419 Pa. 504, 522, 215 A.2d 597, 607 (1965)
In 1958 Dorothy M. Ennis took title to approximately 130 acres of land in Easttown Township known as Sweetbriar.1 After selling 45 acres, she executed an agreement of sale in 1961 with National Land and Investment Company for the remaining 85 acres, with purchase contingent upon the land's suitability for development and township acceptance of a subdivision plan under existing zoning regulations.2
At the time of the agreement the zoning ordinance required a one-acre minimum per building lot for Sweetbriar and the vast majority of the township.3 Subdivision plans for one-acre lots were submitted in late 1961 but not pursued.4 In early 1962 the township amended the ordinance to impose a four-acre minimum on the land.5
National requested a building permit for a single dwelling on a one-acre lot; the zoning officer refused the request on April 27, 1962, citing insufficient land area under the four-acre requirement and the absence of an approved subdivision plan.6 National appealed to the board of adjustment initially seeking a variance, but six months later submitted a statement abandoning the variance request and challenging the ordinance's constitutionality.7 The board granted the township's motion to quash.8 The Court of Common Pleas of Chester County reversed and remanded for testimony on the substantive issues.9
Easttown Township covers 8.2 square miles devoted almost exclusively to residential use.10 Its population grew from 2,307 in 1920 to 6,907 in 1960 and was estimated at 8,400 by April 1963.11 The ordinance restricted approximately 1,565 acres (30 percent of the township) to four-acre minimum lots and 898 acres (17 percent) to two-acre minimum lots, while 1,835 acres (35 percent) remained zoned for one-acre minimum lots. New residential construction from 1951 through August 1963 produced 1,149 units at an estimated cost of $21,000,000, averaging 100 permits annually.12
National expended in excess of $6,000 preparing the tract for subdivision.13 The township presented testimony from a fire official and its engineer concerning road capacity, fire protection, and potential sewage pollution, along with photographic exhibits and planning commission materials describing the area's historic sites, old homes, and semirural character.1415 No subdivision plan for Sweetbriar was ever approved.16
Whether the appeal to the board of adjustment from the zoning officer's denial of a building permit was taken within a reasonable time?17
The Second Class Township Code provides that appeals to the board of adjustment shall be taken within a reasonable time as provided by the rules of the board.18 A party seeking a variance may challenge the constitutionality of the zoning ordinance before the board or on appeal to the court of common pleas.19 A shift in emphasis from a variance request to a constitutional attack is permissible because it is a natural and foreseeable outgrowth of the variance request.20
Yes. In 1958 Dorothy M. Ennis took title to approximately 130 acres of land in Easttown Township known as Sweetbriar. After selling 45 acres, she executed an agreement of sale in 1961 with National Land and Investment Company for the remaining 85 acres, with purchase contingent upon the land's suitability for development and township acceptance of a subdivision plan under existing zoning regulations. At the time of the agreement the zoning ordinance required a one-acre minimum per building lot for Sweetbriar and the vast majority of the township.
Subdivision plans for one-acre lots were submitted in late 1961 but not pursued. In early 1962 the township amended the ordinance to impose a four-acre minimum on the land. National requested a building permit for a single dwelling on a one-acre lot; the zoning officer refused the request on April 27, 1962, citing insufficient land area under the four-acre requirement and the absence of an approved subdivision plan.
National appealed to the board of adjustment initially seeking a variance, but six months later submitted a statement abandoning the variance request and challenging the ordinance's constitutionality. The board granted the township's motion to quash. The Court of Common Pleas of Chester County reversed and remanded for testimony on the substantive issues.
