National Land & Investment Co. v. Easttown Township Board of Adjustment

completed ports. investigation referred This was Department Legal for advice. Revenue’s Unit Only could contends set- Commonwealth, therafter, argument again, an tlement made. We find here, procedure indulged based an internal reject “pairing” it abso- with we Commonwealth. As lutely justification delay. aas The Commonwealth may investigate pleases, within it settle but it must period. statutory further it has a As stated above, investigation period year and an resettlement; two may easily period. Parenthetical- be made within such investigation request ly, here we also note made months date for set- six deadline was after late re- tlement. were a relevant such Even fact, justify quest failure to- could not the Commonwealth’s expired already an deadline. meet nothing find the de- all this which excuses We principles initially applying general lay here. only conclude that the Commonwealth’s we can stated, prop- justified making no settlement was lateness and the invalid; the settlement was er reason. Hence, accepted report The correct must be as filed. tax appel- Since $56,345.37. therefore, amount tax, paid credit of it is entitled to a $89,571.55, has lant «$33,226.18.

Judgment and record remanded to the reversed to enter order consonant directions below with court opinion. Company v. Land Investment National Board Easttown

Appellant. Argued April Mus- 1965. Before C. J., Bell, manno, Roberts, O’Brien Jones, Cohen, Eagen, JJ.

reargument January refused 1966. Rogers Rogers, P. & Windle, Theodore O. Susan appellant. for O’Neill, appellants. E. Kohn,

Harold intervenors, Bunting, him Holbrook M. Jr., J. B. H. Carter, Hope, Pepper, X. Hamilton Scheetz, Francis & appellees. November 9, 1965:

Opinion Mr. Roberts, Justice appeals1 taken from an order of the Court These County2 Pleas of Chester which held un- of Common 1 pursuant Appeals nature of certiorari were in the allowed Rule 68%. Co., (1964). 2 & Inv. 4 Appeal Land 13 Chest. Nat’l of Township provision constitutional a of the Easttown required minimum area ordinance which per building four dis- acres lot certain residential township. significant reaching tricts Before zoning question presented in several this case, however, procedural township3 raised must first issues properly in order to if considered determine the issue before us. Questions

I. Procedural history chronological A recitation of the relevant appeals the tract involved in these will best reveal appel- procedural posture controversy. this Dorothy approximately 130 M. took title to lee, Ennis, Township land in as “Sweet- acres of Easttown known selling En- briar”.4 After 45 acres Miss tract, agreement nis Nation- executed 1961 with sale Company (“National”) for the al Land and Investment agree- remaining 85 acres of “Sweetbriar”. Under this purchase by contingent National ment, was development purposes suitability of the land for acceptance by Township, zon- its under Easttown plan ing regulations, would be of a subdivision prepared for the tract. purchase agreement,

At the time of the majority for as well as the vast “Sweetbriar”, township, required minimum a one acre area plans building lots lot.5 for one acre each Subdivision 3 Appeals common taken from decision tlie court of were Kohn, pleas Edith inter and Harold and Easttown occasionally convenience, appellants will be referred For venors. township”. “the to as for the real owner of titleholder “Sweet is the Ennis Miss proceeding. party not a who is briar” n constitutionality upheld of the Easttown Tow This Court requirement in Bilbar Constr. Co. v. East ship minimum one Twp. A. 2d 851 Bd. town

509 on in late township were submitted the “Sweetbriar” that 19616 but for the reason pursued likely were ordinance zoning an amendment to the early minimum imposed upon requirement the land a area of four acres. application,

Instead of its subdivision perfecting build National filed for a township request with the a on house ing permit dwelling construct a single a request! one acre tract. This lot of the “Sweetbriar” officer township was refused zoning insufficient under reason that the land area was plan four because no requirement part, to be but a a of which this house was subdivision, April dated approved. had been his letter refusal counsel officer advised National’s for a vari case “appeal that National could . . . [its] days five adjustment. Within ance” the board replied National’s attorney after receiving refusal, ad board of appeal to the that National taking was Ordi from terms of the “for a variance justment for June 15, A scheduled hearing nance.” was adjustment because the board postponed but was meeting. for the quorum unable to muster was un- for six months abeyance The matter remained Na- counsel for time new til October at which 30,1962, and submitted appeal on the hearing tional for a asked chal- for the first appeal” time, which, a “statement minimum four acre constitutionality lenged a vari- seeking pretext any and abandoned ance. $6,000 preparing tract expended approximately National presented actually prepared and both Plans were

for subdivision. purchase planned one company another National building in subdivi actual do the from National lots acre' sion. applications were dispute the subdivision that is no There nor of dedication they neither an offer contained deficient performance bond. on December

At hearing the board adjustment made a motion to was appeal quash adjust- on the board of based ground of denial from the appeal ment could not entertain the not appeal the was permit the because building (1) sub- no taken a time”, (2) within “reasonable approved. been had plan division “Sweetbriar” motion to The rd of adjustment boa the granted been plan no subdivision had quash ground on the that attack of its that an approved and because conviction not of a ordinance did zoning on the constitutionality be adjustment of but, rather, the board belong before judi other pleas qualified a of common “or fore court ciary.” from the of to the appealed ruling

National Oourt . of the Common Pleas which reversed County Chester the case so that testi- board’s decision and remanded Ap- on the issues could be taken.8 substantive mony that us to and reverse pellants procedural ask review it for us to determination, thereby making unnecessary presented of zoning question reach the merits the the case. that

