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RUSSIAN ORTHODOX CHURCH APPEAL. (06/30/59)

THE SUPREME COURT OF PENNSYLVANIA


June 30, 1959

RUSSIAN ORTHODOX CHURCH APPEAL.

Appeal, No. 36, March T., 1959, from order of Court of Common Pleas of Beaver County, June T., 1958, No. 218, in re appeal of Russian Orthodox Church of the Holy Ghost, of Ambridge, Pennsylvania, from refusal of a permit by Rochester Township Zoning Board of Adjustment. Order affirmed. Appeal by property owner from decision of township zoning board of adjustment refusing to grant cemetery permit. Adjudication filed affirming decision of board and dismissing appeal, and order entered. Church appealed.

COUNSEL

Carl M. Kerchner, with him Angel & Kerchner, for appellant.

J. Frank Kelker, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Cohen

[ 397 Pa. Page 127]

OPINION BY MR. JUSTICE COHEN

Appellant purchased some eighty-eight acres of land in the so-called Sunflower District of Rochester Township, Beaver County, Pennsylvania, and wishes to use this land as a cemetery.

The Township of Rochester has a zoning ordinance which divides the township into three districts. With regard to the Sunflower District, Section 100 provides, "The Sunflower District is zoned primarily for residential and agricultural uses as now exist in the District." (Emphasis supplied). Section 201 of the ordinance sets forth more specifically the uses to which land in that district may be put.*fn1

[ 397 Pa. Page 128]

In Section 201(4) the ordinance provides that the following uses may be made of land in the Sunflower District, namely: "Educational, religious, philanthropic use and hospital." It is appellant's position that a cemetery is a religious use and hence permitted in the Sunflower District.

We are not called upon nor would we attempt to construe the word "religious" in the abstract. Our sole function in this case is to ascertain whether the enactors of the Rochester Township Zoning Ordinance intended to permit a cemetery in the Sunflower District as a so-called religious use.

It should first be noted that the Sunflower District is zoned primarily for residential and agricultural uses. A cemetery clearly does not come within either of these. It is apparent from a reading of Section 201 in its entirety that those uses permitted therein which are not purely agricultural or purely residential are ancillary to them. These general observations are helpful in delineating the scope to be given to the word "religious." They are helpful primarily because it is assumed as one of the basic premises of zoning that area homogeneity is one of the ends sought by a zoning ordinance. The above discussion is necessary and helpful because the word "religious" is a word of nebulous bounds and depends for its definition, if construed in the abstract, upon the subjective criteria used by the definer. In order to give the word meaning for the purposes of zoning one must look at the general purposes of zoning and the zoning ordinance in question as a whole.

If a business corporation had purchased the eighty-eight acres in question for use as a cemetery and as a

[ 397 Pa. Page 129]

    business venture for profit, there would be no question but that it was not a religious use within the terms of the Rochester Township ordinance. However, appellant contends that a different result obtains because the owner of the land is not a business corporation but a religious group and, therefore, the use to be made of the land is considered a religious use. The appellant supports this position by arguing that the place of burial and burial rites are important elements within the dogma of its religion. We feel that this argument goes too far; for, if accepted, it would mean that a slaughter house owned by a business would not be permitted in the Sunflower District, whereas, the same slaughter house, if owned by a religious sect having as part of its dogma the requirement that animals be slaughtered in a certain way by a certain person and in accord with certain rites, would be permitted. Appellant's contention goes not to the actual use to be made of the land but to an extraneous aspect taken on by the land depending on the nature of the land's owner. We do not find that such a distinction is justified within the intendment of the ordinance. We believe that a cemetery is basically a secular use of land and a use which is not incidental to or in support of the primary uses permitted in the Sunflower District, namely, residential and agricultural. We do not believe that the fact that the land will be owned by a religious institution alters the basic secular use to be made thereof, and we would be most reluctant to construe the ordinance so as to make a distinction not found therein based upon the nature of the owner of the land rather than the nature of the use to be made of the land. Any secular use under appellant's contention can be capable of a religious characterization if a particular sect ascribed religious implications thereto. Were we to accept appellant's position one of the basic purposes of zoning,

[ 397 Pa. Page 130]

    namely, area homogeneity and the stated primary use to be made of land in the Sunflower District, namely, residential and agricultural, would be rendered nugatory.

Mr. Justice MUSMANNO dissents.

Disposition

Order affirmed.

