Girsh Appeal

Dissenting Opinion by

Me. Justice Jones:

Appellant attacks the constitutionality of the zoning ordinance in question on two levels. First, he maintains that it is unconstitutional for the Township to prohibit the construction of apartment buildings throughout the entire township. Second, he argues that the ordinance as applied to the Duer Tract in particular is unconstitutional because the property cannot reasonably be graded and developed for single-family residences.

The principles governing the disposition of cases involving a constitutional attack on a zoning ordinance have been oft-repeated in our case law. “The test of constitutionality of a zoning ordinance is whether it bears a substantial relation to the health, safety, morals or- general welfare of the public: [Citing authority]. One who challenges the constitutionality of a zoning ordinance has no light burden and it is settled that before a. zoning ordinance can be declared unconstitutional it must at least be shown that its provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare. If the validity of the legislative judgment is fairly debatable, the legislative judgment must *249 be allowed to control: [Citing authorities].” Glorioso Appeal, 413 Pa. 194, 198 , 196 A. 2d 668 (1964). 1

Appellant’s first argument is that the zoning ordinance is unconstitutional in that it makes no provision for apartment buildings anywhere in the township. Appellant maintains that this Court looks askance at zoning ordinances which totally prohibit a legitimate use anywhere within the municipality, citing Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43 , 228 A. 2d 169 (1967); Ammon R. Smith Auto Co. Appeal, 423 Pa. 493 , 223 A. 2d 683 (1966); Norate Corp. v. Zoning Board of Adjustment, 417 Pa. 397 , 207 A. 2d 890 (1965); Eller v. Board of Adjustment, 414 Pa. 1 , 198 A. 2d 863 (1964). Of these four cases, the authority most in point is Exton. 2 In Exton we struck down a zoning ordinance as unconstitutional which prohibited any and all quarrying within the township. We noted that the township was sparsely settled and that the proposed quarry would be located some distance from the nearest residential neighborhood. We held that “a zoning ordinance which totally excludes a particular business from an entire municipality must bear a more substantial relationship to the public health, safety, morals and general welfare than an ordinance *250 which merely confines that business to a certain area in the municipality.” ( 425 Pa. at 60 )

The Township, in support of its position that the zoning ordinance in question is constitutional, cites two decisions of our Court. In Dunlap Appeal, 370 Pa. 31 , 87 A. 2d 299 (1952), we upheld an ordinance which forbade the construction of row houses, and in Mutual Supply Co. Appeal, 366 Pa. 424 , 77 A. 2d 612 (1951), we upheld an ordinance which permitted only single-family dwellings in the face of a challenge from a coal mining company which wanted to build coal mining structures on the surface of the land which were necessary for the mining operations below the surface. 3

My research indicates that the exact question presented on this appeal has never been decided at the appellate level in this Commonwealth. The one decision I have found most directly on point is Lofmer, Inc. v. Board of Adjustment of Easttown Twp., 11 Chester Cty. R. 66 (1962), in which the Court of Common Pleas of Chester County upheld the constitutionality of a zoning ordinance which changed the applicable zoning classification to prohibit apartment buildings. The court held that the fact that a zoning ordinance malees no provision for a particular use of property in the township does not, ipso facto, make the ordinance unconstitutional. I am in agreement with this conclusion.

*251 Exton, upon which the majority opinion places the most reliance, can be distinguished on two grounds. First, Exton involved the total prohibition of a valid use. The ordinance now before us does not involve a total prohibition; the ordinance simply does not make provision for apartment buildings. While at first blush this might appear to be a distinction without a difference, there is, in reality, an important difference. Apartment buildings are permissible—and, in fact, have been constructed—if a variance is granted. Therefore, it is not correct to say that the Township totally prohibits the construction of apartment buildings. 4

Second, the natural expansion of the majority’s conclusion is that Nether Providence must provide for all types of high-density, residential land use. This is an unsound result. It makes no more sense to require a rural township to provide for high-rise apartments than to provide for industrial zones; likewise, it would not make sense to require an industrial municipality to provide for agricultural uses. By concluding that the township must provide for high-rise apartments, the majority also impliedly holds that every possible use, having no greater detrimental effect, must also be allowed. In my opinion, this decision places us in the position of a “super board of adjustment” or “planning commission of last resort,” a position which we have heretofore specifically rejected. National Land and Investment Co. v. Easttown Twp. Bd. of Adjustment, 419 Pa. 504, 521-22 , 215 A. 2d 597, 606-07 (1965).