Easttown Township covers 8.2 square miles devoted almost exclusively to residential use. Its population grew from 2,307 in 1920 to 6,907 in 1960 and was estimated at 8,400 by April 1963. The ordinance restricted approximately 1,565 acres (30 percent of the township) to four-acre minimum lots and 898 acres (17 percent) to two-acre minimum lots, while 1,835 acres (35 percent) remained zoned for one-acre minimum lots. New residential construction from 1951 through August 1963 produced 1,149 units at an estimated cost of $21,000,000, averaging 100 permits annually. National expended in excess of $6,000 preparing the tract for subdivision. National notified the board within a week after the refusal, and the six-month interval before the constitutional challenge does not render the appeal untimely because the initial notice satisfied the reasonable-time requirement, the shift is legally permitted, and part of the delay resulted from the board's inability to muster a quorum.21
The appeal was taken within a reasonable time.22
Related opinions on this issue
Justice Cohen dissented from the majority's conclusion that the appeal was timely.23 He noted that the appeal to the zoning board was taken more than six months after the decision of the zoning officer.24 Although the ordinance does not designate a specific number of days for appeal, it is required that an appeal be filed within a reasonable period.25
Six months constitutes an unreasonable time because it is double the longest time permitted for an appeal to this Court from a decision of the court of common pleas.26 Accordingly, he would require the court of common pleas to quash the appeal to the board of adjustment from the zoning officer.27
Whether National Land and Investment Company qualifies as a real party in interest with standing to pursue the appeal?28
Yes. National expended in excess of $6,000 preparing the tract for subdivision and held an agreement of sale contingent on development suitability and township acceptance of a subdivision plan.31 These facts establish that National was aggrieved by the zoning officer's refusal of the building permit and therefore qualifies as a real party in interest with standing.32
National Land and Investment Company qualifies as a real party in interest with standing.33
Whether approval of a subdivision plan is a prerequisite to the board of adjustment entertaining an appeal from denial of a building permit on zoning grounds?34
The zoning enabling provisions of the Second Class Township Code authorize appeals from zoning decisions such as denial of a building permit for failure to meet minimum lot area requirements.35 Subdivision regulations do not restrict the remedies available under the zoning provisions. Requiring submission of a subdivision plan before challenging a zoning denial would impose futile and purposeless procedural hurdles.
No. The zoning officer denied the permit in part because the one-acre lot failed to satisfy the four-acre minimum, a zoning decision from which the enabling act authorizes appeal.36 Requiring an approved subdivision plan on either a one-acre or four-acre basis would be unrealistic and fruitless given the pending constitutional challenge, and the zoning enabling act is not controlled by subdivision provisions.37
Approval of a subdivision plan is not a prerequisite to the board of adjustment entertaining an appeal from denial of a building permit on zoning grounds.38
Related opinions on this issue
Justice Cohen would have disposed of the case on procedural grounds without reaching the constitutional question.39 He identified the failure of the appellees to comply with section 1207-A of the Second Class Township Code as a glaring defect.40 That provision requires that in townships with subdivision regulations, no permit to erect a building may be issued until a subdivision plan has been approved.41
The effect of the majority opinion is to order issuance of a building permit for a one-acre lot in a subdivision not yet approved.42 This circumvents the township's lawful regulations and nullifies the Township Code to that extent.43 Therefore, this procedural defect would require disposition of the litigation without proceeding to the constitutional question.44
Whether the Easttown Township zoning ordinance's four-acre minimum lot size requirement is constitutional as applied to the Sweetbriar tract?45
Zoning ordinances must bear a substantial relationship to the promotion of health, safety, morals or general welfare and must not be unreasonable, arbitrary or confiscatory. While zoning for density is a legitimate exercise of the police power, minimum lot sizes become impermissible when they cease to serve a public purpose and instead reflect private preferences or exclusionary aims.46
No. When divided into one-acre lots the Sweetbriar tract was valued at approximately $260,000, but the four-acre restriction reduced the number of building sites by 75 percent and lowered value to $175,000 under the most optimistic appraisal, while increasing improvement costs per lot and reducing marketability.47 The township's justifications based on sewage disposal, road capacity, fire protection, historic settings, and preservation of semirural character are unpersuasive because the township engineer offered only vague and hypothetical testimony, the road network can accommodate projected growth under one-acre zoning until after 1972, historic sites are already protected or located in denser zones, and the desire to exclude newcomers to avoid future burdens on services is not a valid public purpose.48 The four-acre minimum therefore lacks a substantial relationship to legitimate police-power objectives and is unconstitutional as applied.49
The Easttown Township zoning ordinance's four-acre minimum lot size requirement is unconstitutional as applied to the Sweetbriar tract.50
Related opinions on this issue
Justice Cohen dissented on the merits as well.51 He would uphold the constitutionality of the four-acre restriction.52 The township supervisors gave the overall planning of the township considerable study before enacting the zoning.53
The four-acre restriction was not applied to the entire township but was only one part of a three-part class A residential zoning enactment that also included two-acre and one-acre zones.54 This zoning determination included thousands of acres of undeveloped property for which no public sewage was available and which included areas of poor natural drainage and varied stream pollution.55 It was a reasonable and proper exercise of the legislative function for the township to divide the residential zones in this manner.56
He would not hold a properly enacted zoning code unconstitutional when the only argument in support of doing so is the appellees' loss of profits.57 He also believed the court should avoid the constitutional issue through proper judicial restraint and should not legislate a zoning law.58