Appellants appeal first the urge the board from action of adjustment of the the officer was taken within a “reasonable time”9 therefore 8Appeal (No. 1), (1963). Nat’l Land & Inv. Co. 11 Chest. 436 of upheld reargument, reversal on 11 Chest. 439 Township provides appeal that Class Code “such The Second by [by person aggrieved ordinance or taken actions by pursuant officer] shall be taken the ordinance provided of as the rules board....” time within reasonable 103, (d), July 10, 1933, May 1, added §2007 P. L. Act of ofAct recently August 1481, §47, 1947, amended most Act of P. L. §1, 1964). (d) (Supp. §67007 No. 53 P.S. L. P. Adjustment de Board made nó rules Easttown question time” must be fining so timeliness “reasonable vague simply standard of the basis reasonable on decided enabling act. forth ness set should have been National noti- dismissed. Although fied the board within a adjustment appeal its after week it building permit simply was refused, advised the board that Not would seek a variance. until six months later the board informed that was appeal would attack the ordi- constitutionality nance in For general. township argues this reason, the appeal was not taken until after six months the denial of the that such building permit and delay constituted an unreasonable amount of time. We can not accept contention in appellants’ regard.

Our cases permit petitions one who for a variance to a adjustment board of board challenge before the appeal thereafter on to the court of common pleas constitutionality the zoning ordinance. Eller v. Bd. 414 Pa. 198 A. 2d (1964); see Anstine v. Bd. 411 Zoning Pa. Adjustment, 33, of 190 A. (1963) ; 2d 712 Di Santo v. Bd. Ad Zoning of 410 Pa. 189 A. 2d justment, 135 331, (1963); Schmalz v. Bd. Buckingham Twp. Zoning 389 Adjustment, of Pa. 2d 132 A. 233 (1957). This 295, being there so, - justification for denying appellees the to right is.no of emphasis prior shift the attack to the be hearing fore of adjustment. the board

In application an for a essence, implies variance to the of the challenge legality zoning ordinance it as piece to of applies specific property. See Forest Hills 409 Pa. 187 A. Borough Appeal, 392, 2d (1963); 166 Pa. Zoning Case, 401 Colligan 162 125, A. 2d 652 v. Bd. Zoning (1960); 385 Pa. Adjustment, Baronoff of (1956); 122 A. 65 Garbev 2d 110, Zoning Case, 385 Pa. 682 (1956). 122 A. 2d Zoning permitted is 328, when promotion of exercised health, safety, of welfare general or morals community. Euclid Realty 272 Co., . Ambler U.S. 47 365, v S. Ct. 114 v. Bd. Cleaver Adjustment, 414 Pa. (1926); 200 367, of Archbishop (1964); 2d 408 O’Hara’s A. 389 Appeal, 512 (1957). of the exercise

Pa. 131 A. 2d Such an 587 35, police applications ordi power, may, however, impose upon specific properties, owner nance hardship”. properties “unnecessary soWhen such applied, reasonable can not be termed a the ordinance pre police power. To or constitutional exercise of appli validity zoning ordinance in its serve community general, the vari cation therefore, provision enabling an “es act as ance functions regulations apply cape so that when valve” unnecessarily to a because all are burdensome few unique relief from a means of certain circumstances, provided. Peirce is of the ordinance See the mandates Zoning Adjustment, A. 410 189 v. Bd. Pa. 262, 267, (1963); Colligan Zoning 401 125, 2d Pa. Case, 141 138, under It can be 162 A. 2d 655 131-32, 652, request indi is denied, if a for a variance stood, then, petitioner’s cating nothing about land there is everyone any hardship different than that his petitioner’s similarly then most else land zoned, step validity logical of the ordi to attack next Zoning applies everyone. v. See Anstine nance (1963); Adjustment, A. 2d 712 411 Pa. 190 Bd. of Zoning Adjustment, Sylvester Pittsburgh Bd. 398 v. Zoning (1959); v. Bd. A. 174 Best 2d Pa. 157 (1958); 141 2d 393 Pa. A. Twp. Zoning Adjust Buckingham Bd. Schmalz v. Dunlap Ap (1957); A. 2d ment, (1952). words, 2d other peal, 87 A. 370 Pa. validity challenge a ordinance is the of a to a request outgrowth a for of a foreseeable natural and variance. request

Appellees in did not for their case wait this probably realizing full well to be denied, for a variance property nothing unique about their there was that special justified Their have treatment. would which constitutionality of ordinance to attack decision adjustment hearing not constitute at the board of does appeal appeal separate re- and distinct from questing being filed was a variance the case, this and, their re- denial of a reasonable time after the within quest building permit. for a ap- quash particularly reluctant to

We would be peal the fact for in in of untimeliness this case view any delay or action not to that of the due some was part in- appellees, to the of but due inaction on the adjustment garner ability sufficient of a board initially hearing number of its members to hold a when penalized appellees Surely not be should scheduled. they delay resulting from circumstances responsible. were not light unable

In the above we considerations, finding court conclude below, appeal abused was filed within a reasonable time, its discretion or committed an error law.10 prose Appellants next assert that this suit was agree. party cuted a real interest. We do not .in seeking expended Land excess $6,000 National develop Township Code land. The Second Class permits appeals by anyone aggrieved by the decision enforcing provisions zoning official aggrieved by ordinance.11 That National was so permit sought grant building which it refusal deny. in ef difficult to there is addition, adjustment, preferring decision to to rest its The board of question grounds, appeal quash did not deal with the on other ques pleas However, of common faced the the court timeliness. only position. appellants’ re We will merit no and found tion a manifest if it evidenced below of the court decision verse Adjust v. Bd. law. Cleaver an error of of discretion abuse 408, 380, 367, 2d ment, A. 414. (d), 103, May 1, added Act §2007 P. L. Act of recently 1481, §47, amended Act as most July 10, L. P. (Supp. §67007(d) 266, §1, 53 P.S. No. L. August P. 1964).

