Lower Providence Township v. Ford

*387Concurring Opinion by

Judge Rogers:

The Zoning Hearing Board of Lower Providence Township concluded that a trucking terminal is not an Industrial Manufacturing Pursuit and that even if it were the appellee should not be granted the required special exception because its operation would be detrimental to health, safety and welfare. The court below reversed the Board chiefly because in its opinion the pertinent provisions of the ordinance were unconstitutionally vague. The majority here properly ignores the lower court’s conclusion that the ordinance was invalid and bases their affirmance of the order below on the conclusions that a trucldng terminal was a permitted use and that there was no evidence of an effect on health, safety or welfare greater than might be expected of a trucldng terminal. I concur in the judgment because the appellants have conceded that the proposed trucking terminal is an Industrial Manufacturing Pursuit, thus withdrawing this issue from our consideration, and because I agree that the evidence does not support the Board’s finding that the new use would affect health, safety and welfare more detrimentally than might be expected of a trucking terminal.

I cannot, however, agree with the rule of construction here repeated that the provisions of zoning ordinances permitting uses are to be taken in their broadest sense but those restricting uses must be strictly construed. I believe that this rule, if ever supportable, has no present warrant, however convenient it may be in the decision of close cases.

It is unquestionable that the rules of the Statutory Construction Act, Act of 1937, May 28, P. L. 1019, 46 P.S. 501, are applicable to municipal ordinances, even though that Act defines a law as an Act of Assembly. In Cloverleaf Trailer Sales Company v. Pleasant Hills Borough, 366 Pa. 116, 121, 76 A. 2d 872 (1951), Mr. *388Justice Chidsey, prefatory to employing the Statutory Construction Act in the interpretation of an ordinance, wrote: “A municipal ordinance is in reality a statute and rules of construction applicable to the latter are to be applied with equal force and effect.”

The principles of the Statutory Construction Act have consistently been used in the construction of zoning ordinance. See for example at the appellate level: Marple Township v. Lyman et al., 151 Pa. Superior Ct. 288, 30 A. 2d 208 (1943) ; Bonasi v. Board of Adjustment, 408 Pa. 260, 182 A. 2d 692 (1962). If any of the Act is to be applied, all of it should. Section 558, 46 P.S. 558 provides that: “The rule that laws in derogation of the common law are to be strictly construed, shall have no application to the laws of the Commonwealth hereinafter enacted.” The same section then provides exceptions to this rule, none of which relate to the regulation of land use. The section concludes with the requirement that: “All other provisions of a law shall be liberally construed to effect their objects and to promote justice.”

Our researches indicate that the most popular, possibly because it is the most simplistic, rationale of the rule of strict construction was first expressed in Lord Appeal, 368 Pa. 121, 126, 81 A. 2d 533, 535 (1951), as: “Restrictions imposed by zoning ordinances are, however, in derogation of the common law1 . . . and *389therefore must he strictly construed. Lukens v. Zoning Board of Adjustment, 367 Pa. 608, 80 A. 2d 765, Kline v. Harrisburg, 362 Pa. 438, 451, 68 A. 2d 182.” But neither Lukens nor Kline v. Harrisburg seem to speak to the issue of construction. Lukens merely notes that parts of zoning ordinances may be confiscatory and Kline v. Harrisburg says that zoning ordinances which deprive an owner of substantial rights are of serious consequence and should be exercised only in the manner designated by the Legislature. The authorities for the Lukens and Kline v. Harrisburg principles, such as they are, appear to be White’s Appeal, 287 Pa. 259, 134 A. 409 (1926) and Gilfillan’s Permit, 291 Pa. 358, 140 A. 136 (1927) decided a decade before the passage of The Statutory Construction Act and containing only general minatory statements concerning the effect zoning could have upon private rights.

Therefore, it would seem that at least since 1937, zoning ordinances enacted thereafter should have been given a liberal, not strict construction, and that the development after 1937 of a rule contrary to The Statutory Construction Act, based upon general statements from cases antedating its enactment, was anomalous.

The question here raised was recognized in Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 49, 228 A. 2d 169, 174 (1967) where the court found no conflict between the doctrine of strict construction of zoning ordinances and liberal construction of zoning enabling acts because the Statutory Construction Act defines a law as an Act of Assembly. In Exton, however, it was the enabling act not the ordinance which was being construed. We repeat that the Statutory Construction Act has consistently been employed in the *390construction of zoning ordinances and that that Act suggests a liberal construction. The consequence of the inconsistency here pointed out is exemplified by Fidler v. Zoning Board of Adjustment, 408 Pa. 260, 182 A. 2d 692 (1962) where the Lord rule of strict construction contradicted by §558 is used as a guide in the construction of one part of the ordinance in question, and §§51 and 52(2) of the Act are employed in the interpretation of others.

Restrictions are, however, no new concept in this country. Thomas Jefferson, while Secretary of State, aided in devising and possibly drafted a series of stringent restrictions for application to lots in the City of Washington, to be sold by the Commissioners of the Federal District Some of these restrictions were suggested by President Washington, an experienced real estate investor. Jefferson had been an active and successful lawyer. While the distinction between deed restrictions and municipal regulation is recognized, Jefferson’s notes and correspondence reveal no reluctance to impose conditions drastically restricting land use. Thomas Jeffer*389son and The National Capital, 1783-1818. Edited by Saul K. Padover, United States Government Printing Office, 1946, pp. 67-74; Illustration facing page 445.