Even if I were to accept appellant’s logic, it must still be affirmatively demonstrated that high-rise apartment buildings are a suitable land use within the township. The court below held that appellant had failed to carry his burden of proof, and I find no fault in this *252 decision. The evidence indicates that 90% of the township is presently already developed. A land planner and municipal consultant testified that he had studied the remaining undeveloped properties within the township and concluded that none of them was suitable for high-rise apartments. Furthermore, the township is residential in -nature with a relatively sparse population. A high-rise apartment project would produce a significant increase in population which would tax the limited municipal services available in the township. 5 Accordingly, I find it impossible to say on the face of this record that a township such as Nether Providence is constitutionally required to make provision for highrise apartments in its zoning ordinances. 6

I turn now to appellant’s second contention, vim., that the zoning ordinance permitting only single-family dwellings is unconstitutional as applied to the Duer Tract in particular. Appellant’s first argument under this heading is that the ordinance has no relation to the public health, safety and welfare. I cannot agree. The proposed apartment complex would be the largest of its kind in Delaware County, housing an estimated 1,600 persons, and would increase the population of the township by 13%. We cannot refute the conclusion that such a large and rapid increase in population *253 would place a strain on the township’s limited municipal services and rural roads. Furthermore, except for the railroad tracks, the area surrounding the Duer Tract is composed exclusively of single-family dwellings. The proposed apartment towers would be incompatible with the existing residential neighborhood and would introduce a structure completely out of proportion to any other building in the township. Furthermore, the complex would present a density problem in this area of the township. The First Class Township Code specifically empowers local municipalities to zone for density; 7 I conclude that the ordinance in question is a proper application of that power.

Appellant’s second argument is that the ordinance is unreasonable, arbitrary and discriminatory as applied to the Duer Tract because of the prohibitive expense involved in grading and preparing the land for single-family residences. There is no question that the property contains some topographical features which are less than desirable for the construction of single-family homes. The record is replete with conflicting testimony, however, as to how much expense would be required to grade the tract and divert the creek which runs through the property. There is evidence in the record to support the court’s conclusion that these preparatory expenses would not make the cost of the homes prohibitively expensive. The court pointed out that a development of single-family houses is now being constructed on a neighboring tract which is very similar topographically to the Duer Tract. Furthermore, appellant made a firm commitment to buy the property regardless of whether he was successful in *254 haying the zoning classification changed. Apparently when he purchased the property, therefore, appellant concluded that he could successfully build and sell single-family homes on the tract.

Therefore, I would hold that the Township is not constitutionally required to provide for multiple-unit apartment buildings in its zoning ordinance and that the ordinance in question is not unconstitutional as applied to the Duer Tract.

I dissent.

Mr. Justice Cohen and Mr. Justice Pomeroy join in this dissenting opinion.

See also: National Land and Investment Co. v. Easttown Twp. Bd. of Adjustment, 419 Pa. 504, 511, 512 , 215 A. 2d 597 (1965); Colligan Zoning Case, 401 Pa. 125, 131 , 162 A. 2d 652 (1960); Bilbar Constr. Co. v. Easttown Twp. Bd. of Adjustment, 393 Pa. 62, 72 , 141 A. 2d 851 (1958).

In Norate we struck down an ordinance which, prohibited all “off-site” advertising signs anywhere within the township. In Ammon Smith we struck down a similar ordinance banning all flashing signs. In Biter we voided an ordinance requiring minimum setoffs for mushroom houses on the grounds that the setoffs would require a person to own approximately 69 acres before he could grow mushrooms. I conclude that none of these three cases is cogent authority for the position advanced by the appellant.

In Mutual Supply, we stated in pertinent part: “The exclusion of industrial use involves an exercise of legislative discretion under the existing facts and circumstances. In the present instance, there was evidence that ‘the highest and best use of the area is residential.’ Within a half-mile radius of Mutual’s surface plot there are not less than forty residences of an average value of $30,000 each. Of course, if the ordinance’s exclusion of industrial use would conclusively prevent the appellants from mining and removing their coal for which they have full mining rights without liability for surface support, then a different question would be presented.” ( 366 Pa. at 430, 431 )

Cf. Honey Brook Twp. v. Alenovitz, 430 Pa. 614 , 243 A. 2d 330 (1968).

Since I would hold that appellant failed to prove that highrise apartments would be a suitable land use in the township, Mantón is inapposite, for there was no question in Menton that quarrying was a suitable land use.

Decisions in other jurisdictions support this conclusion. See, e.g., Valley View Village, Inc. v. Proffett, 221 F. 2d 412, 418 (6th Cir. 1955) (per Potter Stewart, J.); Fanale v. Hasbrouck Heights, 26 N. J. 320, 139 A. 2d 749, 752 (1958) (per Weintraub, C. J.); Connor v. Township of Chanhassen, 249 Minn. 205 , 81 N.W. 2d 789, 794-95 (1957); Fox Meadow Estates, Inc. v. Culley, 233 App. Div. 250 , 252 N.Y.S. 178 (1931), aff’d per curiam, 261 N. Y. 506 , 185 N.E. 714 (1933); G uaclides v. Borough of Englewood Cliffs, 11 N.J.S. 405 , 78 A. 2d 435 (1951) (per William Brennan, J.).

Act of June 24, 1931, P. L. 1206, art. XXXI, §3101, as amended, 53 P.S. §58101. This section has been repealed by the recently enacted Pennsylvania Municipalities Planning Code. The new Oode also empowers municipalities to zone for density. Act of July 31, 1968, P. L. , §603(4), 53 P.S. §10603(4) (pp).