514 agreement Ennis an feet National and Miss between already upon contingencies property based sale that beld on numerous occasions mentioned. We have parties equitable qualify Kub in interest. such owners (1959); Appeal, ia 396 Pa. 151 A. 2d 625 O’Neill 109, Zoning A. 384 Pa. 120 379, v. Phila. Bd. of Adjust Zoning (1956) Inc. v. Bd. ; Silverco, 2d 901 Ap (1954); Hart 109 A. 2d 147 see 379 Pa. ment, peal, (1963); Catholic Cem 410 Pa. 189 A. 2d 167 Zoning eteries Ass’n 379 Pa. 109 A. 2d Case, Adjust Zoning Richman v. Bd. See also (1958).12 137 A. 2d 280 ment, 391 Appellants’ procedural that final contention is appeal adjustment been to the board of should have plan quashed had no since subdivision “Sweetbriar” pro- Township approved. Code been The Second Class adjustment “appeals may be that board of vides aggrieved by any person official or taken provision by any ordinance or affected any including any stop, cease order decision, by any hereinafter administrative officer, desist issued charged enforcing the with called the provisions officer, zoning ordinance.”13 of the Since one of the permit denying building grounds National four mini- its failure meet the this case was ap- requirement mum area ordinance, appeal pellees to be entitled to an under seem appellants just quoted. invoke However, the section proper party fact that National is a in inter In view opinion express Ennis, est, as to whether Miss be we need owner, ing but not the actual “Sweetbriar” record owner standing note, however, would, had to sue. We have herself Appeal, (1962), Borough 409 Pa. 185 A. 2d 533 that Crafton brought real owner than the the suit. There rather titleholder presented however, indication, in that the Court case was no qualifies party a titleholder question as a of whether interest. supra. Note

the article of The Second Class Code dealing with subdivision approval in support of their conten- tion the appeal must be A quashed. section that article14 provides: “Where subdivision regulations have been adopted under no authority of this article, lot in a subdivision be no to may permit erect, sold, alter or repair upon land a any building subdivision be may and no sub- issued, be erected a building may unless and until plan a subdivision been division, has approved . . . .” (Emphasis supplied.)

Appellants would have us limitation impose this dealing with pro- subdivision the zoning control visions of the Second Class Code remedies provided thereunder. Although zoning, subdivision control are single involved a frequently we find no for undertaking, justification restricting provided remedies under the former with limita: imposed tions the latter. by The zoning enabling- act authorizes the establishment of local ordi- process nances and a- remedial for those aggrieved their application and enforcement. In the instant case, one of the denial of grounds given building land permit was insufficient area. unques- This was . a decision from which the tionably zoning' enabling act authorizes appeal. v. 381 Pa. Jacobs Fetzer, A. 2d 356 262, this Court held the Second Class Town-

(1955), provided Code a means ship statutory by which an ordi- and that that procedure nance could be tested was-ex- In that case we denied jurisdiction clusive. equity constitutionality to decide zoning ordinance. objected in that case The dissent strenuously to the restricting relief statutory procedure fact vain and futile require often acts by would those ag- ordinance. appellants a Now grieved would May §1207-A, May P. L. added Act Act of 370, §16, §66257. 53 P.S. L. P. impose be- have us further hurdles to surmounted be person aggrieved by zoning may fore a con- decision validity. test its ap- dispute

Although there some whether pellants appellees contend that subdivi- should submit a plan on re- sion the basis one acre or four acres, quiring To either would be to call a futile act. compel plan on the basis of four acre lots would appellees clearly propose on -unrealistic build since plan filing one acre lots. The of a one acre subdivision equally the four would be fruitless because of since, permit obviously requirement, problem which it can be denied. be seen that the Thus, eventually zon- be faced is the four acre must whether ing valid. make sub- To determination of that issue ject expensive, purposeless, not to mention vain and procedural require- would exercises be an unreasonable contemplate seriously one ment and we will not which explicit legislative do in the of an direction to absence zoning enabling In the the act is case, so. instant specific provisions quite that its are limited to provi- be and should not controlled other matters Code.15 the sions

Appellants approval subdivision of the if claim zon- plan prerequisite the is not a to consideration developer ing question, the subdivision could avoid a plans submitting requirements altogther by and seek- permits ing building for than rather for individual lots Clearly fol- no result will such an entire subdivision. by the bound land and low. The its owner still building regulations. erected The lot and subdivision may upon not be subdivided lot it, area, whatever deny appeal in particularly unfair for us to It be pro appellees a followed fact of the case view the instant apparently validity testing sanc ordinance of the cedure Twp. Bd. v. Easttown Constr. Co. in Bilbar our decision tioned 2d 851 Adjustment, 141 A. plan approved until a subdivision has been under provisions subdivision of the Second Class guilty Code. owner-subdivider will Otherwise, subject impris- of misdemeanor and to both a fine and onment.16 Appellants’ Co. v. Bd. Home Ins. reliance Life (1958), 2d 21 393 Pa. 143 A. justified. plaintiff company sim

not In that ease, ply applied for a variance which would have allowed buildings upon apartment land a resi erect its apply company for a dential did district. plans building permit any nor did it submit apartment by the variance house. After denial superintendent company building inspection, appealed adjustment challenging the board appeal constitutionality On ordinance. appellant us “The would have to this Court we said: property any may ordi a rule that owner assail though being owner unconstitutional even nance as proper particular any use of his had not been denied present sought ty had no he and, fact, had plans regard would be to hold to its use. This de as often vacuo which, ordinance unconstitutional 2d 143 A. not do.” 393 Pa. at a court will clared, 24. at present

