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decided: March 19, 1971.


Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, No. S.A. 1219 of 1969, in case of: In re: Appeal of Beaver Gasoline Company, a Pennsylvania Corporation, and Antonio Digirolamo and Nancy Digirolamo, his wife, and Santo Digirolamo and Rosemarie Digirolamo, his wife, from Zoning Hearing Board of the Borough of Osborne and the Borough of Osborne. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.


James W. Dunn, Jr., for appellant.

William Howard Colbert, with him Robert A. Rundle and Wright & Rundle, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Barbieri (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision). Opinion by Judge Crumlish, Jr. Concurring Opinion by Judge Manderino. Concurring Opinion by Judge Kramer. Dissenting Opinion by Judge Mencer. Dissenting Opinion by President Judge Bowman.

Author: Crumlish

[ 1 Pa. Commw. Page 461]

The individual appellants are the owners of a certain piece of ground which is zoned "C" Commercial in the Borough of Osborne, Allegheny County. On March 12, 1969, they entered into an agreement of sale with the corporate appellant, Beaver Gasoline Co., whereby Beaver agreed to purchase the aforesaid lot contingent upon the issuance of a gasoline service station building permit.

Beaver's application for a permit to erect a one-story masonry gasoline service station building was presented to the Borough Council on July 12, 1969. The Borough zoning ordinance, No. 186, specifically prohibits gasoline service stations in "C" Commercial Districts. Accordingly, the permit was refused and the Borough Secretary so advised Beaver on June 14, 1969. On June 25, 1969 Beaver appealed the Refusal and a hearing was held on August 1, 1969 by the Borough Zoning Hearing Board.

The minutes of that hearing disclose that the Board Chairman raised several questions relative to the appeal. Essentially, these questions involved three basic issues: (1) the qualifications of Beaver Gasoline as a

[ 1 Pa. Commw. Page 462]

    service station operator; (2) the relationship of traffic safety to the ordinance prohibition; (3) the existence of the prohibition and the appellant's knowledge thereof. However, Beaver and the Borough at that time agreed that the sole issue before the Zoning Hearing Board was the constitutionality of the ordinance. The only entry of record was a statement by the appellant setting forth for the purposes of the record its application and building plan. The Borough took the position that it need not explain the basis for the refusal. Hence, the record is devoid of further evidence.

On November 3, 1969, the Zoning Board upheld the refusal by concluding that the prohibition in the ordinance was binding. Petition for appeal to the Court of Common Pleas of Allegheny County was filed and granted November 10, 1969. The court after oral argument at which no evidence de novo was presented, denied the appeal. That order is now before this court under the provisions of Section 402 of the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. , No. 223, 17 P.S. § 211.402.

The court below, relying on the principle that those who would challenge the constitutionality of zoning provisions must overcome a heavy presumption of their validity, found that Beaver had not presented sufficient evidence to meet the burden. In addition, the court found that an examination of the record and the ordinance supports the conclusion that the township had considered factors attendant to the health, safety and general welfare of its community when it enacted the service station prohibition. We do not disagree with the conclusion that the minutes of the zoning board hearing may indicate that the "C" Commercial prohibition was enacted in consideration of the health safety and general welfare of the Borough residents. We hold that the court below erred in its findings that:

[ 1 Pa. Commw. Page 463]

(1) the relationship to the health, safety and general welfare alleged by the Borough is sufficient to support a use prohibition and (2) Beaver failed in that it had not presented sufficient evidence to overcome the presumption of constitutionality.

"[T]he municipal power for zoning purposes absolutely to forbid a use in a particular district ordinarily presupposes the allowance or permission of the use in another district . . ." McQuillin, 8 The Law of Municipal Corporations § 25.1196 (3rd ed., 1965 rev.) "[A] zoning ordinance which totally excludes a particular business from an entire municipality must bear a more substantial relationship to the public health, safety, morals and general welfare than an ordinance which merely confines that business to a certain area in the municipality." Exton Quarries, Inc. v. Zoning Bd. of Adj., 425 Pa. 43, 228 A.2d 169 (1967).

While the lot owned by appellants was situated in a "C" Commercial District making the "C" Commercial District prohibition applicable, we find it significant that gasoline service stations are either expressly or impliedly prohibited from all other use districts in the Borough by reason of other clauses in Ordinance No. 186. See also Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970). The prohibition in question excludes this business from the entire municipality and may under Exton require the most severe scrutiny by this court.

"This court has become increasingly aware that it is neither a super board of adjustment nor a planning commission of last resort. . . . Instead, the court acts as a judicial overseer, drawing the limits beyond which local regulation may not go, but loathing to interfere, within those limits, with the discretion of local governing bodies. . . . The zoning power is one of the tools of government which, in order to be effective, must not be subjected to judicial interference unless clearly necessary.

[ 1 Pa. Commw. Page 464]

For this reason, a presumption of validity attaches to a zoning ordinance which imposes the burden to prove its invalidity upon the one who challenges it. . . .

