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decided: February 24, 1970.


Appeal from decree of Court of Common Pleas of Delaware County, No. 8961 of 1967, in re appeal of Kit-Mar Builders, Inc. from findings and order of Board of Adjustment of Concord Township.


John W. Wellman, with him Chadwick, Petrikin Ginsburg & Wellman, for appellant.

Harry F. Dunn, Jr., with him Class, Saulnier, Dunn and Abel, for appellee.

John P. Trevaskis, Jr., J. Scott Calkins, Jan Krasnowiecki, and Trevaskis & Doyle, and Shaffer, Calkins & Balaban, for amicus curiae.

Robert J. Woodside, Robert E. Woodside, and Woodside & Woodside, filed a brief under Rule 65.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Jones. Mr. Justice Cohen joins in this dissenting opinion. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Jones joins in this dissenting opinion.

Author: Roberts

[ 439 Pa. Page 468]

Appellee Kit-Mar Builders, Inc., entered into an agreement to purchase a 140-acre tract of land in Concord

[ 439 Pa. Page 469]

Township, Delaware County. The agreement was contingent on the tract being rezoned to permit the construction of single-family homes on lots of one acre, since the tract was then zoned to require lots of no less than two acres along the existing roads and no less than three acres in the interior. Appellee's request for rezoning and application for a building permit were denied; it then appealed to the zoning board of adjustment and announced that it would not seek to prove the hardship necessary to secure a variance but would instead attack the constitutionality of the zoning ordinance as applied to the property in question. The zoning board upheld the minimum lot requirements and appellee took its case to the court of common pleas. That court took no additional testimony but made new findings of fact and reversed the board. Concord Township then filed a petition for allowance of an appeal to this Court which we granted.

Initially we must note that the trial court erred in making new findings of fact without taking additional testimony. Without an independent taking of evidence the trial court could not properly make its own findings of fact, but could only review the decision of the board to determine if an abuse of discretion or an error of law had been committed. See, e.g., National Land and Investment Company v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965); Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964); Tidewater Oil Company v. Poore, 395 Pa. 89, 149 A.2d 636 (1959). However, it remains within the province of this Court to affirm the action of the trial court, even if that action was based on an erroneous procedure, if there are independent grounds for affirmance. See Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899 (1955). We conclude that, even accepting the findings of the zoning board, the ordinance here in question is unconstitutional under the test set forth

[ 439 Pa. Page 470]

    in our decision in National Land Investment Company v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965).

[ 439 Pa. Page 471]

We decided in National Land that a scheme of zoning that has an exclusionary purpose or result is not acceptable in Pennsylvania. We do not intend to say, of course, that minimum lot size requirements are inherently unreasonable. Planning considerations and other interests can justify reasonably varying minimum lot sizes in given areas of a community.*fn1 "At some point along the spectrum, however, the size of lots ceases to be a concern requiring public regulation and becomes simply a matter of private preference." 419 Pa. at 524, 215 A.2d at 608.*fn2 The two and three acre minimums imposed in this case are no more reasonable than the four acre requirements struck down in National Page 471} Land. As we pointed out in National Land, there are obvious advantages to the residents of a community in having houses built on four -- or three -- acre lots. However, minimum lot sizes of the magnitude required by this ordinance are a great deal larger than what should be considered as a necessary size for the building of a house,*fn3 and are therefore not the proper subjects of public regulation. As a matter of fact, a house can fit quite comfortably on a one-acre lot without being the least bit cramped.*fn4 Absent some extraordinary justification, a zoning ordinance with minimum lot sizes such as those in this case is completely unreasonable.

As the primary justification for the zoning ordinance now before us the township contends that lots

[ 439 Pa. Page 472]

    of a smaller size will create a potential sewerage problem.*fn5 It was on this question that the zoning board and the trial court made conflicting findings of fact. Whether a potential sewerage problem exists or not is irrelevant, however, since we explicitly rejected the argument that sewerage problems could excuse exclusionary zoning in National Land : "We can not help but note also that the Second Class Township Code provides for establishing sanitary regulations which can be enforced by a 'sanitary board' regardless of the zoning for the area. The Code also provides for the installation and maintenance of sewer systems but the township has made no plans in this regard. In addition, under the township subdivision regulations, the zoning officer may require lots larger than the minimum permitted by the zoning ordinance if the result of percolation tests upon the land show that a larger land area is needed for proper drainage and disposal of sewage. These legislatively sanctioned methods for dealing with

[ 439 Pa. Page 473]

    the sewage problem compel the conclusion that a four acre minimum is neither a necessary nor reasonable method by which Easttown can protect itself from the menace of pollution." 419 Pa. at 526, 215 A.2d at 609.

Everything said in the quoted paragraph is equally applicable to the case now before us. We in effect held in National Land that because there were alternative methods for dealing with nearly all the problems that attend a growth in population, including sewage problems, zoning which had an exclusive purpose or effect could not be allowed. See Westwood Forest Estates, Inc. v. Village of South Nyack, 23 N.Y. 2d 424, 428-29, 244 N.E. 2d 700, 702-03 (1969): "This is not to say that the village may not, pursuant to its other and general police powers [i.e., not zoning power], impose other restrictions or conditions on the granting of a building permit to plaintiff, such as a general assessment for reconstruction of the sewage system, granting of building permits . . . in stages, or perhaps even a moratorium on the issuance of any building permits, reasonably limited as to time. But, whatever the right of a municipality to impose '"a * * * temporary restraint of beneficial enjoyment * * * where the interference is necessary to promote the ultimate good of either the municipality as a whole or of the immediate neighborhood"', such restraint must be kept '"within the limits of necessity"', and may not prevent permanently the reasonable use of private property for the only purposes to which it is practically adapted [citations omitted]."

