Concurring Opinion
by Judge Kramer:I concur in the result because the Church failed to carry its burden of proving by substantial evidence that its property had been confiscated or that the use of its property had been unreasonably restricted so as to constitute a taking or application of its property for a public use. The Church failed to prove that the ordinance in question was unduly oppressive to it, or that it was inordinately burdensome, or that as a result of the application of the ordinance the value of its property was so diminished that for all practical purposes nothing of value remained. The Church did not prove that the denial of a permit to demolish York House precluded the Church from using that property for any purpose for which it was reasonably adapted. It is for these reasons that I concur.
Because of the importance of the constitutional issues which have been raised, I feel constrained to note my reservations concerning the result we have reached in this case. My reservations are made in full recognition of the constantly developing and broadened principles established by the federal judiciary under concepts of the police power. I have noted with interest the language of the Circuit Court in Maher v. City of New Orleans, 516 F.2d 1051, 1059 (5th Cir. *1641975): “Drawing on the rich and flexible police power, a legislature has the authority to respond to economic and cultural developments cast in a different mold, and to essay new solutions to new problems.... ‘[Pjroblems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.’ ” As those police powers expand, especially through the use of zoning-type laws, we reach a point or line beyond which we cannot go without infringing upon private property owners’ constitutional rights. When we have this conflict between two constitutional provisions, we must either reconcile those powers and rights or else amend the Constitution. I am reminded in this bicentennial year of the birth of our nation that our founding fathers and their contemporary patriots were as much interested in protecting citizens ’ private property rights against encroachments by government as they were in liberty itself. And so they made constitutional provisions against government taking private property for public use except through the stringent and restrictive governmental powers of eminent domain.
These very basic private property principles have been eroded during the past fifty years especially through, inter alia, the application of zoning laws and urban redevelopment laws. As zoning law developed, the courts held, in the interest of protecting the public health, welfare and safety, that a private property owner could not use or build on his property in certain ways. But under all the zoning laws and cases, *165the private owner was always permitted the alternative of leaving the land as it was, or if he illegally built he was ordered to remove the offensive part. Under the urban renewal laws whole areas of municipalities were declared to be blighted and private property was taken, but under all of these laws, the owner was fully protected through condemnation proceedings.
It seems to me that with the advent of historical district statutes, such as those involved in this case, in opinions such as Maher, supra, Gaebel v. Thornbury Township, 8 Pa. Commonwealth Ct. 399, 303 A.2d 57 (1973), and in the decision in this case, the legislatures and courts are adding a new dimension which may do violence to constitutional private property rights, for now we hold that a private property owner must make his property available without compensation for public view. In effect, he must dedicate his property without compensation for public historical, aesthetic, educational, and museum purposes, which in reality are public uses. Under the provisions of the ordinance in question, the Church can permit the interior or rear portions of its property to rot or deteriorate in a burned condition in any manner it sees fit, but it can’t touch that portion of its property viewable from the street without permission of the local governing body, which uses vague standards founded on aesthetics and historical values, two concepts upon which reasonable men can disagree. There are no state health or safety standards involved whatsoever, rather the standards are based solely upon the feelings or observations of people interested in protecting neighboring properties in the historical district in the name of public welfare. I am concerned that we have reached a constitutional precipice and that an advancement of even a fraction of an inch will result in excessive governmental encroachment upon private property rights.
*166I want to make it clear that I agree with and applaud the scheme to protect, restore, and maintain places of historic value, hut if the public wants to use, take, or apply a private property for that public purpose, then the public should pay for that laudatory purpose through constitutional means, e.g., eminent domain. In the past we have accomplished these purposes through parks and museums provided by public funds or the benevolence of private donors. Today we change that trend by our holding and instead provide for the establishment of public museums through restrictions on private property owners’ rights. The very thought that the next step may be a governmental regulation that all buildings in York’s historical district must be painted colonial blue is to me repugnant to the Constitution, and if anything like that should develop, perhaps that will be the place to draw the line.
Judges Crumlish, Jr. and Mencer join in this concurring opinion.