove the restrictions, permitting erection of a store should
a variance granted. not be assigned decision reason for the court’s thus one. are enacted not a valid laws safety public police power in the interest of health, they build- no concern whatever with have welfare;
ing in or use restrictions contained instruments merely by private con- are created title and which applicants If in these were to succeed obtain- tracts. relieving them from the restrictions of they subject zoning ordinance would still be in restrictions contained their but the enforce- deeds, sought only pro- ment of restrictions could be those equity repre- ceedings grantors, in which the assigns, moving par- heirs and would be the sentatives, “Zoning,” (ch. ties. As is said Bassett on well 184-187): pp. place “Contracts have no in a plan. Zoning, accomplished if at must accom- all, plished police power. regu- under the It is a form of community lation for welfare. Contracts between municipality prop- owners or between a and a erty owner not enter should into the enforcement of regulations. municipal . . . The authorities en- forcing zoning regulations nothing have whatever private Zoning regulations to do with restrictions. private restrictions do not affect each other. . . . private It is obvious that the and the restric- *4 police tions are power, unrelated. One based on municipality the other a contract. on The enforces the by refusing building permit ousting former a or a non- conforming neighbor having privity use. A of title by injunction enforces the latter an or action for dam- ages. trying ordinarily . . . in Courts case will private trying exclude evidence of and in restrictions, private restriction case will exclude evidence of the zoning. grounds immateriality.” This is done on the of
405 that there restrictions building The fact were in the irrelevant before wholly appeal the deeds was on the court whether variance should question been Board under ordi granted by have alone parties possessed nance. who private to enforce those were not before the restrictions right they court. It would never seek such might or that for some reason had they waived enforcement, or or lost so to because of right do, that, neigh because the restriction borhood had ceased changes to be of restriction advantage covenantees,* been would no have enforceable. longer Accordingly it been held that of uniformly consideration upon restrictions building placed property by pri no place vate contract has proceedings laws for a or a permit variance: Pumo building 4 v. and Council Fort N.J. Misc. R. Mayor Lee, 663, of 134 A. 5 R. v. N.J. Misc. 135 A. 122; Jones, Green 188, Maplewood v. 802; 102 N.J. Eq. Margolis, 141 A. 144 467, 104 N.J. A. 564; Eq. 207, 715; Gulf Co. v. 10 S.W. 151 Refining City 2d Dallas, (Tex. of Civ. App.); Oklahoma v. 191 Okla. City Harris, P. 2d O’Rourke v. 63 Cal. 988; Teeters, App. 2d, 146 P. 983. 2d See also v. Board Schleifer 374 Pa. 97 A. 782. Adjustment, 2d
This us to a brings consideration of the.question whether the this case was refused properly by the Board because failure applicants to establish the existence of any unnecessary hardship. such attempted prove hardship testimony Line Boad had been wid- ened since he originally moved to the property and had * Hamilton, 327, 337, 663, 666; Landell v. 175 Pa. Hunter A. Wood, 150, 152, 781, 782; Henry Eves, v. 277 Pa. A. v. 306 Pa. 250, 259, 260, 857, 859, 860; Anderson, 159 A. Katzman v. 359 Pa. 280, 285, 286, 85, 87, 59 A. 2d 88. *5 that there were artery high-
become a main travel; . which inter- on West Chester'Pike speed trolley lines Line Road some 400 feet to sects with Township thousands of vehicles pass west of his that property; and some highways daily the intersection of these two the entrance to occasionally property them block that intersection; to across the proceed while waiting the same there is at the intersection on station gas and another the opposite side as one at the effect that corner. There was also testimony across Line which Haver- separates Township Road, ford from there are Upper Darby Township, general some business establishments alleged A that commercial trend. real estate testified agent he had for over months to sell attempted seven not re- Miehener’s as a residence but had that ceived offers. Michener’s chief any complaint across Line Road was a diner which 24 hours a it catered the trade of open day, truckers who loud and boisterous talk indulged to the added clatter of dishes and the music which, juke from a box, caused such noise that disagreeable because of and the other this conditions finally, ferred he was to move to another to, obliged location.
It should be at once
evident
none of the com-
asserted
plaints thus
made out a case for the proper
of a
the Board of
Adjustment.
operation of the trolley
the increase in
cars,
vehicular
fact that
traffic,
perhaps
district was no longer
exclusively residential,
these conditions did not
—all
constitute
hardship
especially
affected the
Michener
on the
property;
contrary
they applied
entire area. The law is well established that a vari-
granted
ance
may
only
subjected
where
to a
hardship unique
to itself as
peculiar
distin-
from one
from the
guished
of the zon-
arising
impact
If
district.
the entire
on
regulations
*6
residence
attractive
for a
no longer
affected
changes
the same
occupied it,
he first
as when
in the dis-
the persons
and all of
of
neighbors
all
trict alike.
In Clark v. of said that “be- it was N.E. 904, 905, 92 2d 91, 903, there must be variance, the board vote a may fore the the of plight ‘that things, other among shown, the and not to due circumstances unique is to owner may which neighborhood the general conditions the ordinance it- of flect the unreasonableness and not a an administrative being board, self.’ or amend the legis- not review legislative body, may as to or amend ordi- enacted rules latively uses, or determine of ... variance, nance guise arbitrary the ordinance itself- is unreasonable. If ... there ... is common to be a hardship, whole is to seek a remedy change neighborhood, . . than a ordinance itself. . less Nothing of showing peculiar appli- hardship special cant’s the board to empower will allow vari- ance. . . . The substance of all these holdings no destroy the scheme body may general administrative of a special exemption law from granting hardships common to all.”
