Putney v. Abington Tp.

• Decision Date: 29 September 1954
• Citation: 176 Pa.Super. 463,108 A.2d 134
• Parties: H. Emerson PUTNEY, William A. Cave, Everett R. Bentley and the Rydal- Meadowbrook Civic Association, Appellants, v. The TOWNSHIP OF ABINGTON and the Board of Commissioners of the Township of Abington and York Road Business Center, Inc., Intervener.
• Court: Pennsylvania Superior Court

Page 134

108 A.2d 134

176 Pa.Super. 463

H. Emerson PUTNEY, William A. Cave, Everett R. Bentley and the Rydal- Meadowbrook Civic Association, Appellants, v. The TOWNSHIP OF ABINGTON and the Board of Commissioners of the Township of Abington and York Road Business Center, Inc., Intervener.

Superior Court of Pennsylvania.

Sept. 29, 1954.

Rehearing Denied Oct. 26, 1954.

Robert L. Trescher, Garrett A. Brownback, Montgomery, McCracken, Walker & Rhoads, Philadelphia, for appellants.

David E. Groshens, Lansdale, William Barclay Lex, Philadelphia, Samuel H. High, Jr., Norristown, for appellees.

Before HIRT, Acting P. J., and ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, Jj.

ROSS, Judge.

This is a zoning case. On September 11, 1952, the township commissioners of Abington Township, a first class township in Montgomery County, enacted Ordinance No. 700, amending the basic zoning ordinance of the township by changing the classification of approximately 51 acres of land owned by York Road Business Center, Inc. from residential to commercial. Thereafter, certain individuals and an organization known as the Rydal-Meadowbrook Civic Association filed a complaint to test the legality of the amendment in the Court of Quarter Sessions for Montgomery County pursuant to section 1502 of the First Class Township Code, 53 P.S. § 19092-1502, par. 1, which provides, inter alia: 'Complaint as to the legality of any ordinance or resolution may be made to the court of quarter sessions * * * by any person aggrieved, within thirty days after any ordinance or resolution takes effect. * * *' The landowner was permitted to intervene in the court below in support of the ordinance. After several hearings, the trial judge disposed of the case on the merits, holding that Ordinance No. 700 was 'constitutional and vaild'. Exceptions to the findings of fact and conclusions of law of the trial judge were dismissed by the court en banc and this appeal followed.

On or about May 8, 1952, York Road Business Center, Inc. filed with the township commissioners a petition requesting that the classification of certain land owned by it be changed from 'V' Residential to 'F' Commercial. The tract involved contained approximately 51 acres and was part of a larger tract acquired by the corporation a short time before the petition to rezone was filed. On May 8, 1952, the commissioners fixed June 26, 1952 as the date for a public hearing on the proposed zoning change. Notice of this hearing was published in accordance with the requirements of sections 3104 and 3105 of the Code, as amended, 53 P.S. §§ 19092-3104, 19092-3105. Further, in partial compliance with a provision of the township zoning ordinance to the effect that notice of a public hearing concerning a zoning change be mailed to the owner or owners of every lot within 500 feet of the area affected by the proposed change, the commissioners caused such notice to be mailed to some but not all such owners.

The public hearing was held on June 26, 1952. Thereafter a written protest against the proposed change was filed, said protest being an attempt to require that the amendment become effective only upon a favorable vote of three-fourths of all the members of the board of township commissioners as provided in section 3105 of the Code as amended, 53 P.S. § 19092-3105. On September 11, 1952, the township commissioners adopted Ordinance No. 700 by a vote of 9 to 3, with one member absent.

The court below found that York Road Business Center, Inc. 'plans to build upon the tract a regional shopping center, which will contain a two-story department store and approximately fifty single stores, to be located approximately in the center of the tract, with off-street parking facilities surrounding the buildings to accommodate 5000 cars.' The court found further that 'the shopping center will supply the township and school district with an increased tax base which is urgently needed by the municipal authorities to adequately perform their functions'. It is apparent--and tacitly admitted by the proponents of the amendment--that the possibility of an increased tax yield was given great weight by the township commissioners in enacting Ordinance No. 700 and by the court below in sustaining it.