Clearly case. in the not the situation that is plan proposed Appellees dwell- here submitted they to build. ing lot on which wish and the house permit building sought of these on the basis They ground part on plans the at least refused were zoning comply plan ordi- failed that procedure forth Appellees set followed nance. relief entitled to seek zoning were ordinance officer. decision the adverse from Act of P. L. May 1, §16, 53 P.S. P. L. §66258. 103, §1208-A, added Act May upon Sgarlat Kingston Borough Reliance v. Bd. of Adjustment, 407 (1962), 180 A. 2d misplaced. similarly appellants’ In that was land case, being Ap- proceeding. assessed in an eminent domain pellants assessing maintained the value of their top land, commercial value of the soil and sand gravel deposits should have been considered. Since the permit did not deposits, removal of such argued deposits Commonwealth that the value of the was not a relevant factor. constitutionality order to test the of the ordi- applied permit the owners

nance, for a to excavate the deposits permit mineral from the tract. This was re- appeal fused and on to this Court we dismissed on ground appellants they that since admitted that had permit ques- no granted, intention to use the if tion raised was fictitious and therefore did not have to be decided. obviously

Quite present the situation in the case is proof appellees plan, different. There is no do not they to build on this tract of land. The mere fact that may go develop entirety wish to further and prevent deciding “Sweetbriar” does us from zoning question. they go Of if do decide to course, appellees required satisfy will be further, the rele- requirements proceeding. vant before Having appellees now determined that followed the proper procedural path adjudication for the of their greivance under the turn ordinance, we to the case. merits Yalidity Zoning

II. of Four Acre square Easttown has an 8.2 area of miles exclusively almost devoted residential use. It in the north the Main traversed Line of the Penn- sylvania Railroad as well as U. S. Route a30, highway heavily traveled emanates Philadel- 20 miles to the Lancaster phia, and heads west east, the eventually to West Coast. It is along strip the township’s sole commercial activity conducted and where two small concerns its industrial are located.

The finds in path itself of a popula- expansion tion From from two approaching directions. Philadelphia suburbs closer to the center of east, development and residential reaching capacity further west to Easttown. extending addition, market for residential is being generated by sites in King industrial-commercial growing complex fast Easttown Forge area to the north of Prussia-Valley Township. indication provide vital statistics good

Easttown’s town- of its At about character. present, 60% ship’s population an area of about resides 20% population of the township. remaining 40% Pri- balance of about of its area. occupies the 80% five lot areas to imposed four, restrictions limit vately on approximately and ten acre minimums 10% land located consisting area of the township, total total Of the in the and western sections. southern 17%, about some or acres the township, 5,157 ordinance by zoning been restricted new have acres Approximately 1,565 lots of two acres. minimum township are restricted about of the composing 30% minimum lots of four ordinance to acres areas population of the live About area. 5% con- together four sites for two and zoned acres, township. 1,835 Some of the about stitute 47% remain unaf- of the township, about representing 35% town- under the continue, the new fected be zoned classification, original ship’s acre. minimum area one awith sites building northeast quadrant most Before either had various other areas, well as township, development. up prepared In 1959 built been sporadic developments cen- occurred the south parts township, others followed several tral portions In in 1960. in the south and southeast developments northeast and in the occurred other in numbers small- followed lesser southwest sections, in 1962 and of the north and central sections er areas 1963.. popula figures that Easttown’s

U. S. Census show grew in in 1920 to 1960. As tion from 2,307 6,907 population April, Public estimate Avas 8,400. grew population through grade from the sixth school year in the school to in the 1955-56 1,052 school in year projected, be about 1,680 will 1963-64 as and, 1969-70.17 through the from 1951 construction

New residential year period, eight con- a twelve months first about cost of at an estimated units 1,149 sisted permits average building |21,000,000, an of 100 with per- allowing growth, annually. four At this rate population, per housing re- unit its Easttown,18 sons previous grow under the lated to new residences, per- zoning about 400 at the rate of minimum one acre per annum. sons development

Despite groAvth Easttown Township, southern land the central, much parcels held in continues to be sections and western acreage. located on the “Sweetbriar”, of considerable boundary township, is one of these of the southern parcels. in the large There is discussion briefs as population projec to the school who testified witnesses say of one it was made on the basis whether unable were tion minimum-zoning it was made on the basis or whether one, two, featuring sites. zoning plan and four acre amended 210,680 figures inhabitants from 1960 show Census U. S. average occupying each of County of 3.5 individuals Chester housing units. 58,947 county’s

5.21 township, particularly whether the those sections disputes zoned for four is rural. Such semantic acres, are of realities, little relevance cases since rather than the label applied sake, convenience which, How- are determinative of the issue. them, designation applied, if a catch-all “semi- ever, is to be probably rural” or “estate rural” best describes portions zoned for minimum lots four acres. considering

