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NATIONAL LAND AND INVESTMENT COMPANY v. EASTTOWN TOWNSHIP BOARD ADJUSTMENT (11/09/65)

decided: November 9, 1965.

NATIONAL LAND AND INVESTMENT COMPANY
v.
EASTTOWN TOWNSHIP BOARD OF ADJUSTMENT, APPELLANT



Appeals from decree of Court of Common Pleas of Chester County, Jan. T., 1963, No. 21, and Feb. T., 1964, No. 43, in case of National Land and Investment Company and Dorothy M. Ennis v. Board of Adjustment of Easttown Township, Harold E. Kohn and Edith Kohn, his wife.

COUNSEL

Theodore O. Rogers, Susan P. Windle, and Rogers & O'Neill, for appellant.

Harold E. Kohn, for intervenors, appellants.

J. B. H. Carter, with him Holbrook M. Bunting, Jr., Francis X. Hope, and Pepper, Hamilton & Scheetz, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones dissents. Dissenting Opinion by Mr. Justice Cohen.

Author: Roberts

[ 419 Pa. Page 507]

These appeals*fn1 are taken from an order of the Court of Common Pleas of Chester County*fn2 which held unconstitutional

[ 419 Pa. Page 508]

    a provision of the Easttown Township zoning ordinance which required a minimum area of four acres per building lot in certain residential districts in the township. Before reaching the significant zoning question presented in this case, however, several procedural issues raised by the township*fn3 must first be considered in order to determine if the issue is properly before us.

I. Procedural Questions

A chronological recitation of the relevant history of the tract involved in these appeals will best reveal the procedural posture of this controversy. In 1958, appellee, Dorothy M. Ennis, took title to approximately 130 acres of land in Easttown Township known as "Sweetbriar".*fn4 After selling 45 acres of that tract, Miss Ennis executed an agreement of sale in 1961 with National Land and Investment Company ("National") for the remaining 85 acres of "Sweetbriar". Under this agreement, purchase by National was contingent upon the suitability of the land for development purposes and the acceptance by Easttown Township, under its zoning regulations, of a subdivision plan which would be prepared for the tract.

At the time of the purchase agreement, the zoning for "Sweetbriar", as well as for the vast majority of the township, required a one acre minimum area for each building lot.*fn5 Subdivision plans for one acre lots

[ 419 Pa. Page 509]

    on "Sweetbriar" were submitted to the township in late 1961*fn6 but were not pursued*fn7 for the likely reason that in early 1962 an amendment to the zoning ordinance imposed upon the land a minimum area requirement of four acres.

Instead of perfecting its subdivision application, National filed with the township a request for a building permit to construct a single dwelling house on a one acre lot of the "Sweetbriar" tract. This request was refused by the township zoning officer for the reason that the land area was insufficient under the four acre zoning requirement and because no plan for a subdivision, of which this house was to be but a part, had been approved. In his letter of refusal dated April 27, 1962, the zoning officer advised National's counsel that National could "appeal . . . [its] case for a variance" to the board of adjustment. Within five days after receiving the refusal, National's attorney replied that National was taking an appeal to the board of adjustment "for a variance from the terms of the Ordinance." A hearing was scheduled for June 15, 1962, but was postponed because the board of adjustment was unable to muster a quorum for the meeting.

The matter remained in abeyance for six months until October 30, 1962, at which time new counsel for National asked for a hearing on the appeal and submitted a "statement of appeal" which, for the first time, challenged the constitutionality of the four acre minimum zoning and abandoned any pretext of seeking a variance.

[ 419 Pa. Page 510]

At the board of adjustment hearing on December 7, 1962, a motion to quash the appeal was made by the township based on the ground that the board of adjustment could not entertain the appeal from the denial of the building permit because (1) the appeal was not taken within a "reasonable time", and (2) no subdivision plan for "Sweetbriar" had been approved.

The board of adjustment granted the motion to quash on the ground that no subdivision plan had been approved and because of its conviction that an attack on the constitutionality of a zoning ordinance did not belong before the board of adjustment but, rather, before a court of common pleas "or other qualified judiciary."

