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CLEAVER v. BOARD ADJUSTMENT (05/11/64)

May 11, 1964

CLEAVER
v.
BOARD OF ADJUSTMENT, APPELLANT.



Appeal, No. 2, Jan. T., 1964, from order of Court of Common Pleas of Chester County, July T., 1962, No. 175, in the matter of appeal of William E. Cleaver, Maira Cleaver, his wife, Joseph H. Engelman et al. v. Board of Adjustment of Tredyffrin Township and Conestoga Enterprises, Inc. Order reversed.

COUNSEL

Guy G. deFuria, with him Robert S. Gawthrop, William H. Rivoir, Jr., and deFuria, Larkin & DeFuria and Gawthrop & Greenwood, for appellant.

John O. Platt, Jr., with him MacElree, Platt, Marrone & Harvey, for appellees.

Before Bell, C.j., Musmanno, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Bell

[ 414 Pa. Page 369]

OPINION BY MR. CHIEF JUSTICE BELL

The question involved is the validity and constitutionality of the amended zoning ordinance of Tredyffrin Township, Chester County.*fn1

An equally divided Board of Adjustment affirmed ex necessitate*fn2 the issuance of a building permit for the erection of a garden type of apartment to the present intervenor appellants. Thereafter the Court of Common Pleas of Chester County, without taking any testimony, reversed and held the amendatory ordinance (a) invalid because of lack of conformity with Tredyffrin's comprehensive plan, and (b) Unconstitutional because it was spot zoning.

The tract in question is located in the Town of Paoli, the western end of the Pennsylvania Railroad's "Main Line" commuter service to Philadelphia. It consists roughly of 11 acres bounded on the south by the railroad tracks and the Paoli Station platform, on the west by the Paoli Elementary School, on the north by Central Avenue, and on the east by the large Burroughs Corporation Research Center. The School tract (to the west), and the property across Central Avenue (to the north) on which small residences have been built, are zoned r-3 Residential. The Burroughs land, which extends east from the tract in suit, along the

[ 414 Pa. Page 370]

    railroad to Route 202 is zoned c-1 Commercial. Directly west of the school and north of the Pennsylvania Railroad westbound station building, are three very small lots, two of which are zoned c-1, and one, r-3. Lincoln Highway (Lancaster Pike) runs on the other side of the Pennsylvania Railroad tracks and for one or two miles (directly opposite the property in suit) is zoned on both sides c-1 and has only business properties.

The action here complained of is the down zoning of the tract in suit from r-3 to R-4. R-3 allows residences on lots of 12,000 square feet and no apartment use whatever. r-4 permits garden or group type apartments. C-1 (Commercial), which is the classification for a considerable number of the neighboring properties, including those above mentioned, permits various business uses such as retail store, bank, restaurant, certain kind of shops, and any use permitted in R-4. As we have just noted, R-4 specifically permits the type of apartment*fn3 which appellants seek to construct and appellees seek to prevent.

To answer the questions involved we must consider (a) the Constitution, and (b) the law pertaining to zoning, including a comprehensive plan.

The Right of Property Owners and the Powers of Government

The law governing the Constitutionality of zoning legislation may be thus summarized:

The Constitution of the United States in the Fifth Amendment and in the Fourteenth Amendment, and

[ 414 Pa. Page 371]

    the Constitution of Pennsylvania in Article i, § 1, ordain and guarantee the right of private property. Article i, § 1, of the Constitution of Pennsylvania provides: "All men ... have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property ...."

The historical origin and development of our Country, our Birthright and Heritage of Freedom and the (so-called) inalienable fundamental rights, privileges and immunities guaranteed by ...


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