Girsh Appeal

Opinion by

Mr. Justice Roberts,

By agreement dated July 13, 1964, appellant contracted to purchase a 17% acre tract of land, presently zoned R-l Residential, in Nether Providence Township, Delaware County. Appellant agreed to pay a minimum of $110,000 (later changed by agreement to $120,000) for the property. He further agreed to request the Township Board of Commissioners to change the R-l Residential zoning classification so that a high-rise apartment could be built on the property and to pay $140,000 if this request were granted.

Nether Providence is a first-class township with a •population of almost 13,000 persons and an area of 4.64 square miles. Approximately 75% of the Township is zoned either R-l or R-2 Residential, which permit the construction of single-family dwelling units on areas not less than 20,000 and 14,000 square feet, respectively. Multi-unit apartment buildings, although not explicitly prohibited, are not provided for in the ordinance. The Township contains the customary commercial and industrial districts, as well as two areas where apartments have been permitted and constructed only after variances were secured.

After the Board refused to amend the zoning ordinance, appellant sought a building permit to construct two nine-story luxury apartments, each containing 280 units. The permit was refused since the R-l Residential classification does not permit multiple dwellings. Appellant appealed to the Zoning Board of Adjustment and announced that he would attack the constitutionality of the zoning ordinance in lieu of seeking a variance. The Zoning Board sustained the ordinance and denied relief. The Court of Common Pleas of Delaware County affirmed, and appellant took this appeal. We hold that the failure of appellee-township’s zoning scheme to provide for apartments is unconstitutional and reverse the decree of the court below.

Initially, it is plain that appellee’s zoning ordinance indeed makes no provision for apartment uses. Appellee argues that nonetheless apartments are not explicitly prohibited by the zoning ordinance. Appellee reasons that although only single-family residential uses are provided for, nowhere does the ordinance say that there shall be no apartments. In theory, an apartment use by variance is available, and appellee urges that this case thus is different from prior cases in which we severely questioned zoning schemes that did not allow given uses in an entire municipality. See Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 228 A. 2d 169 (1967); Ammon R. Smith Auto Co. Appeal, 423 Pa. 493, 223 A. 2d 683 (1966); Norate Corp. v. Zoning Board of Adjustment, 417 Pa. 397, 207 A. 2d 890 (1965).

Appellee’s argument, although perhaps initially appealing, cannot withstand analysis. It is settled law that a variance is available only on narrow grounds, i.e., “where the property is subjected to an unnecessary hardship, unique or peculiar to itself, and where the grant thereof will not be contrary to the public interest. The reasons to justify the granting of a variance must be ‘substantial, serious and compelling.’ ” Poster Advertising Company, Inc. v. Zoning Board of Adjustment, 408 Pa. 248, 251, 182 A. 2d 521, 523 (1962). In light of this standard, appellee’s land-use restriction in the case before us cannot be upheld against constitutional attack because of the possibility that an occasional property owner may carry the heavy burden of proving sufficient hardship to receive a variance. To be constitutionally sustained, appellee’s land-use restriction must be reasonable. If the failure to make allowance in the Township’s zoning plan for apartment uses is unreasonable, that restriction does not become any the more reasonable because once in a while, a developer may be able to show the hardship necessary to sustain a petition for a variance. SÁt least for the purposes of this case, the failure to provide for apartments anywhere within the Township must be viewed as the legal equivalent of an explicit total prohibition of apartment houses in the zoning ordinance.

Were we to accept appellee’s argument, we would encourage the Township in effect to spot-zone a given use on variance-hardship grounds. This approach distorts the question before us, which is whether appellee must provide for apartment living as part of its plan of development. Cf. Eves v. Zoning Board of Adjustment, 401 Pa. 211, 164 A. 2d 7 (1960).

By emphasizing the possibility that a given landowner could obtain a variance, the Township overlooks the broader question that is presented by this case. In refusing to allow apartment development as part of its zoning scheme, appellee has in effect decided to zone out the people who would be able to live in the Township if apartments were available. Cf. National Land and Investment Co. v. Easttown Twp. Board of Adjustment, 419 Pa. 504, 532, 215 A. 2d 597, 612 (1965): “The question posed is whether the township can stand in the way of the natural forces which send our growing population into hitherto undeveloped areas in search of a comfortable place to live. We have concluded not. A zoning ordinance whose primary purpose is to prevent the entrance of newcomers in order to avoid future burdens, economic and otherwise, upon the administration of public services and facilities can not be held valid.”

We emphasize that we are not here faced with the question whether we can compel appellee to zone all of its land to permit apartment development, since this is a case where nowhere in the Township are apartments permitted. Instead, we are guided by the reasoning that controlled in Exton Quarries, supra. We there stated that “The constitutionality of zoning ordinances which totally prohibit legitimate businesses . . . from an entire community should be regarded with particular circumspection; for unlike the constitutionality of most restrictions on property rights imposed by other ordinances, the constitutionality of total prohibitions of legitimate businesses cannot be premised on the fundamental reasonableness of allocating to each type of activity a particular location in the community.” 425 Pa. at 59, 228 A. 2d at 179. In Exton Quarries we struck down an ordinance which did not allow quarrying anywhere in the municipality, just as in Ammon R. Smith Auto Co. Appeal, supra, we did not tolerate a total ban on flashing signs and in Norate Corp., supra, we struck down a prohibition on billboards everywhere in the municipality. Here we are faced with a similar case, but its implications are even more critical, for we are here dealing with dike crucial problem of population^ not with billboardiTor quarries. Just as we held in Exton Quarries, Ammon R. Smith, and Norate that the governing bodies must make some provision for the use in question, we today follow those cases and hold that appellee cannot have a zoning scheme that makes no reasonable provision for apartment uses.

