Junge's Appeal

• Decision Date: 03 March 1927
• Docket Number: 44-1926
• Citation: 89 Pa.Super. 548
• Parties: Junge's Appeal. (No. 2.)
• Court: Pennsylvania Superior Court

89 Pa.Super. 548

Junge's Appeal. (No. 2.)

No. 44-1926

Superior Court of Pennsylvania

March 3, 1927

Re-argued October 22, 1926

Appeal by petitioner, from order of C. P. Allegheny County-1925, No 1209, in appeal of Charles O. Junge from a decision of the Board of Appeals under the zoning ordinance.

Petition to the Board of Appeals, City of Pittsburgh, under Zoning Ordinance of said city. Before Ford, J.

The facts are stated in the opinion of the Superior Court.

The original appeal was argued and an opinion delivered in Junge's appeal, No. 1, 89 Pa.Super. 543. Subsequently, a motion was presented by John D. Costello for reargument of the appeal, in order that he might intervene and attack the constitutionality of the said zoning ordinance. The petition was granted, limiting the re-argument to the question of constitutionality.

Reversed.

F. C McGirr, for petitioner and intervener -- The zoning ordinance is unconstitutional: Ambler Realty Co. v. Village of Euclid, Ohio, 297 F. 307; Smith v. City of Atlanta, 132 Southeastern Reporter, 66 Supreme Ct. of Ga., Feb. 11, 1926; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393; Spann v. Dallas, 111 Tex. 350; City of Dallas v. Burns, 250 S.W. 717; Friend v. City of Chicago, 261 Ill. 16; Ignaciunas v. Risley, 98 N.J. Law 712.

Martin Croissant, for appellant, cited: Porter v. Shields, 200 Pa. 241; McGarry v. Walsh, 213 A.D. 289; People ex rel Swedish Hospital v. Leo, 120 Misc. 355; Cooley's Constitutional Limitations, 7th Ed. Page 250; Hirsh v. Block, 267 F. 614; Panama R. Co. v. Johnson, 289 F. 964; Tyler v. Judges of Court of Registration, 179 U.S. 405; Lord v. Veazie, 8 How. 251; Chamberlain v. Cleveland, 1 Black 419; Kimball v. Kimball, 174 U.S. 158.

Thomas M. Benner, First Assistant City Solicitor, and with him Charles A. Waldschmidt, City Solicitor, for appellee, cited: Hadacheck v. Sebastian, 239 U.S. 394; Lincoln Trust Co. v. Williams Building Corp., 229 N.Y. 313; People ex rel. Sheldon v. Board of Appeals, 234 N.Y. 484; Opinion of Justices, 234 Mass. 597; Ware v. City of Wichita, 214 P. 99; City of Des Moines v. Manhattan Oil Co., 184 N.W. 823; State v. City of New Orleans, 97 Southern, 440; State ex rel. Carter v. Harper, 196 N.W. 451; State ex rel. Kellogg v. Currens, 111 Wis. 431, at 435.

Charles A. O'Brien filed a brief as amicus curiae.

Before Porter, P. J., Henderson, Trexler, Keller and Linn, JJ.

OPINION

KELLER, J.

A short time after our decision in this case was filed a petition was presented to this court by John T. Costello, the owner of premises No. 804 Bellaire Avenue, involved in the case, setting forth that no notice of the appeals taken by Charles O. Junge to the Court of Common Pleas of Allegheny County and to this court, respectively, had ever been given him and no copy of appellant's paper book served upon him, and praying for a reargument of the appeal in order that he might intervene and attack the constitutionality of the Zoning Ordinance in question, and especially of the section thereof involved in this case, on the ground that it is not a lawful exercise of the police power or justified by any consideration of the public welfare, but is unreasonable, discriminatory and void and deprives him of property rights protected by the Constitution of the United States and of this State; and also that the Board of Appeals provided for therein is an unconstitutional body, created in violation of Article III, Section 20 of the Constitution of Pennsylvania.

While we felt it was improbable that the petitioner did not know that appeals had been taken from the action of the Board of Appeals to the Court of Common Pleas and from the Court of Common Pleas to this court, with ample opportunity to intervene in protection of his property interests, we were of opinion that formal notice of the appeal to the Court of Common Pleas from the order of the Board of Appeals should have been given him as a party in interest, and we accordingly ordered a re-argument -- to be confined to the constitutionality of the Zoning Acts and the ordinance in question, with leave to the said petitioner to intervene and attack the constitutionality of said acts and ordinance. As a matter of practice, in the future care should be taken that notice of appeal to the Common Pleas be given all parties appearing in the proceeding appealed from and proof thereof be filed among the records of the appeal in the Common Pleas.

