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decided: March 14, 1967.


Appeal from judgment of Court of Common Pleas of Chester County, Nov. T., 1964, No. 140, in case of Exton Quarries, Incorporated v. Zoning Board of Adjustment of West Whiteland Township.


Theodore Rogers, with him James E. O'Neill, Jr., and Rogers & O'Neill, for appellant.

W. Bradley Ward, with him Edward W. Mullinix, William H. Rivoir, Jr., Robert S. Gawthrop, Jr., Robert L. Kendall, Jr., and Gawthrop & Greenwood, and Schnader, Harrison, Segal & Lewis, for appellee.

Bell, C.j., Musmanno, Jones, Cohen, Eagen and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones and Mr. Justice Eagen concur in the result. Concurring Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Cohen.

Author: Roberts

[ 425 Pa. Page 45]

This case presents issues of great difficulty and considerable significance regarding the interpretation of the zoning powers granted in The Second Class Township Code,*fn1 and the constitutionality of certain zoning ordinances enacted pursuant to that Act.

Prior to 1953 appellee, Exton Quarries, Inc., acquired approximately 99 acres of land in West Whiteland Township of Chester County for the purpose of quarrying limestone. Between 1952 and 1955, the owners of Exton obtained chemical analyses of stone and removed about 40 or 50 tons primarily for the purpose of testing quality and suitability for processing. On March 4, 1957 West Whiteland Township enacted a comprehensive zoning ordinance under the authority of The Second Class Township Code. The ordinance placed the Exton tract within its "I-Industrial" zone, the least restricted area in the township. Section 701(3) of the township zoning ordinance, permitted within the "I-Industrial" zone: "3. Any other lawful use of land, except the following, which are specifically prohibited in any District of West Whiteland Township:

[ 425 Pa. Page 46]

Arsenal, Asphalt manufacturing or refining, Automobile junk or wrecking yard, Amusement park, Coke ovens, Fat rendering, Fertilizer manufacture, Fireworks or explosive manufacture or storage, Fish smoking or curing, Glue, size or gelatine manufacture, Mining, Petroleum refining, Tank farms for petroleum products storage over 500,000 gallons, Quarrying, Row houses, Tar distillation or manufacture, Tar roofing or waterproofing manufacture, House trailer, or Trailer camps. Any other use of the same general character as those specifically prohibited above or which may be so noxious or offensive by reason of the emission of odor, noise, heat, smoke, dust, fumes, gas, vibration, illumination or water borne waste as to constitute a nuisance."

Between 1962 and 1964 Exton acquired a tract of approximately 8 acres contiguous to the 99 previously purchased.

In 1964 Exton filed an application for a building and use permit authorizing it to quarry, crush rock, and mix concrete and bituminous concrete on the 107 acre tract. The application was denied by the zoning officer and an appeal was taken to the zoning board of adjustment. The board reversed the zoning officer's denial of the permit insofar as the mixing of concrete and bituminous concrete were concerned and since no appeal from this part of the board's action was taken those issues are not now before us. As to the quarrying and rock crushing operations, the board upheld the action of the zoning officer. More specifically, in its conclusions of law with regard to the matters appealed from the Board found:

"1. That it is unnecessary to a decision in this case to determine whether the Zoning Ordinance of West Whiteland Township, and particularly the prohibition

[ 425 Pa. Page 47]

    of quarrying in section 701 (3) thereof, is constitutional in respect of the Township as a whole.

"2. That the Zoning Ordinance of West Whiteland Township, and particularly the prohibition of quarrying in section 701 (3) thereof, is constitutional in respect of the property of Exton Quarries, Inc.

"3. That section 701 (3) of the Zoning Ordinance of West Whiteland lawfully prohibits the operation of a rock crushing plant on the property of Exton Quarries, Inc.

"5. That . . . [Exton] has not established a non-conforming use.

"6. That . . . [Exton] is not entitled to a variance."

From the decision of the zoning board of adjustment, an appeal was taken to the Court of Common Pleas of Chester County. The court of common pleas reversed the board, holding that § 701 (3) was invalid as an exercise of the power granted to second class townships and unconstitutional as an exercise of police powers.*fn2 A petition was filed by the township under Supreme Court Rule 68 1/2 and was granted by us. In its appeal, the township seeks reversal of the court below on grounds that the prohibition of quarrying in the township is not beyond the powers of a second class township, is not unconstitutional, and is not unconstitutional in its application to Exton's land.

[ 425 Pa. Page 48]

I. Statutory Validity of the Prohibition of Quarrying

Exton's claim that The Second Class Township Code does not give West Whiteland the authority to enact an ordinance containing a township wide ban on quarries raises a question of considerable significance in light of the apparently widespread practice by similar political units of adopting zoning measures which totally prohibit within their boundaries some, but not all, residential, commercial and industrial uses.

The ends for which West Whiteland may enact zoning laws are specified in the following statutory language: "§ 67001. For the purpose of promoting health, safety, morals or the general welfare of townships of the second class, the supervisors are hereby empowered to regulate and restrict the height, number of stories and size of buildings and other structures, their construction, alteration, extension, repair, maintenance and all facilities and services in and about such buildings and structures, and percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, and may also establish and maintain building lines and set back building lines upon any or all public roads or highways. . . .