George W. Emlen, a real estate broker and a 'stockholder, small stockholder, a member of the Board of Directors' of York Road Business Center, Inc., testified with respect to the corporation's plans for the rezoned tract. He stated: 'The group of stores which we hope to build, I am talking about what we hope to do, not what we have actually made leases for or anything of that sort, is a department store, with maybe one hundred and fifty thousand square feet, which would be two stories and a basement. In addition to that, we would have a group of satellite stores, probably as many as thirty.' In 'round figures', Emlen testified, fied, the corporation planned to erect 'Ten million dollars worth of buildings.' According to the witness an associate had made 'encouraging contacts' with regard to borrowing the ten million dollars from 'financial institutions' which Emlen declined to name because such information was 'more or less of a confidential nature.' At the time of the trial the shopping center was 'very much in the embryonic stage', with progress limited to a 'little sketching and planning' done by a former employe of one of Emlen's associates. Nothing more had been done because, in Emlen's words, 'we are not going to spend a great deal of money until we know we are going to be able to do it.' This was the evidence before the court below and there is no reason to suppose that the township commissioners had anything more substantial upon which to base an expectation of financial benefits to the municipality.

Even assuming, however, that Ordinance No. 700 assures the township of 'Ten million dollars worth of buildings', we do not believe that the power to enact zoning regulations can properly be used as a means of producing tax revenue.

'Not only the original zoning ordinance, but all the amendments thereto must be enacted by virtue of a valid exercise of the police power.' McQuillin, Municipal Corporations, vol. 8, section 25.34, page 63. We think it fundamental that a legislative enactment designed solely or even principally for the purpose of producing revenue cannot be justified as a valid exercise of the police power. Cf. William Laubach & Sons v. City of Easton, 347 Pa. 542, 32 A.2d 881, wherein at pages 548 and 884, respectively, the Supreme Court stated: "If anything can be considered as settled under the decisions of our Pennsylvania courts, it is that municipalities, under the guise of a police regulation, cannot impose a revenue tax'. Kittanning Borough v. American Natural Gas Co., 239 Pa. 210, 211, 86 A. 717. The city of Easton could not lawfully rent parking space on its public streets as a revenue measure * * *.' That principle is, we believe, broad enough to condemn an ordinance which removes use restrictions from a tract of land for the reason that the tax yield of the municipality might thus be increased.

In Kline v. City of Harrisburg, 362 Pa. 438, 68 A.2d 182, the Supreme Court affirmed the decree of the Court of Common Pleas of Dauphin County on the opinion of Judge Woodside, now of this Court. At pages 449-450 of 362 Pa., at page 187 of 68 A.2d, it is stated: 'The general rule is stated in 58 Am.Jur., Zoning Section 7, as follows: 'Municipal authority to enact zoning ordinances is generally expressly authorized by statutory or charter provisions, and sometimes even by constitutional provision. But municipal power to enact and enforce zoning regulations does not exist in the absence of statutory or constitutional authorization, express or implied; the municipality has no inherent power to enact zoning ordinances, and in particular cases zoning ordinances have been found to be unauthorized by any constitutional, statutory, or charter provision. Moreover, a zoning ordinance is confined by the limitations fixed in the enabling statute, and a particular zoning ordinance or provision thereof may be declared void because it exceeds the power granted by the zoning statutory or charter provision.'

'And the footnote states: 'a general welfare provision had been held not to authorize the enactment of a zoning ordinance' and again 'the clearly expressed mandatory provisions of a zoning enabling statute may not be abrogated, ignored or released to meet the real or supposed practical needs of the municipality for its inhabitants.' 117 A.L.R. 1123.'

An amendment to a zoning ordinance must be enacted in conformity to the grant of power in the enabling statute to the same extent as an original zoning ordinance. State ex rel. Fairmont Center Co. v. Arnold, 138 Ohio St. 259, 34 N.E.2d 777, 136 A.L.R. 840; Yokely, Zoning Law and Practice, 2d ed., vol. 1 section 85, page 189; McQuillin, Municipal Corporations, vol. 8, section 25.67, page 117. And an ordinance that conflicts with the provisions of the enabling statute is void. Genkinger v. City of New Castle, 368 Pa. 547, 549, 84 A.2d 303; citing Bussone v. Blatchford, 164 Pa.Super. 545, 67 A.2d 587; Grisbord v. City of Philadelphia, 148 Pa.Super. 91, 24 A.2d 646; Kline v. City of Harrisburg, 362 Pa. 438, 68 A.2d 182, supra; 1 Dillon on Municipal Corporations, 5th ed., page 449.

It is clear, therefore, that unless the legislature in the zoning enabling statute has granted to a first-class township the power to adopt zoning regulations as a means of increasing tax revenue, the ordinance under discussion cannot be sustained on that ground.

The First Class Township Code provides in section 3101, 53 P.S. § 19092-3101: 'For the purpose of promoting health, safety, morals, or the general welfare of townships, the boards of township commissioners are hereby empowered to regulate * * * the location and use of buildings, structures, and land for trade, industry,...