Honey Brook Tp. v. Alenovitz

• Decision Date: 01 July 1968
• Citation: 243 A.2d 330,430 Pa. 614
• Parties: TOWNSHIP OF HONEY BROOK v. George C. ALENOVITZ and Jean E. Alenovitz, his wife and Clement Alenovitz andElizabeth Alenovitz, his wife, Appellants.
• Court: Pennsylvania Supreme Court

Page 330

243 A.2d 330

430 Pa. 614

TOWNSHIP OF HONEY BROOK v. George C. ALENOVITZ and Jean E. Alenovitz, his wife and Clement Alenovitz andElizabeth Alenovitz, his

wife, Appellants.

Supreme Court of Pennsylvania.

July 1, 1968.

Rehearing Denied July 29, 1968.

Edward N. Barol, Harman & Pine, Glenvar E. Harman, Downingtown, Kanner, Stein, Feinberg & Barol, Philadelphia, for appellants.

John E. Good, West Chester, for appellee.

Robert A. Mills, G. Thomas Miller, Harrisburg, for amicus curiae, Pennsylvania Mobilehome Assn.; McNees, Wallace & Nurick, Harrisburg, of counsel.

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

OPINION OF THE COURT

O'BRIEN, Justice.

This case arises out of a complaint in Equity filed on October 26, 1966, by the Township of Honey Brook, County of Chester, against George C. Alenovitz, Jean E. Alenovitz, his wife, Clement Alenovitz and Elizabeth Alenovitz, his wife, in the Court of Common Pleas for the County of Chester, praying for an injunction enjoining the defendants from operating, establishing or constructing a trailer park on three (3) tracts of land (about twenty-three (23) acres) located in the Township of Honey Brook and to remove all facilities and equipment placed on the premises. A preliminary hearing was held on November 7, 1966 and preliminary injunction was granted that same day. A final hearing was held on February 14, 1967 and a decree nisi granting the permanent injunction was ordered on September 29, 1967. Exceptions were filed and the decree nisi was entered as a final decree on January 25, 1968. From that final decree this appeal was taken.

The Township of Honey Brook is a second class Township located in Chester County, Pennsylvania. On or about July 2, 1962 the Supervisors of the Township conferred upon the Planning Commission the power of a Zoning Commission, with the duty to prepare a comprehensive plan for the Township.

On or about January 31, 1966, the Planning Commission delivered the Comprehensive Plan to the Board of Supervisors. Meetings were held on the Comprehensive Plan in March, and the Plan was adopted in that month.

On June 2, 1966, at 3:54 p.m., there was filed in the Office of the Prothonotary of Chester County a petition purported to be signed by the owners of at least fifty-one (51) percent of the assessed valuation of real estate of Honey Brook Township. The petition expressed opposition to the enactment of the proposed Zoning Ordinance and requested that it not be enacted into law. On the evening of June 2, 1966, between 8:00 p.m. and 10:00 p.m., the Supervisors, despite the filing of the protest, enacted the Zoning Ordinance. By virtue of that Zoning Ordinance, the land owned and leased by appellants, the subject of this action, was zoned 'Farm Residential.' Under the ordinance, trailer parks were permitted only in districts zoned 'Neighborhood Commercial', when allowed by special exception. ¹

In addition to the Zoning Ordinance, one other ordinance adopted by the Township has relevance to this action. On or about July 1, 1965, the Township adopted Ordinance No. 8, regulating trailer parks and carrying a licensing fee of $5.00 per trailer.

On or about December 20, 1965, appellants commenced the establishment of the trailer park in question. However, by June 2, 1966, appellants had spent only $2,000 on construction of the proposed trailer park, although the total contemplated cost was between $300,000 and $400,000. On April 7, 1966 appellants applied to the Township Supervisors for a trailer park license. By letter dated October 11, 1966, the Township Supervisors, through their duly authorized agent, advised appellants that the application was denied. The reasons assigned in the letter for the refusal were the failure to comply with Section 7(k) of the Trailer Park Ordinance, the failure to pay the license fees on other parks owned by appellants, and in general, a lack of good faith. Section 7(k) requires, in the case of trailer parks not established prior to the adoption of the comprehensive plan for the preparation of a Zoning Ordinance for Honey Brook Township, that a statement accompany the application for establishing a trailer park stating that the premises proposed to be occupied by the trailer park are located entirely within a district in which the establishment of trailer parks is to be permitted.

When appellants persisted in their establishing of the trailer park, appellee township brought the instant action in equity seeking an injunction. The court below, finding that appellants had failed to comply with both the Zoning Ordinance and the Trailer Park Ordinance, granted the injunction.