"While recognizing this presumption, we must also appreciate the fact that zoning involves governmental restrictions upon a landowner's constitutionally guaranteed right to use his property, unfettered, except in very specific instances, by governmental restrictions. The time must never come when, because of frustration with concepts foreign to their legal training, courts abdicate their judicial responsibility to protect the constitutional rights of individual citizens. Thus, the burden of proof imposed upon one who challenges the validity of a zoning regulation must never be made so onerous as to foreclose, for all practical purposes, a landowner's avenue to redress against the infringement of constitutionally protected rights." National Land and Investment Co. v. Easttown Twp. Bd. of Adj., 419 Pa. 504, 521-22, 215 A.2d 597 (1965).

The presumption of validity "of most restrictions on property rights imposed by [zoning] ordinances . . . [is] . . . premised on the fundamental reasonableness of allocating to each type of activity a particular location in the community." (Emphasis added). Exton, supra at p. 59. While it may in some instances be reasonable for a municipality to " totally prohibit [some] legitimate businesses" while permitting others, such a practice "cannot be premised on the fundamental reasonableness" which supports the presumption of validity of zoning regulations. (Emphasis added). Exton, supra. Indeed we know of no fundamental reasonableness attendant to the practice of discriminating between legitimate businesses for the purpose of prohibiting their use. "The constitutionality of [such] zoning ordinance . . . should be regarded with particular circumspection." Exton, supra.

[ 1 Pa. Commw. Page 465]

    clearly rebutted by the case law. Moreover, we are not forsaking the presumption that this prohibition is based upon some relationship to the health, safety, morals or general welfare. The findings of the court below would show that as relates to traffic control this relationship does exist. We only hold that we cannot presume this relationship to be of such magnitude so as to justify prohibition of the general use.

The applicability of Exton depends upon the existence of three requisites: (1) Appellants' business must be "legitimate"; (2) the prohibition must be "total" as to the municipality; and, (3) the appellants' plans must conform to all other requirements of the zoning and building codes so as to permit the relief sought. Appellants must meet the burden of proof as to these factors.

Beaver has met this burden. As we have said previously, the legitimacy of gasoline stations is dependent upon their ability to function under regulation without causing injury to the community. The ability of gasoline stations as a class to function under proper regulation has been consistently recognized by our courts. Sun Oil Co., supra. We do not say that gasoline stations possess per se the ability to function under regulation in Osborne Borough. We say only that as a class of business they generally have this capability and are therefore a legitimate operation under Exton.

As to the second requisite, the ordinance as stated prohibits gasoline service stations totally in Osborne Borough.

Finally, Beaver's president for the record submitted the plans for the service station which would comply with all applicable Borough ordinances.

Accordingly, considering the three requisites, we find the appellant has adequately met his burden of proving that this ordinance is prohibitory within the meaning of Exton.

[ 1 Pa. Commw. Page 467]

"Recent cases decided by [the Supreme] Court on the constitutionality of zoning ordinances have followed the procedure of considering a challenge to the constitutionality of a zoning ordinance as a whole without first exhausting the question of the constitutionality of the ordinance as applied." Exton, supra at p. 57. The initial question of constitutionality before us involves the prohibition of gasoline service stations as a class. The reasons for this prohibition must be examined as they relate to gasoline stations generally. Therefore it is of no moment whether the specifics of the applicants' plans are unobjectionable so long as the requested use is "a gasoline service station."

Where, as here, the prohibition's validity involves the equal protection of the prohibited business as well as those which enjoy the blessing of the municipality, the salient fact to be determined by the Court is the validity of the reasons advanced, by which the Borough Council justified the class prohibition. It is this factor which must be scrutinized to determine if it supplies the "more substantial relationship" which Exton demands. As we held in Daikeler v. Zoning Bd. of Adj., 1 Comm. Ct. 445 (1971), if the reasons advanced apply also to permitted uses, or if they can be alleviated by proper regulation of the use, they may not be used to support total prohibition.

This raises a perplexing problem: Which party has the burden of presenting evidence that this ordinance did or did not bear a more substantial relationship to the police powers of the Borough? Judge Rowley of the Court of Common Pleas of Beaver County spoke to this issue in Ours Appeal, 61 Mun. L. Rep. 80, 85 (1969): "We are aware of the fact that the burden is on those challenging the constitutionality of such legislation to establish that fact. However, we believe that where the legislative enactment must bear a 'more substantial

[ 1 Pa. Commw. Page 468]

    relationship' to the public health, safety, morals and general welfare, then the property owner's burden is accordingly lightened."

We hold that the validity of the ordinance depends upon the finding by the Borough Council that gasoline stations, if established in that Borough would have caused undesirable effects upon the health, safety, morals and general welfare of that community, and that these undesirable effects are not caused by other permitted uses nor are they capable of cure by regulation. The only issue dependent upon evidentiary support was the existence and propriety of the Council's findings. Is it reasonable to expect the challenger of the prohibition to have the competence to produce the evidence necessary to support the Council's findings? Is it reasonable to expect him to expend his energy and money to uncover and relate the strongest reasons for the prohibition? Is it reasonable to expect the applicant to build a fortress which he is unable to conquer? To require him to be the moving party presenting testimony to support the prohibition would be unreasonable, time consuming, inconclusive, and confusing. And with what result? Does this not mean that the burden has ...

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