The task of the Easttown passing upon ordinance and the constitutional ity ap requirement of its four acre minimum area plied appellees’ property easy one. is not an span years its since 1926 when received judicial plan blessing,19the art and science of land sophisticated. ning grown complex increasingly has days disappearing judiciary can fast when the zoning nearly look at a much ordinance and, upon professional zoning expert, confidence as a decide zoning plan the merits of a and its contribution to the general safety, of the com health, morals welfare munity. increasingly aware that This Court has become super adjustment plan it is neither a board of nor a ning Di v. Zon commission of last resort. See Santo ing Adjustment, Bd. 135 410 Pa. 189 A. 2d 331, of (1963) Joseph Zoning Ad B. & Co. v. Bd. ; Simon of (1961). justment, Instead, 403 Pa. 168 A. 2d 317 176, drawing judicial lim the Court acts as a overseer, regulation may beyond go, but local its which loathing dis to within those with the interfere, limits, governing of local bodies. Tidewater Oil Co. cretion (1959) 149 A. 2d zon 395 Pa. 636 . The v. Poore, 89, government power ing the tools of is one of which, subjected judicial must not be to be effective, order clearly necessary. For unless this rea interference Realty Co., 19 365, Village v. Ambler 272 Euclid 47 U.S. See Appeal, 259, (1926). 287 Pa. 134 Atl. (1926); 409 White’s S. Ct. a or son, presumption of validity attaches a dinance imposes the burden to invalidi prove its ity upon the one who it. Cleaver v. Bd. challenges 414 Pa. Adjustment, 200 A. 2d 408 Bilbar (1964); Constr. Co. v. Easttown Bd. Twp. Adjustment, Pa. 141 A. 2d 851

While also recognizing this we must presumption, appreciate the fact governmental involves restrictions upon guar- landowner’s constitutionally anteed20 right use his except property, unfettered, specific very restric- instances,21 governmental tions. The time must never come because when, frustration with concepts to their foreign train- legal ing, courts abdicate their judicial pro- responsibility tect the constitutional rights of individual citizens. Thus, proof burden of imposed upon one who chal- lenges the of a validity zoning regulation must never be made so onerous as to for all foreclose, practical purposes, landowner’s avenue of redress against infringement constitutionally protected rights. The oft ill repeated, although limitation defined, exercise the zoning power requires ordinances be enacted for the health, safety, morals or general welfare of the See community. Cleaver v. Bd. 200 A. 2d 408 (1964). Such ordinances must bear a substantial to those relationship police power purposes. Glorioso 413 Pa. 196 A. Appeal, 2d 668 (1964); Sylvester v. Bd. Zoning Pittsburgh Adjustment, 398 Pa. 20 V; amend. See U. S. Const. U. S. XIV; Const. amend. I, §1; I, art. Pa. Const. art. §10. Const. property may 21 A of Ms own (1) man’s use be restricted he if any provision of the state or constitution; (2) federal violates or nuisance; (3) any if or covenant, creates he if Ms use violates re easement; (4) any if laws, or he violates striction valid includ Appeal, regulations. zoning 121, Lord ing See 368 Pa. 81 2dA. (1951). 533

523 adopted pursuant (1959). Regulations A. 2d 174 power arbitrary or con- that must be unreasonable, fiscatory. Adjustment, A. 414 198 Eller v. Bd. Pa. 1, (1964). 2d 863 right zoning enabling being to a act silent as appeal, certiorari, we consider this case on broad

reviewing testimony, entire and the evidence, Corp. Keystone Raceway Harness record. v. State Racing (1961); 405 Pa. 173 A. 2d 97 Comm’n, Philadelphia Zoning Schmidt v. Bd. of (1955). court 382 Pa. 114 A. Because the 2d testimony, look at took no additional we below will adjustment determine the decision of the board -of upholding constitutionality acre four if, zoning, minimum board committed an abuse of dis Twp. Upper cretion or an error of law. Providence Appeal, 414 Pa. 198 A. 2d 522 Pennsylvania,

There no doubt that in is density legitimate police power. is a See exercise Twp. Adjust Bilbar Constr. Co. v. Easttown Bd. of (1958) Volpe Appeal, 393 Pa. 141 A. 2d 851 ment, ; (1956). Every zoning 384 Pa. A. 2d 97 case a different set of facts involves and circumstances light constitutionality of a ordi which impossible tested. nance must be Therefore, requirement say any acreage minimum us to per 2d se. See unconstitutional A.L.R. Annot., (1964).22 advantages aof one acre lot The relative over a one- comprehend. easy Similarly, lot are acre half advantages over a lot has one acre lot and two Both, appellees juris appellants refer us to cases other type sustained invalidated low have both dictions present accept density zoning in the case. those While we at issue per proposition four acre is not uncon se for the cases specific on stitutional, them of little value issues consider we here. involved

524 preferred may ten acres or over two three acres be greater of land, the amount acres over three. The congestion, the easier more room for the less children, sewage, mu- supply the fewer handle water point provided. nicipal At some services must be which along spectrum, of lots ceases the size however, public regulation requiring becomes be a concern point private preference. simply at a matter of public legitimate not a con- ceases is interest the land involved one which varies with stant but one, and the of each case. circumstances question of the constitutional- to the

We turn, then, ity minimum in the factual context of a four acre appellees obviously, Quite will be de- the instant case. Their_ they prived part property if of the value of divided it to four acre lots.23 When limited the use of originally planned, the value of into one as acre lots approximate- building for residential was “Sweetbriar” ly im- the four acre restriction was When $260,000. building posed, in “Sweet- the number of available sites the land, and the value of briar” reduced was 75% optimistic appraisal, to $175,000. fell under the most greatly marketabil- minimum The four acre restricts potential ity lots, of this tract with fewer because, improvements curbing, other streets and such as cost greater each lot. In addition, thus on each facilities is per being building larger, lot is automati- the cost lot buyers many cally be not to desire of increased. The upkeep makes of a four acre lot also burdened with Although less desirable. so restricted, “Sweetbriar”, four that lots of the record evidence there was some 23 appellees an suffer economic loss is fact that The mere Tidewater unconstitutional. to declare reason sufficient Nevertheless, (1959). Poore, A. 2d v. Oil Co. zoning restriction of a economic effect consider is relevant constitutionality assessing aspect the landowner on Annot., 2d 732-34 A.L.R. See the ordinance. eventually acres or more could clear it is sold, readily there is not a offer- available market for such ings. pub-

