Andress v. Zoning Bd. of Adjustment of City of Philadelphia

• Citation: 188 A.2d 709,410 Pa. 77
• Parties: George W. ANDRESS and Georginna Andress, his wife, and George R. Schultze and Elsie H. Schultze, his wife, and the Greater Bustleton Civic League, an unincorporated Association, Appellants, v. The ZONING BOARD OF ADJUSTMENT OF the CITY OF PHILADELPHIA.
• Decision Date: 21 January 1963
• Court: United States State Supreme Court of Pennsylvania

Page 709

188 A.2d 709

410 Pa. 77

George W. ANDRESS and Georginna Andress, his wife, and George R. Schultze and Elsie H. Schultze, his wife, and the Greater Bustleton Civic League, an unincorporated Association, Appellants, v. The ZONING BOARD OF ADJUSTMENT OF the CITY OF PHILADELPHIA.

Supreme Court of Pennsylvania.

Jan. 21, 1963.

Rehearing Denied March 28, 1963.

Jerome B. Apfel, George X. Schwartz, Philadelphia, for appellant.

Matthew W. Bullock, Asst. City Sol., Philadelphia, for appellee.

R. G. Hess, Howland & Hess, Philadelphia for CMC Const. Co., intervenor.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, KEIM, EAGEN and O'BRIEN, JJ.

BELL, Chief Justice.

This is an appeal from an Order of the Court of Common Pleas which, without taking testimony, affirmed the decision of the Zoning Board to grant a variance for the erection of an apartment house.

Appellee, C M C Construction Company, a land development company (hereinafter called 'C M C') purchased the parcel of land here involved at the same time that it purchased three neighboring (but not contiguous) parcels in 1956. The lot in question is zoned 'A' Residential. It has the shape of a trapezium. ¹ Although its frontage on Verree Road is 395 feet, its maximum depth is only 90 feet, ² and its area is approximately 19,000 square feet. To the rear is a Philadelphia Electric Company's right-of-way (for high tension wires) which it acquired in 1942.

C M C applied to the Zoning Board of Adjustment for (1) a variance to erect on these premises a sixteen unit, two story, 'V' shaped apartment and (2) a variance with respect to rear yard and side yard minimum requirements. The Board, after a hearing, granted the variance because compliance with the 'A' Residential provisions of the Zoning Ordinance created inherent hardship in the use of this property. Moreover, because of the irregular size and shape of this vacant lot and because of the front and rear yard minimum open space requirements of the ordinance, a single family dwelling cannot be profitably built thereon, unless a variance for open space requirements is granted.

This property is in an 'A' Residential District. Single-family dwellings and many other kinds of buildings are allowed in this district, but these permissive buildings do not include an apartment house.

Since no testimony was taken in the Court below, the test on appeal to this Court is whether the Zoning Board of Adjustment clearly abused its discretion or committed an error of law: Brennen v. Zoning Board of Adjustment, 409 Pa. 376, 187 A.2d 180; Poster Advertising Company, Inc. v. Zoning Board of Adjustment, 408 Pa. 248, 251, 182 A.2d 521; Valley Forge Industries, Inc. Appeal, 406 Pa. 387, 177 A.2d 450; Spadara v. Zoning Board of Adjustment, 394 Pa. 375, 147 A.2d 159; Freed v. Power, 392 Pa. 195, 139 A.2d 661; Moverman v. Glanzberg, 391 Pa. 387, 138 A.2d 681. 'Error of law' is used in its broad sense and includes questions of 'Constitutionality.'

In order to determine these questions were shall summarize the evidence which is some important respects is not sufficiently clear or definite. The evidence indicates that if a variance with respect to front yard set-back and back yard open space requirements were granted, one or two single family dwellings could be built on this irregular parcel of ground. It is not absolutely clear whether a dwelling erected thereon could be sold for as high a price as the attractive homes in that neighborhood. ³

Fifty-two neighbors protested the grant of a variance to erect the proposed apartment house (1) because a single-family dwelling could be built on the premises3 and (2) because an apartment house (a) would greatly change the character of the neighborhood and (b) would greatly increase congestion, density of population and school taxes, and (c) would be contrary to the public safety and general welfare. The protestants likwise contended that if a large apartment house can be built on this lot, so can a residence, and the fact that an apartment house would be more profitable will not justify a variance.

Because of the existing confusion on the subject, we deem it wise to briefly summarize the constitutional boundaries which should guide legislators, planning commissions and zoning boards, and restate certain pertinent principles which apply in zoning matters.

