I am unable to agree with the conclusions reached by the majority of the court in this case. Because of the general public importance of the underlying principles involved, I deem it appropriate to state the reasons for my differing views.
The ordinance in question permits educational institutions and dormitories of educational institutions in a Class "A" Residence District. The property for which the occupancy permit in this case was sought is located in such a district.
Devereux Foundation, the applicant for the permit, is a non-profit corporation formed for the purpose quoted in the majority opinion. "That the Devereux Foundation is an educational institution, and a very splendid one, is admitted * * *." The children accepted by the school are, what is termed, "maladjusted", — a condition which may exhibit itself either emotionally or intellectually. The aim of the training is to fit the pupils for full participation in normal social, intellectual and gainful pursuits and activities. The work of the school has been attended by notable success. No children are accepted who need custodial care. Most of the pupils come and go, as they please, in their free time without chaperonage of anyone. None of them is confined and no bars are used for purposes of restraint. Devereux Foundation is not a correctional institution. It is, as everyone concedes, an educational institution. A former Associate *Page 487 Superintendent1 of the Philadelphia Public Schools testified that the same types of children who receive special education at Devereux are given similar training in the Philadelphia Public Schools, the only difference being that at Devereux the children board and live at the school.
Because the same paragraph of the ordinance which permits educational institutions and dormitories in connection therewith also excludes, inter alia, a "structure or other place for accommodating the insane or other persons mentally deficient, weak or abnormal," the learned court below held that the Zoning Board of Adjustment *Page 488 erred in granting Devereux's application for an occupancy permit. I think that was plainly error for any one of the three following reasons.
If the ordinance, here involved, is to be construed as denying to an owner the right to occupy a property for an educational use or as a dormitory of an educational institution on the ground that the pupils of the institution are mentally "weak" or "deficient", I think the criteria thus set are so vague, indefinite and uncertain as to admit of an arbitrary, capricious and unreasonably discriminatory exercise of the police power in violation of both State and Federal Constitutions.
The degree of mentality of the pupils of an educational institution alone cannot justifiably be made the basis for differentiating between a permissive and an excluded use of property by such institutions. Sanity is a relative term at best. But, when you come to mental weakness or deficiency, the shades of difference are so varying, and therefore so many, as to preclude either term from being used as an arbitrary norm. The exclusion by a zoning ordinance of one educational institution and the inclusion of another on the basis of the mentality of their respective pupils must rest upon some "rational relation to the health and safety of the community"; it must bear a "substantial relation to the public health, safety, morals or general welfare". See Village of Euclid v.Ambler Realty Company, 272 U.S. 365, 391-395, which established, in principle, the federal constitutionality of local zoning laws. In White's Appeal, 287 Pa. 259, 134 A. 409, which first sustained zoning ordinances as not being violative of the State Constitution, this Court said (p. 265) that "* * * all property is held in subordination to the right of its reasonable regulation by the government clearly necessary to preserve the health, safety or morals of the people". A zoning regulation which discriminates outside that basis is unconstitutional. See White's Appeal, supra, at p. 268.
In order that mental weakness or deficiency of pupils may have bearing on the reason for discrimination between *Page 489 educational institutions within the contemplation of the same zoning ordinance, there must be something in connection with the mental condition which offers or fairly suggests a threat to the health, safety or morals of the community. That I fail to find in this record.
None of the adjoining property owners, who appeared in protest of Devereux's application for an occupancy permit for its lately acquired Ilsley property, testified to a single instance where the Devereux pupils had created any sort of a public disturbance or had breached the peace in the five years prior to the hearing during all of which time the school was occupying its immediately contiguous (Welsh) property which is not subject to the ordinance. At most, the protesting property owners objected to the fact that the Devereux pupils walked along the roads of the locality, which they termed a "depressing" sight, and to the possible embarrassment of having to explain to their own children what was "wrong" with the Devereux pupils should the former see them and curiously inquire concerning them. None of them testified to even any annoyance caused by the presence of the Devereux pupils except for the protestants' own unpleasant mental reactions. Such objections constitute no more than aesthetic reasons which are not a proper basis for discriminating restrictions in a zoning ordinance. White's Appeal, supra, at p. 266; Miller v. Seaman,137 Pa. Super. 24, 31, 8 A.2d 415.
In the second place, I fail to see wherein the ordinance in terms makes any distinction between educational institutions or dormitories of educational institutions on the basis of the mentality of the pupils or on any other basis. The ordinance provides, in part here material, that "In an A Residence District * * * A building may be * * * used * * * for any of the following purposes and for no other: * * * 3. Educational or religious use, including dormitory of an educational institution, but excluding cemeteries, hospital, *Page 490 homes, sanitarium, correctional institution or structure or other place for accommodating the insane or other persons mentally deficient, weak or abnormal, * * *."
Thus, the ordinance expressly permits the occupancy of a building for an educational use, including a dormitory in connection therewith, and then follows the exclusion of certain specified other uses. It is not apparent to me how the excluding clause can be thought to cut down the prior specific inclusion. In short, it is unreasonable to deduce from the ordinance an intention that would permit Devereux Foundation, for instance, to erect a building anywhere within the "A Residence District" for educational purposes and, yet, not allow it to house its pupils in that or any other building. The construction necessary in order to relate back to "dormitory of an educational institution" the subsequent exclusion of a "structure or other place for accommodating * * * persons mentally deficient, weak or abnormal", not only seems patently unwarranted but, even if admissible, it should be discarded because of the constitutional frailty which it would impute to the ordinance, as already indicated. As between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, a court's plain duty is to adopt that which will save the enactment. And, the rule is the same even where the necessity is no more than to avoid a serious doubt as to constitutionality. No extended citation of authority is needed to support that rule. See National LaborRelations Board v. Jones Laughlin Steel Corp., 301 U.S. 1,30, and cases there cited. Under our Statutory Construction Act of May 28, 1937, P. L. 1019, Section 52, 46 P. S. § 552, in ascertaining legislative intent, there is a presumption "That the Legislature does not intend to violate the Constitution of the United States or of this Commonwealth"; see PennsylvaniaCompany, etc., v. Scott, 346 Pa. 13, 19, 29 A.2d 328.
