*1 Zоning Board District Adjustment, Appellant. C. Mus- Before Argued January 12,1965. J., Bell, Roberts, O’Brien Eagen, manno, Jones, Cohen, JJ. Deputy City
Levy First Solicitor, Anderson, him and Carl K. Assistant Zucker, Gerald Gornish Deputy City So- Matthew W. Bullock, Solicitors, Jr., *2 City for and Edward licitor, Bauer, Jr., Solicitor, G. appellant. appellee.
Joseph W. for school Marshall, district, 1965: Mr. Justice March 16, |*Opinion Eagen, appeal City from This is an of an order Phila- of the Court of 4 of Common No. Pleas delрhia zoning County overruling .the decision adjustment (Board) holding board of Philadelphia (School District) School is District of exempt provisions zoning City from Phila- of of delphia Code of Ordinances. brings sharp conflicting
This case into contrast the authority by municipal assertions of two coterminous bodies within the boundaries of the of Philadel poses phia, question: thus Does the Philadelphia, under Bule Charter1 añd the itsJEtome Zoning Enabling power regulate by Act,2 ""have the public means ordinances the construction of buildings by city the School District within the -.....----- (cid:127) ~ ........ ^ ‡- limits?J The facts are these: presently There southerly exists on the side of W. Thompson Street, between N. Taney 26th Street and N. a Street, known as the Robert Morris Public School. Because of an population, increase in existing inadequate to meet the needs in the area. Therefore, proposes District rеplace to raze this structure and it with a new and larger plant greater to accommodate a pupils. number of 1 Adopted pursuant to the First Class Home Rule Act of 21, 1949, April seq., P. L. et 53 seq. P.S. §13101 et May 6, 1929, P. L. seq., Act §1 et seq. 53 P.S. §14752 et accomplish a vacated order to this, present immediately street the south acquired property School District and, addition, through beyond property bed further vacated street Dis- the School its eminеnt domain. Thus, property south- trict a has extended the assembled upon property erly another direction to line acquisition large which is located a structure, pow- apparently beyond present financial er of the School District. requirements prevailing zoning for a structure height
in this district maximum inter include, alia, depth provisions yard rear of 9 feet, feet and parking parking an off-street area which affords оne space square gross for each feet floor area building. requirements, In contravention of these *3 proposed height, the structure to be 50 with is feet yard, parking no rear and would no off-street spite gross area in of the fact that the floor area square 90,000 feet. applied Department
'"'C,The School District to the of,( Inspections permit and Licenses for a to constructive plant, which was denied because above comply zoning failures to with'the also and provision^ permitted because a school was not a use the within property wherein districts the was located.
Thereupon, appealed the School District to the zoning Board for variances and for a of ex- certificate ception, all which were refused after hear- ing. The Board did building find that a school was permitted but ground based its usе, refusal on the proposed would violate the other zon- ing sought to criteria be and avoided, that such viola- “substantially congestion tions would public increase in the against and would streets” the overall harmony spirit not in interest and pur- the pose zoning ordinance. Com- Court the appealed District School reversed Philadelphia County Pleas of
mon conclu- basis upon of the Board solely decision prо- all from exempt District that School sion relating zoru. ordinances of the City’s visions .of code "' We ing. granted $ certiorari^) before argument of concession at oral As a result not Board would it stipulated was this Court, height impose upon continue to limitations ap- yard of the rear depth and the proposed building now dispute thereto. the sole area purtenant Thus, empowered require the Board is is whether regulatiоn District with the comply School area off-street The restricted concerning parking. nature of present dispute does not change remains: question basic decision. The issue still to en- does the power have the force zoning regulations against nature any If District. to enact power School the City enforce in that zoning regulations is limited statutorily are if school districts or exempt, granted complete power plenary re- District over its even if it has physical plants, unto then without served the City is itself, to enforce the We authority here involved. emphasize question as to whether Board abused its discretion in zon- grant refusing variance is not ing presently before us. *4 the issue pure is one of
Hence, power in City. the City municipal corporation Since created by it possesses the state, only powers those specifically legislature: granted by Schultz v. Philadеlphia, 122 385 Pa. A. 2d 279 79, and (1956), Genkinger v. New 368 Pa. Castle, 84 A. 547, 2d 303 Zon (1951). enacted ing laws, exercise of police power, governed specific are likewise by grant. statutory See, v. Kline 362 Pa. Harrisburg, 68 438, A. 2d 182 (1949). empowered initially was City .dJThe Zoning ordinance zoning legislation by
to enact
vir
By
note
53 P.S.
snpra
§14752.
