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May 2, 1958


Appeals, Nos. 3 and 4, Jan. T., 1958, from order of Court of Common Pleas of Chester County, July T., 1955, No. 56, in case of Bilbar Construction Company et al. v. Board of Adjustment of Easttown Township. Order reversed June 28, 1957.


Robert k. Greenfield, with him Thomas F. Devine, and Thomas A. Riley, Folz, Bard, Kamsler, Goodis & Greenfield, for appellants.

Theodore O. Rogers, for Easttown Township Board of Adjustment, appellee.

Harold E. Kohn, with him William H. Mitman, and Dilworth, Paxson, Kalish & Green, for intervening appellees.

Frederick H. Spotts, with him Pepper, Bodine, Frick, Scheetz & Hamilton, for amicus curiae.

David W. Craig, with him John E. Forsythe, John O. Platt, Jr., Moorhead & Knox, MacCoy, Evans & Lewis, and MacElree & Platt, for amici curiae.

C. Brewster Rhoads, with him Carl H. Anderson, Robert L. Trescher, and Montgomery, McCracken, Walker & Rhoads, for amicus curiae.

C. Brewster Rhoads, with him C. Russell Phillips, Walter W. Rabin, H. Mark Solomon, and Montgomery, McCracken, Walker and Rhoads, for amicus curiae.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 393 Pa. Page 65]


Tredyffrin Construction Co. and its grantee, Bilbar Construction Company, have separately appealed from the order of the court below sustaining the action of the Zoning Board of Adjustment of Easttown Township, Chester County, which, in turn, had affirmed the Zoning Officer's refusal of Tredyffrin Construction Co.'s application for a building permit. The applicant sought permission to erect a dwelling on a specified lot of a subdivision which it proposed to lay out from a portion of its 50-acre tract of unimproved land in Easttown Township. The refusal of the permit was based on the fact that the lot upon which the proposed dwelling was to be built was patently deficient in area, as

[ 393 Pa. Page 66]

    well as frontage, under the provisions of the township's zoning ordinance. According to its title, the ordinance is known and cited as "The Easttown Township Zoning Ordinance of 1939" although enacted August 6, 1940. It is the same ordinance that was before us for interpretation and enforcement, in another connection, in Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 41 A.2d 744 (1945).

As shown by the maps attached to and made part of the ordinance, property fronting on Greenlawn Road in Easttown Township is classified "A" residential. In such a district a single-family dwelling, inter alia, is a permissible structure on a lot of a minimum area of not less than 43,560 square feet (an acre) and having a frontage of 150 feet. For less restricted districts, the minimum lot areas and frontages are scaled downward by the ordinance and its incorporated maps. Greenlawn Road, which runs in a generally east-west direction, constitutes part of the northern boundary of Easttown Township and its center line is the division line between Tredyffrin Township on the north and Easttown Township on the south.

Tredyffrin Construction Co. acquired its land in Easttown Township in 1948. At least, a considerable part of the property abutted on Greenlawn Road and was, consequently, in an "A" residential zone. Nonetheless, the Tredyffrin Construction Co. in 1955 applied to the Zoning Officer of Easttown Township for a building permit for the erection of a single-family dwelling on a lot fronting on Greenlawn Road, having an area of only 21,000 square feet and a frontage of 100 feet. The Zoning Officer understandably refused to certify the application as a compliance with the requirements of the ordinance.

On its appeal to the Board of Adjustment from the action of the Zoning Officer, Tredyffrin Construction Co.

[ 393 Pa. Page 67]

    urged the Board to conclude from the facts adduced at a hearing before it that the requirements of the ordinance with respect to lot areas, as they relate to the applicant's property, are arbitrary and unreasonable and that the Zoning Officer erred in not so concluding and in not certifying compliance with the established zoning regulations.

All that Tredyffrin Construction Co. offered in evidence at the hearing before the Board of Adjustment (in addition to the Easttown Township zoning ordinance) was the testimony of several witnesses that, under the Tredyffrin Township ordinance and its related maps, the minimum lot areas on the side of Greenlawn Road opposite Easttown Township were less than those prescribed for an "A" residential district under the Easttown ordinance, ad that 21,000 square foot lots, as proposed by Tredyffrin Construction Co., could be improved with dwellings with no greater burden to the township for the widening and improvement of streets or the disposal of sewage than one-acre lots would impose. The fact is that the lot area restrictions of the Tredyffrin Township ordinance to which the appellant thus made reference for comparative purposes, had been down-graded by a re-zoning made at the instance of Tredyffrin Construction Co., itself, which had owned, developed and sold the properties on the north side of Greenlawn Road in Tredyffrin Township to which it now pointed, first, as a reason for a requested down-grading by Easttown of its "A" residential zoning restrictions and, second, as proof of asserted unreasonableness and arbitrariness of the Easttown ordinance as applied to the applicant's property.