We recently reaffirmed exactly this position in Delaware County Community College Appeal, 435 Pa. 264, 270, 254 A.2d 641, 645 (1969), where this Court, citing National Land, explicitly rejected a zoning exclusion as a proper method for dealing with sewerage problems: "The court below pointed out that once the

[ 439 Pa. Page 474]

    special exception is granted, the college will still be required to make 'appropriate arrangements [for sewerage] . . . consistent with local ordinances and regulations and state statutes pertaining to sewerage disposal. . . . If expansion is required, then it should be accomplished.' We are in accordance with this view; the Board could not properly make a broad scale zoning decision simply because of a potential sewerage problem in the future." (Emphasis added.) We once again reaffirm our past authority and refuse to allow the township to do precisely what we have never permitted -- keep out people, rather than make community improvements.

The implication of our decision in National Land is that communities must deal with the problems of population growth. They may not refuse to confront the future by adopting zoning regulations that effectively restrict population to near present levels.*fn6 It is not for any given township to say who may or may not live within its confines, while disregarding the interests of the entire area. If Concord Township is successful in unnaturally limiting its population growth through the use of exclusive zoning regulations, the people who

[ 439 Pa. Page 475]

    would normally live there will inevitably have to live in another community, and the requirement that they do so is not a decision that Concord Township should alone be able to make.

While our decision in National Land requires municipalities to meet the challenge of population growth without closing their doors to it, we have indicated our willingness to give communities the ability to respond with great flexibility to the problems caused by suburban expansion. Most notable in this regard is our decision in Village 2 at New Hope, Inc. Appeals, 429 Pa. 626, 241 A.2d 81 (1968), in which we approved planned unit development. "It would seem that this decision is a forerunner of a necessary change in the law of planned development. Caught between increasing population pressure and urban sprawl and the reluctance of the rural communities to absorb their fair share of the load, planners have been faced with an unpleasant choice. They are now equipped with a proper instrument to meet the challenge. The scope of this decision is by no means limited to residential and ancillary usage. It can just as effectively be applied to commercial and industrial development as well as to new combinations of land use which are only limited by the ingenuity of the planner and developer. Effective interrelations between the various component needs of the community can now be more easily realized. For instance, various types of housing, schools, and recreational facilities can be planned not only for the immediate needs of the community, but also to effectuate broad social purposes. The adverse economic impact of large-scale development can be mitigated if not entirely eliminated by the judicious juxtapositioning of revenue-producing development with residential and public uses. In this manner, achievement of good traffic separation, public transportation, visual enjoyment, and a host of other desiderata can be realized as [sic]

[ 439 Pa. Page 476]

    much reduced economic cost." Zucker and Wolffe, Supreme Court Legalizes PUD: New Hope from New Hope, 2 Land Use Controls 32, 33-34 (1968).

We will not turn our back on the approach to these problems which we adopted in National Land and Village 2 at New Hope. New and exciting techniques are available to the local governing bodies of this Commonwealth for dealing with the problems of population growth. Neither Concord Township nor Easttown Township nor any other local governing unit may retreat behind a cover of exclusive zoning. We fully realize that the overall solution to these problems lies with greater regional planning, but until the time comes that we have such a system we must confront the situation as it is. The power currently resides in the hands of each local governing unit, and we will not tolerate their abusing that power in attempting to zone out growth at the expense of neighboring communities.

Finally, we cannot ignore the fact that in the narrow confines of the case before us, Concord Township's argument that three-acre minimum zoning is necessary for adequate on-site sewerage is patently ridiculous. The township does not argue that on-site sewerage is impossible for the lots in question; instead it maintains that if houses are built on lots of one acre, as envisioned by appellee, not on lots of three acres, onsite sewerage will become unfeasible. This argument assumes that all of the lot where the house is not is necessary for waste effluence, which simply is not what happens. The difference in size between a three-acre lot and a one-acre lot is irrelevant to the problem of sewage disposal, absent the construction of a house of an unimaginably enormous magnitude.

This proposition is fully borne out by the Pennsylvania Department of Health Regulations for the Administration of the Pennsylvania Sewage Facilities Act,

[ 439 Pa. Page 477]

Act of January 24, 1966, P. L. (1965) 1535, 35 P.S. § 750.1 et seq., Regulation Chapter 4, Article 423, Standards for Individual Sewage Disposal Systems § 7.1-1. This regulation tells us that if the soil percolation rate on a given lot exceeds 60 minutes per inch no on-site sewage disposal will be permitted. Let us assume that the lots in question have the bare minimum percolation rates necessary to support on-site sewerage. Section 7.3 indicates that on a lot with the minimum acceptable percolation rate the required absorption area is only 330 square feet ...

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