Enabling Act,
2,
passed
the City
granted
therein,
tue
authority
pursuant
ordinance
1933.'
1949,
basic zoning
its
.in
of Pennsylvania,
to Article
of the Constitution
XV, §1
City
Class
passed
General
First
Assembly
et seq.,
Home Rule
mote
supra
Act,
l,,
advantage
first class
giving
taking
cities
au
powers
subject
certain
all
act,
limitations,
com
thority
with
together
self-government,
powers of
relative
plete
and administration
legislation
.
to its
municipal
functions. The
Philadelphia,
Home
pursuant
adopted
Act,
1949, supra,
Rule
on
Charter
April
effective
17, 1951,
January 7,
1952.
It
empowered
was, therefore,
legislate
municipal
subject
to certain limitations
functions,
discussed,
will
as could the
later,
fully
(as
General
382 Pa.
Philadelphia,
Assembly Kelly v.
As noted before, City’s to legislate and its absolute, charter is subject to such restrictions, Section 17 of Act, the First Class supra, Home Rule §13131, provides, pertinent part, P.S. as follows: “The charter any city adopted may or amended in accordance with this act any powers . . . for relating the exercise and all to its municipal functions, not inconsistent with the Constitution of the Commonwealth, States or of United extent full legislate Assembly may ., General thereto . . reference may effect, regulations ordinances, and the enact Kke rules and necessary proper carrying pow- foregoing into execution the powers city by vested in adopts and all other ers charter it any (Emphasis supplied). law." this or *5 282 may con regulations
limitations Philadelphia,, Pa. impose. Cali See, clude (1962)".?~'fTheserestrictions A. 2d 824 §18 specifically set forth have been limitations construc It is to the §13133. the Act pri provisions must we these restrictive tion marily our attention. direct provides, [N]o . inter alia: “. . Section powers contrary or in limitation exercise to, powers granted enlargement the General acts of of, Applicable (a) Assembly a class are — (6) subjects: following on the ... classes Regulating cities every public Applicable (b) ... schools; part of the Commonwealth.” limitations School District maintains clearly enumerated manifest did not intend the to interfere the construc- with public buildings. urges tion of a It that such integral part sys- function is an of the educational the sole tem, administration of which is vested in permit School and that to inter- District, “Regulating public fere therewith constitutes schools”, contrary is an exercise limi- to and in powers granted by tation of other acts of General Assembly applicable every part which are the Commonwealth in thereto. We sub- cannot position. scribe to this place, imposi first we do not consider the
tion of regulation, protection enacted for the generаl of the health, com welfare munity, requiring parking off-street to avoid traffic congestion public schools. Such zoning regulation distinctly is of a different nature. As we view the “Regulating term schools”, quality deals more with education than physical required structures it. “The is but a necessary duty primary of edu to the fulfillment of the incident Independent cating young”: Port Arthur *6 (Tex. 2d District v. 376 S.W. Groves, 1964). peculiarly matter is Moreover, imposed City by prohibition Act and thе on the against powers contrary to, of 1949 the exercise Assembly in limitation of the General other acts of, applies only concern. to substantive matters state-wide See, Zoning Adjustment, 10 Board Bartle (1957), 2d D. & Pa. C. 2d aff’d 391 137 A. Pa. 207, (1958). thus state-wide interest, cWe protected by to the area from local interference statute, example, for that be centered number of hours in, types children phasis em must attend school and the рresented of courses that to We shall be them. no see inherent that state-wide interest the fact problems buildings, certain school because of local congestion, space should be so situated that availa is parking, for ble off-street even because that, building overcrowded only each conditions, should be height, a certain or that it should a back have yard depth. of a certain These are areas which protect did not intend to to when it denied regulate public cities to In re schools. quiring parking Oity off-street facilities, the is here public “Regulating merely trying schools”; it is combating congestion enforce public methods of its streets reasonably means which it considers accomplish calculated this result. That is there some additional system cost the educational does ipso regulation not mean facto that there is of schools. unreasonably oppressive Should the cost become so as prevent duty fulfillment of providing remedy then the schools, of variance avail yet, able. But, record contains no indication requirement of that such facilities would be prohibition building. effect a The record shows southerly appurtenant cannot only next that the area prop acquired. that other indication There is nо be acquired parking erty facilities not be could ability. Until financial District’s is within City’s construction of school prohibition, proportions then of financial assumes type regulating this schools is not ' " ¿X v‘* Jj (cid:127) of ordinance.' pointed It out in context must this emphasized they ex- School District has the fact panded upon city ex- the full southward block to present pointing ability, out tent of their financial get” money that it cost “a would heck of а lot of appurtenant presently the structure next as- requirement lot. sembled there no However, *7 parking facility contiguous that the building, or even Of that it be on the same block. pur- we realize that course, it would defeat the whole facility