National appealed from the ruling to the Court of Common Pleas of Chester County which reversed the board's decision and remanded the case so that testimony on the substantive issues could be taken.*fn8 Appellants ask us to review and reverse that procedural determination, thereby making it unnecessary for us to reach the merits of the zoning question presented in the case.

Appellants first urge that the appeal to the board of adjustment from the action of the zoning officer was not taken within a "reasonable time"*fn9 and therefore

[ 419 Pa. Page 511]

    should have been dismissed. Although National notified the board of adjustment of its appeal within a week after the building permit was refused, it simply advised the board that it would seek a variance. Not until six months later was the board informed that the appeal would attack the constitutionality of the ordinance in general. For this reason, the township argues that the appeal was not taken until six months after the denial of the building permit and that such delay constituted an unreasonable amount of time. We can not accept appellants' contention in this regard.

Our cases permit one who petitions for a variance to a board of adjustment to challenge before the board or thereafter on appeal to the court of common pleas the constitutionality of the zoning ordinance. Eller v. Bd. of Adjustment, 414 Pa. 1, 198 A.2d 863 (1964); see Anstine v. Zoning Bd. of Adjustment, 411 Pa. 33, 190 A.2d 712 (1963); Di Santo v. Zoning Bd. of Adjustment, 410 Pa. 331, 189 A.2d 135 (1963); Schmalz v. Buckingham Twp. Zoning Bd. of Adjustment, 389 Pa. 295, 132 A.2d 233 (1957). This being so, there is no justification for denying appellees the right to shift the emphasis of the attack prior to the hearing before the board of adjustment.

In essence, an application for a variance implies a challenge to the legality of the zoning ordinance as it applies to a specific piece of property. See Forest Hills Borough Appeal, 409 Pa. 392, 187 A.2d 166 (1963); Colligan Zoning Case, 401 Pa. 125, 162 A.2d 652 (1960); Baronoff v. Zoning Bd. of Adjustment, 385 Pa. 110, 122 A.2d 65 (1956); Garbev Zoning Case, 385 Pa. 328, 122 A.2d 682 (1956). Zoning is permitted when exercised for the promotion of the health, safety, morals or general welfare of the community. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114 (1926); Cleaver v. Bd. of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964); Archbishop O'Hara's Appeal, 389 Pa. 35,

[ 419 Pa. Page 512131]

A.2d 587 (1957). Such an exercise of the police power, however, may, in applications of the ordinance to specific properties, impose upon the owner of such properties an "unnecessary hardship". When so applied, the ordinance can not be termed a reasonable or constitutional exercise of the police power. To preserve the validity of the zoning ordinance in its application to the community in general, therefore, the variance provision of the enabling act functions as an "escape valve" so that when regulations which apply to all are unnecessarily burdensome to a few because of certain unique circumstances, a means of relief from the mandates of the ordinance is provided. See Peirce v. Zoning Bd. of Adjustment, 410 Pa. 262, 267, 189 A.2d 138, 141 (1963); Colligan Zoning Case, 401 Pa. 125, 131-32, 162 A.2d 652, 655 (1960). It can be understood, then, if a request for a variance is denied, indicating that there is nothing about petitioner's land or his hardship that is any different than that of everyone else with land similarly zoned, then petitioner's most logical next step is to attack the validity of the ordinance as it applies to everyone. See Anstine v. Zoning Bd. of Adjustment, 411 Pa. 33, 190 A.2d 712 (1963); Sylvester v. Pittsburgh Zoning Bd. of Adjustment, 398 Pa. 216, 157 A.2d 174 (1959); Best v. Zoning Bd. of Adjustment, 393 Pa. 106, 141 A.2d 606 (1958); Schmalz v. Buckingham Twp. Zoning Bd. of Adjustment, 389 Pa. 295, 132 A.2d 233 (1957); Dunlap Appeal, 370 Pa. 31, 87 A.2d 299 (1952). In other words, a challenge to the validity of a zoning ordinance is a natural and foreseeable outgrowth of a request for a variance.

