Best v. Zoning Bd. of Adjustment of City of Pittsburgh

• Decision Date: 02 May 1958
• Citation: 141 A.2d 606,393 Pa. 106
• Parties: Pauline G. BEST, Appellant, v. ZONING BOARD OF ADJUSTMENT OF The CITY OF PITTSBURGH.
• Court: Pennsylvania Supreme Court

Page 606

141 A.2d 606

393 Pa. 106

Pauline G. BEST, Appellant, v. ZONING BOARD OF ADJUSTMENT OF The CITY OF PITTSBURGH.

Supreme Court of Pennsylvania.

May 2, 1958.

Rehearing Denied June 3, 1958.

William Claney Smith, Pittsburgh, for appellant.

J. Howard Devlin, Asst. City Solicitor, City-County Building, Pittsburgh, Sherman T. Rock, Frank A. McFerran, Jr., Paul, Lawrence & Rock, Pittsburgh, J. Frank McKenna, Jr., Pittsburgh, City Solicitor, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, ARNOLD, BENJAMIN R. JONES and COHEN, JJ.

COHEN, Justice.

In this appeal we are called upon to determine the constitutionality of the single-family dwelling provision of the Pittsburgh zoning ordinance as applied to the property of the appellant.

The appellant, Pauline G. Best, is the owner of a home at 1008 Morewood Avenue, Pittsburgh, which contains twentytwo rooms and seven baths. The property is located in a 'C' zoned district of the city and may be used only as a singlefamily dwelling. Within 200 feet of the home is a district in which multiple-unit dwellings are permitted. In 1950 the appellant applied for a variance and for a permit to allow occupancy by fifteen tenants. The application was denied as was an appeal taken to and heard by the zoning board of adjustment. A further appeal was heard by the County Court of Allegheny County at which time the petition of the Morewood-Shadyside Civic Association to intervene as a respondent was granted.

Appellant's argument to the court below was two-fold. First, she contended that she was entitled to a variance because of the financial hardship imposed upon her in maintaining the property as a single-family home and second, that the zoning ordinance as applied to her property was unreasonable, arbitrary, discriminatory and confiscatory, and therefore unconstitutional. The county court found that the appellant's home was not economically feasible for use as a single-family dwelling and that the use proposed by the appellant would not be adverse to the public health, safety or morals of the community. However, the court held that the proposed use would be adverse to the general welfare and contrary to the public interest, and for this reason concluded that the decision of the board of adjustment denying a variance was just and proper and that the zoning ordinance did not result in an unconstitutional invasion of plaintiff's property rights. From the order of the court below sustaining the decision of the zoning board of adjustment this appeal has been taken.

The contentions of the appellant with respect to the refusal of her request for a variance are withour merit and, indeed, are not urged on this appeal. When appellant purchased the Morewood house she knew or should have known of the provisions of the zoning ordinance restricting the property to use as a onefamily dwelling and of the large expenditures required to maintain and keep up the property. Thus, appellant took the property with the conditions of economic hardship staring her in the face, and she cannot now be heard to complain. Ward's Appeal, 1927, 289 Pa. 458, 472, 137 A. 630 (concurring opinion). Cf. Edwards' Appeal, 1958, 392 Pa. 188, 140 A.2d 110. Moreover, as we said in In re Michener's Appeal, 1955, 382 Pa. 401, 406-407, 115 A.2d 367, 371: 'The law is well established that a variance may be granted only where a property is subjected to a hardship unique or peculiar to itself as distinguished from one arising from the impact of the zoning regulations on the entire district.' See Act of June 24, 1931, P.L. 1206, § 3107, as amended, 53 P.S. § 58107. The financial hardship suffered by the appellant in this case is no different from that endured by the owners of other large homes in the neighborhood who through the appellee Civic Association have actively opposed appellant's request for a variance.

Appellant's attack upon the constitutionality of the application of the Pittsburgh zoning ordinance to her property presents an issue which requires clarification.

