dissenting opinion of Mr. Justice, now Mr. Chief Justice, Jones, joined by Mr. Justice Cohen; dissenting opinion of Mr. Justice Pomeroy, joined by Mr, Justice, now Mr. Chief Justice, Jones
How later courts described this case
- dissenting opinion of Mr. Justice, now Mr. Chief Justice, Jones, joined by Mr. Justice Cohen; dissenting opinion of Mr. Justice Pomeroy, joined by Mr, Justice, now Mr. Chief Justice, Jones
- two and three acre minimum lot sizes are larger than is necessary for the building of a house and are exclusionary
- two to three acre minimum lot size requirement in validated
- 2 and 3 acre lot size zoning unconstitutional
Written by the judges who cited it.
The opinion
Concurring Opinion by
Mr. Chief Justice Bell:
The basic question is whether an Ordinance which imposes a minimum lot requirement of not less than two acres along the existing roads, and no less than three acres in the interior of the township, is Constitutional.
The Constitution of Pennsylvania, in Article I, Section 1, and the Constitution of the United States, in *479 the Fifth Amendment and in the Fourteenth Amendment, ordain and guarantee the right of private property. They further protect its “taking,” except by due process of law, or, if taken for public use, without payment of just compensation.
Article I, Section 1, of the Constitution of Pennsylvania assures these basic fundamental property rights by providing: “All men . . . have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property . . . See, Parker v. Hough, 420 Pa. 7, 10-11 , 215 A. 2d 667 ; Cleaver v. Board of Adjustment, 414 Pa. 367, 371-372 , 200 A. 2d 408 ; Andress v. Zoning Board of Adjustment, 410 Pa. 77, 87 , 188 A. 2d 709 ; Village of Euclid v. Ambler Realty Co., 272 U.S. 365 , 47 S. Ct. 114 (1926).
In Parker v. Hough, 420 Pa., supra, the Court accurately and succinctly said (pages 10-11) :
“An owner of property in this Commonwealth has a tremendously prized and fundamental Constitutional right to use his property as he pleases, subject to certain exceptions hereinafter set forth. Cleaver v. Board of Adjustment, 414 Pa. 367, 371-372 , 200 A. 2d 408 ; Andress v. Zoning Board of Adjustment, 410 Pa. 77, 87 , 188 A. 2d 709 ; Key Realty Co. Zoning Case, 408 Pa. 98, 104 , 182 A. 2d 187 ; Siciliano v. Misler, 399 Pa. 406, 409 , 160 A. 2d 422 ; Sandyford Park Civic Assn. v. Lunnemann, 396 Pa. 537, 539 , 152 A. 2d 898 ; Lened Homes, Inc. v. Department of Licenses, 386 Pa. 50, 54 , 123 A. 2d 406 ; Lord Appeal, 368 Pa. 121, 125 , 81 A. 2d 533 .
“As the Court aptly said in Cleaver v. Board of Adjustment, 414 Pa., supra (pages 371-372) : ‘ “. . . ‘“An owner of property is still entitled in Pennsylvania to certain unalienable constitutional rights of liberty and *480 property. These include a right to use his own home [or property] in any way he desires provided he does not * (1) violate any provision of the Federal or State Constitutions; or (2) create a nuisance; or (3) violate any covenant, restriction or easement; or (4) violate any laws or zoning or police regulations which are constitutional." ’ ** . . ." ’"
Many zoning cases, including the present one, fall into a twilight zone. For over a century it was the law of this Commonwealth that every person in the United States of America had a Constitutionally ordained right to own, possess, protect and use his property in any way he desired, so long as it did not injure or adversely affect the health or morals or safety of others. This was one of the two basic differences between America and Communism. Then along came “zoning” with its desirable and worthwhile objectives. The result was that all the aforesaid basic fundamental rights of an owner of property were restricted by a Judicially created higher right, namely, the general welfare of the people of that community. No one knows, and the Courts have been unable to define what is meant by “general welfare.” To some, it means the absolute, unqualified, Constitutional right to liberty and property, subject to the above-mentioned restrictions. To some, it means what the Zoning Board or a Court believes is best for the community or township or county involved. To others, it means the right of our expanding population to live in any county or place in our Country they may desire. To still others, it means the right to have the Government purchase and set aside millions of acres of open land for the benefit of our Country. These rights are sometimes indefinite, sometimes overlapping, and sometimes conflicting.
*481 This is one of those debatable cases which leave me in “no man’s land.”
Although zoning almost always has a worthwhile objective, since it is a restriction on and a deprivation of a property owner’s Constitutionally ordained rights of property, it can be sustained only if it is clearly necessary to protect the health or safety or morals or general welfare of the people. Cleaver v. Board of Adjustment, 414 Pa., supra; Parker v. Hough, 420 Pa., supra; Eller v. Board of Adjustment, 414 Pa. 1 , 198 A. 2d 863 . I believe that this zoning ordinance, which has no substantial relationship to health or safety or morals, is an unconstitutional restriction upon an owner’s basic right of the ownership and use of his property, and it cannot be sustained under the theory or principle of “general welfare.”
Italics, ours.
Italics in Cleaver v. Board of Adjustment Opinion.
Italics, ours.