likening every zoning ordinance to a “point along a spectrum,” with the validity depending on whether the ordinance fell beyond that point where the regulation ceases to be of concern to the health and welfare of the general public and becomes a matter of private preference
How later courts described this case
- likening every zoning ordinance to a “point along a spectrum,” with the validity depending on whether the ordinance fell beyond that point where the regulation ceases to be of concern to the health and welfare of the general public and becomes a matter of private preference
- the Court held that National Land, which had equitable title to the subject property and which had expended $6,000 in seeking to develop the property, was aggrieved by the zoning official’s denial of a building permit and thus had standing to appeal the denial under Section 2007 of The Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, added by the Act of July 10, 1947, P.L. 1481, formerly 53 P.S. §67007, repealed by Section 1201(5) of the MPC, 53 P.S. §11201 (5)
- an ordinance that has an exclusionary result or purpose cannot be substantially related to the general welfare
- property owners’ desire to look out over open land as opposed to other houses, while understandable and quite natural, represents a private desire that does not rise to the level of public welfare
Written by the judges who cited it.
The opinion
*534 Dissenting Opinion by
Mr. Justice Cohen:
The majority compounds the error made by the court below by also ignoring the fundamental concept of judicial administration that constitutional issues are to be avoided if litigation can be disposed of otherwise.
Appellee, National Land and Investment Company, is a corporation engaged in speculative land development. It. agreed to purchase this property in July, 1961. It is not bearing any of the expenses-of this litigation, and its only connection with it is permitting-its name to continue as the appellee — its agreement has expired and its deposit has been returned. Its counsel, who originally filed the appeal to the court of common pleas from the action of the board of adjustment, has withdrawn from the litigation. Counsel for the seller to National Land, after a delay of many months, pursued the appeal for a variance. The seller is paying the expenses of this litigation and is the only one with an equitable interest in the property. Dorothy Ennis, who also appears as an appellee, is simply a straw party employed in the office of the real owner’s counsel. No one has any real plans to build anything on the property. All that is really involved in this lengthy and costly litigation is the constitutionality of the zoning ordinance and this is being litigated in vacuo. We should not assume the role of giving an academic or advisory opinion. Sgarlat v. Kingston, 407 Pa. 324 , 180 A. 2d 769 (1962) ; Home Life Insurance Company v. Board of Adjustment, 393 Pa. 447 , 143 A. 2d 21 (1958). Another procedural defect is apparent — the appeal to the zoning board was taken more than six months after the decision of the zoning officer. While it is true that the appeal provisions of the ordinance do not designate a specific number of days during which an appeal may be taken, it is required that an appeal must be filed within a rea *535 sonable period. Six months is an unreasonable time, being double the longest time permitting an appeal to this Court from a decision of the court of common pleas. In Kravitz v. Zoning Board of Adjustment, 415 Pa. 97 , 202 A. 2d 64 (1964), we held that an appeal from a zoning board of adjustment decision not taken within the prescribed period must be quashed. I would apply that rule to this litigation and require the court of common pleas to quash the appeal to the board of adjustment from the zoning officer.
Still another glaring defect in the procedural history of this litigation is the failure of the appellees to coinply with §1207-A (May 24, 1951, P. L. 370, §16) of The Second Class Township Code, 53 P.S. §66257, which provides that in townships where subdivision regulations have been adopted, no permit to erect a building may be issued until a subdivision plan has been approved. The effect of the majority opinion is to order the issuance of a building permit for a one acre lot in a subdivision not yet approved. This circumvents the township’s lawful regulations adopted pursuant to Art. XII-A of the Second Class Township Code and to that extent nullifies the Township Code. This procedural defect would also require the disposition of this litigation without proceeding to the constitutional question.
The majority recognizes that “The task of considering the Easttown Township zoning ordinance and passing upon the constitutionality of its four acre minimum area requirement as applied to appellees’ property is not an easy one.” To me it becomes very easy to uphold the constitutionality when one recognizes, as the record discloses, that the legislative authority of Easttown Township gave the overall planning of the township considerable study. The four acre restriction was not applied to the entire township, but was only one part of a three part class “A” *536 residential zoning enactment — one of four acres, one of two acres, and one of one acre. This zoning determination for type “A” residential properties included 3,297 acres of the 5,157 acre township and included 2,468 acres of undeveloped property for which no public sewage was available and which also included areas of poor natural drainage and varied stream pollution. It seems a reasonable and proper'exercise of the legislative function for the township commissioners to take what is comparatively a small area (3,297 acres), divide it into residential zones and restrict a certain number of the residential zones to four acre lots — some to two and some to one.
Hence, I differ with the majority in three basic areas: (1) I would never get to the constitutional issue by the exercise of proper judicial restraint; (2) I would not permit this Court to become township supervisors and legislate a zoning law as it does, and (3) I would not hold a properly enacted zoning code to be unconstitutional when the only argument in support of so doing is the appellees’ loss of profits.
I dissent.