In Beck v. Board East Adjustment City of of of 15 N.J. 83 A. it Super. 2d Orange, 554, 563, 720, 725, said that “the circumstances the land affecting in question must be as distinguished from con unique ditions that affect the whole . . . .” neighborhood,
In Brackett v. Board Appeal Depart- Building of of ment City Mass. 39 N.E. 2d Boston, 52, 58, of of it “If was said: there is a general hardship, this situation be remedied revision of the may gen- by granting special regulation, privi-
eral and not lege single of a variation to owners.” Borough
In v. Lumund Board of 4 N.J. 2dA. it Rutherford, 577, 582, 583, 545, 548, finding ‘unnecessary hardship’ that “a was said to ‘special due to individual is a owner, conditions’ qua adjust- non sine exercise of the board of authority ment’s a variance from the terms of difficulty if and that is common to ordinance, neighborhood application other lands in the so that the general particular, of the ordinance is rather than remedy legislative body lies with the local or in the judicial process validity to attack the of the ordinance *7 philosophy generally itself. That inis accord with the accepted . . . .” view, grant
If a Board were to be allowed to vari- properties changes ances to individual because in the might perhaps complete district which call for a by piece-meal it process, classification, such a would, virtually enacting zoning legislation be instead of merely performing administering its function of the prescribed by governing body law of the mu- nicipality, in this case the Commissioners. As a opin- matter of the court fact, its below, final apply that said “to ion, this law to the instant case suppose by would that the tract covered the restriction against changed stores has in its character and that the restriction has not been enforced. Such is not the testimony, from case; we find no evidence which wholly would indicate that this tract is not residential, exception gas with the of station at the comer of County only Line Road West and Chester Pike. The change in character is outside of the restricted tract.” applicants justified But if even were in their con- neighborhood changed tention that the had somewhat from residential to that fact commercial, would not, for the reason stated, justify allowance of a vari- ance Board of but at only, best, upon call the Township Commissioners to re-zone the district.
The only complaint made might Michener said to apply peculiarly his own —al though even that is noise disturbing doubtful —was the from the diner Line diagonally across Road undoubtedly annoyance certainly but a basis of a variance from the grant provisions it if amounted to a nuisance the rem law; was to edy have it restrained proper equity proceed ings. Although moved from the Bier house kamp stated it was his if he took over the intention, there property, live with his indeed family, ap pellant meanwhile leased the to a tenant now who resides so the there, house is far obviously from uninhabitable. being it must be borne Moreover, in mind Dunlap stated 370 Pa. that, Appeal, 87 A. 2d “It 301: the rule has never been ordinance must owner to permit each make maximum use of if it even property,” might become more difficult for an sell a owner to of neighborhood because that would not fur changes, ground for nish of a variance: Pincus v. *8 378 Pa. 101 A. 2d 916. Power, 179, 175, 914, The Board of refused vari properly in this ance since it not and, certainly guilty case, manifest any and abuse of its flagrant discretion, Ap could be Jennings’ action reversed: properly Ap 330 Pa. 198 A. Anderle peal, 622; 154, 157, 621, 350 Pa. A. Berman v. 830; 39 2d peal, 589, 591, 829, 200; Pa. 50 A. 2d Triolo v. Exley, 199, 415, 417, 358 Pa. 57 A. 2d 558, 880; Reininger Exley, 555, 878, 225, 362 Pa. 66 A. 2d Roll- Zoning Case, 116, 117, 226; A. 2d 374 Pa. Club Case, Green Golf 527. appellant. the cost of at Decree affirmed Dissenting Opinion Paet in Me. Justice Bell, Concussing Paet : in of Presi- Opinion case on the I affirm this would Heney Sweney. Judge dent G. “If ap- these correctly states,
The majority opinion re- in a variance obtaining succeed were to plicants ordi- of the them from the restrictions lieving to the restrictions subject still nance would they of those but the enforcement in their deeds, contained in in only proceedings could be sought restrictions representatives, the grantors, equity parties.” the moving heirs and would be assigns, this: A opinion majority The net result of Pleas can grant in the of Common Judge Court sitting in defiance and vio owner a variance to a other on his lot or restriction lation building day One later the land. covenant with running in the in the chair and same same same sitting Judge, injunction compelled courtroom will be the dominant tenement the owner of complaint by sur owner from ex doing restrain the servient one before.* day he authorized him to do actly what in such eventuality owner feelings can be easily imagined!
* frequently Moreover, damage will inevitable to someone majority opinion the dominant owner sult from tbe in cases where granted until a month has not learn that variance has been does purchaser elapsed the meantime the servient owner money spent on the faith of the a considerable amount Court’s decision.
I fundamentally am opposed any decision, is to or even though effect of which impair diminish, reputa entirely high unintentionally, prestige tion For these I of our Courts. reasons dissent from I and would hold that majority a part opinion, unless it was aban building restriction, waived, released barred the of a doned, lost, in violation thereof.** for the Chief Justice
However, agree with I Stern, reasons he so set that no unnec- convincingly forth, as that term is essary known hardship, law, proved by plaintiffs consequently this an additional why application reason a variance refused. properly
** principle violate, majority imply, any This would not as the Pennsylvania, per- rule or decision technical or otherwise. The seeking merely bring proceed- son a variance would have to first equity judicially to have the restriction declared to be no longer subsisting; produce valid and or he could in the Court of proceeding Common Pleas in the “variance” release the restric- tion.
Stanger Epler, Appellant. v.