Exton Quarries, Inc. v. Zoning Board of Adjustment

Dissenting Opinion by

Mb. Justice Cohen:

The majority have again demonstrated their inclination in the area of zoning law to pay lip-service to the prevailing and applicable law and then to decide that somehow the case under consideration falls outside of that law. A case in point is Eller v. Board of Adjustment, 414 Pa. 1 , 198 A. 2d 863 (1964), wherein the majority stated: “The principles which govern a constitutional attack upon a zoning ordinance once again have been recited in the recent case of Anstine v. Zoning Board of Adjustment, 411 Pa. 33, 36-37 , 190 A. 2d 712, 714-15 (1963), from which we quote: ‘The burden of proving clearly and unmistakably the unconstitutionality of a legislative enactment is upon the person so asserting. [Citing cases.] Accompanying this *72 burden is the rule that “. . . where the constitutionality of zoning ordinances has been attacked, we have presumed that the municipal [or township] legislative body acted with purpose to serve the public welfare and that all intendments are in favor of their action.” [Citing cases.] The burden of proof in an attack on the constitutionality of a zoning ordinance, although heavy, can be maintained. In Archbishop O’Hara’s Appeal [ 389 Pa. 35 , 131 A. 2d 587 (1957)], quoting from Lord Appeal, 368 Pa. 121 , 81 A. 2d 533 and White’s Appeal, 287 Pa. 259 , 134 A. 409 , it was stated [ 389 Pa. at 57-58 ] : “ ‘ “. . . all property is held in subordination to the right of its reasonable regulation by the government clearly necessary to preserve the health, safety or morals (or general welfare) of the people. . . . There is one matter that is quite certain, the power to thus regulate does not extend to an arbitrary, unnecessary or unreasonable intermeddling with the private ownership of property, even though such acts be labeled for the preservation of health, safety and general welfare . . In Schmalz v. Buckingham Twp. Zoning Board of Adjustment, 389 Pa. 295 , 132 A. 2d 233 , the Court held that it was the duty of a court, before which the reasonableness of a zoning ordinance has been questioned, to determine whether that ordinance constituted a valid exercise of the police power. While the courts are bound to accept the judgment of the legislative body concerning the necessity for zoning classifications, however, the courts may inquire as.to whether or not a particular zoning classification bears a substantial relationship to the public health, safety, morals or general welfare. [Citing cases.]’ (Italics.in the original. ) ” 414 Pa. at 5-7 , 198 A. 2d 865 -866.

In my opinion the regulation herein involved did not amount to an “arbitrary, unnecessary or unreasonable intermeddling with the private ownership of property. . . .” And the cavalier fashion by which the ma *73 jority opinion disposes of every legislative objective in enacting the zoning ordinance in question fails to convince me that I am wrong. The legislative objectives of the zoning ordinance prohibiting quarrying were to: (1) Control traffic on an already congested highway; (2) Prevent the expulsion of dust in great quantities into the atmosphere; (3) Protect the surrounding property owners or users (including elementary school children) from the dangers of blasting; (4) Protect the water supply of the surrounding property owners and users; (5) Protect the township roads from deterioration from over use by heavily laden trucks and from sink holes resulting; (6) Eliminate the noise emanating from blasting and rock crushing; and (7) Prevent the creation of a large hole in the middle of the township.

To my way of thinking, these considerations amount to very legitimate public purposes and are certainly so reasonably related to health, safety, morals and general welfare that a casual brushing aside and disregard of the merit of each of them will not appease me. The majority are content to supply their own solution to each of the problems presented by diminishing the record (by finding incompetent the township’s testimony with regard to the underground water supply), by suggesting legislation which the township chose not to enact (in particular, the fencing of the quarry to protect children), or by superficial treatment (such as concluding that because the record does not indicate that blasting will occur during sleeping hours it will not disturb the community).

