“substantial deference to the preservation of rights of property owners”
How later courts described this case
- “substantial deference to the preservation of rights of property owners”
Written by the judges who cited it.
The opinion
McDERMOTT, Justice,
dissenting.
I dissent.
The majority has determined to set its own standards for what is good in Hopewell Township, at least for the present.
The Court has faulted the zoning ordinance because: Notwithstanding a relationship between tract size and efficiency of production, the public interest in preventing irretrievable loss of agricultural land does not presently warrant overriding appellees’ interest in using the land in a less restricted manner, including their right to use property in less than the most efficient manner,
at 1343. There is only so much prime agricultural land in Hopewell Township. Perhaps when the majority’s paternal *262 interest recognizes that fact, the Court can represide and reallot the land even closer to its heart’s desire.
Hopewell Township is clearly authorized to pass a zoning ordinance, 1 and did so after considerable study. The Township found that smaller limitations are not productive of the purpose. One may differ with that finding, but unless that finding is clearly and unmistakably unconstitutional it should prevail. All that the majority offers here is its opinion, in contrast to the authorized, studied and careful finding of the zoning board of Hopewell Township. Such is merely the substitution of the opinion of a “super board of adjustment.” We have always eschewed that description of the use of our powers. National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 521 , 215 A.2d 597, 606-607 (1965).
While conceding the “worthwhile” objective of preserving prime agricultural land, the Court also faults the Hopewell Township ordinance as being too restrictive. The means used are considered restrictive because they apply unequally and disproportionately to large and small land owners. The nature of the thing is that it cannot be otherwise, simply because the land is unequally held. There are few places on this globe not already parcelled, and that in unequal proportions. If the limitation is for concededly good reasons and constitutionally permissible, for those reasons, it is inevitable that somebody’s ox must limp home.
Here the purpose of the controverted ordinance is to preserve prime agricultural land, a vanishing commodity. That that purpose will limit the uses of that kind of land, and do so unequally, is ineluctable. This is not an ordinance designed to save one’s happy valley from unwanted strangers; it is a salutary and essential consideration, for the welfare of all, that unique land be preserved to maintain the very stuff of life. The ordinance is presumed constitutional; those who challenge it must bear the burden of proving it clearly and unmistakably unconstitutional. National Land, *263 419 Pa. at 522 , 215 A.2d at 607 ; Bilbar Construction Co. v. Easttown Board of Adjustment, 393 Pa. 62, 70 , 141 A.2d 851 , 855 (1958). This they have failed to do, and are given solace because this Court believes Hopewell Township premature. I would reverse on the reasoning of Judge Cassimatis in his dissenting opinion in the Court of Common Pleas.
. Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, art. I, § 101 et seq., 53 Pa.C.S.A. § 10101 et seq.