Concord Township Appeal

Dissenting Opinion by

Mr. Justice Pomeroy :

While agreeing in the main with the dissenting opinion of Mr. Justice Jones, I deem it desirable to make *494 a brief separate explanation of the reasons I am unable to concur in the majority opinion.

Bilbar Const. Co. v. Easttown Twp. Bd. of Adj., 393 Pa. 62 , 141 A. 2d 851 (1958) was a decision upholding the validity of a one-acre minimum size lot in an opinion written by Chief Justice Charles Alvin Jones. (Mr. Justice, now Chief Justice, Bell dissented at length, and was joined by Justice Musmanno and Justice Benjamin R. Jones.) Bilbar seems to me to have been a wise opinion in the delicate area of judicial versus legislative prerogatives. Said the Court: “While the promotion of the public health, safety, morals or general welfare is the test for checking subjectively whether a municipality’s exertion of its constitutional power to zone has been exceeded, courts do not apply the criteria in a vacuum. Someone must be injured by the ordinance’s restrictions in order to raise the constitutional question, and the applicable objective test is whether the ordinance operates in an arbitrary, capricious, discriminatory or confiscatory manner as to the property of the complainant. The latter inquiry calls for judicial determination. But, as to the former, what serves the public interest is primarily a question for the appropriate legislative body in a given situation to ponder and decide. And, so long as it acts within its constitutional power to legislate in the premises, courts do well not to intrude their independent ideas as to the wisdom of the particular legislation. Specifically, with respect to zoning enactments, judges should not substitute their individual views for those of the legislators as to whether the means employed are likely to serve the public health, safety, morals or general welfare(Italics supplied.) p. 72.

The Court in Bilbar reiterated the presumption of constitutional validity that attends legislative enactments, including those of municipal bodies in the form of ordinances, and the rule that “the burden of proof, *495 when legislation is under attack on constitutional grounds, is on the one so asserting and never shifts.” The Court went on to observe: “Even where there is room for difference of opinion as to whether an ordinance is designed to serve a proper public purpose, or if the question is fairly debatable, the courts cannot substitute their judgment for that of the authorities who enacted the legislation.” (Citing cases.) pp. 71-2.

National Land and Investment Company v. Easttown Township Board of Adjustment, 419 Pa. 504 , 215 A. 2d 597 (1965), a decision with which I agree, struck down as unconstitutional, under the facts there prevailing, a four-acre minimum lot size. In so doing, the Court cited Bilbar approvingly several times, and acknowledged that “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. 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.” (pp. 521-22) Addressing itself to the requirement of a minimum area for residential building, the Court said: “There is no doubt that in Pennsylvania zoning for density is a legitimate exercise of the police power. [Citing Bilbar and Volpe Appeal, 384 Pa. 374 .] Every zoning case involves a different set of facts and circumstances in light of which the constitutionality of a zoning ordinance must be tested. Therefore, it is impossible for us to say that any minimum acreage requirement is unconstitutional per se.” (p. 523) Yet it is difficult to see, in light of the majority opinion in the case at bar, how any minimum acreage requirement for suburban residential use in excess of one acre can henceforth be sustained. Any minimum lot requirement is, almost by its name, exclusive in some degree in purpose and effect. Indeed, if the minimum lot size in the present case had been one acre, and the *496 appellee liad planned to develop the tract in question in % acre lots, or % acre lots, the reasoning of the majority opinion would appear to be equally applicable to permitting such use. Perhaps it is significant that the majority opinion in the case at bar does not cite Bilbar a single time.

In all previous zoning cases, the Court has put the burden of proof on the challenger of the legislation involved. By the present decision the Court appears to reverse the burden, and says that “Absent some extraordinary justification, a zoning ordinance with minimum lot sizes such as those in this case is completely unreasonable.” The majority then holds that the Township has not shown such extraordinary justification for its 2 and 3 acre minimum lot size requirements, and that such requirements are accordingly unconstitutional. The rationale of this holding appears to be that Concord Township is “unnaturally limiting its population growth through the use of exclusive zoning regulations,” with the result that “the people who would normally live there will inevitably have to live in another community.”

The record, as I read it, does not indicate that the appellee sustained its burden, assuming it still had one, of showing unconstitutionality. If the burden has now shifted to the municipality to justify its minimum requirement, I think it was sufficiently met, though probably not by showing any justification which the majority would say was “extraordinary.”

The record shows, to my satisfaction at least, that Concord Township, heretofore an essentially rural area, has been aware of a responsibility to deal with the problem of population growth, and has responded constructively. Bather than executing a “retreat behind a cover of exclusive zoning,” it has liberalized its ordinance to malee it less exclusive, changing the three acre minimum from 80% to 10% of the total land area and *497 substantially increasing the area zoned for one acre or less; rather than “attempting to zone out growth at the expense of neighboring communities,” it has projected its growth pattern for the next decade, and charted its zoning pattern to accommodate it; 1 rather than using a waste disposal problem as “a thinly veiled justification for exclusionary zoning,” it has presented, as but one relevant factor, competent testimony to indicate that 40% of the tract in question is, because of topography and soil composition, in an area of “severe limitation” for on-lot sewage disposal.

It is true that Concord Township has not utilized the Planned Unit Development technique approved by the Court in Village 2 at New Hope, Inc. Appeals, 429 Pa. 626 , 241 A. 2d 81 (1968), but it is also true that it has appointed a Township Planning Commission which since 1966 has been engaged, with the help of a community planning consultant, and in conjunction with the Delaware County Planning Commission, in planning for land use development, including feasibility studies relative to water supply and sewage disposal. This process is not complete. Indeed, the Township properly recognizes that planning is a continuous process. In the words of the Township’s consultant, William K. Davis, “The Township is endeavoring to embark on a full, new, comprehensive planning program which I am . . . confident will lead to new proposals in land use, new development areas perhaps, variety of other things. Because the Township is in this period of transition, I think the town must be guarded against the development of parcels at random . . .” 2

*498 Our function on this appeal, where no additional testimony was taken by the lower court, is to look at the decision of the Board of Adjustment to determine if in upholding the constitutionality of the two acre and three acre minimum zoning, the Board committed an abuse of discretion or an error of law. My reading of the record satisfies me that it did not. National Land’s substantive holding, as now stated by the majority, is that the existence of alternative methods for dealing with problems attendant upon population growth forbids zoning which has “an exclusive purpose or effect.” It appears that in the case at bar the Township has been exploring the alternative methods, and has made its zoning less exclusive as part of a conscious effort to absorb the population thrust which it anticipates. That the particular tract here involved is zoned two and three-acre minimum lot size does not demonstrate the contrary, or even that the appellee developer would have to go to another community, since one acre, or less, zoning is available in the Township.

I would reverse the decree of the Court below and reinstate the decision of the Board of Adjustment.

Mr. Justice Jones joins in this dissenting opinion.

The Township’s 1966 population was 4,081 persons. It is anticipating a growth by 1980 of more than double, to 8 to 10 thousand.

Professor Sager, in his interesting article cited several times by the majority opinion (Sager, “Tight Tittle Islands: Exclusionary Zoning, Equal Protection, and the Indigent,” 21 Stanford T. Rev. *498 787, 797 (1969) acknowledges that “The restraint on the number of households effectuated by large-lot-size restrictions is a restraint on the total demand for [public] services and may permit the more rational and systematic absorption of new residents.” He goes on to state his conviction that “this argument implies a planned and controlled change of the affected area, not a firm posture of opposition to change.”