Taylor v. Haverford Tp

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: MOSCHZISKER, C. J.
• Citation: 149 A. 639,299 Pa. 402
• Decision Date: 17 March 1930
• Parties: TAYLOR v. HAVERFORD TP.

149 A. 639
299 Pa. 402

TAYLOR
v.
HAVERFORD TP.

Supreme Court of Pennsylvania.

March 17, 1930.

149 A. 640

Appeal from Court of Common Pleas, Delaware County; Albert Dutton MacDade, Judge.

Proceeding by Charles S. Taylor against Haverford Township. Judgment for petitioner, and respondent appeals.

Affirmed.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, SADLER, and SCHAFFER, JJ.

Harold L. Ervin (of Lutz, Ervin, Reeser & Fronefield) of Media, for appellant.

Frank M. Hunter (of Hannum, Hunter, Hannum & Hodge), of Chester, for appellee.

MOSCHZISKER, C. J.

Plaintiff filed a petition, under the Uniform Declaratory Judgments Act of June 18,

149 A. 641

1923, P. L. 840 (Pa. St. Supp. 1928, §§ 12805a—1 to 12805a—16), 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 Estate, 288 Pa. 458, 460,137 A. 170; Leafgreen v. La Bar, 293 Pa. 263, 264. 142 A. 224; Lyman v. Lyman, 293 Pa. 490, 495, 496, 143 A. 200; Ladner v. Siegel, 294 Pa. 368, 371-375, 144 A. 274; Pittsburgh's Consolidated City Charter, 297 Pa. 502, 506-508, 147 A. 525; see, also, List's Estate, 283 Pa. 255, 257, 258, 129 A. 64. 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, at page 471, 131 A. 265, 271, 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 Estate, supra, 283 Pa. 257, 129 A. 64; Dempsey's Estate, supra, 288 Pa. 460, 137 A. 170; Leafgreen v. La Bar, supra, 293 Pa. 264, 142 A. 224; Pittsburgh's C. C. Charter, supra, 297 Pa. 507, 147 A. 525. 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 (Pa. St. Supp. 1928, §§ 6948a—1 to 6948a—10), "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 959-961 [Pa. St. Supp. 1928, § 6948a—7]) 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 [Pa. St. Supp. 1928, § 6948a—7]) 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 Appeal, 289 Pa. 458, 462, 137 A. 630; Kerr's Appeal, 294 Pa. 246, 249, 250, 144 A. 81; Euclid Village v. Ambler Realty Co., 272 U. S. 365, 384, 386-388, 47 S. Ct. 114, 71 L. Ed. 803, 54 A. L. R. 1016. 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

149 A. 642

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...