Russian Orthodox Church Appeal

Opinion by Me. Justice Cohen, Appellant purchased some eighty-eight acres of land in the so-called Sunflower District of Rochester Township, Beaver County, Pennsylvania, and wishes to use this land as a cemetery. The Township of Rochester has a zoning ordinance which divides the township into three districts. With regard to the Sunflower District, Section 100 provides, “The Sunflower District is zoned primarily for residential and agricultural uses as now esoist in the District” (Emphasis supplied). Section 201 of the ordinance sets forth more specifically the uses to which land in that district may be put.1 [128] In Section 201(4) the ordinance provides that the following uses may be made of land in the Sunflower District, namely: “Educational, religious, philanthropic use and hospital.” It is appellant’s position that a cemetery is a religious use and hence permitted in the Sunflower District. We are not called upon nor would we attempt to construe the word “religious” in the abstract. Our sole function in this case is to ascertain whether the en-actors of the Rochester Township Zoning Ordinance intended to permit a cemetery in the Sunflower District as a so-called religious use. It should first be noted that the Sunflower District is zoned primarily for residential and agricultural uses. A cemetery clearly does not come within either of these. It is apparent from a reading of Section 201 in its entirety that those uses permitted therein which are not purely agricultural or purely residential are ancillary to them. These general observations are helpful in delineating the scope to be given to the word “religious.” They are helpful primarily because it is assumed as one of the basic premises of zoning that area homogeneity is one of the ends sought by a zoning ordinance. The above discussion is necessary and helpful because the word “religious” is a word of nebulous bounds and depends for its definition, if construed in the abstract, upon the subjective criteria used by the definer. In order to give the word meaning for the purposes of zoning one must look at the general purposes of zoning and the zoning ordinance in question as a whole. If a business corporation had purchased the eighty-eight acres in question for use as a cemetery and as a [129] business venture for profit, there would be no question but that it was not a religious use within the terms of the Rochester Township ordinance. However, appellant contends that a different result obtains because the owner of the land is not a business corporation but a religious group and, therefore, the use to be made of the land is considered a religious use. The appellant supports this position by arguing that the place of burial and burial rites are important elements within the dogma of its religion. We feel that this argument goes too far; for, if accepted, it would mean that a slaughter house owned by a business would not be permitted in the Sunflower District, whereas, the same slaughter house, if owned by a religious sect having as part of its dogma the requirement that animals be slaughtered in a certain way by a certain person and in accord with certain rites, would be permitted. Appellant’s contention goes not to the actual use to be made of the land but to an extraneous aspect taken on by the land depending on the nature of the land’s owner. We do not find that such a distinction is justified within the intendment of the ordinance. We believe that a cemetery is basically a secular use of land and a use which is not incidental to or in support of the primary uses permitted in the Sunflower District, namely, residential and agricultural. We do not believe that the fact that the land will be owned by a religious institution alters the basic secular use to be made thereof, and we would be most reluctant to construe the ordinance so as to make a distinction not found therein based upon the nature of the owner of the land rather than the nature of the use to be made of the land. Any secular use under appellant’s contention can be capable of a religious characterization if a particular sect ascribed religious implications thereto. Were we to accept appellant’s position one of the basic purposes of zoning, [130] namely, area homogeneity and the stated primary use to be made of land in the Sunflower District, namely, residential and agricultural, would be rendered nugatory. Order affirmed. Mr. Justice Musmanno dissents. Footnotes [1] “Section 201. A building may be erected, altered or used, and a lot or premises may be used for any of the following purposes and for no other: 1. Single-family detached dwellings, other than house trailers. 2. Conversion apartments, Garden apartments and Multiple Family Dwellings. 3. Club, fraternity house or lodge, when authorized as a special exception ... 5. Telephone central office, electric sub-station and utility lines. 6. Municipal recreational uses. 7. Agricultural use, including the keeping of livestock or poultry, customarily incidental to such use, or nursery. 8. The sale of farm products, including the sale of live [128] stock or poultry, produced on the property where offered for sale. 9. A professional office or studio, and rooms for home occupation. . . .”