Appeal of Glorioso

• Decision Date: 08 January 1964
• Citation: 413 Pa. 194,196 A.2d 668
• Parties: Appeal of Carmelo GLORIOSO and Teresa Glorioso, Appellants, from Decision of the Board of Adjustment of the Borough of Verona and Sam Weinstein, David M. Sieman and Nathan L. Sieman, Intervenors.
• Court: Pennsylvania Supreme Court

Page 668

196 A.2d 668

413 Pa. 194

Appeal of Carmelo GLORIOSO and Teresa Glorioso, Appellants from Decision of the Board of Adjustment of the Borough of Verona and Sam Weinstein David M. Sieman and Nathan L Sieman, Intervenors.

Supreme Court of Pennsylvania.

Jan. 8, 1964.

Leonard M. Mendelson, Donald E. Ziegler, Pittsburgh, for appellants.

Charles D. Coll, Pittsburgh, for appellee.

A. Sanford Levy, Herbert G. Sheinberg, Pittsburgh, for intervenors.

Before MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN, and ROBERTS, JJ.

JONES, Justice.

In the spring of 1957, the United States Government offered for public sale an unimproved tract of land located at the northwest corner of Allegheny River Boulevard [Boulevard] and Center Avenue in the Borough of Verona [Borough]. This tract, rectangularly shaped, fronted 159 feet on the Boulevard and 103.5 feet on Center Avenue and contained 16,640 square feet.

To the north of the property lies real estate owned and used by the Pennsylvania Railroad Company for railroad purposes; to the west is property owned by Sam Weinstein et al. [Intervenors] on which is erected a supermarket operated by the Great Atlantic and Pacific Tea Company [A. & P.]; to the south across Center Avenue and to the east across the Boulevard, the United States' land faces an uninterrupted line of commercial establishments the upper floors of many of which are used for residential purposes. Both the Boulevard and Center Avenue carry so much traffic that, prior to the offer for sale of the United States' land, the Borough Council had discussed the feasibility of acquiring some of the A. & P. property or some of the Railroad property for use as a municipal parking lot. Later, on learning that the United States might sell its property, Council determined to bid therefor if and when it should be placed on the market.

Accordingly, when the United States offered the land for sale the Borough submitted a bid. That bid and all other bids submitted at that time were rejected as being too low and the land was reoffered for sale. Bids were again submitted by the Borough, by Carmelo and Teresa Glorioso [Glorioso] and by the Intervenors. On May 31, 1957, Glorioso's bid was accepted.

Thereafter, on June 11, 1957, a zoning ordinance was adopted by the Borough which divided Verona into six zoning districts, namely, Heavy Manufacturing and Industrial, Light Manufacturing and Industrial, Commercial, Public and Private Recreational, Residential and Special.

Only three properties were included within the 'Special' district: the Glorioso property, the Railroad property and the A. & P. property. The 'Special' district encompasses approximately 4 1/2 acres or 1.3% of the total Borough area of 338 acres and within such district only nine land uses are permitted: (1) cultivation, (2) government use, (3) hospital, (4) medical center, (5) municipal building, (6) parking, (7) public utility structure, (8) railroad use and (9) non-profit recreation areas. Use as a gasoline service station was specifically prohibited in the 'special' district and the ordinance further provided that, on an appeal to the Board of Adjustment, 'no use different from that permitted in the Zoning District shall be permitted.' Glorioso appeared at the Borough Council meeting at which the ordinance was adopted and notified Council that his bid had been accepted by the United States.

Four years after the purchase of the land, Glorioso applied to the Borough for a variance to permit the construction of a gasoline station. The Board of Adjustment decided that it was without authority under the ordinance to grant any variance. Appeal was taken to the County Court of Allegheny County which, after taking extensive testimony, dismissed the appeal. Hence, this appeal.

Throughout the proceedings Glorioso has strongly impugned the motives of the Borough officials. Our reading of the record does not bear out Glorioso's imputations but, on the contrary, indicates that the Borough officials were actuated solely by the best interests of the Borough. Furthermore, it seems clear that the ordinance was not directed at the Glorioso property nor enacted to favor existing gasoline stations; on the contrary, it was a very belated attempt to remedy the neglect of former officials in not providing for the orderly development of the Borough.

Nevertheless, the highest motives and the exercise of legislative wisdom are not sufficient to preserve an ordinance from the prohibition of the constitutional mandate that property shall not be taken for public use without just compensation. For their validity zoning ordinances depend upon a reasonable relationship to the police power asserted for the public welfare. Village of Euclid, etc. v. Ambler Realty Co., 272 U.S. 365, 387, 47 S.Ct. 114, 118, 71 L.Ed. 303; Sawdey Liquor License Case, 369 Pa. 19, 25, 85 A.2d 28. While all zoning necessarily involves a limitation of the use to which property may be put (Dunlap Appeal, 370 Pa. 31, 34, 87 A.2d 299) and, while to some extent property may be regulated under the police power, there comes a point where regulation of property may, in reality, constitute a taking of the property (Pennsylvania Coal Co. v. Mahon et al., 260 U.S. 393, 415, 416, 43 S.Ct. 158, 160, 67 L.Ed. 322). ¹

'By its very nature zoning impinges upon the right of a land owner to use his land in any way that he desires so long as he does not unduly interfere with his neighbor's right to use and enjoy his land'. Swade v. Springfield Township Bd. of Adjustment, 392 Pa. 269, 271, 140 A.2d 597, 598; Village of Euclid, etc. v. Ambler Realty Co., supra, 272 U.S. at 387, 47 S.Ct. at 118, 71 L.Ed. 303. 'Zoning is the legislative division of a community into areas in each of which only certain designated uses of land...