Cleaver v. Board of Adjustment of Tredyffrin Tp.
| Citation | 414 Pa. 367,200 A.2d 408 |
| Parties | In the Matter of the Appeal of William E. CLEAVER and Maria Cleaver, his wife, et al., and Valley Hills Civic Association v. BOARD OF ADJUSTMENT OF TREDYFFRIN TOWNSHIP. Appeal of CONESTOGA ENTERPRISES, INC., Intervenor. |
| Decision Date | 11 May 1964 |
| Court | United States State Supreme Court of Pennsylvania |
[Copyrighted Material Omitted]
Guy G. deFuria, deFuria, Larkin & deFuria, Chester Robert S. Gawthrop, Jr., William H. Rivoir, Jr., Gawthrop & Greenwood, West Chester, for appellant.
John O. Platt, Jr., Paoli, MacElree, Platt, Marrone & Harvey, West Chester, of counsel, for William E. Cleaver and others.
Before BELL, C. J., and MUSMANNO, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
The question involved is the validity and constitutionality of the amended zoning ordinance of Tredyffrin Township, Chester County. [1]
An equally divided Board of Adjustment affirmed ex necessitate [2] the issuance of a building permit for the erection of a garden type of apartment to the present intervenor appellants. Thereafter the Court of Common Pleas of Chester County, without taking any testimony, reversed and held the amendatory ordinance (a) invalid because of lack of conformity with Tredyffrin's comprehensive plan, and (b) unconstitutional because it was spot zoning.
The tract in question is located in the Town of Paoli, the western end of the Pennsylvania Railroad's 'Main Line' commuter service to Philadelphia. It consists roughly of 11 acres bounded on the south by the railroad tracks and the Paoli Station platform, on the west by the Paoli Elementary School on the north by Central Avenue, and on the east by the large Burroughs Corporation Research Center. The School tract (to the west), and the property across Central Avenue (to the north) on which small residences have been built, are zoned R-3 Residential. The Burroughs land, which extends east from the tract in suit, along the railroad to Route 202 is zoned C-1 Commercial. Directly west of the school and north of the Pennsylvania Railroad westbound station building, are three very small lots, two of which are zoned C-1, and one, R-3. Lincoln Highway (Lancaster Pike) runs on the other side of the Pennsylvania Railroad tracks and for one or two miles (directly opposite the property in suit) is zoned on both sides C-1 and has only business properties.
The action here complained of is the down zoning of the tract in suit from R-3 to R-4. R-3 allows residences on lots of 12,000 square feet and no apartment use whatever. R-4 permits garden or group type apartments. C-1 (Commercial), which is the classification for a considerable number of the neighboring properties, including those above mentioned, permits various business uses such as retail store, bank, restaurant, certain kind of shops, and any use permitted in R-4. As we have just noted, R-4 specifically permits the type of apartment [3] which appellants seek to construct and appellees seek to prevent.
To answer the questions involved we must consider (a) the Constitution, and (b) the law pertaining to zoning, including a comprehensive plan.
The law governing the Constitutionality of zoning legislation may be thus summarized:
The Constitution of the United States in the Fifth Amendment and in the Fourteenth Amendment, and the Constitution of Pennsylvania in Article I, § 1, P.S., ordain and guarantee the right of private property. Article I, § 1, of the Constitution of Pennsylvania provides: 'All men * * * have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring possession and protecting property * * *.'
The historical origin and development of our Country, our Birthright and Heritage of Freedom and the (so-called) inalienable fundamental rights, privileges and immunities guaranteed by our Constitution are too often forgotten today.
The right of private property, together with the right of freedom of speech, freedom of religion, and freedom of the press are the Hallmarks of western civilization. These Basic Freedoms constitute the fundamental differences which distinguish--and create the great unpassable gulf which divides--western civilization and free peoples, from Communists and from other peoples who are ruled by a despotic dictator.
It is clear beyond the peradventure of a doubt that the ownership and possession of private property necessarily includes its lawful use--it would be of little or no value unless the owner can deal with and use it as he desires, so long as its use is lawful.
In Lhormer v. Bowen, 410 Pa. 508, page 512, 188 A.2d 747, page 749, the Court aptly said:
See to the same effect: Lord's Appeal, 368 Pa. 121, 81 A.2d 533, and cases cited therein.
