National Land & Inv. Co. v. Kohn

• Citation: 419 Pa. 504,215 A.2d 597
• Parties: NATIONAL LAND AND INVESTMENT COMPANY and Dorothy M. Ennis v. Harold E. KOHN and Edith Kohn, his wife, Intervenors, Appellants. Appeal of BOARD OF ADJUSTMENT OF EASTTOWN TOWNSHIP. [*]
• Decision Date: 09 November 1965
• Court: United States State Supreme Court of Pennsylvania

215 A.2d 597

419 Pa. 504

NATIONAL LAND AND INVESTMENT COMPANY and Dorothy M. Ennis v. Harold E. KOHN and Edith Kohn, his wife, Intervenors, Appellants.

Appeal of BOARD OF ADJUSTMENT OF EASTTOWN TOWNSHIP. ^[*]

Supreme Court of Pennsylvania.

November 9, 1965.

Rehearings Denied Jan. 17, 1966. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Theodore O. Rogers, Rogers & O'Neill, West Chester for appellant Bd. of Adjustment of Easttown Township.

Harold E. Kohn, Philadelphia, for appellants Harold Kohn and Edith Kohn.

J. B. H. Carter, Holbrook M. Bunting, Jr., Philadelphia, for appellees, Francis X. Hope, Paoli, Pepper, Hamilton & Scheetz, Philadelphia, of counsel.

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

ROBERTS Justice.

These appeals ^[1] are taken from an order of the Court of Common Pleas of Chester County ^[2] which held unconstitutional a provision of the Easttown Township zoning ordinance which required a minimum area of four acres per building lot in certain residential districts in the township. Before reaching the significant zoning question presented in this case, however, several procedural issues raised by the township ^[3] must first be considered in order to determine if the issue is properly before us.

I. PROCEDURAL QUESTIONS

A chronological recitation of the relevant history of the tract involved in these appeals will best reveal the procedural posture of this controversy. In 1958, appellee, Dorothy M Ennis, took title to approximately 130 acress of land in Easttown Township known as 'Sweetbriar'. ^[4] After selling 45 acres of that tract, Miss Ennis executed an agreement of sale in 1961 with National Land and Investment Company ('National') for the remaining 85 acres of 'Sweetbriar'. Under this agreement, purchase by National was contingent upon the suitability of the land for development purposes and the acceptance by Easttown Township, under its zoning regulations, of a subdivision plan which would be prepared for the tract.

At the time of the purchase agreement, the zoning for 'Sweetbriar', as well as for the vast majority of the township, required a one acre minimum area for each building lot. ^[5] Subdivision plans for one acre lots on 'Sweetbriar' were submitted to the township in late 1961 ^[6] but were not pursued ^[7] for the likely reason that in early 1962 an amendment to the zoning ordinance imposed upon the land a minimum area requirement of four acres.

Instead of perfecting its subdivision application, National filed with the township a request for a building permit to construct a single dwelling house on a one acre lot of the 'Sweetbriar' tract. This request was refused by the township zoning officer for the reason that the land area was insufficient under the four acre zoning requirement and because no plan for a subdivision, of which this house was to be but a part, had been approved. In his letter of refusal dated April 27, 1962, the zoning officer advised National's counsel that National could 'appeal * * * [its] case for a variance' to the board of adjustment. Within five days after receiving the refusal, National's attorney replied that National was taking an appeal to the board of adjustment 'for a variance from the terms of the Ordinance.' A hearing was scheduled for June 15, 1962, but was postponed because the board of adjustment was unable to muster a quorum for at the meeting.

The matter remained in abeyance for six months until October 30, 1962, at which time new counsel for National asked for a hearing on the appeal and submitted a 'statement of appeal' which, for the first time, challenged the constitutionality of the four acre minimum zoning and abandoned any pretext of seeking a variance.

At the board of adjustment hearing on December 7, 1962, a motion to quash the appeal was made by the township based on the gound that the board of adjustment could not entertain the appeal from the denial of the building permit because (1) the appeal was not taken within a creasonable time', and (2) no subdivision plan for 'Sweetbriar' had been approved.

The board of adjustment granted the motion to quash on the ground that no subdivision plan had been approved and because of its conviction that an attack on the constitutionality of a zoning ordinance did not belong before the board of adjustment but, rather, before a court of common pleas 'or other qualified judiciary.'

National appealed from the ruling to the Court of Common Pleas of Chester County which reversed the board's decision and remanded the case so that testimony on the substantive issues could be taken. ^[8] Appellants ask us to review and reverse tht procedural determination, thereby making it unnecessary for us to reach the merits of the zoning question presented in the case.