Zoning is the legislative division of a community into areas in each of which only certain designated uses of land are permitted so that the community may develop in an orderly manner in accordance with a comprehensive plan. ¹ The authority of the legislature to permit the zoning of land is derived, as is all legislative authority, from the governmental power of the Commonwealth ²--the 'police power.' ³ This power is plenary except as limited by the State or Federal Constitutions. ⁴

The only restrictions upon the power of the legislature to regulate private property rights are imposed by Article I of the Pennsylvania Constitution, P.S., and Fourteenth Amendment to the Federal Constitution. Section 1 of Article I of the Pennsylvania Constitution establishes the right of 'acquiring, possessing and protecting property * * *.' ⁵ The requirements of this section are not distinguishable from those of section 1 of the Fourteenth Amendment to the Federal Constitution--'nor shall any State deprive any person * * * or property, without due process of law * * *.' ⁶ However, neither the Fourteenth Amendment, broad and comprehensive as it is--nor any other constitutional provision--was intended to interfere with reasonable property regulations, whether established directly by the state or by some public body acting under its sanction, which are designed to accomplish a legitimate public purpose. Mutual Loan Co. v. Martell, 1911, 222 U.S. 225, 234, 32 S.Ct. 74, 56 L.Ed 175; Chicago, B. & Q. Ry. Co. v. State of Illinois, 1906, 200 U.S. 561, 592, 26 S.Ct. 341, 50 L.Ed. 596; Barbier v. Connolly, 1885, 113 U.S. 27, 31-32, 5 S.Ct. 357, 28 L.Ed. 923. Cf. Commonwealth ex rel. Woodside v. Sun Ray Drug Co., 1955, 383 Pa. 1, 10-11, 116 A.2d 833.

In delineating the concept of a 'legitimate public purpose' the courts have repeatedly held that property regulations which are substantially related to preserving or promoting the public health, safety, morals or general welfare are constitutionally not objectionable. ⁷ And, thus, the test of constitutionality of a zoning ordinance is whether the health, safety, morals or general welfare of the inhabitants of that part of the community affected will be promoted by the application of the ordinance. Nectow v. City of Cambridge, 1928, 277 U.S. 183, 188, 48 S.Ct. 447, 72 L.Ed. 842.

The City of Pittsburgh has undertaken to control the density of its population in accordance with a comprehensive plan drawn to promote the welfare of the community. It has provided residence districts for single-family homes, for two-family dwellings and for multiple-unit apartment houses. In this manner it has attempted, among other things, to control the demands upon community resources and to prevent an undue strain upon the facilities available in any section of the city. Such an undertaking is neither arbitrary nor unreasonable, and the constitutionality of single-family zoning restrictions have been generally upheld throughout the country as bearing a substantial relationship to the health, safety, morals and general welfare of the community. Village of Euclid v. Ambler Realty Co., 1926, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, Miller v. Board of Public Works of City of Los Angeles, 1925, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479, error dismissed 1927, 273 U.S. 781, 47 S.Ct. 460, 71 L.Ed. 889; Minkus v. Pond, 1927, 326 Ill. 467, 158 N.E. 121; Locatelli v. City of Medford, 1934, 287 Mass. 560, 192 N.E. 57; Sullivan v. Anglo-American Investment Trust, Inc., 1937, 89 N.H. 112, 193 A. 225; Collins v. Board of Adjustment of Margate City, 1949, 3 N.J. 200, 69 A.2d 708. Indeed, the question cannot be considered an open one in Pennsylvania. Jennings' Appeal, 1938, 330 Pa. 154, 160, 198 A. 621.

Notwithstanding the constitutionality of the ordinance in its general outline, ⁸ the appellant contends that its application to her property is unconstitutional as being arbitrary, discriminatory, and confiscatory.

The appellant seeks support for her contention that the application of the ordinance to her property is arbitrary and unreasonable in the findings of the court below that the proposed use of the property as a multiple-family dwelling is not adverse to the public health, safety or morals. Since the court also found that such use of her property would be contrary to the public welfare, apparently it is the theory of appellant either that the general welfare is ejusdem generis with the public health, safety and morals, or that, standing alone, it will not justify the zoning ordinance herein questioned.

More than fifty years ago this argument was presented to the United States Supreme Court in the case of Chicago, B. & Q. Ry. Co. v. State of Illinois, 1906, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596. The answer then given by Mr. Justice Harlan is the one we now adopt:

'The learned counsel for the railway company seem to think that the adjudications relating to the police power of the state to protect the public health, the public morals, and the public safety are not applicable, in principle, to cases where the police power is exerted for the general well-being of the community apart from any question of the public health, the public morals, or the public safety. * * * We cannot assent to the view expressed by counsel. We hold that the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety. * * * Private property cannot be taken without compensation for public use under a police regulation relating strictly to the public health, the public morals, or the public safety, any more than under a police regulation having no relation to such matters, but only to the general welfare. The foundation upon which the power rests are in every case the same.' 200 U.S. at...