Taylor v. Haverford Township
| Decision Date | 17 March 1930 |
| Docket Number | 121 |
| Citation | 149 A. 639,299 Pa. 402 |
| Parties | Taylor v. Haverford Township, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 14, 1930
Appeal, No. 121, Jan. T., 1930, by defendant, from judgment of C.P. Delaware Co., June T., 1926, No. 1658, for plaintiff on petition for declaratory judgment, in case of Charles Taylor v. Haverford Township. Affirmed.
Petition for declaratory judgment. Before MACDADE, J.
The opinion of the Supreme Court states the facts.
Judgment for plaintiff. Defendant appealed.
Error assigned was judgment, quoting record.
The judgment is affirmed at cost of appellant.
Harold L. Ervin, of Lutz, Ervin, Reeser & Fronefield, for appellant. -- The people of this community have developed a place of beauty and security for the rearing of their families and their own personal enjoyment. Clearly, if there is a home community that merits the protection of the municipal authorities for the preservation of the home from the intrusion of business, this particular section of Llanerch and Llanerch Estates is such a community. To require appellee to use his land to conform with the use of that immediately across Lansdowne Road and Park Road, will not work any peculiar hardship on him: Euclid & Ambler Realty Co., 272 U.S. 365; Kerr's App., 294 Pa. 246; Nectow v Cambridge, 277 U.S. 183; Ward's App., 289 Pa. 458.
The result of the decision of the trial judge, in permitting the use of this triangular lot of ground for business and commercial uses, is that it will establish a triangular shaped business wedge in a strictly residential area: Zahn v. Board of Public Works, 274 U.S. 325; Euclid & Ambler Realty Co., 272 U.S. 365.
So long as the restriction imposed has a substantial bearing on the health, safety, morals, or general welfare of the public, the courts will not condemn it: Gilfillan's Petition, 291 Pa. 358; Kerr's App., 294 Pa. 246; Ward's App., 289 Pa. 458; Liggett's Petition, 291 Pa. 109; Junge's App., 89 Pa.Super. 543.
Frank M. Hunter, of Hannum, Hunter, Hannum & Hodge, for appellee. -- The districting of petitioner's land in a residence district has no foundation in reason and is a mere arbitrary and irrational exercise of power, having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense: Nectow v. Cambridge, 277 U.S. 183.
The zoning restrictions imposed on appellee's land are unnecessary for the health, safety or welfare of the public; deprive appellee of his property without due process of law; and do not accord to him equal protection of law, and accordingly are unconstitutional and void: Lochner v. New York, 198 U.S. 45; Burns Baking Co. v. Bryan, 264 U.S. 504; Nectow v. Cambridge, 277 U.S. 183; White's App., 287 Pa. 259; Norwood v. Baker, 172 U.S. 269; Butters v. Oakland, 263 U.S. 162; Browning v. Hooper, 269 U.S. 396.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.
Plaintiff filed a petition under the Uniform Declaratory Judgments Act of June 18, 1923, P.L. 840, to determine the constitutional validity of a township zoning ordinance as applied to a certain piece of land owned by him. At the threshold of this case, the question arises as to the availability of such a remedy under the circumstances here presented. True, this point is not raised by any assignment of error, and is not included in the statement of questions involved printed by either side; but in most of the cases where a question of the availability of the Uniform Declaratory Judgments Act as a remedy has been ruled by us, the point was raised by the court itself and not by the litigants. See Dempsey's Est., 288 Pa. 458, 460; Leafgreen v. LaBar, 293 Pa. 263, 264; Lyman v. Lyman, 293 Pa. 490, 495-6; Ladner v. Siegel, 294 Pa. 368, 371-5; Pittsburgh's Consolidated City Charter, 297 Pa. 502, 506-8; see also List's Est., 283 Pa. 255, 257-8. We are determined that the Declaratory Judgments Act, an excellent piece of legislation when kept within proper bounds, shall not be used in cases to which it is not properly applicable. The limitations on the use of this remedy are fully discussed in Kariher's Petition (No. 1), 284 Pa. 455, where we said (page 471) that, "a proceeding to obtain such a judgment will not be entertained . . . where another statutory remedy has been specially provided for the character of case in hand . . . and . . . jurisdiction will never be assumed unless the tribunal appealed to is satisfied that an actual controversy, or the ripening seeds of one, exists between . . . [the] parties . . . and . . . the declaration sought will be a practical help in ending the controversy." See also List's Est., supra, 257; Dempsey's Est., supra, 460; Leafgreen v. LaBar, supra, 264; Pittsburgh's C. C. Charter, supra, 507. Here an actual controversy exists; but is there another "specially provided" statutory remedy available to plaintiff? If so, he cannot get relief through a declaratory judgment proceeding.
