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GAEBEL v. THORNBURY TOWNSHIP (04/06/73)

decided: April 6, 1973.

GAEBEL, ET UX.
v.
THORNBURY TOWNSHIP



Appeal from the Order of the Court of Common Pleas of Delaware County, in case of In Re: Taking, as if by condemnation, by Thornbury Township of land for Flood Plain District of Thornbury Township, Delaware County, Pennsylvania. Property of William F. Gaebel and Virginia F. Gaebel, his wife, No. 2876 of 1972.

COUNSEL

Holbrook M. Bunting, Jr., with him Trevaskis, Doyle, Currie, Nolan & Bunting, for appellants.

Charles C. Keeler, with him Fronefield, DeFuria and Petrikin, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Dissenting Opinion by Judge Kramer. Judge Crumlish, Jr., joins in this Dissenting Opinion.

Author: Mencer

[ 8 Pa. Commw. Page 400]

This is an appeal from an order of the Court of Common Pleas of Delaware County which sustained preliminary objections filed by Thornbury Township (Thornbury) to the petition for appointment of viewers and the order appointing a board of view to ascertain and award just compensation to William F. Gaebel and Virginia R. Gaebel (Gaebels).

Gaebels own certain land in Thornbury Township which was zoned commercial. On March 6, 1972, Thornbury amended the zoning classification, and approximately three acres of Gaebels' property were rezoned as a flood plain, which limits the use of the land in question to such activities as cultivating and harvesting crops, grazing animals, an outdoor plant nursery, orchard, arboretum and, by special exception, recreational

[ 8 Pa. Commw. Page 401]

    uses. The rezoning classification to a flood plain was in accord with the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, art. VI, § 605, 53 P.S. § 10605.

The land involved here has a history of being flooded by waters overflowing the banks of Chester Creek. Following the reclassification of a portion of their land, the Gaebels petitioned, under Section 502(a) of the Eminent Domain Code, Act of June 22, 1964, P.L. 84, art. V, § 502(a), 26 P.S. § 1-502(a), for appointment of viewers, asserting damages against Thornbury for the loss of the usages permitted under the prior commercial zoning.

We are confronted with the contention of the Gaebels that they can seek damages under the Eminent Domain Code for the effect upon their property of a change in a zoning ordinance. Thornbury counters with the contention that the exclusive procedure for challenging a zoning regulation, on the basis that it is confiscatory, is under the provisions of the Pennsylvania Municipalities Planning Code. We must agree with Thornbury's position and affirm the lower court.

In White's Appeal, 287 Pa. 259, 264-65, 134 A. 409, 411 (1926), we find the guideline for the correct disposition of this case where Justice Kephart (later Chief Justice) stated:

"Police power should not be confused with that of eminent domain. Police power controls the use of property by the owner, for the public good, its use otherwise being harmful, while eminent domain and taxation take property for public use. Under eminent domain, compensation is given for property taken, injured or destroyed, while under the police power no payment is made for a diminution in use, even though it amounts to an actual taking or destruction of property. . . .

". . . If there is doubt as to whether the statute is enacted for a recognized police object, or if, conceding

[ 8 Pa. Commw. Page 402]

    its purpose, its exercise goes too far, it then becomes the judicial duty to investigate and declare the given exercise of the police power invalid. . . ."

Gaebels contend the amended zoning ordinance takes their property without just compensation by severely restricting its use. This may be said of every valid zoning ordinance. Justice Kephart also spoke to this contention in White's Appeal when he stated:

"No matter how seemingly complete our scheme of private ownership may be under our system of government, all property is held in subordination to the right of its reasonable regulation by the government clearly necessary to preserve the health, safety or morals of the people. Obedience to such regulation is not taking property without due ...


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