No. 482 January Term, 1978, Appeal from the Order dated February 1, 1978 of the Commonwealth Court of Pennsylvania (No. 495 C.D. 1977) Affirming the Order of the Court of Common Pleas of Chester County at No. 137 June Term, 1976, Zoning Appeal.
George A. Brutscher, Kennett Square, for appellants.
Lawrence E. Wood, West Chester, for appellee, London Grove.
Robert W. Lentz, John C. Snyder, Paoli, for appellee, Daniel Blevins, et al.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Roberts, J., filed an Opinion in Support of Affirmance in which O'Brien and Nix, JJ., join. Larsen, J., filed an Opinion in Support of Reversal in which Manderino, J., joins. Eagen, C. J., would reverse and remand for further proceedings.
The Court being equally divided, the order is affirmed.
OPINION IN SUPPORT OF AFFIRMANCE
Today Mr. Justice Larsen declares that a township unconstitutionally exercises its police power under Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 45 S.Ct. 114, 71 L.Ed. 303 (1976) and Exton Quarries, Inc. v. Bd. of Adjustment, 425 Pa. 43, 228 A.2d 169 (1967), by limiting, under a provision of its zoning, operation of sanitary landfill to a municipality or a municipal authority. It is evident, indeed, cannot be disputed, that sanitary landfill operations affect the health and safety of a community. I would hold, therefore, as the Board, the Court of Common Pleas of Chester County, and the Commonwealth Court, that the township's concerns for public health, manifested by its enforcement of sanitary regulations, and the continued operational stability of township's sanitary landfill operations is entirely reasonable. This governmental exercise of its police function simply cannot be judged so unrealistic as to make the zoning provision unconstitutionally arbitrary.
Reliance on Exton Quarries, supra, is entirely misplaced. There, a private quarry business purchased property and established itself in a community which had no zoning ordinance. In response, that community passed an exclusionary ordinance, absolutely prohibiting quarrying. We held, there, that we would not permit use of zoning ordinances to accomplish an unconstitutional exclusion of a legitimate business. Exclusionary zoning cannot be justified merely by a community's preference that certain businesses locate outside its borders. Exton Quarries, supra, 425 Pa. at 59-60, 228 A.2d at 179. Here, however, there is no question
of exclusionary zoning and no question of any provision of the zoning ordinance being used as a device to exclude lawful but undesirable activities. Here, the means chosen (the challenged zoning ordinance provision) is indeed rationally related to a legitimate public end (protection of the community's health and safety.) That this ordinance meets the requirements of due process cannot be disputed.
I would, therefore, affirm the unanimous order of the Commonwealth Court, affirming the order of the court of common pleas affirming the order of the London Grove Township's Board of Supervisors which denied appellants an amendment to the ...