Appellee argues that apartment uses would cause a significant population increase with a resulting strain on available municipal services and roads, and would clash with the existing residential neighborhood. But we explicitly rejected both these claims in National Land, supra: “Zoning is a tool in the hands of governmental bodies which enables them to more effectively meet the demands of evolving and growing communities. It must not and can not be used by those officials as an instrument by which they may shirk their responsibilities. Zoning is a means by which a governmental body can plan for the future—it may not be used as a means to deny the future. . . . Zoning provisions may not be used ... to avoid the increased responsibilities and economic burdens which time and natural growth invariably bring.” 419 Pa. at 527-28, 215 A. 2d at 610. Cf. Delaware County Community College Appeal, 435 Pa. 264, 254 A. 2d 641 (1969); O‘Hara’s Appeal, 389 Pa. 35, 131 A. 2d 587 (1957). That reasoning applies equally here. Likewise we reaffirm our holding in National Land that protecting the character—really the aesthetic nature—of the municipality is not sufficient justification for an exclusionary zoning technique. 419 Pa. at 528-29, 215 A. 2d at 610-11.

This case presents a situation where, no less than in National Land, the Township is trying to “stand in the way of the natural forces which send our growing population into hitherto undeveloped areas in search of a comfortable place to live.” Appellee here has simply made a decision' that it is content with things as they are, and that the expense or change in character that would result from people moving in to find “a comfortable place to live” are for someone else to worry about. That decision is unacceptable. Statistics indicate that people are attempting to move away from the urban core areas, relieving the grossly over-crowded conditions that exist in most of our major cities. Figures show that most jobs that are being created in-urban areas, including the one here in question, are in the suburbs. New York Times, June 29, 1969, p. 39 (City Edition). Thus the suburbs, which at one time were merely “bedrooms” for those who worked in the urban core, are now becoming active business areas in their own right. It follows then that formerly “outlying”, somewhat rural communities, are now becoming logical areas for development and population growth— in a sense, suburbs to the suburbs. With improvements in regional transportation systems, these areas also are now more accessible to the central city.

In light of this, Nether Providence Township may not permissibly choose to only take as many people as can live in single-family housing, in effect freezing the population at near present levels. Obviously if every municipality took that view, population spread would be completely frustrated. Municipal services must be provided somewhere, and if Netber Providence is a logical place for development to take place, it should not be beard to say that it will not bear its rightful part of the burden. Certainly it can protect its attractive character by requiring apartments to be built in accordance with (reasonable) set-back, open space, height, and other light-and-air requirements, but it cannot refuse to make any provision for apartment living. The simple fact that someone is anxious to build apartments is strong indication that the location of this township is such that people are desirous of moving in, and we do not believe Nether Providence can close its doors to those people.

It is not true that the logical result of our holding today is that a municipality must provide for all types of land use. This case deals with the right of people to live on land, a very different problem than whether appellee must allow certain industrial uses within its borders. Apartment living is a fact of life that communities like Nether Providence must learn to accept. If Nether Providence is located so that it is a place where apartment living is in demand, it must provide for apartments in its plan for future growth; it cannot be allowed to close its doors to others seeking a “comfortable place to live.”

The order of the Court of Common Pleas of Delaware County is reversed.

R-l Residential zones require minimum lot sizes of 20,000 square feet. Tlie most common of the permissible land uses under tbe' R-l. Residential classification is a single-family detached dwelling.

Appellant stated in court that he would reduce the number of units per building to 216.

We must start with the basic proposition that absent more, an individual should be able to utilize his own land as he sees fit. TJ.S. Const. Amends. V, XIV. Although zoning is, in general, a proper exercise of police power which can permissibly limit an individual’s property rights, Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114 (1926), it goes without saying that the use of the police power cannot be unreasonable. E.g., Eller v. Board of Adjustment, 414 Pa. 1, 198 A. 2d 863 (1964). If the zoning ordinance is unreasonable, it is no saving that some people may show the requisite degree of hardship to obtain a variance. The hardship necessary to sustain, an application for a variance borders on economic disaster, but this provides no protection for the individual who is disadvantaged to a substantial, but lesser, extent. This infringement on this latter individual’s right to use his own property cannot bé allowed unless it is reasonable,

Perhaps in an ideal world, planning and zoning would be done on a regional basis, so that a given community would have apartments, while an adjoining community would not. But as long as we allow zoning to be done community by community, it is intolerable to allow one municipality (or many municipalities) to close its doors at the expense of surrounding communities and the central city.

As appellants indicate, the apartments here in question would cover only 2.7 acres of a 17.7 acre tract, would be located far back from the road and adjacent properties, and would be screened by existing high trees. Over half of the trees now on the tract would be saved.

It should be pointed out that much of the opposition to apart-ment uses in suburban communities is based on fictitious-emotional appeals which insist on categorizing all apartments as being equivalent to the worst big-city tenements. See Babcock and Bosselman, Suburban Zoning and the Apartment Boom, 111 U. Pa. L. Rev. 1040, 1051-1072 (1963), wherein the authors also convincingly refute the arguments that apartments necessarily will not “pay their own way”; cut off light and air; become slums; reduce property values; be destructive to the “character of the community’’; and bring in “low-class” people.

Even in the latter case, if the Township instituted a total ban on a given use, that decision would be open to at least considerable question under our decision in Eaton Quarries, supra.

In addition, at least hypothetically, appellee could show that apartments are not appropriate on the site where appellant wishes to build, but that question is not before us as long as the zoning ordinance in question is fatally defective on its face. Appellee could properly decide that apartments are more appropriate in one part of the Township than in another, but it cannot decide that apartments can fit in no part of the Township.