Appeal of Michener

• Decision Date: 27 June 1955
• Citation: 382 Pa. 401,115 A.2d 367
• Parties: In re Appeal of Charles W. MICHENER and E. C. Bierkamp from the Order of the Board of Adjustment of the Township of Haverford, Delaware County, Pennsylvania. Appeal of Hazel S. MICHENER, Intervenor.
• Court: Pennsylvania Supreme Court

Page 367

115 A.2d 367

382 Pa. 401

In re Appeal of Charles W. MICHENER and E. C. Bierkamp from the Order of the Board of Adjustment of the Township of Haverford, Delaware County Pennsylvania Appeal of Hazel S. MICHENER, Intervenor.

Supreme Court of Pennsylvania.

June 27, 1955.

Howard M. Lutz, Joseph T. Labrum, Jr., Edward H. Bryant, Jr., Lutz, Fronefield, Warner & Bryant, Media, for appellants.

Raymond E. Larson, Media, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

HORACE STERN, Chief Justice.

The decision of the court below was correct in holding that the plaintiff is not entitled to a variance, but for a reason other than that on which the decision was predicated.

Charles W. Michener, prior to his recent death, was the owner of four lots of land having a combined frontage of 215 feet on the north side or Township Line Road and a depth of 169 feet on the east side of Bewley Road, in Haverford Township, Delaware County. A dwelling house on the property was occupied by Michener and his family for more than 30 years, but he moved away in 1952, having entered into an agreement to sell the property to E. C. Bierkamp. The agreement was conditioned on the purchaser being able to obtain the right under the zoning law to build a store on one of the lots.

The premises are in a district classified as 'C' Residential under the Haverford Township Zoning Ordinance of July 29, 1925, as amended, which does not permit any business use of property in such a district. Michener, as owner, and Bierkamp, as equitable owner, applied to the Township Building Inspector for a permit to erect a one-story brick store building, 30 feet by 60 feet, on one of the lots, for the purpose of conducting therein a retail establishment for the sale of linoleum, tile, and other flooring. The Building Inspector refused the permit. The Township Board of Adjustment, on appeal, refused a variance on the ground that the applicants had not shown the existence of any hardship by reason of the zoning regulations that was different from that of the other property owners in the district.

Michener and Bierkamp appealed from the order of the Board to the Court of Common Pleas. While the proceedings were there pending Michener died and his widow, Hazel S. Michener, who succeeded to the ownership of the property as surviving tenant by the entireties, was allowed to intervene. The court at first decided that the Board should have granted a variance but subsequently, in its final decree, affirmed the Board's order and dismissed the appeal. This was because its attention had been called to the fact that each of the three deeds by which Michener acquired title to the lots contained a covenant whereby he agreed for himself, his heirs, executors, administrators and assigns, with the grantor, his heirs and assigns, never to erect upon any part of the ground certain enumerated kinds of buildings, among them a store, and not to covert any building thereon into a store. The court held that therefore the hardship complained of by the applicants did not grow out of the zoning ordinance but out of these restrictions in the deeds of title, and, since the court could not remove the restrictions, a variance permitting the erection of a store should not be granted.

The reason thus assigned for the court's decision was not a valid one. Zoning laws are enacted under the police power in the interest of public health, safety and welfare; they have no concern whatever with building or use restrictions contained in instruments of title and which are created merely by private contracts. If these applicants were to succeed in obtaining a variance relieving them from the restrictions of the zoning ordinance they would still be subject to the restrictions contained in their deeds, but the enforcement of those restrictions could be sought only in proceedings in equity in which the grantors, their representatives, heirs and assigns, would be the moving parties. As is well said in Bassett on 'Zoning,' (ch. 9, pp. 184-187): 'Contracts have no place in a zoning plan. Zoning, if accomplished at all, must be accomplished under the police power. It is a form of regulation for community welfare. Contracts between property owners or between a municipality and a property owner should not enter into the enforcement of zoning regulations. * * * The municipal authorities enforcing the zoning regulations have nothing whatever to do with private restrictions. Zoning regulations and private restrictions do not affect each other. * * * It is obvious that the zoning and the private restrictions are unrelated. One is based on the police power, the other on a contract. The municipality enforces the former by refusing a building permit or ousting a nonconforming use. A neighbor having privity of title enforces the latter by injunction or an action for damages. * * * Courts in trying a zoning case will ordinarily exclude evidence of private restrictions, and in trying a private restriction case will exclude evidence of the zoning. This is done on the grounds of immateriality.'

The fact that there were building restrictions in the deeds was wholly irrelevant in the appeal before the court on the question whether a variance should have been granted by the Board under the zoning ordinance. The private parties who alone possessed the right to enforce those restrictions were not before the court. It might be that they would never seek such enforcement, or that for some reason they had waived or lost their right so to do, or that, because of neighborhood changes or because the restriction had ceased to be of advantage to the convenantees, ¹ the restriction would no longer have been enforceable. Accordingly it has been uniformly held that any consideration of building restrictions placed upon the property by private contract has no place in proceedings under the zoning laws for a building permit or a variance. Pumo v. Mayor and Council of Fort Lee, 134 A. 122, 4 N.J.Misc. 663; Green v. Jones, 135 A. 802, 5 N.J.Misc. 188; Maplewood Township v. Margolis, 102 N.J.Eq. 467, 141 A. 564; 104 N.J.Eq. 207, 144 A. 715; Gulf Refining Co. v. City of Dallas, Tex.Civ. App., 10 S.W.2d 151; Oklahoma City v. Harris, 191 Okl. 125, 126 P.2d 988; O'Rourke v. Teeters, 63 Cal.App.2d 349, 146 P.2d 983. See also Schleifer v. Zoning Board of Adjustment, 374 Pa. 277, 97 A.2d 782.

This brings us to a consideration of the question whether the variance in this case was properly refused by the Board of Adjustment because of failure of the applicants to establish the existence of any unnecessary hardship. Michener attempted to prove such hardship by testimony that Township Line Road had been widened since he originally moved to the property and had become a main artery of travel; that there were high-speed trolly lines on West Chester Pike which intersects with Township Line Road some 400 feet to the west of his property; that thousands of vehicles pass the intersection of these two highways daily and some of them occasionally block the entrance to the property while waiting to proceed across the intersection; that there is a gas station at the intersection on the same side as his property and another one at the opposite corner. There was also testimony to the effect that across Township Line Road, which separates Haverford Township from Upper Darby Township, there are some business establishments and an alleged general commercial trend. A real estate agent testified that he had attempted for over seven months to sell Michener's property as a residence but had not received any offers. Michener's chief complaint was that across Township Line Road was a diner which was open 24 hours a day, that it catered to the trade of truckers who indulged in loud and boisterous talk which, added to the clatter of dishes and the music from a juke box, caused such disagreeable noise that finally, because of this and the other conditions referred to, he was obliged to move to another location.

It should be at once evident that none of the complaints thus asserted made out a case for the...