Against deprivation alleged this of the value, purposes justification imposition lic cited as for the appel- upon requirement a four acre minimum area Appellants lees’ land must be contend that examined. proper necessary the four acre insure minimum is sewage disposal township protect in and town- the ship very pollution. only present, from At a water populated portion township densely small of the in the system. sewage The northern section served township on-site remainder of the lots utilize sewage disposal. regard supply, evi- With water fairly Philadelphia dence Sub- was conclusive that Company urban Water if not most, all, serves develop- township and that it furnish to a water ment in “Sweetbriar”. past president

A Association the Devon Citizens alleged- testified that tests had been conducted which pollution township ly streams evidence showed and results of of water. neither the bodies However, testimony them made these tests nor the of those who this were introduced. Under the circumstances, ever testimony ignored. line of must pollution by also The matter was discussed significant regard township engineer. In this although sewage and claimed that it is note prior zoning problems drainage to the were discussed township report question, the submitted to now in planning supervisors by men- commission never problems their recommendation which as tioned these designed upzoning to meet. for was subject engineer’s testimony township on the vague unconvincing, sewage drainage was statement consisting, of the bald that he felt it did, pollution. danger addition, In this awas that there opinion upon hypothetical case of was based township developed being one on the basis entire very unlikely to occur acre lots a situation maximum, probably never. the near future and help Class but note also that the Second We can not reg- provides establishing sanitary Code “sanitary board” ulations can be enforced regardless The Code also for the area.24 provides maintenance of sew- for the installation and plans township systems25 no but the has made er regard. subdivi- under the addition, require may regulations, lots officer sion permitted by larger ordi- than the minimum percolation land if tests nance the result of proper larger that a land area is needed show disposal sewage. drainage These legislatively prob- dealing sewage methods sanctioned compel minimum that a the conclusion four acre lem necessary nor a method reasonable is neither protect from the menace can itself Easttown Avhich pollution. of problem sewage alleged dis- of to the addition appellants

posal justifying the four acre minimum, as township inadequacy burden and the of roads cite zoning one acre the entire town- continued Avhich ship system. impose that road would regarding adjunct argument in- to their As an appellants system, adequacy maintain that the road of zoning is warranted minimum because the four acre protection providing difficulty fire over the township of the Because narrowness roads. 24 103, seq., May 1, 1933, P. L. et Act §1901-A added Act 1323, seq., (1955) 1956, 22, §1 et P.S. §66951 L. et P. of March seq. seq., May et §1501 L. added Act of P. Act seq., amended, P.S. et §66501 et July 28, §1 L. P. seq. winding their traffic

roads, nature the volume of they responsible presently which a fire bear, official portion for the in “Sweet- Easttown frequently difficulty briar” is located testified that equipment getting encountered to a fire.

Except for the four-lane most of U. S. Route 30, township, including roads roads, the state having cartways ranging are two lanes wide from 14 Many hilly, winding, 18 feet. some are planted way rights some locations trees within the overhang impede partially so as to some slow even types notably of traffic. While some most roads, U. S. Route 30 a lesser extent Waterloo Road, already practical peak capacity have reached their at any, not all of them have. hours, It is not clear that except for the two done so above-mentioned, have upon daily average based traffic. Church on Road, which “Sweetbriar” has not. abuts,

According experts produced to the for both sides, present capable, Easttown’s road network as a whole is improvement, with normal maintenance and of serv- ing population up to 13,000. This is more 4,600 population April, than the 1963. zoning, resulting On the basis of the former one acre population persons per year, in a increase figure not be reached until after 1972 or later.

It can seen, therefore, restriction to far as four acre so traffic is lots, is based concerned, upon possible Zoning future conditions.26 tool in is a governmental of bodies which the hands enables them effectively evolving meet the to demands more growing It must not communities. and can not be by they as officials those instrument used which Twp. applies ^[26] Zoning “We to conditions must determine Bd. now existent.” reasonableness 389 Pa. 295, 302, Schmalz 132 v. 2dA. regulation Buckingham 233, 236 (1957).

528 responsibilities. may Zoning means shirk their ais governmental plan body fu- which a can for the may deny fu- ture —it be used not as means for ture.27 The on evidence the record indicates present system and the future immediate the road adequate traf- of Easttown is handle quite convincing load. It roads fic also that- the is increasingly goes inadequate become will as time improvements eventually and that and additions will provisions Zoning may used, have to be be made. not responsibilities and the increased avoid ^however, growth in- economic burdens which time and natural bring.28 variably

It not hard- is difficult to envision the tremendous ship, re- as well as the chaotic which would conditions, deny townships if sult all area decided to develop- growing population to a sites residential seg- significant ment within the means at least a people. ment of the justification urged rezoning,

