Gaebel v. Thornbury Township

Opinion by Judge Mencer, This is an appeal from an order of the Court of Common Pleas of Delaware County which sustained preliminary objections filed by Thornbury Township (Thornbury) to the petition for appointment of viewers and the order appointing a board of view to ascertain and award just compensation to William F. Gaebel and Virginia E. Gaebel (Gaebels). Gaebels own certain land in Thornbury Township which was zoned commercial. On March 6, 1972, Thorn-bury amended the zoning classification, and approximately three acres of Gaebels’ property were rezoned as a flood plain, which limits the use of the land in question to such activities as cultivating and harvesting crops, grazing animals, an outdoor plant nursery, orchard, arboretum and, by special exception, recreation [401] al uses. Tbe rezoning classification to a flood plain was in accord with the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P. L. 805, art. VI, §605, 53 P.S. §10605. The land involved here has a history of being flooded by waters overflowing the banks of Chester Creek. Following the reclassification of a portion of their land, the Gaebels petitioned, under Section 502(a) of the Eminent Domain Code, Act of June 22, 1964, P. L. 84, art. V, §502(a), 26 P.S. §1-502(a), for appointment of viewers, asserting damages against Tbornbury for the loss of the usages permitted under the prior commercial zoning. We arc confronted with the contention of the Gaebels that they can seek damages under the Eminent Domain Code for the effect upon their property of a change in a zoning ordinance. Thornbury counters with the contention that the exclusive procedure for challenging a zoning regulation, on the basis that it is confiscatory, is under the provisions of the Pennsylvania Municipalities Planning Code. We must agree with Thorn-bury’s position and affirm the lower court. In White’s Appeal, 287 Pa. 259, 264-65, 134 A. 409, 411 (1926), we find the guideline for the correct disposition of this case where Justice Kephart (later Chief Justice) stated: “Police power should not be confused with that of eminent domain. Police power controls the use of property by the owner, for the public good, its use otherwise being harmful, while eminent domain and taxation take property for public use. Under eminent. domain, compensation is given for property taken, injured’ or destroyed, while under the police power no payment is made for a diminution in use, even though it amounts to an actual taking or destruction of property. . . . “. . . If there is doubt as to whether the statute is enacted for a recognized police object, or if, conceding [402] its purpose, its exercise goes too far, it then becomes the judicial duty to investigate and declare the given exercise of the police power invalid. ...” Gaebels contend the amended zoning ordinance takes their property without just compensation by severely restricting its use. This may be said of every valid zoning ordinance. Justice Kephart also spoke to this contention in White’s Appeal when he stated: “No matter how seemingly complete our scheme of private ownership may be under our system of government, 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. Obedience to such regulation is not taking property without due process; that clause does not qualify the police power. . . .” 287 Pa. at 265, 134 A. at 411. The procedure statutorily prescribed for testing the validity of substantive provisions of a zoning ordinance is the exclusive remedy available to one aggrieved by those provisions. Pittsburgh Outdoor Advertising Company v. Clairton, 390 Pa. 1, 133 A. 2d 542 (1957). In Taylor v. Moore, 303 Pa. 469, 476, 154 A. 799, 801 (1931), the Supreme Court stated that “[a] 11 questions involved in zoning ordinances, whether they relate to confiscation of property or to the effect of any of the provisions of an ordinance, must be heard and considered under the remedy provided by the Zoning Acts of assembly.” Where a remedy or method of procedure is provided by an act of assembly, the directions of such act must be strictly pursued and such remedy or procedure is exclusive. Knup v. Philadelphia, 386 Pa. 350, 126 A. 2d 399 (1956). Here articles IX1 and X2 of the Pennsylvania Municipalities Planning Code (MPC) provid [403] ed the procedure to be followed when a challenge is made to the validity of any provision of a zoning ordinance. Article X of the MPC was repealed by the Act of June 1, 1972, P. L. , No. 93, §18, effective July 31, 1972, and Section 1001 of MPC, 53 P.S. §11001, now reads, in accord with prior prevailing cases law,3 as follows: “The proceedings set forth in this article shall constitute the exclusive mode for securing review of any ordinance . . . adopted . . . pursuant to this act.” We are certainly aware that private property may not be taken for public use without just compensation. Likewise, we recognize that a taking may well occur indirectly through excessive regulation under the police power. Although property may be regulated, if regulation goes beyond reasonable limits, it must be recognized as a taking of private property which can only be effectuated by eminent domain. Here we have a case where public acquisition, rather than regulation, may well be the necessary route to gain the desired dominion over the property needed for flood control. Howevér, we do not have that question before us in this appeal. What we decide today is that the Gaebels’ exclusive recourse is to challenge the constitutionality of Thorn-bury’s zoning ordinance under the provisions of review established by the MPC, and they cannot at this time avail themselves of compensation under the provisions of the Eminent Domain Code. If Thornbury’s zoning ordinance is constitutional as a reasonable regulation in the exercise of the police power, then Gaebels are not entitled to monetary compensation, but if it is determined to be unconstitutional and invalid, then Gaebels, property will not be [404] subject to any limitations or restrictions that would constitute a taking of their property. Hofkin v. Whitemarsh Township, 88 Montg. Co. L. R. 68 (1967). It would only be when Thornbury, clothed with a power ’of condemnation given to it by statute, substantially deprived the Gaebels of the beneficial use and enjoyment of their property by the statutorily provided condemnation procedure, or otherwise, that the Gaebels would have access to the remedies and provisions of the Eminent Domain Code. Griggs v. Allegheny County, 402 Pa. 411, 168 A. 2d 123 (1961), rev’d, 369 U.S. 84 (1962), reh. denied, 369 U.S. 857 (1962).4 Order affirmed. Footnotes [1] 53 P.S. §10901 et seq. [2] 53 P.S. §11001 et seq. [3] See Levitt and Sons, Inc. v. Kane, 4 Pa. Commonwealth Ct. 375, 285 A. 2d 917 (1972); Clover Hill Farms, Inc. v. Lehigh Township Board of Supervisors, 5 Pa. Commonwealth Ct. 239, 289 A. 2d 778 (1972). [4] The reversal by the United States Supreme Court was on the question of whether there was a “taking” in the constitutional sense.