Robin Corp., Aplnt. v. Bd. of Spvrs., Lpt
Robin Corp., Aplnt. v. Bd. of Spvrs., Lpt
Opinion of the Court
Opinion by
This is an appeal filed by Robin Corporation (Robin) from an order of the Court of Common Pleas of Dauphin County, dated February 10, 1974, denying an appeal of Robin from the refusal of the Lower Paxton Township Board of Supervisors (Township) to amend its zoning ordinance under the provisions of Sections 609.1 and 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10609.1 and 11004.
In 1966, a predecessor corporation, owned and operated by the same people who own and operate Robin, entered into an, agreement to purchase approximately 10 acres of land located in the Township, of which approximately three acres were zoned R-2, permitting apartment house usage, and the balance of which was
On December 12, 1972, Robin sent a letter to the Township challenging the constitutionality of the Township’s zoning ordinance as it applied to the seven acres
Hearings were held before the Board of Supervisors of the Township, after which the Board issued its adjudication containing detailed findings of fact, discussion and a conclusion of law that Robin had “failed to sustain its burden of showing the necessity of a rezoning of its land.” Both Robin and Bonitz took an appeal to the lower court, which received no additional testimony or evidence. The court below dismissed the appeal of Robin for the reasons that Robin was fully aware of the zoning of the subject tract at the time it acquired title, that the record submitted to the court substantiated the findings of the Board that the property could be used for some of the purposes permitted by the R-l zoning classification, and that Robin had failed to prove that the existing R-l classification bears no substantial relation to the public welfare.
On appeal to this Court, Robin contends that the
Substantial evidence is that evidence which a reasonable man acting reasonably might have utilized in reaching the decision made. See A. P. Weaver and Sons v. Sanitary Water Board, 3 Pa. Commonwealth Ct. 499, 284 A. 2d 515 (1971).
Our problem is the determination of the precise effect this section (enacted in 1972) has on the traditional method of challenging land use restrictions through a request for a variance. Nowhere in Article 10 of the MPC, 53 P.S. §11001 et seq., are variances mentioned.
Robin argues that it cannot conform to the mandated R-l uses because of the peculiar topography of its land, and the R-l limitations are thus “unreasonable”, rendering its activities on its land unprofitable, and the restriction thus “confiscatory.” The heart of a confiscation argument in a zoning case is that a land use restriction is “unreasonable” in that it deprives the landowner of any reasonable use of his land, without compensation. Robin reasons that this is tantamount to a “taking” without due process of law. See Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962); Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 415 (1922); Reibel v. City of Birmingham, 23 Mich. App. 732, 179 N.W. 2d 243 (1970); City of El Paso v. Donohue, 344 S.W. 2d 185 (Court of Civil Appeals of Texas, 1961).
This line of argument is precisely the same format used in many variance cases, although Robin says in its brief that “the issue before the court was not the granting of a variance, but rather the testing of the constitutionality of the zoning ordinance as it applied to the
We observe that variances developed in the law of zoning because, in their absence, some oppressive restrictions would be the equivalent of a taking without due process of law, and, thus, confiscatory. Under the definition of “confiscation” used above, a set of facts which would establish a “confiscation” would also establish a right to a variance, although conceivably the converse would not necessarily be true.
From the above it becomes clear that we must initially determine whether Robin was correct in filing its “substantive challenge” pursuant to MPC section 1004, instead of requesting a variance. We conclude that the procedure followed by Robin was incorrect.
We are thus led to a consideration of whether “substantive challenges” under section 1004, and requests for variances are alternative rather than mutually exclusive remedies. In resolving this question, we note that section 1004(1) reads as follows: “(1) A landowner who, on substantive grounds, desires to challenge the validity of
We believe that section 1004 was intended to apply to a situation such as that found in Casey v. Zoning Hearing Board of Warwick Township, — Pa. —, 328 A. 2d 464 (1974), where the validity of an entire zoning ordinance was challenged through an allegation of exclusionary zoning. In Casey, the Supreme Court, through Justice Eagen, said: “Once a zoning ordinance is found to be constitutionally defective, the judgment invalidates the entire ordinance, not merely the zoning of a particular tract of land.”
The Court went on to say, in a footnote to its opinion, that “[t]his case must be distinguished from the case in which the challenger is merely contesting the zoning of his own tract of land, and only seeking to have the court declare the zoning of his tract invalid.”
In this latter case (as in the instant case), allowing the landowner to proceed pursuant to section 1004 would, as a practical matter, result in the placing of a great and undue burden on municipal governing bodies. If a landowner who has what is essentially a variance claim can short-cut the review process, bypass the zoning hearing board, and go directly to the governing body for a disposition, the usefulness and legislatively intended function of local hearing boards would be greatly derogated.