Perhaps the most glaring abuse evident in the majority opinion is its discussion of the problem of the diminished water supply. Even assuming that with regard to all of the other issues the majority are correct, their treatment of this question alone necessitates that this Court remand the matter to. the *74 board. While affirming the judgment of the court below, the majority opinion in effect, reverses the decision of the board and grants relief equivalent to judgment non obstante veredicto. In granting such relief upon a diminished record, the majority have ignored a rule of long standing that a judgment may not be entered by a court which has eliminated evidence appearing in the record; in such a case, the proper remedy is the grant of a new trial. Brandon v. Peoples Natural Gas Company, 417 Pa. 128 , 207 A. 2d 843 (1965); Cherry v. Mitosky, 353 Pa. 401 , 45 A. 2d 23 (1946). The applicable law is well stated by this Court in Kotlikoff v. Master, 345 Pa. 258, 265 , 27 A. 2d 35, 38-39 (1942) as follows: “. . . . In Stevenson v. Titus, 332 Pa. 100 , it was held, as follows (pp. 102, 104) : ‘The fatal defect in plaintiff’s verdict is that it was obtained wholly upon the testimony of an incompetent witness . . . With the testimony of his father eliminated, plaintiff made out no case whatever. . . . If the incompetent testimony had been rejected, binding instructions for defendants would necessarily have followed. Since, however, the testimony was admitted, judgment n.o.v. cannot now be entered; the only remedy is to grant a new trial.’ The rule applicable in such cases is well stated in Huffman v. Simmons, 131 Pa. Superior Ct. 370 , at page 374. ‘. . . in entering judgment non obstante veredicto under the Act of April 22, 1905, P.L. 286, the judgment must be entered upon the evidence in the record in the court below as it existed at the close of the trial: Dalmas v. Kemble, 215 Pa. 410 . If upon consideration of the whole evidence “it shall appear that a binding direction for either party would have been proper at the close of the trial, the court may enter judgment later with the same effect”: Ibid, p. 413. But “the court can neither eliminate evidence which may have been improperly admitted, nor insert offers of evidence which *75 should have been admitted but were excluded; the remedy in either case is a new trial”: Mincy v. Washington Nat’l Ins. Co., 130 Pa. Superior Ct. 285 .’ See also Dixon v. Metro. Life Ins. Co., 136 Pa. Superior Ct. 573, 578 ; Heffron v. Prudential Ins. Co., 137 Pa. Superior Ct. 69, 72 .”

In view of the foregoing, the majority improperly reversed the board on a record diminished by the exclusion by this Court of evidence deemed by it to be incompetent.

The danger of the majority’s rationalizations is that while it superficially recognizes that there are standards by which to test the constitutionality of zoning legislation, it meticulously avoids their application by substituting its judgment for that of the zoning board. In effect, this decision has made our Court a zoning board—and a poor one at that.

Furthermore, this Court has held on several occasions that on an appeal from an order of a trial court reversing the decision of a zoning board of adjustment, without taking additional testimony, the scope of review is limited to determining whether the board abused its discretion or committed an error of law. Polizzi v. Zoning Board of Adjustment, 420 Pa. 405 , 218 A. 2d 226 (1966); National Land and Investment Company v. Eastern Township Board of Adjustment, 419 Pa. 504 , 215 A. 2d 597 (1965). In a situation like the instant case, where the constitutionality of the statute as a whole is not attacked but only its constitutionality as applied to a particular property, the findings of fact of the board assume even more importance than in a broad constitutional attack. The majority have completely ignored this standard by substituting their own findings of fact for those of the board.

The majority compound their error by stating in the second footnote that because no issue was raised, by *76 either party with regard to the board’s conclusion that the zoning ordinance prohibits rock crushing on the Exton property, the parties and the lower court assumed that quarrying encompassed rock crushing. That is illogical. A conclusion of law was reached by the board which was against the interests of Exton. Since Exton chose not to question that determination, it must be concluded that Exton abandoned its contention that the prohibition of rock crushing was unconstitutional. That is the only assumption that may be drawn from the failure of either party or the lower court to discuss rock crushing as a separate prohibited activity. Rock crushing and quarrying are two different activities each of which is prohibited by the ordinance. The reversal of the board’s decision by the lower, court on the matter of quarrying does not change the board’s conclusion with regard to rock crushing since the latter determination has not been attacked by an appeal by the party injured.

Finally, as an example of the majority opinion’s disregard for the appropriate burden of proof in an attack on the constitutionality of a zoning ordinance, I cite its discussion of the problem of dust expulsion. One of the legislative objectives behind the ordinance was to prevent the expulsion of great quantities of dust into the air. Since this problem was one of the factors that led to the enactment of the ordinance which is cloaked with a presumption of constitutionality, the burden is upon Exton to prove that the amount of dust expelled into the air by its quarrying activities would not be excessive. The majority, however, reverse the burden and conclude that because the township presented no evidence as to the effect of the dust on health or as to the relative increase in air pollution caused by permissible uses of the land, there is no justification for the ordinance on that ground.

I dissent.