26 A.2d 135 | Pa. Super. Ct. | 1941
Argued November 20, 1941. This is an appeal from an ordinance1 enacted by defendant borough on October 10, 1940, establishing "set-back building lines" on Church Lane under the authority of the Act of June 29, 1923, P.L. 957, § 1, 53 PS 15731. Cf. Borough Code of May 4, 1927, P.L. 519, art. XII, § 1202, cl. XXV, 53 PS 13337. The borough had previously enacted a zoning ordinance and a building code but the ordinance in question was the first attempt to establish building lines within the borough. It applies to but two parts of the business district of the borough along Church Lane, one between Guenther and Whitby Avenues and the other between Baily Road and Myra Avenue.2 These two sections of the borough are not contiguous and there is no ordinance establishing building lines along Church Lane in the block north of Whitby Avenue to Longacre Boulevard nor in the block beyond, extending to Baily Road.
Of the 280 feet of land fronting on the east side of Church Lane between Whitby and Guenther Avenues plaintiff owned 196 feet. Between the south line of his land and Guenther Avenue, long before the ordinance, there were five store buildings with a total frontage of *604 84 feet, all uniformly set back about 10 feet from the streetline. Plaintiff had improved his corner lot extending southwardly from Whitby Avenue 100 feet as a gasoline service station with pumps on an "island" within 8 1/2 feet from the line of Church Lane. In July 1940 he had completed a market building adjoining the corner property and extending southwardly with a frontage of 72 feet. This building was set back but 3 feet from the line of Church Lane. He then proceeded to improve the remaining 24 feet of his vacant land immediately south of the market property. On September 30, 1940, he delivered a set of plans to the building inspector of the borough as an informal application for a building permit, followed by an application in writing on October 9, 1940. The plans called for a building set back 3 feet from Church Lane to conform with the building line of the market house adjoining it on the north. In the meantime the borough proceeded to enact the ordinance in question and it was finally passed on October 10, 1940. In it the borough established an applicable set-back building line at 10 feet from the streetline; plaintiff was refused a building permit. He as a party aggrieved had the right of appeal from the ordinance. Act of 1927, supra.
Set-back ordinances generally have received judicial sanction as lawful exercise of the police power, where the restriction has a substantial bearing on the health, safety, morals or general welfare of the public. (See note 53 A.L.R. 1222). The question whether an ordinance controls the owner's use of property for the public good is "largely legislative, with which courts only interfere to prevent an arbitrary abuse of power." Kerr's Appeal,
The issues in this appeal raise no new questions of law. In general an ordinance which without reason or necessity restricts one's use of his land or imposes a limitation which is oppressive, cannot be enforced. Bryan v. City of Chester,
More specifically, in dealing with a zoning ordinance fixing set-back building lines, the Supreme Court in White's Appeal,
supra, affirmed principles which rule the present appeal. It was there said: "the power to thus regulate does not extend to an arbitrary, unnecessary *606
or unreasonable intermeddling with the private ownership of property, even though such acts be labeled for the preservation of health, safety and general welfare. The exercise must have a substantial relation to the public good within the spheres held proper. It must not be from an arbitrary desire to resist the natural operation of economic laws or for purely aesthetic considerations: Welch v. Swasey,
In the White case a zoning ordinance was held to be unconstitutional because of gross discrimination in establishing set-back building lines at variable distances in different squares in a residential district, and farther from the property line on one side of a street than on the other. The ordinance in the present case is more discriminatory than that involved in the White case (though dealing with a different class of property) and must fall for the same reason. Here the ordinance dealt with two separated blocks in the business section of the borough leaving the owners of land, fronting on Church Lane in the two intervening blocks, free to build upon their land as they chose. The ordinance within itself, lacks uniformity in its operation and is inconsistent and discriminatory. Between Guenther and Whitby Avenues building lines were set back 10 feet from Church Lane *607 on both sides of the street, but between Baily Road and Myra Avenue the building line on the west side of Church Lane was fixed at not less than eight feet from the street line and on the east side of Church Lane at not less than three feet. Its effect upon property owners was not uniform. The set-back lines varied from 3 to 10 feet. Appellant contends that one of the purposes of the ordinance was to make "wider sidewalk areas available."3 But in that respect it did not accomplish a uniform result. The sidewalks on Church Lane between two intersecting streets, if the set-back areas are included, would be 17 feet wide. In the other block on one side of the street the sidewalk would be extended to 18 feet in width and on the other side to but 15 feet.
Viewed purely as a set-back ordinance for legitimate regulatory purposes under the police power, the ordinance is invalid for lack of uniformity in its application; it is discriminatory and does not operate on all alike.
Judgment affirmed.