397 Pa. 126 | Pa. | 1959
Lead Opinion
Opinion by
Appellant purchased some eighty-eight acres of land in the so-called Sunflower District of Rochester Township, Beaver County, Pennsylvania, and wishes to use this land as a cemetery.
The Township of Rochester has a zoning ordinance which divides the township into three districts. With regard to the Sunflower District, Section 100 provides, “The Sunflower District is zoned primarily for residential and agricultural uses as now esoist in the District” (Emphasis supplied). Section 201 of the ordinance sets forth more specifically the uses to which land in that district may be put.
We are not called upon nor would we attempt to construe the word “religious” in the abstract. Our sole function in this case is to ascertain whether the en-actors of the Rochester Township Zoning Ordinance intended to permit a cemetery in the Sunflower District as a so-called religious use.
It should first be noted that the Sunflower District is zoned primarily for residential and agricultural uses. A cemetery clearly does not come within either of these. It is apparent from a reading of Section 201 in its entirety that those uses permitted therein which are not purely agricultural or purely residential are ancillary to them. These general observations are helpful in delineating the scope to be given to the word “religious.” They are helpful primarily because it is assumed as one of the basic premises of zoning that area homogeneity is one of the ends sought by a zoning ordinance. The above discussion is necessary and helpful because the word “religious” is a word of nebulous bounds and depends for its definition, if construed in the abstract, upon the subjective criteria used by the definer. In order to give the word meaning for the purposes of zoning one must look at the general purposes of zoning and the zoning ordinance in question as a whole.
If a business corporation had purchased the eighty-eight acres in question for use as a cemetery and as a
Order affirmed.
“Section 201. A building may be erected, altered or used, and a lot or premises may be used for any of the following purposes and for no other: 1. Single-family detached dwellings, other than house trailers. 2. Conversion apartments, Garden apartments and Multiple Family Dwellings. 3. Club, fraternity house or lodge, when authorized as a special exception ... 5. Telephone central office, electric sub-station and utility lines. 6. Municipal recreational uses. 7. Agricultural use, including the keeping of livestock or poultry, customarily incidental to such use, or nursery. 8. The sale of farm products, including the sale of live
Dissenting Opinion
Dissenting Opinion
I find no fault in the opinion of the court below so far as it affirms the action of the zoning board of adjustment in denying a variance, but I do not conceive that to be the essential question in the case.
The real question presented is whether the establishment of a cemetery by a Russian Orthodox Church, for burial of only members of that faith from a particular area, constitutes a religious use of land.
The governing Ordinance provides, in Article II, §201(4), that a lot or premises may be used for “educational, religious, philanthropic use and hospital”.
The question was misconceived by the Board of Commissioners which denied appellant’s request to lay out and maintain a cemetery on the ground that the conduct of a cemetery is not necessarily a religious use. That, of course, is quite true. Here, however, at the hearing before the zoning board of adjustment there was testimony that there were four Orthodox Churches in Ambridge whose members could be buried (about 60 a year) in the cemetery; that among the precepts of the church is the duty of burying the dead; that a cemetery set apart by the church for the burial of its dead members is consecrated or sacred ground being blessed for that purpose; that at the time of each burial the particular plot is blessed; that there is a religious rite for the burying of the dead required by ecclesiastical
The evidence of those who protested the cemetery did not attempt in any way to contradict this evidence. Indeed, one of the protestants, when asked whether he believed that burying the dead was a religious use, said “I think I would be an awful heathen if I didn’t.”
The position of the commissioners was spoken by one of them at the hearing before the zoning board, as follows: “. . . and now, as a private citizen, I would like to say that a cemetery can be considered a religious function — not just an Orthodox or Catholic cemetery — ■ any cemetery, because it does state in the Bible to bury the dead; but I cannot possibly believe that the men who drew up this zoning ordinance meant that a beautiful home should have a cemetery next door as a religious purpose. If they would have believed a cemetery should be in a residential area, they would have said so.”
This seems to point up the problem. Both sides apparently agreed before the board of adjustment that the words “religious use” in the narrow sense did not include a cemetery but that in the broad, sense they did. The zoning board of adjustment made findings of fact, and refused the appeal on the ground that “(1) The requested use is not within those permitted under the Zoning Ordinance.” The board ended its discussion by saying “It is also the opinion of the Board that ■'religious’ uses contemplated in said ordinance would be churches or parochial schools, and not such incidental uses as cemeteries.” Upon appeal the court of common pleas said: “It is contended that a church cemetery is a religious use of land. Undoubtedly as
With this conclusion I do not agree. Certainly it is true that a cemetery established as a business venture is not a religious use of land.
It is equally true that an ordinance, such as that involved in Catholic Cemeteries Association of the Diocese of Pittsburgh Zoning Case, 379 Pa. 516, 109 A. 2d 537, which permitted “churches and public schools”, did not authorize cemeteries. But the present ordinance is different. It authorizes the religious use of land.
In view of the uncontradicted testimony in this case, which is virtually conceded by all parties, I do not see how it properly may be held that the proposed use of the land by the Russian Orthodox Church would not be put to a religious use by laying out a cemetery. I do not suggest that it is necessary to constitute a religious use that the cemetery itself, or even the particular plot, be consecrated or sacred ground. But it is necessary that there be a religious rite connected with the act of burial according to the ecclesiastical law and precepts of the particular sect. It is a familiar principle that zoning ordinances, since they are in derogation of the normal right of a property owner to use his land as he pleases, must be strictly construed. Medinger Appeal, 377 Pa. 217, 104 A. 2d 118;
I believe it is precisely in this area that the zoning board of adjustment and the court below went wrong. They took the position that since cemeteries were not
I would reverse the court below and direct that the permit be granted.