Such was the extent of the evidence which Tredyffrin Construction Co. introduced before the Board of Adjustment and it offered no additional testimony on

[ 393 Pa. Page 68]

    its appeal to the court below from the action of the Board of Adjustment. Nor did the Bilbar Construction Company, Tredyffrin's subsequent grantee which, on stipulation, was joined as a party appellant months after the matter had been appealed to the court, ever offer any evidence at any time touching the alleged invalidity of Easttown's one-acre lot requirement in an "A" residential zone. The evidence as to lot areas and frontages in Tredyffrin Township was, of course, of no relevancy or materiality whatsoever even had Tredyffrin Construction Co. been seeking a variance which, for obvious reasons, it was avowedly not doing.

In Michener Appeal, 382 Pa. 401, 406, 115 A.2d 367, we approved the refusal of a variance to the owner of a dwelling in a residentially restricted area in Haverford Township, Delaware County, who sought to convert his house, which was on the northern side of a township road division line, into a commercial property, because, directly across the road, in upper Darby Township, same County, there were two nearby gas stations and a diner, open twenty-four hours a day, with much attendant noise and loud and boisterous talk, in a district zoned by the latter township commercial. It was manifestly a case of great hardship. Yet, there was nothing to be done about it because of the disparity in the zoning regulations of the two political subdivisions on their respective sides of the same public thoroughfare. It is plain enough that zoning restrictions in one township cannot be permitted to control or impinge upon the zoning regulations which a contiguous township may see fit to adopt. See Gignoux v. Village of Kings Point, 99 N.Y.S.2d 280, 286.

Equally irrelevant and immaterial to the appellants' contention is the testimony as to what the applicant would do in the way of taking care of street requirements

[ 393 Pa. Page 69]

    and sewage disposal if permitted to lay out lots each of a 21,000 square foot area in an "A" residential zone. Public issues, such as this case involves, are not to be resolved on either an ad hoc or personal basis.

The court below aptly epitomized the record before it as follows: "We do not understand the grounds of objection of appellants to the decision of the Board of Adjustment to be that the zoning regulations here involved have no substantial relation to public health, safety, morals or general welfare. Indeed, we find no evidence that they have no such substantial relation; and therefore, we may not interfere with their enforcement on that ground. See Gratton v. Conte, 364 Pa. 578, 584. Nor is there any evidence that the action of the Supervisors in establishing those regulations, or of the Board in its decision, was arbitrary or capricious."

The contention which the appellants have sought to advance boils down to the bald proposition that, under the meagre and immaterial facts which they adduced, the minimum lot area of one acre, which the Easttown ordinance prescribed for an "A" residential district, is presumptively unconstitutional. Certainly, there is nothing else in this case upon which to attempt an argument that the lot area restriction, as applied to the appellants' property, is arbitrary, unreasonable and confiscatory or that the restriction bears no reasonable relation to the health, safety, morals or general welfare of the community. The appellants contend, nonetheless, that the Easttown Township zoning ordinance is unconstitutional as applied to their property although the record, which the applicant presented to the Board of Adjustment and subsequently to the court below, and upon which the appellants now rest, affords no basis for the contention.

[ 393 Pa. Page 70]

The rule is well established that the burden of proving clearly and unmistakably the unconstitutionality of a legislative enactment is upon the person so asserting. In Gottschall v. Compbell, 234 Pa. 347, 363, 83 A. 286, it was said, - "That one who asks to have a law declared unconstitutional takes upon himself the burden of proving beyond all doubt that it is so, had been so often declared that the principle has become axiomatic." A legislative enactment can be declared void only when it violates the fundamental law clearly, palpably, plainly and in such manner as to leave no doubt or hesitation in the minds of the court. Sharpless v. Mayor of Philadelphia, 21 Pa. 147, 164. In Erie & North-East Railroad Company v. Casey, 26 Pa. 287, 300-301, it was recognized that "The right of the judiciary to declare a statute void, and to arrest its execution, is one which, in the opinion of all courts, is coupled with responsibilities so grave that it is never to be exercised except in very clear cases; one department of the government is bound to presume that another has acted rightly. The party who wishes us to pronounce a law unconstitutional, takes upon himself the burden of proving, beyond all doubt, that it is so." Hadley's Case, 336 Pa. 100, 104, 6 A.2d 874, succinctly states as the practical effect of the rule, "All presumptions are in favor of the constitutionality of acts and courts are not to be astute in finding or sustaining objections to them. ..."

The heavy burden resting upon the person asserting unconstitutionality of legislation is one of the most firmly established principles of our law: Loomis v. Philadelphia School District Board of Education, 376 Pa. 428, 431, 103 A.2d 769; Flynn v. Horst, 356 Pa. 20, 31, 51 A.2d 54; Pennsylvania Company, etc., Trustee, Case, 345 Pa. 130, 137-138, 27 A.2d 57; Hadley's Case, supra; Penn Anthracite Mining Co. v. Anthracite

[ 393 Pa. Page 71]

    legislation. Kerr's Appeal, 294 Pa. 246, 144 A. 81; South Carolina State Highway Department v. Barnwell Brothers, Inc., 303 U.S. 177, 190-191; and Simon v. Town of Needham, 311 Mass. 560, 42 N.E.2d 516.

