5 Pa. Commw. 216 | Pa. Commw. Ct. | 1972
Lead Opinion
Opinion by
This is an appeal from an Order of the Court of Common Pleas of Westmoreland County declaring as unconstitutional certain provisions of Derry Borough Ordinance No. 381 insofar as they are applicable to mobile homes.
The record indicates that the realty located at 215 Chestnut Street, Derry Borough, was owned by appellees’ family since 1934, In 1965, Edward E. and Nancy L. Shomo (husband and wife) purchased the above-mentioned realty. Prior to the date of the deed of conveyance, the family home located thereon was destroyed by fire. Following the said conveyance, appellees cleared the land of the destroyed premises. The Ordinance (No. 381) in question was passed by Council on October 7, 1968. Some eight months prior to the passage of this Ordinance, appellees permitted the placement and use by a tenant of a mobile home upon the land. The mobile home remained in use upon the land until some time in the latter half of the month of April 1970. At that point the mobile home was removed from the land, leaving the land unoccupied for a week or so. On April 28, 1970, another mobile home was brought onto the land and was occupied by a tenant of the appellees. On May 15, 1970, appellees filed with the Borough Secretary an application for a written permit
On June 16, 1970, the appellees filed a Complaint in Equity to enjoin the enforcement of Ordinance No. 381 on the grounds that it was an arbitrary, and therefore unconstitutional exercise by Derry Borough of its police powers. Appellees further asserted that the Ordinance was discriminatory in that it prevented them from using their property as they saw fit. The lower court found that the Ordinance “by its application, although indirectly, prohibits by legislation the legitimate use of mobile homes in Derry Borough.” The court further found that this prohibition by ordinance of a property owner’s free use of his property cannot be sustained under the police power. Appellant filed exceptions before the lower court on March 24, 1971, and on the 14th of September, 1971, they were dismissed by the Court en banc. Appellant appealed thereafter to this Court, arguing that the Ordinance was a valid exercise of its police powers as granted by The Borough Code, Act of February 1, 1966, P. L. 1656, 53 P.S. §45101, et seq., and that the appellees had failed to meet the burden of proving the unconstitutionality of Ordinance No. 381.
Although the Borough contends that Ordinance No. 381 was passed for the purpose of “establishing certain size standards for single family dwellings,” the court below properly found that the real purpose was to regulate and control the use of house trailers and mobile homes. The record discloses that the largest house trailer or mobile home rig permitted upon the public roads of the Commonwealth is 12 feet wide by 75 feet
The Borough contends that it had the power to pass this Ordinance under Section 1202(24) of The Borough Code, 53 P.S. 46202, as amended, Section 1202(24) empowers boroughs to enact building, housing and plumbing code regulations. The appellate courts of this Com
It is axiomatic that a borough has the power, under its police powers, to enact ordinances regulating the construction of dwellings within the confines of its municipal boundaries. Anyone attempting to contest the
“The rule is well established that the burden of proving clearly and unmistakably the unconstitutionality of. a legislative enactment is upon the person so asserting. In Gottschall v. Campbell, 234 Pa. 347, 363, 83 A. 286, it was said, ‘That one who asks to have a law declared unconstitutional takes upon himself the burden of proving beyond all doubt that it is so, has been so often declared that the principle has become axiomatic.’ A legislative enactment can be declared void only when it violates the fundamental law clearly, palpably, plainly and in such manner as to leave no doubt or hesitation in the minds of the court. Sharpless v. Mayor of Philadelphia, 21 Pa. 147, 164. In Erie & North-East Railroad Company v. Casey, 26 Pa. 287, 300-301, it was recognized that ‘The right of the judiciary to declare a statute void, and to arrest its execution, is one which, in the opinion of all courts, is coupled with responsibilities so grave that it is never to be exercised except in very clear cases; one department of the government is bound to presume that another has acted rightly. The party who wishes us to pronounce a law unconstitutional, takes upon himself the burden of proving, beyond all doubt, that it is so.’ Hadley’s Case, 336 Pa. 100, 104, 6 A. 2d 874, succinctly states as the practical effect of the rule, ‘All presumptions are in favor of the constitutionality of acts and courts are not to be astute in finding or sustaining objections to them. . . .’
“The heavy burden resting upon the person asserting unconstitutionality of legislation is one of the most firmly established principles of our law: [Citing cases].”
Most of the cases cited by the Shomos in support of their contention that Ordinance No. 381 is unconstitutional are those involving contested zoning ordinances. The finding of the lower court that the purpose of this Ordinance was the control of land use, is indeed supported by the record. We believe that it is appropriate to utilize the zoning case law in arriving at a determination of the constitutionality of this Ordinance. We begin with the proposition that a man may use his property as he sees fit, subject to restriction (1) if he violates any provision of the state or federal constitutions, or (2) if he uses his property so as to create a nuisance, or (3) if he violates any restrictive covenant, or (4) if he violates any valid laws, including zoning ordinances. See Lord Appeal, 368 Pa. 121, 81 A. 2d 533 (1951). There can be little doubt that in this State, land use may be restricted for purposes of regulating density. See Bilbar, supra, and Volpe Appeal, 384 Pa. 374, 121 A. 2d 97 (1956).
This Commonwealth has seen the development of a trend in the law indicating that blanket municipality-wide prohibitions of land use for otherwise legitimate purposes will not be countenanced. Only when the municipality is able to prove that such use is detrimental to the public health, welfare, safety and morals of the community, will the ordinance be permitted. In such instances of total exclusion through legislative prohibition, the courts have seen fit to alter the earlier standards relating to burden of proof, as was set forth
In this case the lower court correctly found that the intent and purpose of Ordinance No. 381 was to exclude mobile homes from the municipality. Proof of the intent and purpose is found in a disclosure made in the record that the Borough, subsequent to the passage of Ordinance No. 381, permitted the construction and occupancy of wooden and masonry structures and dwellings not meeting the area requirements of the Ordinance. The record discloses that the Borough did not present evidence to establish the public purpose served by the enactment of the Ordinance, and failed to show that the
We therefore affirm the Opinion and Order of the court below.
Concurrence Opinion
Concurring Opinion by
To broadly state, as does the majority, that the doctrine of Beaver Gasoline Company v. Osborne Borough, et al., 445 Pa. 571, 285 A. 2d 501 (1971), sets forth the law on the subject of the constitutionality of regulatory ordinances and the respective burdens of proof inaccurately states the holding in that case and, at least by dicta, extends it to all regulatory ordinances enacted under the police power.
Beaver was pronounced within the context of a constitutional attack upon a zoning ordinance which totally excluded a legitimate business use from an entire municipality. In such cases the Supreme Court declared the presumption of constitutionality is overcome by showing of a total ban and the responsibility then falls upon the governmental body to present evidence to establish the public purpose served by the regulation.
The examples are legion in building codes, housing codes, zoning codes and a host of other statutes and ordinances enacted under the police power containing total prohibitions or bans. To require a governmental body to come forward with evidence to establish the public purpose being served in all such cases simply because they are subjected to a constitutional attack, as the majority surprisingly declares, wholly lacks support in the reasons assigned by the Supreme Court in grafting an exception to the presumption of constitutionality in zoning cases totally banning an otherwise legitimate business use.