# Girsh Appeal

> Supreme Court of Pennsylvania · February 13, 1970 · 437 Pa. 237

URL: https://www.frixlaw.com/law-library/cases/9717144

## Case

- **Full name:** Girsh Appeal
- **Court:** Supreme Court of Pennsylvania
- **Decided:** February 13, 1970
- **Citations:** 437 Pa. 237; 263 A.2d 395; 1 ERC (BNA) 1140; 1970 Pa. LEXIS 871
- **Precedential status:** Published
- **Opinion:** Concurrence by Bell
- **Judges:** Bell, Jones, Cohen, Eagen, O'Brien, Roberts, Pomeroy
- **Cited by:** 134 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/9717144

## Opinion text

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.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9717144. Public record. Not legal advice.