Opinion

Girsh Appeal

  • 437 Pa. 237
  • 263 A.2d 395
  • 1 ERC (BNA) 1140
  • 1970 Pa. LEXIS 871
Court
Supreme Court of Pennsylvania
Filed
Feb 13, 1970
Status
Published
Author
Bell
On the bench
Bell, Jones, Cohen, Eagen, O'Brien, Roberts, Pomeroy
Cited by
134 cases
Authority
More cited than 9.2%

township could not be permitted to "choose to only take as many people as can live in single-family housing, in effect freezing population at near present levels"

How later courts described this case

  • township could not be permitted to "choose to only take as many people as can live in single-family housing, in effect freezing population at near present levels"
  • Pennsylvania Supreme Court held that the failure to provide for apartments anywhere in a particular town was unconstitutional denial of due process even though multifamily residences were not expressly prohibited
  • “At least for the purposes of this case, the failure to provide for apartments anywhere within the Township must be. viewed as the legal equivalent of an explicit total prohibition of apartment houses in the zoning ordinance.”
  • an individual should be able to utilize his own land as he sees fit; while zoning is, in general, a proper exercise of police power which can permissibly limit an individual’s property rights, use of that police power cannot be unreasonable

Written by the judges who cited it.

The opinion

Concurring Opinion by

Mr. Chief Justice Bell:

This case poses for me a very difficult problem. One of the most important rights, privileges and powers which (at least until recently) has differentiated our Country from Communist and Socialist Countries, is the right of ownership and the concomitant use of property. The only limitation or restriction thereof was “sic utere tuo ut alienum non laedas”—a right to use one’s property in any way and manner and for any purpose the owner desires, except and unless it injures the property of another, or endangers or seriously affects the health or morals or safety of others.

Then along came zoning with its desirable objectives. However, desirable or worthwhile objectives have too often been carried to an unfair or unwise or unjustifiable extreme, or an extreme which makes the Act or Ordinance illegal or unconstitutional.

*247 This Ordinance cannot he sustained under the theory or unwitting pretense that it is necessary for, or has a substantial relationship to the protection of the health or morals or safety of the people of that Township, and, as Justice Roberts points out, it cannot and should not be legalized or Constitutionalized under the theory of “general welfare” * or “public interest or worthy objectives.” Furthermore, Courts, Legislators, zoning bodies and most of the public have forgotten or rendered meaningless Article I, Section 1, of the Constitution of Pennsylvania, which provides: “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of . . . acquiring, possessing and protecting j>roperty.

I believe that a County or Township can “reasonably” regulate the location, size, height, setbacks, light and air requirements, etc. of apartment houses or buildings, but that neither a County nor a Township can totally prohibit all apartment houses or buildings. Cf. Exton Quarries Inc. v. Zoning Board of Adjustment, 425 Pa. 43 , 228 A. 2d 169 . Whether an ordinance which makes no provision for, or authorization of, apartment houses is equivalent to a total prohibition thereof raises (at least, for me) a difficult question. However, I have come to the conclusion that the present zoning ordinance (1) in practical effect amounts to a prohibition of apartment houses, and (2) cannot be saved or legalized by a right to a variance which is grantable only upon proof of (a) unnecessary hardship upon and which is unique or peculiar to the property involved, as distinguished from the hardship arising from the impact of the zoning ordinance upon the en *248 tire district, and (b) where the proposed variance will not be contrary to the public safety, health, morals or general welfare: Di Santo v. Zoning Board of Adjustment, 410 Pa. 331 , 189 A. 2d 135 ; Sheedy v. Zoning Board of Adjustment, 409 Pa. 655 , 187 A. 2d 907 ; Brennen v. Zoning Board of Adjustment, 409 Pa. 376 , 187 A. 2d 180 ; J. B. Simon & Co. v. Zoning Board of Adjustment, 403 Pa. 176 , 168 A. 2d 317 .

For these reasons, I concur in the Opinion of the Court.

Aesthetics have no place or part in zoning, either as support or justification for, or rejection of any plan. Moreover, it is sometimes forgotten that very few can ever agree on what is or is not “aesthetic.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.