The zoning ordinance here involved, pursuant to authority conferred by Act of Assembly upon Second *Page 491 Class Townships, empowers the Board of Adjustment "To authorize, upon appeal, in specific cases, such variance from the terms of this Ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this Ordinance will result in unnecessary hardship, and so that the spirit of this Ordinance shall be observed and substantial justice done."
The Zoning Administrative Officer of the Township having refused Devereux an occupancy permit for the Ilsley property, upon appeal by Devereux, the Board of Adjustment held that Devereux's occupancy of that property as a dormitory was prohibited by the ordinance but that "circumstances of this case warrant the granting of an exception" which the Board allowed.
The learned court below held that the granting of the exception constituted a "manifest and flagrant abuse of discretion". The Board had neglected to make specific findings of fact from the "circumstances" upon which it relied as warranting the exception. See Appeal of Heman Johnson, 93 Pa. Super. 599,602. In obedience to the authority last above cited, the Board, of course, should have made findings in support of the "exception". But the fact that it did not do so does not seem to me to justify a reviewing court in saying in effect that the "circumstances" in the record do not warrant an "exception". The most the court below should have done, in the absence of formal findings by the Board, was to return the matter to the Board for such relevant findings as the record justifies. That fundamental function is committed by law to the local administrative body. Unless that be respected, a reviewing court will become the zoning administrator which is not its province. "If a court can * * * decide the factual question itself, the board will become more or less a useless formality." Perelman v. Yeadon Borough Board of Adjustment,144 Pa. Super. 5, 11, 18 A.2d 438.
The record contains plenty of evidence which to my mind would support findings justifying the variance. *Page 492
Out of a block of land of approximately eighteen acres in suburban Easttown Township, Devereux, since 1939, has owned and occupied approximately fourteen acres, improved with a large modern dwelling (known as the Welsh property), which it uses for its school purposes. As that use antedates the effective date of the ordinance, it is not subject to the provisions of the ordinance. The remaining four acres, likewise improved with a large modern dwelling (known as the Ilsley property), was purchased in 1943 by Devereux which desires to use it as a dormitory in connection with its school on the Welsh property. The ordinance having been enacted in 1940, an occupancy permit for the use of the latterly acquired property was required in ordinary course.
The Welsh and Ilsley properties together form a single tract, which is bounded on its four sides by public roads. The whole of the property, thus enclosed by highways, is not traversed by any road for public use. Devereux can build all over the Welsh property (three-quarters of its whole tract) without let or hindrance from the zoning authorities, so long as the buildings are intended and used for school or incidental dormitory purposes. In fact, Devereux may even now, under the construction of the majority, use the Ilsley property for school purposes. The only restriction imposed is that it keep its dormitory facilities over the line on the Welsh property.
From a zoning aspect, how insignificant and unimportant becomes the fact that Devereux's pupils are broadly termed mentally "weak" and "deficient"! In the shadowy presence of that vague and indefinite reason for excluding Devereux's use of the Ilsley home as a dormitory, the hardship appears all the more "unnecessary" when Devereux has need of the dormitory for its boys and finds building construction out of the question because of costs, not to mention war-time restrictions on private building, of which a court may well take judicial notice. *Page 493
I would reverse the order of the court below, however, on the ground that the ordinance does not prohibit the use of a building in an "A" Residence District as a dormitory in connection with an educational use, which is the use to which the Ilsley home would be put.
1 Dr. Louis Nusbaum, President of The National Farm School at Doylestown, Pa., for forty-eight years with the Philadelphia public schools in capacities from grade teacher up to Associate Superintendent of Schools. He also testified "Without a doubt" that "Devereux School is an educational institution." Dr. Leonard L. Howeth, of the Friends Central School, Overbrook, Pa., was "most certainly" of the same opinion. Mr. Thomas S. Brown, Head of the Latin Department and Student Work Program at Westtown School, Westtown, Delaware County, Pa., said that "In [his] opinion Devereux is very eminently an educational institution." He also testified that "Devereux School does far more for those children than just" provide accommodations for them. Dr. John T. Madden, Dean of the School of Commerce of New York University, who was acquainted with the work at Devereux which he visited several times a year, said that he "regard[ed] Devereux as a very high type of special educational school". Miss Florentine Hatbusch, a clinical psychologist of the Department of Welfare at Harrisburg and a Visitor at the Devereux School, testified that "an institution accommodating feeble minded persons is a custodial institution" and that "the children at Devereux School * * * do not require custodial care." By letter addressed to the Zoning Board, which was received in evidence, Mr. Gibson Bell, of the Montgomery School (a Country Day School for Boys) at Wynnewood, Pa., stated that "the Devereux Schools are established to train the individual morally, intellectually, and physically" and expressed his regret at not being able to attend the hearing "to do [his] part in establishing the fact that unquestionably, according to the interpretation of the definition of what an educational institution is, the Devereux Schools come in that category." None of these witnesses had any material interest in or official connection with Devereux.