remotely of the if it were that located so pose ; employees would not use it. remains- But there choosing latitude the site. x.some arriving at the above °tln we are conclusiоns, unmindful of the fact the Public School Code, Act of March P. L. 10, §§701 1949, 30, & places §§7-701& duty 7-702, School District providing grounds necessary performance administering the Commonwealth’s system public education, and the discretion of de- termining the location and size of the real estate for specific purpose. this we However, do not consider imposition zoning regulation of a as here involved to amount to an interference with these vested re- sponsibilities, interpret nor do we specific provi- these preclude sions of the Code to imposing from duty acquire additional land in connection with proposed site when such necessary pro- tection of the health, and welfare of the com- regula- munity. exactly And this is what the purports tion involved to do. persuaded
We are not has, statutory pronouncements, given district its a school complete рlenary its of the first class over physical plants. opposite indicated. fact, Pennsylvania
Article of the Constitution of X, provides, part, Assembly General “the support thor- the maintenance and of a ough system public and efficient . . . .” schools carry has chosen func- out this through varying tion local school de- districts with grees power, depending upon classification. While discharging the school educational districts, еnjoy sovereign- some of the function, ty attributes of the independent they are bodies Commonwealth, powers with limited which are set forth in Pub- lic supra, §1-101 Act of Code, et P.S. seq. They enjoy police power do not state. regulations
The Code contains certain mmimal applicable throughout which are to all schools approval Commonwealth:4^"But standarized of con plans by Department struction Instruc Public tion оr specifically the State Council of Education is limited to school in districts of the second, third and fourth classes: 24 P.S. 7-733 and §§7-731, 7-734.5 *8 4 10, See note infra. 5 In prior approval school districts of the first class of con plans by superintendent buildings required: struction the 24 is H'owever, superintendent §21-2111. P.S. of- is an by appointed ficial the local §21-2104. board: 24 P.S. Fur-
thermore, appointed body: local board is also an P.S. Therefore, approval construction §3-302. is left in an hands appointees. appointee pointing out, we to do not mean say administering incapable per- officials are or lax in the duties; legislature of their but we do formance not think that approve plans leave sole discretion to intended to construction in an §1 April 465, P. L. Act 1927,
Further, 27, pro- seq.,6 seq., §1221 which et et as 35 P.S. amended, regulations certain safety for for and vides health including schools, within Cоmmonwealth, duty the own- “It be the states: Department In- of Labor er to ... submit compliance approval showing dustry . . . data building provisions or such of this act .... No plans have structure shall be erected . . . until such approval building given been examined and . . ., permit permit municipalities in obtained where such required by ordinance.”7 safety regard we in Thus see at least that, persons building, and health of in a assembled setting provided explicitly has for the Department of minimum Labor standards provid- Industry, by implication and further appreciation particular problems, local ed, stringent might mu- more nicipalities. standards local be set implication strengthened by §12
This May of the Act of P. L. 6, §14762, P.S. provides regard regu- (a matter of safety lation inter for, of the alia, health public) cities the first class: “Wherever regulations require authority under made of this act greater yards require width or size of or ... a lower height impose higher ... other stand- required any ards than are statute regulations, provisions ordinance or regula- of the authority made govern.” tions under of this act shall reading provisions A of these shows the obvious provide fully intent of the for the and health of citizenry. the Commonwealth’s It wise- office as such this without prede- to workable standards adequate protection termined to be general welfare. we Which conclude is still in force cities of the first Kelly supra. Philadelphia, class: Cf. 7 Emphasis supplied throughout, unless otherwise noted. *9 peculiarly ly recognized congestion problems magnitude of of cities of cities the permit re- first of the class could and often do quire stringent regulation protection of more general - welfare. /
The School District contends that ordi has set standards to which the local nо nances must there conform, therefore, that, City’s any more assurance that the standards will be promotion general conducive of than welfare superintendent buildings. How will those of of merely minimum because the ever, sets certain mean standards for construction does not gravitate that the school lowest directors must to this point. prohibition against setting no of There is required higher by standards than on those part superintеndent buildings. What Supreme was said Court of in Port Ar Texas Independent thur School District Groves, supra, appropriate: particularly 376 S.W. 2d at city, performing delegated “The its it duties as usurp authority does not state, re sponsibility of the school district in the realm of edu by requiring cation the school cer meet tain minimum any standards construction more usurps management than it the control and indi private corporations property viduals and over their by making and affairs them meet those same stand ards.
