Appeal of Medinger

• Citation: 104 A.2d 118,377 Pa. 217
• Parties: Appeal of MEDINGER et ux. Appeal of SPRINGFIELD TWP.
• Decision Date: 24 March 1954
• Court: Pennsylvania Supreme Court

Page 118

104 A.2d 118

377 Pa. 217

Appeal of MEDINGER et ux.

Appeal of SPRINGFIELD TWP.

Supreme Court of Pennsylvania.

March 24, 1954.

David E. Groshens, Norristown, John E. Landis, Lansdale, for appellant.

Harold W. Spencer, Wright, Mauck, Hawes & Spencer, Norristown, for Russell L. Medinger and wife, appellees.

Frederick A. VanDenbergh, Jr., Jos. P. Flanagan, Jr., Saul, Ewing, Remick & Saul, Philadelphia, for property owners of Springfield Twp., amicus curiae.

William F. Bohlen, Robert V. Massey, Jr., Philadelphia, for Haverford Civic Association, amicus curiae.

James S. Clifford, Jr., John E. Forsythe, Philadelphia, Sol. for Twp. of Lower Merion, amicus curiae.

Before HORACE STERN, C. J., and ALLEN M. STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLE, JJ.

BELL, Justice.

A narrow question is presented in this zoning appeal. Was the sliding scale of minimum habitable floor area which varied in different districts of the township constitutional?

A Zoning Ordinance, No. 309, dated December 16, 1940, as amended August 11, 1948, passed pursuant to the enabling Act of June 24, 1931, as amended by the Act of May 27, 1949, ¹ divides Springfield Township into various districts and prescribes a different requirement as to minimum habitable floor area in each district. Section 200 provides for two-story houses as follows: 'AA'-1800 feet minimum habitable floor area, 'A'-1400, 'B'-1125 feet, 'C'-1000 feet, 'D'-1000 feet.

In 1949 Mr. and Mrs. Medinger purchased a parcel of ground in Springfield Twonship containing approximately 300 feet on Montgomery Avenue, and approximately 201 feet in depth on Evergreen Avenue. The premises which comprise approximately 1 1/2 acres are situated in a residential district zoned 'AA'. Mr. and Mrs. Medinger petitioned for a building permit to erect a residence which contained only 1125 square feet of habitable floor area. They wished and planned to erect an early 1700 Colonial Bucks County farmhouse. For over 20 years they had been collecting materials to build such a home, including original roof tiles, imported Swedish glass, hand forged iron, special lumber and hardware and other authentic material.

As early as 1937 petitioners engaged an architect (who specialized in old Colonial houses) to draw plans for this Colonial farmhouse, and the Court below found that if these plans had to be redrafted (a) it would involve considerable expense; (b) the acquisition of additional original authentic material would be difficult if not impossible; and (c) the use of contemporary material substitutes would destroy the architectural beauty and authenticity as an early 1700 Colonial type Bucks County farmhouse. The house as presently designed is both unusual and beautiful and would cost, exclusive of ground, $20,000 to $25,000.

This case arose, as we have seen, on a petition by the owners for a building permit which was refused. The owners appealed to the Board of Adjustment which dismissed the petition. The petitioners, pursuant to the zoning law, then appealed to the Court of Common Pleas which reversed the Board of Adjustment, held the Ordinance unconstitutional, and directed the building inspector to issue a building permit for the house hereinabove described. This was a proper procedure to test the validity, applicability and constitutionality of the Ordinance as it applied to the ground and proposed building of these petitioners. The remedy or method of procedure prescribed by the zoning law must be pursued, but its pursuit does not admit the constitutionality of the Act or of the Ordinance, or prevent the petitioner from raising, or the Court from determining the constitutionality of the Act or Ordinance: TAYLOR V. MOORE, 303 PA. 469, 473, 476, 154 A. 799;² Commonwealth v. DeBaldo, 169 Pa.Super. 363, 368, 82 A.2d 578, 579; cf. also Lukens v. Zoning Board of Adjustment, 367 Pa. 608, 613, 80 A.2d 765; White's Appeal, 287 Pa. 259, 134 A. 409, 53 A.L.R. 1215.