"§ 67002. (a) For any or all said purposes, the supervisors may divide the township into districts of such number, shape and area as may be deemed best suited to carry out the purpose of this article, and within such districts, it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings

[ 425 Pa. Page 49]

    throughout each district, but the regulations in one district may differ from those in another district. . . ."*fn3

In deciding whether this language authorizes a second class township to enact a zoning ordinance, it is appropriate to take note of certain principles of construction. While it is true that cases of this Court have often repeated the rule that zoning ordinances must be strictly construed because in derogation of the common law, e.g., Fidler v. Zoning Bd. of Adjustment, 408 Pa. 260, 265, 182 A.2d 692, 695 (1962), the Statutory Construction Act, Act of May 28, 1937, P.L. 1019, § 58, 46 P.S. § 558 provides, with certain enumerated exceptions not here relevant, that "the rule that laws in derogation of the common law are to be strictly construed, shall have no application to the laws of this Commonwealth hereafter enacted" and that laws "shall be liberally construed to effect their objects and to promote justice." See Commonwealth v. Ashenfelder, 413 Pa. 517, 520, 198 A.2d 514, 515 (1964). The zoning powers of second class townships in question here were granted by the Legislature in 1947, see notes 1 & 3 supra, and hence are to be liberally construed. There is, of course, no conflict between the doctrine of strict construction of zoning ordinances and liberal construction of the zoning enabling acts because the Statutory Construction Act defines a law as "an act of Assembly of this Commonwealth" and hence is not controlling with regard to the construction of ordinances. The statement which this Court made in Eves v. Zoning Bd. of Adjustment, 401 Pa. 211, 215, 164 A.2d 7, 9 (1960) that: "The authority of a municipality to enact zoning legislation must be strictly construed. 'Any fair, reasonable doubt as to the existence of power is resolved by the courts against

[ 425 Pa. Page 50]

    its existence in the corporation, and therefore denied.' Kline v. Harrisburg, 362 Pa. 438, 443, 68 A.2d 182 (1949)"*fn4 is, however, inconsistent with the Statutory Construction Act and hence, of necessity, not correct.

The essence of Exton's non-constitutional challenge to § 701 (3) is that, under 53 P.S. § 67001, once having designated an industrial district in its zoning laws, it was compelled thereafter to employ its power "to regulate and restrict . . . the . . . use of . . . land" in accordance with the industrial designation. This means, appellees argue, that since quarrying is an industrial use of land, the township's power "to regulate and restrict" does not encompass the ability to absolutely prohibit any particular industrial uses. In support of this conclusion the learned court below pointed out that West Whiteland's power to prohibit particularly offensive uses of land may not be found in its zoning powers since the Legislature has provided in other sections of The Second Class Township Code special police powers to deal with certain specified types of offensive uses as well as the right to deal with nuisances generally.*fn5 The only case cited by Exton as directly supporting its contention that The Second Class Township

[ 425 Pa. Page 51]

Code did not empower West Whiteland to enact § 701 (3) is Norate Corp. v. Zoning Bd. of Adjustment, 417 Pa. 397, 207 A.2d 890 (1965).

In dealing with Exton's non-constitutional challenge to the prohibition of quarrying, it is appropriate that we first consider simply the language of the Enabling Act. We believe that the pertinent phrase -- "to regulate and restrict . . . the location and use of buildings, structures and land for trade, industry, residence or other purposes" -- considered by itself does not compel the conclusion that Exton seeks to establish. Indeed, the most striking aspect of this language -- especially in view of the inclusion of the words "other purposes" -- is the generality and flexibility of the powers granted. It must be borne in mind that the power granted extends to both location and use. Exton's argument might have far greater force if the statutory language included only the word "location" and not the word "use." Then we might be persuaded that once a township has been divided into districts for trade, industry and residence, the zoning power could not be further utilized to regulate and restrict the uses within a municipality. But with the employment of the phrase "location and use", we would find it difficult to attach to the statutory term "use" the independent significance which we must assume the Legislature intended. More especially is this so since in light of § 2002 (53 P.S. § 67002(a)) of the Code which contains a separate grant of power to "divide the township into districts of such number, shape and area as may be deemed best suited to carry out the purpose of this article."

The reasoning of the court below that the Enabling Act should not be construed to empower a second class township to employ its zoning power to prohibit certain offensive uses because powers to prohibit certain specified offensive uses are granted elsewhere in the

[ 425 Pa. Page 52]

Act is ingenious but may be simply answered. Because of the necessity of including provisions for nonconforming uses in zoning legislation, municipalities may not by virtue of the zoning power curtail the offensive uses of land existing at the date of the enactment of the zoning legislation. However, in order to permit municipalities to curtail the increase of such uses which it deemed most offensive, without the expense, time and uncertainty involved in prosecuting a suit in equity or taking measures for the abatement of a nuisance, the Legislature may well have decided to grant second class townships the broader power to prospectively prohibit such uses. Thus the inclusion of specific powers to prohibit a special class of offensive uses does not preclude us from finding, in the zoning power granted, the right to prohibit, subject to the doctrine of nonconforming use, offensive uses.

[ 425 Pa. Page 53]

Exton's reliance on Norate Corp. v. Zoning Bd. of Adjustment, supra, is not well placed. In Norate this Court held that a zoning ordinance prohibiting off-site billboards throughout a township was not a reasonable exercise of the township's police power. Nowhere in Norate is the legislation granting the township power to zone even cited, much less discussed. As we read it, Norate nowhere even intimates a view as to the power of a municipality to selectively prohibit uses throughout the township; it merely decides that township-wide prohibition of the billboards in that township failed to bear a reasonable relationship to the public health, safety, morals and general welfare. Indeed, although our research reveals no reported Pennsylvania case which squarely deals with the question whether zoning enabling acts authorize townshipwide bans on selected uses, the preponderance of court's expressions on this matter assume such bans to be valid. Compare Peterson v. Zoning Bd. of Adjustment, 412 Pa. 582, 195 A.2d 523 (1963); Mignatti Page 53} Appeal, 403 Pa. 144, 168 A.2d 567 (1961); Catholic Cemeteries Ass'n Zoning Case, 379 Pa. 516, 109 A.2d 537 (1954); Mutual Supply Co. ...

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