# Jacobi v. Zoning Board of Adjustment > Supreme Court of Pennsylvania · January 21, 1964 · 413 Pa. 286 URL: https://www.frixlaw.com/law-library/cases/9732913 ## Case - **Full name:** Jacobi, Appellant, v. Zoning Board of Adjustment - **Court:** Supreme Court of Pennsylvania - **Decided:** January 21, 1964 - **Citations:** 413 Pa. 286; 196 A.2d 742; 1964 Pa. LEXIS 670 - **Precedential status:** Published - **Opinion:** Concurrence by Bell - **Judges:** Bell, C.J., Musmanno, Jones, Cohen, O'Brien and Roberts - **Cited by:** 19 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/9732913 ## Opinion text Concurring Opinion by Mr. Chief Justice Bell : I concur in the result. However, in a case involving a petition or application for an exception, I believe that several prior decisions of this Court on the question of burden of proof are illogical and should be changed by this Court or by a legislative body. These cases expressly or impliedly held that the burden; was on the Township or Board of Adjustment or those opposing the exception to prove that the proposed exception would adversely affect the public health or safety or morals and general welfare of the community. This question is of such importance that a brief review of the law is necessary. No one has fought for property and other Constitutional rights as frequently and strongly as I have, * but I do not like to. see the *293 Court be illogical. However, several recent zoning decisions with which I strongly disagree, logically, compel a different rule on the question of the burden of proof in a petition for an exception. We must examine the language of each Act and of each Ordinance and apply that language to the facts of each particular case. Unfortunately, Courts- toó often examine only that portion of the Act or Ordinance which appears to be particularly controlling, without any consideration of the purpose, object and intent of, or the standards laid down by, the Act or Ordinance as set forth in other portions thereof. The basic rights of a property owner are centuries old and are Constitutionally ordained and guaranteed * and he cannot be deprived thereof without just compensation. ** In an end run around the Constitution, zoning has become a very popular Governmentally prescribed curtailment, deprivation and ofttimes blind erosion or unwitting destruction of the Constitutionally guaranteed rights of property. Since zoning is justifiable and Constitutional only if it is reasonably necessary to protect public health or safety or morals and general welfare, isn’t it logical to hold that one who asks for an exception to a presumptively valid and Constitutional Act or Ordinance *** has the twofold burden of proving that his proposed building or proposed use (1) falls within a legislatively excepted per *294 missible building or use, and (2) that it is not detrimental to public health or safety or morals and general welfare! If this were not so, why wasn’t the excepted and the (possibly) permissive building or use included in and as part of the zoning classification to which it is a possibly permitted exception. For example, where the owner of a proposed apartment building asks for an exception in a single family residential district, if all he has to prove is that his proposed building falls within a building use permitted by the exception, why wasn’t this excepted building included in and made a part of the zoning classification to which it is an exception ! Since the majority Opinion holds that the Board instead of the petitioner has this burden of proof, I must concur in the result, and hope that future legislation will change or at least clearly specify where the burden of proof lies. Mr. Justice Cohen joins in this concurring Opinion. See, inter alia, Lord Appeal, 368 Pa. 121 , 81 A. 2d. 533; Andress v. Zoning Board of Adjustment, 410 Pa. 77 , 188 A. 2d 709 ; Rolling Green Golf Club Case, 374 Pa. 450 , 97 A. 2d 523 ; Medinger Appeal, 377 Pa. 217 , 104 A. 2d 118 ; Concurring Opinion in Key *293 Realty Co. Zoning Case, 408 Pa. 98, 102 , 182 A. 2d 187 ; Dissenting Opinion in Billar Const. Co. v. Easttown Twp. Bd. of A., 393 Pa. 62, 77 , 141 A. 2d 851 ; Concurring and Dissenting Opinion in Best v. Zoning Board of Adjustment, 393 Pa. 106, 119 , 141 A. 2d 606 . Article I, §1, of the Constitution of Pennsylvania; Fifth Amendment to the Constitution of the United States. Article I, §10, of the Constitution of Pennsylvania; Fifth Amendment to the Constitution of the United States. Daly v. Hemphill, 411 Pa. 263, 270-271 , 191 A. 2d 835 , and eases cited therein; Good Fellowship Ambulance Club’s Appeal, 406 Pa. 465, 470 , 178 A. 2d 578 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9732913. Public record. Not legal advice.