“To hold otherwise would be to leave a
hiatus
necessary
the health and
of community.
provided
The state
system
has not
inspection
regulation and
under
by local
construction
school districts as has the State
California.[8]
require
If
cannot
certain
Pennsylvania
the Commonwealth
Nor
the first
class.
districts
it
only
district
*10
be
there could
standards,
could
schools
stаndards.
such
self
determine
city’s scheme
so as to be inconsistent
be built
peculiar
city’s
regulation
of the
and inconsiderate
of
safety.”
problems
and
of health
ques
Finally,
could without
while
action)
may
reserved
(and
future
still
tion have
regarding
every
of
matter
control
the entire
large
been
has not
in
measure this
schools
itself,
pre-emption
toas
arisen,
of the field
nor has a
done,
in cities of
the construction
schоol
paral
problem the
in
California met this
first class.
Pasa
District v.
of Pasadena School
lel cases
(Cal. 1913),
Hall
and
Apparently heeding advice, prior decision Hall v. acted, su Taft, pra, occupied it was held that wherein the state had comprehensive by enacting the field a education code, provision including approval for standardized plans for all cоnstruction within the state.9 provides: Ann. Education Code §18194 9 West’s “The Division pass upon approve reject plans of Architecture all of, to, any or alteration construction addition iuilMng” holding it Hall,
While this an alternative was established leaves no doubt that the scheme there present comprehensive Common- far than the more system, Penn- and that the wealth Commonwealth sylvania pre-empted build- the field of school ing in cities first construction class districts system regulation in- of the first class. No spection read has been do not established; we legislative intimately in a so intertwined field inaction with the of this and health the children build- Commonwealth as is the of school ing policy construction to declaration of (appointed officials) effect that school directors *11 first districts class shall a free hand be allowed regard predetermined to construct without to stand- promulgated protect ards to the children whom over they responsibility. especially have This is true when legislature we note that when the desired to establish a fixed on standard its own initiative it did ex- so press terms.10 ' point feel constrained to state at ÍWe this question prevent of whether or not can any particular erection of a school in appeal district has not been on raised this fоr the rea- son that the Board found as a matter of fact that a permitted a was in use in- districts here volved. We therefore unnecessary find it to deter- mine whether the overriding Commonwealth an has 1949', Public Sebool Code Act 10, 1949, of March L. P. seq., requiring §1 et buildings all §7-738 sebool in — tbe of 2 districts of first class fireproof more to stories be of construction, requiring but in only sucb all in districts (Surely more them 2 stories. some inference can be recognized danger tbe congest that drawn tbe added areas) §§7-736, 7-737, ; cf. 24 P.S. requiring ed build 7-739— ings beating stoves, to have no in all districts unshielded to have etc., ventilation, proper escapes and to have fire that doors outward, open etc. opposed in the fact existence, interest of school manner of construction, highly Philadelphia. consider it We would “zone-out” City could doubtful, however, grant statutory entirely, or limit the could schools applicable directors within to all discretion the location of to choose Commonwealth (24 grounds P.S. §7-702).jN- 'V' find We therefore empowered prescribe ordinances reasonable been general protection safety, and the health municipal functions, welfare, which, legislative further enactment. have force We police of the lack of School District’s view find, power, mini- failure pre-emption in mum and the lack of standards, state from that the School not immune District is field, comply such,, ordinances that it must therewith. order court below is reversed ¿The hearing record remanded whether determine refusing the Board abused its discretion in to issue zoning variance.
Dissenting Opinion Mr. Chief Bell: Justice I dissent. *12 Notwithstanding majority the fact does expressly implication question, decide necessary Opinion majority result of en- is to practically prohibit able the effectually adequate erection of zoned within areas which the districts, School Board desires opposes school.”/