The Act of June 29, 1923, P.L. 957, "authorizing boroughs and townships of the first class to adopt and enforce zoning ordinances regulating the location, construction, and use of buildings . . . and the use of land," provides (pages 959-61) for the creation of "a board of adjustment," and that an appeal may be taken to that body "by any person aggrieved, . . . or . . . affected by any decision of [an] administrative officer," covering matters within the purview of the act; further, that persons aggrieved by the decisions of the board of adjustment may "within thirty days after the filing of [any] decision," appeal to the court of common pleas. This act also provides (page 959) that "the board of adjustment may, in appropriate cases, . . . make special exceptions," thereby taking a particular piece of land out of the restrictions to which it would otherwise be subjected.
The piece of land with which we are now concerned is a triangular lot of about .6919 acres, on the outer corner of a large 70-acre tract, originally owned by plaintiff, which, speaking generally, he laid out in lots to sell for residential purposes. He reserved this particular lot, and, as found by the court below, held it "for many years, for the purposes of selling or developing for store, apartment, theater, or other commercial or business uses." The court further found that the reserved land was "within, or in the immediate vicinity of, present business development." All of these facts will be more fully discussed later on. At this point it will suffice to say that defendant's zoning ordinance placed plaintiff's lot in an area restricted to residential purposes, within which the business uses just stated were forbidden; and the effect of this zoning is claimed to be confiscatory as to the particular piece of property here involved.
Reduction in values, shared by most, if not all, owners in a locality, because of the common effect on properties of the general scheme of a zoning ordinance, is not enough in itself to render the ordinance confiscatory: Ward's App., 289 Pa. 458, 462; Kerr's App., 294 Pa. 246, 249-50; Euclid Village v. Ambler Realty Co., 272 U.S. 365, 384, 386-8. One claiming to be injured by a zoning law has to show more, if he would have its application to his particular property declared unconstitutional. He is obliged to prove, inter alia, that some special regulation or part of the statute or ordinance under attack has peculiarly injured his property, and that he is an actual sufferer from such injury. As long as there is a possibility of the removal of the property in question from the alleged detrimental restrictions, its owner is not in a position to ask that the act or ordinance, giving rise to or containing such restrictions, be declared unconstitutional in any part or to any degree; in other words, until that possibility is eliminated, the owner has not suffered such an injury as to entitle him to this extraordinary relief. Therefore, the present plaintiff, in order to put himself in a position to ask that the zoning of his lot be adjudged void, had first to petition for the removal of the property from the residential zone in which, as he asserts, it was wrongfully located; for only after refusal of an application of this kind could he claim to be such an actual sufferer from defendant's ordinance as to entitle him to have its application to his land declared unconstitutional. Accordingly, plaintiff asked that his lot be transferred to what defendant's ordinance designates as an "H" district, -- a semiresidential, semibusiness zone; the board refused his petition, and no appeal was taken. In making that application, plaintiff, for then present purposes, had to assume the constitutionality of defendant's zoning ordinance. He could not make his application under the ordinance and at the same time attack its validity; hence nothing which then took place would bar him from subsequently raising, in another and appropriate proceeding, the constitutional issue of confiscation now before us. An appeal from the decision of the board of adjustment would not have been appropriate to that end; for, had plaintiff, on such appeal, attempted to raise the issue of the invalidity of defendant's ordinance, as confiscatory of his property, he would have been met by the proposition that he was attacking the validity of the very legislation under which, in the same proceeding, he had asked relief, and by the rule that such a course was not permitted. Hirsh v. Block, 267 F. 614, 618 (), contains a good statement of this rule, -- that one who has invoked a specially provided statutory remedy cannot, on appeal from a decision against him, attack the...
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