The language of the Court in Lord's Appeal, 368 Pa. 121, 81 A.2d 533, is particularly appropriate. In that case, where this Court permitted the erection by an amateur radio operator of a large 32 foot high antenna mast in the back yard of his home, we reviewed numerous decisions pertaining to zoning as well as the historic background and some of the powers authorized and the limitations prescribed under the Constitution, and said, 368 Pa. at pages 125-126, 128, 81 A.2d at page 535: '* * * an owner of property is still entitled in Pennsylvania to certain unalienable constitutional rights of liberty and property. These include a right to use his own home in any way he desires, provided he does not (1) violate any provision of the Federal or State Constitutions; or (2) create a nuisance; or (3) violate any covenant, restriction or easement; or (4) violate any laws or zoning or police regulations which are constitutional. It is now well settled that zoning acts and ordinances passed under them are valid and constitutional as structural or general legislation whenever they are necessary for the preservation of public health, safety, morals or general welfare, and not unjustly discriminatory, or arbitrary, or unreasonable, or confiscatory in their application to a particular or specific piece of property . White's Appeal, 287 Pa. 259, 134 A. 409, 53 A.L.R. 1215; Taylor v. Moore, 303 Pa. 469, 154 A. 799; Kline v. City of Harrisburg, 362 Pa. 438, 451, 68 A.2d 182; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322; Jennings' Appeal, 330 Pa. 154, 198 A. 621; Ward's Appeal, 289 Pa. 458, 137 A. 630; Bryan v. City of Chester, 212 Pa. 259, 61 A. 894; Taylor v. Haverford Township, 299 Pa. 402, 149 A. 639; Perrin's Appeal, 305 Pa. 42, 48, 156 A. 305, 79 A.L.R. 912; Village of Euclid [Ohio], v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; St. Louis Poster Advertising Co. v. City of St. Louis, 249 U.S. 269, 39 S.Ct. 274, 63 L.Ed. 599; Eubank v. City of Richmond, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156.

'Restrictions imposed by zoning ordinances are, however, in derogation of the common law and (at times) of the liberties, rights and privileges guaranteed by the Constitution of the United States and the Constitution of Pennsylvania and therefore must be strictly construed. Lukens v. Zoning Board of Adjustment , 80 A.2d 765; Kline v. City of Harrisburg, 362 Pa. 438, 451, 68 A.2d 182.'

In White's Appeal, 287 Pa. 259, 134 A. 409, 410, 53 A.L.R. 1215, supra, an ordinance which divided the city into districts and regulated the use of the land and buildings thereon, provided, inter alia, as follows: "(b) When the front wall of eighty (80) per cent. of all the buildings on one side of a street between two (2) intersecting streets have been kept back from the street line, no building hereafter erected, or altered, shall be placed nearer to the street line than the distance established by the majority of the eighty (80) per cent. at the time of the passage of this ordinance; * * *." This part of the ordinance was held to be unconstitutional and a home owner was permitted to violate this setback provision by enclosing an open porch and converting it into a room in the front of his house.

The Court said, 287 Pa. at page 265, 134 A. at page 411: '* * * all property is held in subordination to the right of its reasonable regulation by the government clearly necessary ³ to preserve the health, safety, or morals of the people. * * * There is one matter that is quite certain, the power to thus regulate does not extend to an arbitrary, unnecessary, 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, 214 U.S. 91, 29 S.Ct. 567, 53 L.Ed. 923; Coppage v. [State] Kansas, 236 U.S. 1, 18, 35 S.Ct. 240, 59 L.Ed. 441; Boyd v. U.S., 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746; St. Louis Poster Advertising Co. v. [City of] St. Louis, 249 U.S. 269, 39 S.Ct. 274, 63 L.Ed. 599; Cooley on Constitutional Limitations, 768. While such regulations may not physically take the property, they do so regulate its use as to deprive the owner of a substantial right therein without compensation. ⁴ 'We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.' Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct. 158, 160 . * * * 'To secure their property was one of the greatends for which men entered into society. The right to acquire and own property, and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural right. It does not owe its origin to constitutions. It existed before them. It is a part of the citizen's natural liberty--an expression of his freedom--guaranteed as inviolate by every American Bill of Rights.' Spann v. [City of] Dallas, 111 Tex. 350, 235 S.W. 513, 19 A.L.R. 1387. * * * To bring this, and other like regulations, under the police power, would be to sweep away...