Essick v. Shillam , 347 Pa. 373 ( 1943 )

I cannot agree with the majority in holding that the operation of a retail grocery super-market and adjoining parking lot is not a nuisance in a residential district. This is not to be an ordinary community store for the convenience of the immediate neighborhood. The admitted purpose of a super-market is to attract as many people as possible from other districts, who come by automobile; and, to meet their demands, a large stock of every form of fruit, vegetables, meat, fish and staples is carried. To attract customers, cream tile walls of this building are to be brilliantly lighted at night, and a parking lot is to be provided for the accommodation of fifty automobiles at a time. This large-scale enterprise is to be conducted in an area in the City of Reading which we have twice had occasion to declare residential:Thomas v. Dougherty, 325 Pa. 525; Long v. Firestone T. R.Co., 303 Pa. 208. As stated in the majority opinion, the proposition here is "to erect a large one-story market house, with an adjacent hard-surfaced parking lot for . . . fifty automobiles".

The use of property for business purposes in a residential district constitutes a nuisance where it injuriously affects the health, safety, morals, or property values of those residing in the vicinity: Nesbit v. Riesenman, 298 Pa. 475. It is a matter of common knowledge, that a grocery, green goods and fish and meat market, of the type here involved, usually receives the great volume of produce it requires daily during the night and early hours of the morning, when the store is free of customers, and the merchandise can be carried in and arranged for later display and sale. For the same reason, refuse must be removed during the night or at an early hour. The parking and loading and unloading of the automobile trucks are noisy and disturbing at a time generally set apart for rest and quiet. This result is not speculative, as the majority states, but is commonly known as unavoidable and essential to the efficient management of a large retail establishment of the kind here contemplated. No amount of care can prevent the irritating noises incident to the unloading of heavy cases, crates and the like, and the emptying of metal garbage cans into disposal trucks. The usual attributes of "peace and quiet" in a residence district would be completely destroyed. Property values for residential purposes in such a neighborhood would be bound to shrink.

It is proposed to operate this store two or three nights a week until nine o'clock. The glare from the lights, and the insects attracted thereby, will be a constant source of annoyance and discomfort to the residents of the vicinity. While it would be possible to operate the store without strong lights, the owners would not wish to do so because of the need for such light and advertising effect. The noise of many people entering and leaving the market would at such an hour constitute an interference with the quiet of the neighborhood. With respect to the noise of crowds we said in Edmunds v. Duff,280 Pa. 355, 366: "Where, as here, the question is one of interference with the enjoyment of private homes by reason of noises, attraction of large crowds, or the operation of a business or industry tending to render the immediate community a less desirable place in which to live, the resulting injury is such as necessarily affects practically all persons who happen to be living in the immediate neighborhood and are nearest to the source of annoyance . . ."

The parking lot to be operated in conjunction with the store for the accommodation of the automobiles of customers will constitute another source of damage to property values in the district and disturbance to the residents. A parking lot has many of the characteristics of a gasoline filling station, which, as is firmly established by the cases and admitted by the majority, is a nuisance per se in a residential neighborhood. The presence of exhaust odors, monoxide gas, noise of starting and stopping, dust, glare of headlights at night, rumble and vibration of heavy trucks, and backfire explosions from their engines are some of the reasons for our decisions that such a business injuriously affects the health and comfort of the residents of the vicinity and lowers the market value of their property for residential purposes. The same is true of a parking lot, with reference to which we said in Todd v. Sablosky, 339 Pa. 504, speaking through Mr. Justice BARNES (p. 511): ". . . we are satisfied upon careful examination of the record and consideration of the usual incidents of the operation of such enterprise, that the parking lot would tend to injuriously affect the health and comfort of plaintiffs. The noise of motors starting and running in low gear, and blowing of horns and the reflection of bright headlights after dark would be offensive to the residents of the neighborhood, and these disturbances could not be eliminated by even the most careful management." These same conditions would attend the operation of the proposed super-market, with the possible exception that the crowd leaving at night would not be so large or so late as that leaving the theatre in the cited case. This is insufficient ground for distinguishment, in view of defendant's manifest interest in attracting to its market the largest possible number of persons. If the lot were enjoined and the store were permitted, as was done in the Sablosky case, the congestion in the streets would produce the same, if not more serious, consequences.

Defendants assert that the super-market will be no more damaging than the theatre and stores which in theSablosky case were held not to violate a restrictive covenant against nuisances. This argument overlooks the fact that there the property upon which the businesses were to be carried on lay in a commercial, not a residential, district (Todd v. McLaughlin, 337 Pa. 431), and that a use of property constituting a nuisance in a residential district may be unobjectionable in a business district: Ladner v. Siegel,296 Pa. 579, 584. This was also the case in Breinig v.Allegheny Co., 332 Pa. 474, cited by the majority, though that case did not involve the question of nuisances.

The other cases cited by the majority do not seem to me to embrace situations comparable to that now before this Court. In determining what constitutes a nuisance in a residential district, each case must be decided on its own facts (Pilling v. Moore, 306 Pa. 406, 410; 39 Am. Jur., p. 298). Where the Chancellor, affirmed by the court en banc, both of which are more familiar than we with the locality and with the effect the operation of such a super-market would have therein, having weighed the testimony and given it careful consideration, concludes that the proposed enterprise will harmfully affect the residents of the neighborhood and will depreciate the value of their property, we should be loath to enter an order of reversal (Duty v. Vacuum Oil Co., 317 Pa. 15,21). As we said in Calvary Church v. Jones, 322 Pa. 77, 80: "The question as to whether a particular locality is commercial or residential in character, and whether a proposed use of land within it would constitute an unreasonable infringement upon property rights of the inhabitants, is a matter which lies within the sound discretion of the court below, and its findings, when supported by evidence, will not be interfered with on appeal in the absence of manifest abuse of discretion: [Citing cases]." This is particularly true where our reason for doing so is based, not upon a different conception of the result of decided cases, but on a difference of opinion as to a factual situation to occur in the future, namely, the manner in which the super-market when built will be conducted, and the effect it will have upon the surrounding community.

While courts are reluctant to interfere with the use of a person's property for otherwise legitimate purposes (Huckenstine's Appeal, 70 Pa. 102), where it is clear, as it seems to me to be here, that the proposed use will result in harmfully affecting the surrounding properties in reducing their market values for residential purposes, and injuring the health of the owners and the tenants, we should not hesitate to prevent the mischief before it arises (Eckels v. Weibley,232 Pa. 547, 550), rather than to wait and enjoin it after its effects have occurred, as the majority would do.

For these reasons, I would affirm the decree of the learned court below.

Chief Justice MAXEY and Mr. Justice PATTERSON join in this dissent.