ING OPINION BY MR. JUSTICE MCBRIDE:

I find no fault in the opinion of the court below so far as it affirms the action of the zoning board of adjustment in denying a variance, but I do not conceive that to be the essential question in the case.

The real question presented is whether the establishment of a cemetery by a Russian Orthodox Church, for burial of only members of that faith from a particular area, constitutes a religious use of land.

The governing Ordinance provides, in Article II, ยง 201(4), that a lot or premises may be used for "educational, religious, philanthropic use and hospital".

The question was misconceived by the Board of Commissioners which denied appellant's request to lay out and maintain a cemetery on the ground that the conduct of a cemetery is not necessarily a religious use. That, of course, is quite true. Here, however, at the hearing before the zoning board of adjustment there was testimony that there were four Orthodox Churches in Ambridge whose members could be buried (about 60 a year) in the cemetery; that among the precepts of the church is the duty of burying the dead; that a cemetery set apart by the church for the burial of its dead members is consecrated or sacred ground being blessed for that purpose; that at the time of each burial the particular plot is blessed; that there is a religious rite for the burying of the dead required by ecclesiastical

[ 397 Pa. Page 131]

    laws and the canons of the church; that no persons of any other than the Orthodox faith may be buried in an Orthodox cemetery; that a church cemetery is a religious use of land in the opinion of the clergymen of the church.

The evidence of those who protested the cemetery did not attempt in any way to contradict this evidence. Indeed, one of the protestants, when asked whether he believed that burying the dead was a religious use, said "I think I would be an awful heathen if I didn't."

The position of the commissioners was spoken by one of them at the hearing before the zoning board, as follows: "... and now, as a private citizen, I would like to say that a cemetery can be considered a religious function - not just an Orthodox or Catholic cemetery - any cemetery, because it does state in the Bible to bury the dead; but I cannot possibly believe that the men who drew up this zoning ordinance meant that a beautiful home should have a cemetery next door as a religious purpose. If they would have believed a cemetery should be in a residential area, they would have said so."

This seems to point up the problem. Both sides apparently agreed before the board of adjustment that the words "religious use" in the narrow sense did not include a cemetery but that in the broad sense they did. The zoning board of adjustment made findings of fact, and refused the appeal on the ground that "(1) The requested use is not within those permitted under the Zoning Ordinance." The board ended its discussion by saying "It is also the opinion of the Board that 'religious' uses contemplated in said ordinance would be churches or parochial schools, and not such incidental uses as cemeteries." Upon appeal the court of common pleas said: "It is contended that a church cemetery is a religious use of land. Undoubtedly as

[ 397 Pa. Page 132]

    viewed by members and officers of this Church, establishing a cemetery does constitute a religious use of land. To be a valid interpretation of the ordinance its provisions must apply to all cemeteries alike. Obviously the term religious use could not be applied to a cemetery, not affiliated with a church, and established as a business venture. Consequently, we cannot interpret religious use to permit cemeteries to be established. This is supported particularly in this case by the fact that the record indicates that the commissioners did not so interpret it."

With this conclusion I do not agree. Certainly it is true that a cemetery established as a business venture is not a religious use of land.

It is equally true that an ordinance, such as that involved in Catholic Cemeteries Association of the Diocese of Pittsburgh Zoning Case, 379 Pa. 516, 109 A.2d 537, which permitted "churches and public schools", did not authorize cemeteries. But the present ordinance is different. It authorizes the religious use of land.

In view of the uncontradicted testimony in this case, which is virtually conceded by all parties, I do not see how it properly may be held that the proposed use of the land by the Russian Orthodox Church would not be put to a religious use by laying out a cemetery. I do not suggest that it is necessary to constitute a religious use that the cemetery itself, or even the particular plot, be consecrated or sacred ground. But it is necessary that there be a religious rite connected with the act of burial according to the ecclesiastical law and precepts of the particular sect. It is a familiar principle that zoning ordinances, since they are in derogation of the normal right of a property owner to use his land as he pleases, must be strictly construed. Medinger Appeal, 377 Pa. 217, 104 A.2d 118;

[ 397 Pa. Page 133]

    specifically included as a permissible use of land the application must be denied. But applying the true test it seems to me that we must conclude that since cemeteries are not specifically excluded and the facts show that according to the tenets, precepts or ecclesiastical law of a religious faith the act of burial is a religious rite, such cemeteries constitute a religious use of land permitted by the ordinance.

I would reverse the court below and direct that the permit be granted.


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