The third and one upon assiduously, preservation us most deals with the photographic of the “character” this area.29 The 27 danger “Any noise, dirt, traffic increase its attendant yet, unpleasant, ‘inevita such increase is one of the and hazards constantly accompaniments progress ex of suburban our ble which, standing alone, panding population’ not does constitute suf legitimate property his use to refuse a owner reason ficient Appeal, 54, Archbishop 35, 2dA. 389 Pa. 131 O'Hara’s . . . .” land 587, (1957). 596 35, 55-56, 28 Appeal, 2d Archbishop A. 131 Pa. O’Hara’s 389 Cf. municipal improvements (expense which (1957) 597 police granted exception special is not relevant required if rely granting or the court must power standard exception). special denying a solely 29 may aesthetic on basis of Zoning be sustained Twp., Upper Rogalski Chichester v. See considerations. Zoning Ad v. Bd. Anstine (1962). also See 2dA. In the instant 2d A. justment, 411 Pa. inherently nothing one about unaesthetic however, there case, placed appellants by in attest exhibits the record containing great beauty the fact that this is an area of by pasture, and farm old homes surrounded beautiful place very woodland. It is a desirable and attractive which live. preserving are “character” Involved Easttown’s aspects township gives for four of concern which the desiring they zoning. four minimum cite acre First, preservation open space of a and the creation “greenbelt” present day commentators as most which, impress upon agree- worthy goals. in full While us, goals, acre ment these that four with we are convinced zoning a minimum creation of does achieve the greenbelt in ex- its technical to the limited sense and, open space preserved, is tent that is so such permissible here involved not a to that end. is means By suggesting greenbelt a that the creation of a purpose appellants zoning, betray ar- behind this their gument ready there a acre market for four plots. Only if lots there is no market for four acre undeveloped open and will the land continue to be greenbelt created. amount to This, however, property confiscation of landowners Easttown they compensated. for which must be township preservation open spaces If the is the objective, there are means which can be ac- this complished authorization for “cluster include development zoning” rights or condemnation of compensation paid A four that which is taken. requirement acreage minimum acre is not a reasonable the stated end can be achieved. method which township urges us to consider the his- Next, township present the need to toric sites proper setting. We are in the unmoved them zoning. than it less desirable four which mates acre zoning” reason, involves “character considerations which For this involved with from those aesthetics. somewhat differ appears simply purely contention since to be makeweight. map examination of the First, historical sites demonstrates overwhelming majority of areas snch in located sites, prop- population, hardly provided of dense can be settings by er four acre in the town- elsewhere ship. Appellants places cite two main of in- historic Wayne, Anthony terest. One is the home of General Revolutionary significant a note, War hero. It is township supervisors placed that the the however, Wayne only home a district zoned for two minimum lots. The second Swedes historic site is Old Church which is not located in whose the but appears cemetery Wayne It is. that both the home protect the church are surrounded them. land to any In the beautification of several structures event, significance of minor historical neither for nor calls imposition legitimatizes density of low magnitude contemplated upon here 30% township. Closely goal protecting related to the historic expressed protect is the “set- monuments desire to ting” for a number of old some homes Easttown, early days dating back our Commonwealth. goal Appellants falling denominate this as within the promoting “general welfare”. Unfortu- ambit concept general nately, welfare mean- defies capsule ingful exceeding- definition and constitutes against validity ly which to test the standard difficult always legislation. it must ascertained However, public it is the whether, fact, welfare the outset at being disguised legis- benefited whether, is which public welfare, ordinance ac- lation private purely tually interests. serves many no doubt residents of There highly keeping way desirous it are it area this naturally, quite preferring, to look out land is, in its natural state rather than on other These homes. do not desires, however, public rise to the level of wel- fare. This is purely private matter of desire zoning regulation not be may to effectuate. employed

Appellants make some attempt impose upon area an aura of historic significance which deserves the protection of the township. Of fact course, these houses are old makes them architecturally and historically But it interesting. does justify the creation of a special setting them. They all privately owned; most are surrounded already substantial land if holdings their owners so which, protection serve as desire, in” against “fenced being new residential development. there addition, nothing about south Easttown which differentiates from any other area the southeastern section of Pennsylvania. no one would Surely, maintain seriously that the entire southeast corner of be the state should declared immune from further development on areas of less than four acres simply because there many are old homes located there.

The fourth argument advanced by appellants, one closely analogous to the the preceding is that one, rural character of the area must be preserved. If the township developed were on the basis this zoning, it could not be however, seriously contended that the land would retain its rural character —it would simply dotted homes on larger with larger lots. point to the fact

Appellants that the surrounding similar low townships have density zoning provisions. zoning Although area surrounding is fre- in relevant consideration quently assessing the validi- see Kubia zoning regulation, of a ty 396 Pa. Appeal, 2d 625 (1959); A. Act May 109, 1, P. L. Act of July added P. §2003, L. it is not §67003, controlling P.S. on §47, the issue particularly is so when This we are presented. deal- ing unique zoning in- as is classification such there volved here. classifications, With most po- any question suitability in be little to can their place- only litical concerns their subdivision; the issue surrounding classifications, ment. With these particularly classification relevant. As the questionable, more similar however, itself becomes surrounding of less in become classifications districts validity significance supporting restric- tion. appellant in this case briefs submitted each

The revealing they point up factors are two appear fight for four lie of their to at heart zoning. acre township’s unfortunately, (but, does brief raises attempt answer) interesting issue yet

township’s responsibility live do not those who township may part, become in the but who are expansion population part, Four to the suburbs. position zoning represents it does Easttown’s pressing for not desire accommodate those who township admittance admittance unless such govern- any not create additional burdens will posed question mental functions and services. The way the na- can stand whether growing population into our tural forces which send undeveloped a comfortable areas search of hitherto place ordi- A not. to live. We have concluded prevent primary purpose the en- is to nance whose burdens, in order to future of newcomers trance avoid the administration and otherwise, economic Of public valid. facilities be held can services governmental imply that a not mean to do course, we power to in- body may order its not utilize community municipal services which that the sure orderly provided man- requires in an and rational ner.

