1 Pa. Commw. 292 | Pa. Commw. Ct. | 1971
Opinion by
The Board of Commissioners of Radnor Township, Delaware County, on June 24, 1968, enacted Ordinance 1366, rezoning a 110-acre area, including four acres owned by Robert Louis Corporation, appellee, from R-3 to R-2. The effect of this ordinance was to increase, in the area rezoned, the minimum lot area from 10,000 square feet to 20,000 square feet; the lot width from
It was proper for the Township of Radnor to assume the position of appellant since the Board of Adjustment had no right to appeal. See Yocum, Zoning Case, 393 Pa. 148, 141 A. 2d 601 (1958); Edwards Zoning Case, 392 Pa. 188, 140 A. 2d 110 (1958); Lansdowne Borough Board of Adjustments Appeal, 313 Pa. 523, 170 A. 867 (1934).
On October 14, 1969, appellee filed its motion to quash in which it asserted that the appeal filed sixty days from the date of decision was not timely under the provisions of Rule 68%. Iron City Sand and Gravel Company v. Zoning Board of Adjustment, 418 Pa. 145, 208 A. 2d 836 (1965). Appellant filed an answer to the motion to quash which asserted the applicability of Article V, §9 of the Constitution of the Com
Article Y, §9 of the Pennsylvania Constitution became effective on January 1, 1969, and states that: “There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court. . . .”
In 1964 the Supreme Court of Pennsylvania adopted its Rule 68% which provided that if no right of appeal is granted by statute, an appeal to the Supreme Court would lie only if allowed by that court. Since none of the then effective zoning enabling acts established any specific right of appeal, Rule 68% was applicable to all zoning cases prior to the Pennsylvania Municipalities Planning Code, 53 P.S. §10101 et seq., which became effective on January 1, 1969.
We dismiss appellee’s motion to quash because we conclude Article V, §9 of our Constitution abrogates Rule 68% in its application to zoning cases relative to appeals taken after January 1, 1969. Since this litigation began on October 22, 1968, and since the Pennsylvania Municipalities Planning Code expressly, by Section 103, 53 P.S. §10103, does not affect pending litigation, this Code does not limit the appellant’s right to appeal to a thirty-day period as provided by Section 1012, 53 P.S. 11012. Further, this latter section concerns itself with appeals from decisions of courts made under the Pennsylvania Municipalities Planning Code, and the instant case is not such a decision. We con-
The land involved in this appeal comprises a four-acre tract which was originally part of a 6.9 acre area known as the Westhead Tract. At the time appellee purchased the four acres from Mr. and Mrs. Westhead, all of the 6.9 acres lay in an area zoned R-3. After acquiring the said four acres, appellee applied to the Board of Commissioners of Radnor Township to have its land rezoned from R-3 to R-5, which application was denied in 1967. Thereafter, a group of residents began circulating petitions to have the area rezoned from R-3 to R-2. These proponents of rezoning the 110-acre area in question established to the satisfaction of the Board of Commissioners, and later to the Board of Adjustment, the following facts:
1. That the entire 110-acre area (containing 136 homes) is principally developed in conformity with the 20,000 square foot standard set forth for R-2 zoning.
2. That only 36 of the 136 homes in that area are on lots smaller than 20,000 square feet and that only three of these are within 1000 feet of the appellee’s tract.
3. That there are four premises in the area which are two acres or larger in size.
5. That appellee’s tract, because of its topography and its location, is an integral part of the residential community in which the 110-acre area consists.
A presumption of validity attaches to a zoning ordinance which imposes the burden of proving its invalidity upon the one who challenges it. Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A. 2d 408 (1964). Where the lower court, as here, took no additional testimony, we must determine whether the Board of Adjustment committed an abuse of discretion or an error of law. Upper Providence Township Appeal, 414 Pa. 46, 198 A. 2d 522 (1964). Zoning for density is a legitimate exercise of the police power. Volpe Appeal, 384 Pa. 374, 121 A. 2d 97 (1956).
In Volpe Appeal it was held that the provision of the zoning ordinance requiring 20,000 square feet of land for a dwelling in the district in question was a valid exercise of the municipality’s power to zone land for residential purposes and to establish reasonable minimum lot requirements. In the instant case the area in question was rezoned requiring the minimum lot size to be 20,000 square feet. The appellee does not contend that such a minimum size requirement is unconstitutional per se but questions the motivation for the change in the ordinance and asserts that the prime purpose of the up-zoning was to protect older, established homes in the rezoned area.
The fact that the rezoning was initiated by residents of the zoned area is not determinative of the validity of the ordinance. Nor can an ordinance be invalidated simply because a zoning board accepts the views advanced in support of the ordinance by a majority of the persons to be primarily affected.
This Court is not a super board of adjustment nor a planning commission of last resort. Di Santo v. Zoning Board of Adjustment, 410 Pa. 331, 189 A. 2d 135 (1963). The necessity must be clear before there is justification for judicial interference with the municipality’s exercise of its zoning power. It is exactly on this point that we believe the lower court fell into error. The lower court in its opinion said: “If after investigating, there is doubt as to whether the regulation is enacted for a recognized police object, or if, conceding its purpose, its exercise goes too far, it becomes the judicial duty to declare the given exercise of the police power invalid.”
We believe this is the test that the lower court used in reaching its conclusion that the ordinance was unconstitutional, and we likewise believe it was an incorrect test. It is not the creation of a doubt in the mind of the court that is the proper test of constitutionality. The proper test is that established in Bilbar Construction Co. v. Easttown Township Board of Adjustment, 393 Pa. 62, 141 A. 2d 851 (1958), where it was held that a legislative enactment can be declared
Here the ordinance must be viewed, on the basis of the record and the findings of the Board, as also having as one of its purposes the attainment of homogeneity. Such a purpose is a proper aim of the zoning process. Appeal of the Russian Orthodox Church of the Holy Ghost of Ambridge, 397 Pa. 126, 152 A. 2d 489 (1959).
We, therefore, conclude that the zoning ordinance requiring 20,000 square feet of land — less than a half acre — as the minimum lot size for a residential dwelling in the district in question was a valid exercise of the municipality’s power since it bore a reasonable relationship to health, safety and general welfare. A clear abuse of discretion on the part of the Board is not present here, nor was an error of law committed.
The order of the Court below is reversed. Costs to be paid by appellee.