The intervener does not attack the constitutionality of the statutes authorizing the enacting of zoning ordinances in cities of the second class, except in one particular which will be considered later. He evidently concedes that the general assembly has the power to authorize general municipal legislation of this character provided the ordinances are reasonable and not discriminatory, and have a rational relation to the public safety, health or general welfare. The attack, in this respect, is directed against the ordinance enacted by the City of Pittsburgh pursuant to such authority.

The ordinance is the same that came before the appellate courts in White's Appeal, 85 Pa.Super. 502 and 287 Pa. 259, but the clause involved is different. In that case the courts passed upon clause (b) of Section 32, relating to front yards in the first area district, which provided that " When the front wall of eighty (80) per cent of all the buildings on one side of a street between two 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 per cent at the time of the passage of this ordinance." It was held that the clause was arbitrary and unreasonable, and not a valid exercise of the police power, in that the regulation created no uniform standard for buildings of the same class throughout the district, but varied from block to block in the same district, and on opposite sides of the same street in such district, according to the front line which happened to have been established by a percentage of the buildings in that block.

The clause complained of in this case is part of the same section but relates to side yards and is as follows:

" Side Yard: There shall be a side yard on each side of a One Family Dwelling or Double House, one of which shall be at least three (3) feet wide and the total width of both side yards shall be not less than ten (10) feet. In the case of a Two Family Dwelling there shall be a side yard on each side of the building, one of which shall be at least five (5) feet wide and the total width of both side yards shall be not less than thirteen (13) feet."

The constitutional provisions involved are the fifth and fourteenth amendments to the Federal Constitution and Sections 1 and 10 of Article I of the State Constitution. They are along parallel lines and protect the individual in his enjoyment of his property by forbidding (1) the taking of private property without compensation, and (2) depriving him of such property without due process of law.

In the White case, 287 Pa. 259, Mr. Justice Kephart pointed out very clearly the difference between a taking of private property under the power of eminent domain, which involves the payment of compensation to the owner, and an interference with such property under the police power, which does not involve the payment of such compensation. This case is concerned with the latter.

The power of the legislature to regulate the construction of buildings, etc., within the limits of municipalities, or authorize the municipalities themselves so to regulate them, in the interest of the public health, safety and welfare, was early claimed in this Commonwealth and early sustained. By the Act of April 18, 1795, 3 Sm. L. 246, the authorities of the City of Philadelphia were empowered to pass ordinances preventing the erection of any wooden buildings within a specified area. The act was declared constitutional in Respublica v. Duquet, 2 Yeates 493, the brief of Mr. Ingersoll in its support (pp. 497-499) being especially interesting. See also Douglass v. Com., 2 Rawle 262. This was followed by the Act of April 10, 1826, 9 Sm. L. 194, Sec. 3, which authorized the councils of Pittsburgh and Philadelphia, respectively, to pass general ordinances preventing the erection of wooden buildings within such limits as the said councils might fix.

The Act of April 21, 1855, P. L. 265, relating to the City of Philadelphia, provided in Section 6 that, " every new dwelling house shall also have an open space attached to it in the rear or at the side, equal to at least twelve feet square, and no building of any kind shall be permitted to be erected on any street, court or alley hereafter to be laid out, or if laid out and wholly unimproved by brick or stone buildings before the passage of this act, of a less width than twenty-five feet." See Brice's App., 89 Pa. 85, 88. And a more comprehensive act for the regulation and inspection of buildings in the City of Philadelphia was enacted in the same year, (Act of May 7, 1855, P. L. 464), which has been followed by statutes along similar lines too numerous to require mention, which have extended such regulation, with its accompanying restrictions, to all classes of cities and to boroughs and townships of the first class. See Lower Merion Twp. v. Harrison, 84 Pa.Super. 574.

Statutes authorizing zoning ordinances go a step beyond the ordinary regulation and inspection of buildings. The Act of June 21, 1919, P. L. 570 authorizes cities of the second class in the interest of public health, safety and general welfare to regulate and limit by ordinance the height and bulk of buildings thereafter erected or altered, and the areas of yards, courts...