# Exton Quarries, Inc. v. Zoning Board of Adjustment > Supreme Court of Pennsylvania · March 14, 1967 · 425 Pa. 43 URL: https://www.frixlaw.com/law-library/cases/9707060 ## Case - **Full name:** Exton Quarries, Inc. v. Zoning Board of Adjustment (Et Al., Appellant) - **Court:** Supreme Court of Pennsylvania - **Decided:** March 14, 1967 - **Citations:** 425 Pa. 43; 228 A.2d 169; 1967 Pa. LEXIS 644 - **Precedential status:** Published - **Opinion:** Concurrence by Bell - **Judges:** Bell, Musmanno, Jones, Cohen, Eagen, Roberts - **Cited by:** 80 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9707060 ## How later opinions describe it (automated extraction) - stating that “the power [of zoning ordinances] to ... regulate does not extend to an arbitrary, unnecessary or unreasonable intermeddling with the private ownership of property_” ## Opinion text *66 Concurring Opinion by Mr. Chief Justice Bell: While I concur with the result reached by the majority in this case, I strongly disagree with some parts of the rationale by which the majority reach their conclusion. Zoning Acts and Ordinances which provide for the wise and orderly development of a city or township or a community and which are reasonably necessary for the protection of the public health, safety or morals are Constitutional. The natural or zealous desire of many zoning boards or councils to protect, improve and develop their township or community, to plan a city or a township or a community that is both practical and beautiful and to conserve the property values as well as the “tone” of that community is undoubtedly commendable. However, public authorities (including the Legislature) which deal with zoning must constantly remember that “zoning power” is based upon and derived from the police power of the State and may be exercised only in those cases in which the public health, safety, morals and general welfare are in need of protection. To hold otherwise would be to countenance an Unconstitutional invasion and deprivation of the Constitutionally guaranteed property rights of every American. This case is very important and is exceptionally difficult because the law in the field of zoning—commencing with Bilbar Construction Company v. Easttown Township Board of Adjustment, 393 Pa. 62 , 141 A. 2d 851—is in such confusion that no one knows with any certainty what it is in many of the zoning situations which arise. There are several reasons for this confusion. First and most important, too many Judges seem to have almost completely forgotten the rights of property granted and ordained to property owners in and by the Constitution of the United States *67 and in and by tbe Constitution of Pennsylvania. Tbe second important reason is that the decision reached by a zoning board or by a Court is too often based solely upon “general welfare”—an expression which is incapable of accurate definition and in reality is often nothing but the guess or wishes of a few nonelected officials, or sometimes a Judge. The third important reason is the difficulty in reconciling the conflict between (on the one hand) the Constitutionally ordained and guaranteed right to acquire, possess and protect—which means lawfully use—your own home or your own property as every American in the Land of the Free may wish, and (on the other hand) the right of a Judge or zoning board (members of which are usually appointed and not elected officials) to lawfully impose upon a property owner duties and restraints concerning what he may or may not do with his own property. The decisions or regulations of a zoning board or the provisions of a zoning ordinance are too often based, not upon reasons of health, safety or morals but, upon what such board or council may believe is desirable or aesthetic. * Everyone used to know, but many have apparently forgotten that the Colonies and the States of the United States were founded because of our ancestors’ intense desire for personal liberty, completely free from a shackling or oppressive Government. Our forefathers came to America seeking liberty—liberty of thought, of speech, of religion, and of freedom from interference with their lives or their property. “To secure their *68 property was one of the great ends for which men entered society. The right to acquire and own property and to deal with it and use it as the owner chooses so long as the use harms nobody, is a natural right. It does not owe its origin to Constitutions. It existed before them. It is a part of the citizen’s natural liberty—an expression of his freedom—guaranteed as inviolate by every American Bill of Rights. . . .” Lord Appeal, 368 Pa. 121, 130 , 81 A. 2d 533 . These heartfelt desires and ideals became embodied in the Federal Constitution and in the Constitution of Pennsylvania. The fundamental and Constitutionally ordained rights of a person with respect to his property are analyzed, reviewed, and stated at length in Lord Appeal , 368 Pa., supra, and in Cleaver v. Board of Adjustment, 414 Pa. 367, 370-373 , 200 A. 2d 408 . In Cleaver the Court said (pages 370-371): “The law governing the Constitutionality of zoning legislation may be thus summarized : “The Constitution of the United States in the Fifth Amendment and in the Fourteenth Amendment, and the Constitution of Pennsylvania in Article I, §1, ordain and guarantee the right of private property. Article I, §1, of the Constitution of Pennsylvania provides: ‘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. . .’ [Emphasis in original Opinion] “The historical origin and development of our Country, our Birthright and Heritage of Freedom and the (so-called) inalienable fundamental rights, privileges and immunities guaranteed by our Constitution are too often forgotten today. “The right of private property, together with the right of freedom of speech, freedom of religion, and freedom of the press are the Hallmarks of western *69 civilization. These Basic Freedoms constitute the fundamental differences which distinguish—and create the great unpassable gulf which divides—western civilization and free peoples, from Communists and from other peoples who are ruled by a despotic dictator. “It is clear beyond the peradventure of a doubt that the ownership and possession of private property necessarily includes its lawful use—it would be of little or no value unless the owner can deal with and use it as he desires, so long as its use is lawful. “In Lhormer v. Bowen, 410 Pa. 508 , 188 A. 2d 747 , the Court aptly said (page 512) : “ ‘. . . As stated in Lened Homes, Inc. v. Dep’t of Licenses, . . . [386 Pa.], at page 54: “‘An owner of property is still entitled in Pennsylvania to certain unalienable constitutional rights of liberty and 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 cure constitutional/” * See also, Andress v. Zoning Board, 410 Pa. 77 , 188 A. 2d 709 (1963).’ See to the same effect: Lord Appeal, 368 Pa. 121 , 81 A. 2d 533 , and cases cited therein.” To particularize: The enabling Act, namely the Second Class Township Code of May 1, 1933, P.L. 103, as amended, 53 P.S. §67001, et seq., gives second class townships many rights and powers. It gives townships the right to “. . . regulate and restrict* . . . the location and use of . . . land for trade, industry, residence or other purposes,” but it does not give such townships the right to prohibit any uses of property in that township. *70 The majority have wisely determined that completely prohibitory provisions of the ordinance in this particular case (1) are not authorized by the enabling Act, and (2) would not affect the safety, health or morals of the people in that township and (3) give no right or power to a second class township to entirely prohibit a quarry in that township. Furthermore, appellee has established a nonconforming use for all of its property except nine acres. This use runs with the land and neither a zoning board, nor any Legislative body, nor any corporation which possesses the power of eminent domain can abrogate or take or destroy or impair appellee’s nonconforming property use (unless it is a nuisance) without paying or first securing payment for such property. Cf. Eitnier v. Kreitz Corp., 404 Pa. 406, 412 , 172 A. 2d 320 ; Penn Township v. Yecho Brothers, 420 Pa. 386, 390-391 , 217 A. 2d 171 . Furthermore, I particularly dissent from the Court’s overruling the recent case of Eves v. Zoning Board of Adjustment, 401 Pa. 211 , 164 A. 2d 7 . In the light of the present policy of a majority of this Court to overrule some well established principle of law in nearly every session of the Court, how is it possible for anyone to know and comply with the law? In a Constitutional republican form of Government such as ours, which is based upon Law and Order, certainty and stability are essential. If the law knows no fixed principles, chaos and confusion will certainly follow, and litigation will multiply. Unless the Courts establish and maintain certainty and stability in the law, businessmen cannot safely and wisely make contracts with their employees or with each other; the meaning of wills, bonds, contracts, deeds and leases will fluctuate and change with each change in the personnel of a Court; property interests will be jeopardized and *71 frequently lost or changed; Government cannot adequately protect law-abiding persons or communities against criminals; private citizens will not know their rights and obligations; and public officials will not know from week to week or month to month the powers and limitations of Government. This has been recognized for centuries by English-speaking peoples. Lord Coke, Chief Justice of England, thus wisely expressed (circa 1600) these truths: “The knowne certaintie of the law is the safetie of all.” This has been a beacon light for Anglo-American Courts, for text authorities, and for law-abiding Americans ever since the foundation of our Country. In the realm of the law it is usually expressed in the principle known as Stare Decisis. It is too often forgotten that Stare Decisis is one of the bed-rocks upon which the House of Law has been erected and maintained. For the above reasons, I concur with the result reached by the majority. It is very rare that more than sis persons out of one hundred could ever agree upon what is “aesthetic.” Moreover, neither aesthetics, nor the conservation of property values, nor the stabilization of economic values in a township are singly or combined sufficient to promote the health or the morals or the safety or the general welfare of the township or its inhabitants or property owners. Medinger Appeal, 377 Pa. 217, 226 , 104 A. 2d 118 . Italics, ours. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9707060. Public record. Not legal advice.