While the promotion of the public health, safety, morals or general welfare is the test for checking subjectively whether a municipality's exertion of its constitutional power to zone has been exceeded, courts do not apply the criteria in a vacuum. Someone must be injured by the ordinance's restrictions in order to raise the constitutional question, and the applicable objective test is whether the ordinance operates in an arbitrary, capricious, discriminatory or confiscatory manner as to the property of the complainant. The latter inquiry calls for judicial determination. But, as to the former, what serves the public interest is primarily a question for the appropriate legislative body in a given situation to ponder and decide. And, so long as it acts within its constitutional power to legislate in the premises, courts do well not to intrude their independent ideas as to the wisdom of the particular legislation. Specifically, with respect to zoning enactments, judges should not substitute their individual views for those of the legislators as to whether the means employed are likely to serve the public health, safety, morals or general welfare.

Although some of our recent cases appear to have ignored "general welfare" as a consideration in adjudging whether the police power has been constitutionally exercised in given instance, it is not open to serious question that it is one of the important elements to be reckoned with in any such inquiry. Its importance lies partly in the fact that it admits of aesthetic considerations when passing upon the validity of a zoning ordinance. As long ago as Kerr's Appeal, 294 Pa. 246, 250, 144 A. 81, this Court recognized that

[ 393 Pa. Page 73]

"while a zoning ordinance cannot be sustained merely on aesthetic ground, that may be considered in connection with questions of general welfare." Since, with the passing of time, urban and suburban planning has become an accredited adjunct of municipal government, aesthetic considerations have progressively become more and more persuasive as sustaining reasons for the exercise of the police power.

In Berman v. Parker, 348 U.S. 26, 32, the Supreme Court of the United States, in unanimously upholding the constitutionality of the District of Columbia Redevelopment Act of 1945, said with respect to the scope of the police power: "Public safety, public health, morality, peace and quiet, law and order-- these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power and do not delimit it. See Noble State Bank v. Haskell, 219 U.S. 104, 111. ... The concept of the public welfare is broad and inclusive. See Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them." This clearly expressed concept of the public welfare is not to be disregarded on the question of the constitutionality of a zoning ordinance simply because the properties utilized in the redevelopment in the Berman, case were acquired by the municipality through eminent domain. The Supreme Court itself points out that the use of eminent domain to acquire the properties

[ 393 Pa. Page 74]

    was merely "the means to the end." The end was the redevelopment and the basic question was whether "the object", i.e., the redevelopment, was "within the authority of Congress." In other words, was the redevelopment a valid exercise of the federal government's police power in respect of the District of Columbia? To that inquiry, how the properties were obtained was wholly immaterial.

We ourselves have a number of times upheld the constitutionality of zoning ordinances which bore no reasonable relation to the health, safety, or morals of the community but whose constitutional validity rested alone upon their promotion of the general welfare. In Landau Advertising Co., Inc. v. Zoning Board of Adjustment, 387 Pa. 552, 128 A.2d 559, we sustained as constitutional a zoning ordinance which prohibited certain types of outdoor advertising signs from being erected on buildings even in commercial zones of the city involved. An ordinance which prohibited the erection of billboards in residential districts was held to be constitutional in Leggett's Petition, 291 Pa. 109, 139 A. 619. The exclusion of buildings devoted to business uses from residential districts was deemed a constitutional exercise of the police power: Ward's Appeal, 289 Pa. 458, 137, A. 630. A zoning ordinance which prohibited the construction of row housing was upheld in Dunlap Appeal, 370 Ap. 31, 87 A.2d 299. Residential districts restricted by a zoning ordinance to one-family dwellings is permissible: Jennings' Appeal, 330 Pa. 154, 198 A. 621. And, just recently, in Swade v. Zoning Board of Adjustment of Springfield Township, 392 Pa. 269, 140 A.2d 597, we affirmed the refusal of a variance to an applicant who sought to conduct a prohibited business enterprise in the barn on his property in a residential zone although it was expressly found as a fact by the court below that "the

[ 393 Pa. Page 75]

    business carried on by the appellant did not adversely affect the health, safety, or morals of the public ...." In short, the prohibition of the business use was deliberately sustained solely on the ground that the restriction promoted the general welfare in the given case. The following excerpt from the opinion of the court below, whereon we affirmed per curiam, is peculiarly apposite here: "If we were to hold that the Zoning Ordinance of Springfield Township was unconstitutional as applied to the appellant's property, then we would throw every zone open to prohibited uses ...

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