Appellants first urge that the appeal to the board of adjustment from the action of the zoning officer was not taken within a 'reasonable time' ^[9] and therefore should should have been dismissed. Although National notified the board of adjustment of its appeal within a week after the building permit was refused, it simply advised the board that it would seek a variance. Not until six months later was the board informed that the appeal would attack the constitutionality of the ordinance in general. For this reason, the township argues that the appeal was not taken until six months after the denial of the building permit and that such delay constituted an unreasonable amount of time. We can not accept appellants' contention in this regard.

Our cases permit one who petitions for a variance to a board of adjustment to challenge before the board or thereafter on appeal to the court of common pleas the constitutionality of the zoning ordinance. Eller v. Bd. of Adjustment, 414 Pa. 1, 198 A.2d 863 (1964); see Anstine v. Zoning Bd. of Adjustment, 411 Pa. 33, 190 A.2d 712 (1963); Di Santo v. Zoning Bd. of Adjustment, 410 Pa. 331, 189 A.2d 135 (1963); Schmalz v. Buckingham Twp. Zoning Bd. of Adjustment, 389 Pa. 295, 132 A.2d 233 (1957). This being so, there is no justification for denying appellees the right to shift the emphasis of their attack prior to the hearing before the board of adjustment.

In essence, an application for a variance implies a challenge to the legality of the zoning ordinance as it applies to a specific piece of property. See Forest Hills Borough Appeal, 409 Pa. 392, 187 A.2d 166 (1963); Colligan Zoning Case, 401 Pa. 125, 162 A.2d 652 (1960); Baronoff v. Zoning Bd. of Adjustment, 385 Pa. 110, 122 A.2d 65 (1956); Garbev Zoning Case, 385 Pa. 328, 122 A.2d 682 (1956). Zoning is permitted when exercised for the promotion of the health, safety, morals or general welfare of the community. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Cleaver v. Bd. of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964); Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A.2d 587 (1957). Such an exercise of the police power, however, may, in applications of the ordinance to specific properties, impose upon the owner of such properties an 'unnecessary hardship'. When so applied, the ordinance can not be termed a reasonable or constitutional exercise of the police power. . to preserve the validity of the zoning ordinance in its application to the community in general, therefore, the variance provision of the enabling act functions as an 'escape valve' so that when regulations which apply to all are unnecessarily burdensome to a few because of certain unique circumstances, a means of relief from the mandates of the ordinance is provided. See Peirce v. Zoning Bd. of Adjustment, 410 Pa. 262, 267, 189 A.2d 138, 141 (1963); Colligan Zoning Case, 401 Pa. 125, 131-132, 162 A.2d 652, 655 (1960). It can be understood, then, if a request for a variance is denied, indicating that there is nothing about petitioner's land or his hardship that is any different than that of everyone else with land similarly zoned, then petitioner's most logical next step is to attack the validity of the ordinance as it applies to everyone. See Anstine v. Zoning Bd. of Adjustment, 411 Pa. 33, 190 A.2d 712 (1963); Sylvester v. Pittsburgh Zoning Bd. of Adjustment, 398 Pa. 216, 57 A.2d 174 (1959); Best v. Zoning Bd. of Adjustment, 393 Pa. 106, 141 A.2d 606 (1958); Schmalz v. Buckingham Twp. Zoning Bd. of Adjustment, 389 Pa. 295, 132 A.2d 233 (1957); Dunlap Appeal, 370 Pa. 31, 87 A.2d 299 (1952). In other words, a challenge to the validity of a zoning ordinance is a natural and foreseeable outgrowth of a request for a variance.

Appellees in this case did not wait for their request for a variance to be denied, probably realizing full well that there was nothing unique about their property which would have justified special treatment. Their decision to attack the constitutionality of the ordinance at the board of adjustment hearing does not constitute an appeal separate and distinct from the appeal requesting a variance and, this being the case, was filed within a reasonable time after the denial of their request for a building permit.

We would be particularly reluctant to quash the appeal for untimeliness in this case in view of the fact that some of the delay was due not to any action or inaction on the part of appellees, but due to the inability of the board of adjustment to garner a sufficient number of its members to hold a hearing when initially scheduled. Surely appellees should not be penalized for a delay resulting from circumstances for which they were not responsible.

In light of the above considerations, we are unable to conclude that the court below, in finding that the appeal was filed within a reasonable time, abused its discretion or committed an error of law. ^[10]

Appellants next assert that...