Appellees in this case did not wait for their request for a variance to be denied, probably realizing full well that there was nothing unique about their property which would have justified special treatment. Their decision to attack the constitutionality of the ordinance

[ 419 Pa. Page 513]

    at the board of adjustment hearing does not constitute an appeal separate and distinct from the appeal requesting a variance and, this being the case, was filed within a reasonable time after the denial of their request for a building permit.

We would be particularly reluctant to quash the appeal for untimeliness in this case in view of the fact that some of the delay was due not to any action or inaction on the part of appellees, but due to the inability of the board of adjustment to garner a sufficient number of its members to hold a hearing when initially scheduled. Surely appellees should not be penalized for a delay resulting from circumstances for which they were not responsible.

In light of the above considerations, we are unable to conclude that the court below, in finding that the appeal was filed within a reasonable time, abused its discretion or committed an error of law.*fn10

Appellants next assert that this suit was not prosecuted by a real party in interest. We do not agree. National Land expended in excess of $6,000 in seeking to develop this land. The Second Class Township Code permits appeals by anyone aggrieved by the decision of a zoning official enforcing the provisions of the zoning ordinance.*fn11 That National was so aggrieved by the refusal to grant the building permit which it sought would be difficult to deny. In addition, there is in effect

[ 419 Pa. Page 514]

    between National and Miss Ennis an agreement of sale of the property based upon contingencies already mentioned. We have held on numerous occasions that such equitable owners qualify as parties in interest. Kubia Appeal, 396 Pa. 109, 151 A.2d 625 (1959); O'Neill v. Phila. Zoning Bd. of Adjustment, 384 Pa. 379, 120 A.2d 901 (1956); Silverco, Inc. v. Zoning Bd. of Adjustment, 379 Pa. 497, 109 A.2d 147 (1954); see Hart Appeal, 410 Pa. 439, 189 A.2d 167 (1963); Catholic Cemeteries Ass'n Zoning Case, 379 Pa. 516, 109 A.2d 537 (1954). See also Richman v. Zoning Bd. of Adjustment, 391 Pa. 254, 137 A.2d 280 (1958).*fn12

Appellants' final procedural contention is that the appeal to the board of adjustment should have been quashed since no subdivision plan for "Sweetbriar" had been approved. The Second Class Township Code provides that "appeals to the board of adjustment may be taken by any person or township official aggrieved or affected by any provision of the zoning ordinance or by any decision, including any order to stop, cease and desist issued by any administrative officer, hereinafter called the zoning officer, charged with enforcing the provisions of the zoning ordinance."*fn13 Since one of the grounds for denying the building permit to National in this case was its failure to meet the four acre minimum area requirement of the zoning ordinance, appellees would seem to be entitled to an appeal under the section just quoted. However, appellants invoke

[ 419 Pa. Page 515]

    the article of The Second Class Township Code dealing with subdivision approval in support of their contention that the appeal must be quashed. A section of that article*fn14 provides: "Where subdivision regulations have been adopted under authority of this article, no lot in a subdivision may be sold, no permit to erect, alter or repair any building upon land in a subdivision may be issued, and no building may be erected in a subdivision, unless and until a subdivision plan has been approved . . . ." (Emphasis supplied.)

Appellants would have us impose this limitation dealing with subdivision control upon the zoning provisions of the Second Class Township Code and the remedies provided thereunder. Although zoning and subdivision control are frequently involved in a single undertaking, we find no justification for restricting the remedies provided under the former with limitations imposed by the latter. The zoning enabling act authorizes the establishment of local zoning ordinances and a remedial process for those aggrieved by their application and enforcement. In the instant case, one of the grounds given for the denial of the building permit was insufficient land area. This was unquestionably a zoning decision from which the enabling act authorizes appeal.

In Jacobs v. Fetzer, 381 Pa. 262, 112 A.2d 356 (1955), this Court held that the Second Class Township Code provided a statutory means by which an ordinance could be tested and that that procedure was exclusive. In that case we denied equity jurisdiction to decide the constitutionality of the zoning ordinance. The dissent in that case objected strenuously to the fact that restricting relief to the statutory ...


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