533 appellant-intervenors less creates The brief of the np problem points which some of a bnt the factors zoning. espoused time lnrk behind the motives appears basically is that intervenors What to bother lovely to start have number of old homes will small keeping company growing smaller, number of with a expensive, densely It is clear, more located houses. less pro general or fostered that the welfare is not however, designed exclusive to be moted ordinance exclusionary.30 that indi not mean But this does may “An of land vidual action foreclosed. owner pri large constitutionally property and as make as his purse and his vate or or as he desires secluded exclusive singly may, example, his or can afford. He pro purchase neighboring neighbors, land sufficient preserve cove tect restrictions deeds acreage, privacy, nants inter a minimum se, peaceful atmosphere quiet, character and the tone and community they moved existed he or when there.”31 light foregoing, com- we are therefore,

pelled adjustment com- to conclude that the board of upholding the constitutional- mitted error of law ity re- four acre minimum of the Easttown quirement applied appellees’ property. there- We as Pleas Common fore affirm the order of the Court of County. of Chester affirmed.

Order

Mr. Justice Jones dissents. 30 may course, “And, so not be ordained minimum lot areas private exclusionary and, thereby, large serve a effect tó public Easttown Constr. Co. v. Bilbar interest.” than the rather ; (1958) 62, 76, Adjustment, Twp. 141 A. 2d 858 Pa. 393 Bd. of Needham, 42 2d 516 accord, Mass. N.E. v. Simon Twp. Bd. v. Easttown Co. Constr. Bilbar opinion). (dissenting (1958) A. 2d

Dissenting Opinion by Mr. Justice Cohen: majority compounds the error made ignoring concept court below also the fundamental judicial administration that constitutional issues litigation disposed are to be avoided if can be of other- wise.

Appellee, Company, National Land and Investment corporation engaged speculative develop is a land agreed purchase ment. property July, It. this bearing any 1961. It expenses-of is not liti this gation, only and its permitting-its connection with it is appellee name to agreement continue as the has —its expired deposit and its has been returned. coun Its originally appeal who sel, filed the court of pleas adjust common from the action of the board of litigation. has ment, from withdrawn Counsel many the seller delay to National after a Land, pursued appeal months, for a variance. The seller paying expenses litigation is only of this and is the equitable one an property. interest Doro thy appears simply who appellee, Ennis, also as an is party employed a straw in the office of the real own any plans er’s counsel. No one any has real to build thing property. on really All that is involved lengthy costly litigation is the constitutional ity litigated being ordinance and this is in vacuo. giving We should not assume the role an advisory opinion. Sgarlat academic Kingston, v. (1962) 407 Pa. 180 A. 2d 769 ; Home Insur Life Company ance v. Board 393 Pa. procedural 143 A. 2d 21 Another defect apparent appeal to board was taken —the more than six months after the decision of zon ing appeal it provi officer. While is true that designate specific do of the ordinance sions num during appeal days may which an ber be taken, appeal required must an filed within a rea period. sonable Six an months is unreasonable time, being longest appeal permitting double the time this Court from a decision of the common court of pleas. Zoning In Kravitz v. Board appeal (1964), 202 A. 2d 64 we held that an adjustment from a board of taken decision not prescribed period quashed. the I within must apply litigation require that rule to this and the court pleas quash appeal of common to the to board the adjustment from the officer. glaring procedural

Still another his- defect tory litigation appellees of this failure of coinply §16) (May §1207-A to P. L. 24, 1951, Township of The Second Class §66257, P.S. Code, provides townships where subdivision regulations permit adopted, have been no a to erect building may plan be issued until a has subdivision approved. opinion majority been The effect of the is to permit building order the issuance a for one acre approved. yet lot a subdivision not This circumvents township’s pursuant regulations adopted lawful Township Art. to XII-A of the Second Class Code and pro- to that extent nullifies the Code. This require disposition cedural defect would also litigation proceeding without to the constitutional question. recognizes majority that “The task of consid-

ering Township zoning the Easttown ordinance and passing upon constitutionality of its four acre requirement applied appellees’ minimum area as to easy property very one.” To is not an me it becomes uphold constitutionality easy recog- when one legislative the record nizes, thority discloses, au- Township gave plan- of Easttown the overall township ning study. considerable of the The four applied was to the restriction entire acre town- part only one part of a ship, three was but “A” class one of four acres, residential enactment—one zoning deter- one of one acre. This of two and acres, properties type included “A” mination residential township and included acres 3,297 5,157 pub- undeveloped property no for which acres 2,468 sewage areas included was available and which also lic pollution. poor drainage varied natural stream legis- proper'exercise It seems a reasonable take lative function commissioners acres), comparatively (3,297 di- a small area what is num- it into residential zones and restrict certain vide residential zones to four acre lots—some ber to one. two some majority in I three basic differ with the

Hence, get (1) is- I constitutional areas: would never (2) judicial proper restraint; the exercise sue permit Court to become su- I would legislate pervisors law as it does, properly (3) code enacted I not hold a sup- argument only to be unconstitutional when profits. appellees’ port doing loss is the of so I dissent. Adderley, Appellant, v. rel.

Commonwealth ex Myers. J., C. 1965. Before November

Submitted Bell, Rob- O’Brien Cohen, Eagen, Jones, Musmanno, JJ. erts,

Case Details

Case Name: National Land & Investment Co. v. Easttown Township Board of Adjustment

Court Name: Supreme Court of Pennsylvania

Date Published: Nov 9, 1965

Citation: 215 A.2d 597

Docket Number: Appeals, 183 and 186

Court Abbreviation: Pa.