Borough of Monroeville v. Effie's Ups and Downs

• Decision Date: 15 February 1974
• Citation: 315 A.2d 342,12 Pa.Cmwlth. 279
• Parties: BOROUGH OF MONROEVILLE et al., Appellants, v. EFFIE'S UPS AND DOWNS, an Unincorporated Association, by James A. Rutter, Trustee ad litem, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 342

315 A.2d 342

12 Pa.Cmwlth. 279

BOROUGH OF MONROEVILLE et al., Appellants, v. EFFIE'S UPS AND DOWNS, an Unincorporated Association, by James A. Rutter, Trustee ad litem, Appellee.

Commonwealth Court of Pennsylvania.

Argued Nov. 8, 1973.

Decided Feb. 15, 1974.

Rosenzweig & Rosenzweig, [12 Pa.Cmwlth. 281] James W. Daub, Richard L. Rosenzweig, Pittsburgh, for appellants

Frederick A. Boehm, Pittsburgh, for appellee.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.

OPINION

BLATT, Judge.

Effie's Ups and Downs (Association) is an unincorporated association which leases a 40 acre tract of land in the Borough of Monroeville. The Association intends to develop this tract as a recreational area, providing snowmobile and trailmobile facilities and a lodge for the use of Association members. At the time these proceedings were begun, the tract was in a district zoned 'S' Conservancy, and a recreation area was a permitted use therein when operated by a non-profit organization, which the Association claims to be. When it sought appropriate permits from the Borough Zoning Officer, Jack R. Norris, however, these were denied because: 1) there was no evidence submitted that the Association was a non-profit organization; 2) under an amendment to the zoning ordinance which was then allegedly 'pending' before the Borough Council, approval as a conditional use was required; and 3) the application did not comply with Section 1707.2 of the zoning ordinance, which provides that, during a period of 60 days following introduction of any ordinance proposing changes in zoning classification, the zoning officer may not accept applications for permits in the area involved for any use or structure which would be prohibited under the proposed ordinance. The Association then filed a complaint in mandamus in the Court of Common Pleas of Allegheny County, seeking to compel issuance of the permits. An answer was filed and both parties thereafter filed motions for summary judgment, as well as affidavits supporting said motions. Following argument, judgment was entered in favor of the Association.

On appeal to this Court the appellants have essentially argued that mandamus was an inappropriate remedy, that the Association had no clear right to the permits and that summary judgment for the Association was not warranted. We find these contentions to be without merit.

Although litigants are not to be encouraged to circumvent the normal zoning appeal procedures by way of actions in mandamus, such actions may be brought in certain circumstances. Section 909 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, 53 P.S. § 10909, provides Inter alia: 'Nothing contained herein shall be construed to deny to the appellant the right to proceed directly in court, where appropriate, pursuant to Pa.R.C.P., sections 1091 to 1098 relating to mandamus.' 'It must be noted that the mandamus provision of Section 909 is qualified by the phrase 'where appropriate.' This does not indiate an intention to expand This does not indicate an intention to expand of zoning; rather it indicates an intention to leave in force judicial determinations of appropriateness. . . .' Unger v. Hampton Township, 437 Pa. 399, 405, 263 A.2d 385, 389 (1970). '(M)andamus is an extraordinary writ which can issue only when plaintiffs have a clear legal right to the performance of a ministerial act by the defendant, whose duty it is to perform that act. . . . Mandamus will not lie to control the exercise of official discretion, but it will issue to compel the exercise of discretion or to prevent the arbitrary or fraudulent exercise thereof. . . . And where plaintiffs have a clear legal right to the issuance of a building permit, then mandamus is the proper means to compel the officials to issue it. . . .' Commercial Properties, Inc. v. Peternel, 418 Pa. 304, 309, 211 A.2d 514, 517--518 (1965).

In a case very similar to the instant one, Lhormer v. Bowen, 410 Pa. 508, 188 A.2d 747 (1963), the plaintiff sought a building permit, which was denied because a proposed amendment to the local zoning ordinance would prohibit the planned use in the district concerned. The plaintiff then brought an action in mandamus to require issuance of the permits, and the Supreme Court held that the proposed amendment was not 'pending' at the time the permits were applied for and, therefore, because the plaintiff met all requirements under the then existing ordinance, the permit was ordered to issue. The Supreme Court said: '(W)here the right to the permit is clear, the issuance thereof by the proper official is no more than the performance of a ministerial act which admits of no discretion in the municipal officer, and mandamus is both appropriate and proper to compel performance. . . .' 410 Pa. at 514, 188 A.2d at 749--750. To similar effect, See Vagnoni v. Bridgeport Borough Council, 420 Pa. 411, 218 A.2d 235 (1966); Lawrence U. Ginter, Inc. v. Borough of Atglen, 6 Pa.Cmwlth. 430, 296 A.2d 293 (1972). It was not improper, therefore, for the Association to bring this action in mandamus.

As to the Association's right to the permits, it seems clear that the lower court was correct in finding that the...