In Archbishop O'Hara's Appeal, 389 Pa. 35, page 58, 131 A.2d 587, page 598, the Court said:

"The natural or zealous desire of many zoning boards to protect, improve and develop their community, to plan a city or a township or a community that is both practical and beautiful, ⁴ and to conserve the property values as well as the 'tone' of that community is commendable. But they must remember that property owners have certain rights which are ordained, protected and preserved in our Constitution and which neither zeal nor worthwhile objectives can impinge upon or abolish." ⁵

The rights of property owners and the limitations of Government may be thus summarized:

1. Our State and Federal Constitutions ordain, protect and guarantee the ownership and use of private property. United States Constitution Amendment V; Article I, Section 1, Section 10 of the Constitution of Pennsylvania, P.S.

2. The Constitutionally ordained right of private property and freedom of speech, freedom of the press, freedom of religion, and other Constitutionally granted rights, are not absolute: Times Film Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403; Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105; Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; American Communications Ass'n, CIO v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Wortex Mills, Inc. v. Textile Workers Union of America, C.I.O., 369 Pa. 359, 85 A.2d 851. These rights and freedoms are subject to the paramount right of the Government to reasonably regulate and restrict, under a reasonable and non-discriminatory exercise of the police power, the use of property, whenever necessary for the public health, safety, morals and general welfare: Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Medinger's Appeal, 377 Pa. 217, 221, 104 A.2d 118.

3. Neither the Executive nor the Legislature, nor any legislative body, nor any zoning or planning commission, nor any other Governmental body has the right--under the guise of the police power, or under the broad power of general welfare, or under the power of Commander-in-Chief of the Armed Forces, or under any other express or implied power--to take, possess or confiscate private property for public use or to completely prohibit or substantially destroy the lawful use and enjoyment of property, without paying just compensation therefor: Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585; United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153; Lord's Appeal, 368 Pa. 121, 130, 81 A.2d 533; White's Appeal, 287 Pa. 259, 134 A. 409, 53 A.L.R. 1215; Sansom Street, Caplan's Appeal, 293 Pa. 483, 143 A. 134; Miller v. Beaver Falls, 368 Pa. 189, 196, 82 A.2d 34; Rolling Green Golf Club Case, 374 Pa. 450, 453, 97 A.2d 523; Medinger's Appeal, 377 Pa. 217, 104 A.2d 118, supra; Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A.2d 587, supra; Griggs v. Allegheny County, 402 Pa. 411, 414, 168 A.2d 123. ⁶

4. It has been difficult and at times impossible to sharply or clearly draw the dividing line between valid or constitutional zoning on the one hand and illegal or unconstitutional zoning on the other hand, i. e., a taking of property, with respect to the entire district zoned or with respect to a particular property.

Article I, Section 1 of the Constitution of Pennsylvania provides: 'All men * * * have certain inherent and indefeasible rights, among which are those * * * of acquiring, possessing and protecting property * * *.' It is today often forgotten by legislative or zoning bodies or planning commissions that this inherent and indefeasible right of ownership and possession of private property includes the right to use property, otherwise the right would be meaningless. In Miller v. Beaver Falls, 368 Pa. pages 196, 197-198, 82 A.2d page 37, supra, the Court said:

"The governing principle is accurately stated in 20 Corpus Juris, 666; 'There need not be an actual, physical taking, but any destruction, restriction or interruption of the common and necessary use and enjoyment of property in a lawful manner may constitute a taking for which compensation must be made to the owner of the property."

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'As the Court of Appeals of New York, in Forster v. Scott, 136 N.Y. 577, 32 N.E. 976, 18 L.R.A. 543, in a case involving a statute * * * which it held to be 'in conflict with the provisions of the constitution for the protection and security of private property' so aptly said * * * 'What the legislature cannot do directly it cannot do indirectly, as the constitution guards as effectually against insidious approaches as an open and direct attack. Whenever a law deprives the owner of the beneficial use ⁷ and free enjoyment of his property, or imposes restraints upon such use and enjoyment that materially affect its value, without legal process or compensation, it deprives him of this property, within the meaning of the constituion. All that is beneficial in property arises from its use and the fruits of that use, and whatever deprives a person of them deprives him of all that is desirable or valuable in the title and possession. It is not necessary, in order to render a statute obnoxious to the restraints of the constitution, that it must, in terms or in effect, authorize an actual physical taking of the property or the thing itself, so long as it affects its free use and enjoyment, or the power...