Appellants urge upon us five separate arguments as to why no injunction should have issued. We find no merit in any of these. The first is the contention that the Zoning Ordinance is void as a matter of law, as it was passed after the filing of a protest by the owners of at least fifty-one percent of the assessed property valuation in Honey Brook Township. ² We are in complete accord with the court below that the protest was ineffective, since it protested only against the enactment of the specific ordinance, whereas the Code requires a protest against the exercise of zoning powers generally. The court below expressed our view in pointing out that the distinction is not merely a technical one, for it is likely that some signers of the protest were not opposed to the exercise of zoning powers under all circumstances, but rather to specific provisions of the instant ordinance.

Appellants' second contention is that the Zoning Ordinance is unconstitutional since it allegedly in effect prohibits a legitimate business in the township and constitutes spot zoning. In the first place, we are of the opinion that the constitutionality of the Zoning Ordinance cannot be raised in this equity proceeding. In Jacobs v. Fetzer, 381 Pa. 262, 112 A.2d 356 (1955), this Court indicated that questions involving the constitutionality of zoning ordinances should not be heard by courts of equity, but should be tested through the ordinary zoning channels--application to the Board of Adjustment, in the first instance, for relief, followed by an appeal to the common pleas court from the Board's denial of relief. It is true that Jacobs v. Fetzer, supra, was a case in which the aggrieved property-owner, rather than the municipality, brought the equity action. Nonetheless, it expressed the view that the property owner should proceed through normal zoning channels. Here, appellants took no appeal from the denial by the Board of Supervisors of their application for a trailer park permit, and thus failed properly to raised the issue of the constitutionality of the Zoning Ordinance.

Moreover, it is clear that even if they properly raised it, they have failed to prove the unconstitutionality of the ordinance. The same presumption of constitutional validity that attends an act of the legislature is equally applicable to municipal ordinances whether they be enacted by the council of a city, town, or borough or by the commissioners or supervisors of a township. Nat. Land & I. Co. v. Easttown Twp. Bd. of A., 419 Pa. 504, 522, 215 A.2d 597 (1965); Bilbar Const. Co. v. Easttown Twp. Bd. of A., 393 Pa. 62, 71, 141 A.2d 851 (1958). That presumption has been expressed as follows: 'An Act of Assembly will not be declared unconstitutional unless it Clearly, palpably and Plainly violates the Constitution.' Daly v. Hemphill, 411 Pa. 263, 271, 191 A.2d 835, 840 (1963) (Emphasis in original). Appellants have come nowhere near meeting this burden. They rely heavily on Exton Quarries, Inc. v. Zoning Bd. of Adj., 425 Pa. 43, 228 A.2d 169 (1967). That case is inapposite here. In Exton, we held that a zoning ordinance which Totally excludes a particular business from an entire municipality must bear a more substantial relationship to the public health, safety, morals and general welfare than an ordinance which merely confines that business to a certain area in the municipality. Even in Exton, we stated thast the ordinance was still presumed to be constitutional. In the instant case there is no total exclusion. On the contrary, the trailer parks are permitted in four 'Neighborhood Commercial' districts. The mere assertion that these areas are small hardly overcomes the presumption of constitutionality. Nor is there any showing that appellants' land is unsuited for the purposes for which it has been zoned. Appellants' proof falls far short of establishing any claim of unconstitutional spot zoning.

Thirdly, appellants argue the invalidity of the Trailer Park Ordinance. ³ In their tow-pronged attack, they assert (1) that the ordinance constitutes zoning under the guise of regulating and (2) that the ordinance is unreasonable in discriminating against a class and being unrelated to health, cleanliness, comfort and safety. As to the first contention, we again agree with the Chancellor's reasoning. Under the Second Class Township Code, supra, 53 P.S. § 65729, the Township is empowered: 'To make such regulations, by ordinance, not inconsistent with State laws and regulations, as may be necessary for the promotion of the health, cleanliness, comfort and safety of the citizens of the township.' The Chancellor held, and we agree, that the Trailer Park Ordinance is a valid health and safety ordinance wholly independent of zoning.

The broader attack is on the constitutionality of the ordinance as being special legislation and unrelated to health, cleanliness, comfort or safety. ⁴ The discussion above of the burden upon one who asserts the unconstitutionality of an ordinance is relevant here also. Once again appellants have failed to meet that burden. The instant Trailer Park Ordinance is a valid exercise of the police powers in regulating sewage, water supply, fire hazards, electrical hazards, roadways, minimum lot sizes, and similar matters. In fact, the...