Nevertheless, it is well settled that that Constitutionally ordained right of property is and must be subject and subordinated to the Supreme Power of Government--generally known as the Police Power--to regulate or prohibit an owner's use of his property provided such regulation or prohibition is clearly or reasonably necessary to preserve or protect the health or safety or morals and general welfare of the people: Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A.2d 587, infra; Medinger's Appeal, 377 Pa. 217, 104 A.2d 118, infra; Lord's Appeal, 368 Pa. 121, 81 A.2d 533, supra; White's Appeal, 287 Pa. 259, 134 A. 409, 53 A.L.R. 1215.
However, neither the power of the Executive arm nor of the Legislative arm of our Government is unlimited. See, for example, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153; and a myriad cases of this Court, including Tate v. Philadelphia Transp. Co., 410 Pa. 490, 190 A.2d 316. The limitation on the Police Power of Government in this field is emphasized by the Fifth Amendment to the Constitution of the United States, which provides: '* * * nor shall private property be taken for public use, without just compensation', and similarly by Article I, § 10, of the Pennsylvania Constitution, which provides: '* * * nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.' The dividing line between a regulation (by zoning legislation) and a 'taking' is in many cases shadowy and difficult to draw or delineate. A 'taking' is not limited to an actual physical possession or seizure of the property; if the effect of the zoning law or regulation is to deprive a property owner of the lawful use of his property it amounts to a 'taking', for which he must be justly compensated: United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322; Miller v. City of Beaver Falls, 368 Pa. 189, 82 A.2d 34; Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A.2d 587; Medinger's Appeal, 377 Pa. 217, 104 A.2d 118; Lord's Appeal, 368 Pa. 121, 81 A.2d 533, supra; Sansom Street (Caplan's Appeal), 293 Pa. 483, 490, 143 A. 134.
It may be helpful to add that an Ordinance is presumed to be valid and Constitutional and the burden of proving otherwise is upon one who challenges it: DiSanto v. Zoning Board of Adjustment, 410 Pa. 331, 189 A.2d 135; Phi Lambda Theta Zoning Case, 400 Pa. 60, 161 A.2d 144; Schmalz v. Buckingham Twp., Z. B. A., 389 Pa. 295, 132 A.2d 233, 93 A.L.R.2d 1218; Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A.2d 587, supra; Whitpain Township v. Bodine, 372 Pa. 509, 94 A.2d 737. However, zoning regulations must be strictly construed because in derogation of a property owner's Constitutional rights: Phi Lambda Theta Zoning Case, 400 Pa. 60, 161 A.2d 144, supra; Rolling Green Golf Club Case, 374 Pa. 450, 97 A.2d 253; Medinger's Appeal, 377 Pa. 217, 104 A.2d 118, supra; Lord's Appeal, 368 Pa. 121, 81 A.2d 533, supra; Lukens v. Ridley Twp. Zoning Board of Adjustment, 367 Pa. 608, 612, 80 A.2d 765.
1. Municipalities are not sovereigns; they have no original or fundamental power of legislation; a municipal or councilmanic body can enact only the ordinances and exercise only the zoning powers which are authorized by the Legislature, and the Legislature can delegate or grant only those legislative and zoning powers which are Constitutionally permitted Cali v. Philadelphia, 406 Pa. 290, 177 A.2d 824; Commonwealth ex rel. Truscott v. Philadelphia, 380 Pa. 367, 111 A.2d 136; Allentown School District Mercantile Tax Case, 370 Pa. 161, 87 A.2d 480; Genkinger v. New Castle, 368 Pa. 547, 84 A.2d 303; Murray v. Philadelphia, 364 Pa. 157, 71 A.2d 280; Kline v. Harrisburg, 362 Pa. 438, 68 A.2d 182.
2. Certain and definite and valid standards for zoning must be prescribed in the Legislative Act and in the zoning ordinance: Phi Lambda Theta Zoning Case, 400 Pa. 60, 161 A.2d 144, supra; Archbishop O'Hara's Appeal, 389 Pa. 35, 50, 131 A.2d 587, supra; Katzin v. McShain, 371 Pa. 251, 89 A.2d 519. Accord: Dauphin Deposit Trust Co. v. Myers, 388 Pa. 444, 130 A.2d 686.
3. Zoning classifications are largely within...
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Cleaver v. Board of Adjustment of Tredyffrin Tp.
...200 A.2d 408 414 Pa. 367 In the Matter of the Appeal of William E. CLEAVER and Maria Cleaver, his wife, et al., and Valley Hills Civic Association v. BOARD OF ADJUSTMENT OF TREDYFFRIN TOWNSHIP. Appeal of CONESTOGA ENTERPRISES, INC., Intervenor. Supreme Court of Pennsylvania. May 11, 1964. [......