Fully cognizánt of the fact that there is considerable tension between different sections of the MPC, we are constrained to hold that (1) the law of variances is still viable and remains unchanged under Article 10 of the MPC; and (2) section 1004 “substantive challenges” and requests for variances are mutually exclusive remedies, a request for a variance being required whenever a landowner desires to challenge the zoning of his particular tract through a claim which, if established on the record, would warrant the granting of a variance.
Turning now to the particular facts of the instant case, we note that Robin has not requested a variance, and has improperly proceeded under section 1004. Because of the uncertainty which we sense surrounding Article 10, however, and because we do have before us a sufficient record and argument, we will deal with the merits of a variance claim for the benefit of the parties.
Robin’s argument on the merits reduces itself to a claim that the R-l zoning classification does not permit the land in question to be developed to its highest and best use from an economic standpoint. The record is replete with testimony concerning how the land in ques
A landowner in Robin’s position, bears the burden of proving that none of the R-l uses can reasonably be pursued. Marple Township Appeal, supra; Chrysler Motors Corporation v. Zoning Board of Adjustment, City of Philadelphia, 13 Pa. Commonwealth Ct. 363, 319 A. 2d 429 (1974). Robin’s own witness admitted that it was feasible to develop the Robin tract for professional offices (one of the permitted uses).
After a careful review of the record, we conclude that there is sufficient evidence to sustain the findings of fact and conclusions of the Board of Supervisors. It is not for us to effect a judicial reclassification of the property in question, and the matter of what zoning plan will best serve the citizens of Lower Paxton Township is not subject to review by this Court. We must, therefore, affirm the lower court.
. The R-l zoning usage permitted the following:
“In a Low Density Residence District R-l, no building or land shall be used, and no building shall be erected, which is arranged, intended or designed to be used for other than one or more of the following uses:
“Dwelling, single family detached, not more than one main building to each lot.
“Educational, religious or philanthropic use, excluding hospitals, sanatoriums [sic] or correctional institutions.
“Electrical substations.
“Fire stations.
“Library.
“Municipal recreational use.
“Professional offices.
“Telephone central office.
“Accessory uses customarily incidental to the uses permitted, including private garages. The keeping of pigeons and horses shall not be considered as an accessory use, and is expressly forbidden in this zone.”
. Although the record plainly states that Robin took title in 1970, apparently the records in the Recorder of Deeds Office indicate that title was transferred on January 21, 1971. The difference in these dates, however, does not affect the result of this case.
. Section 1004(2) (c) provides: “(c) The request shall be accompanied by plans and other materials describing the use or development proposed by the landowner in lieu of the use or development permitted by the challenged ordinance or map. . . .” (Emphasis added.)
. In Township of Neville v. Exxon Corp., 14 Pa. Commonwealth Ct. 225, 322 A. 2d 144 (1974), we stated that sections 609.1 and 1004 of the MPC are not necessarily strictly limited to facial attacks on the constitutionality of a zoning ordinance. In Neville, the landowner was faced with an unusual situation, where he could not seriously contend that his land was subject to the peculiar hardship required for a variance under section 912 of the MPC, yet his land was burdened by a restriction which was alleged to be “confiscatory” by virtue of “irrational and arbitrary” planning which ignored the reality of land use patterns. The claim, if supported, would have had merit. Neville is thus distinguishable from the instant case by virtue of the cause of the alleged “confiscation,” even though in Neville, as in the instant case, relief was sought from a hardship that was allegedly imposed on a specific tract. Our statement in Neville regarding the availability of the curative amendment procedure in that case thus represents an interpretation which is still viable in light of the holdings we make in the instant case.
. At this point, we note the applicability of the Statutory Construction Act of 1972 (Act), 1 Pa. C.S. §1501 et seq. Section 1922(2) of the Act provides a presumption “[t]hat the General Assembly intends the entire statute to be effective and certain,” and section 1933 of the' Act provides that “[w]henever a general provision in a statute shall be in conflict with a special provision in the same . . . statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict ... is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision.”
. See Ryan, Pennsylvania Zoning Law and Practice, §§9.4.6 (4) and 9.5.2.
. We point out that our preliminary holdings in this case deal strictly with the proper procedure to he followed in seeking review of zoning restrictions. In light of the discussion above relating the concept of confiscation to requests for variances, it is clear that even if Robin had acted correctly in proceeding under MPC section 1004, the substantive principles governing the granting of relief would closely parallel, if not he identical with, the variance law applied in the portions of this opinion immediately following this footnote.
Concurring Opinion
Concurring Opinion by
I agree with much of what is said by the majority, and I concur in the result reached inasmuch as Appellant
The 1972 amendments to the Pennsylvania Municipalities Planning Code
. Act of July 31, 1968, P.L. 805, as amended by the Act of June 1, 1972, P.L. —, No. 93, 53 P.S. §§10101 et seq.
Reference
- Full Case Name
- Robin Corporation, Appellant, v. Board of Supervisors of Lower Paxton Township, Appellee
- Cited By
- 41 cases
- Status
- Published