Carlino v. Whitpain Investors

• Decision Date: 23 December 1982
• Citation: 499 Pa. 498,453 A.2d 1385
• Parties: Peter CARLINO and Elizabeth Carlino, His Wife, Appellants, v. WHITPAIN INVESTORS, Whitpain Township, Whitpain Township Board of Supervisors and Pennsylvania Department of Transportation, Appellees.
• Court: Pennsylvania Supreme Court

Page 1385

453 A.2d 1385

499 Pa. 498

Peter CARLINO and Elizabeth Carlino, His Wife, Appellants, v. WHITPAIN INVESTORS, Whitpain Township, Whitpain Township Board of Supervisors and Pennsylvania Department of Transportation, Appellees.

Supreme Court of Pennsylvania.

Argued Oct. 19, 1982.

Decided Dec. 23, 1982.

[499 Pa. 500] Edward J. Hughes, Norristown, for appellants.

Howard Gershman, Blue Bell, for Whitpain Tp. and Bd. of Sup'rs.

J. Peirce Anderson, Norristown, John M. Hrubovcak, Asst. Atty. Gen. for Dept. of Transp.

Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

This equity action was commenced in the Court of Common Pleas of Montgomery County by the appellants, Peter Carlino and Elizabeth Carlino, seeking a preliminary injunction against the appellees, Whitpain Investors (hereinafter Developer), Whitpain Township (hereinafter Township), and Pennsylvania Department of Transportation (hereinafter PennDOT). Upon motion of PennDOT, the action was transferred to Commonwealth Court, and, sustaining appellees' preliminary objections, Commonwealth Court dismissed the complaint. ¹ The instant appeal ensued.

Since review is sought of the sustainment of preliminary objections in the nature of demurrers, the well pleaded factual allegations set forth in the complaint are to be regarded as true for purposes of review. Papieves v. Kelly, 437 Pa. 373, 263 A.2d 118 (1970). The facts as alleged by appellants' complaint establish the following. Developer is constructing an apartment complex in the Township on a 47 acre tract of land situated between three roads, one of which, Stenton Avenue, is a state highway. Appellants' residence lies directly across Stenton Avenue from the construction site. Developer's predecessor in title sought to have the 47 acre tract rezoned from an R-1 (single-family) classification to an R-3 (multi-family) classification to permit construction of residential rental units. At the hearing on rezoning of the tract, the then owner stipulated that a 300 foot buffer would be provided from the right-of-way line of Stenton Avenue, and further specified that no access road from the apartment complex to Stenton Avenue would be built. In 1973, the requested zoning change was adopted by the Township. In 1979, however, construction of an access road from the apartment complex to Stenton Avenue commenced, and appellants became aware that the land development plan finally approved by the Township had, at the insistence of the Township, included a provision for access to Stenton Avenue, and that in 1978, a driveway permit authorizing construction of the access road to Stenton Avenue had been issued by PennDOT.

Alleging that the driveway permit issued by PennDOT to Developer was granted without adequate preliminary studies, and asserting the existence of deficiencies in the access road that endanger the public health, safety, and welfare, appellants seek an injunction requiring revocation of the permit. Established principles governing standing to raise issues in the public interest, however, bar appellants' assertion of these claims. In Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280-281 (1975), our cases dealing with standing were summarized as follows:

The core concept, of course, is that a person who is not adversely affected in any way by the matter he seeks to challenge is not "aggrieved" thereby and has no standing to obtain a judicial resolution of his challenge. In particular, it is not sufficient for the person claiming to be "aggrieved" to assert the common interest of all citizens in procuring obedience to the law.

(footnotes omitted). This rule respecting standing is not intended to bar from relief persons injured by breach of a public duty merely because many others have incurred similar injuries as a consequence of that breach; rather, the "concern is to distinguish those who have suffered some individual injury from those asserting only the common right of the entire public that the law be obeyed." Id. at 203, 346 A.2d at 287 (emphasis added). Since the instant complaint, although containing a broad assertion that deficiencies in the access road will "have a unique impact" on appellants, fails to specify any individual injury attributable to deficiencies in the roadway itself and in preparatory studies, appellants must be regarded as lacking standing to raise such objections to PennDOT's action.

Appellants further challenge PennDOT's grant of the driveway permit on grounds that presence of the access road immediately adjacent to their property will cause inconvenience and annoyance, thereby impairing the value of their property in a manner not compensable in damages. We regard this assertion as inadequate to state a cause of action. In Wolf v. Department of Highways, 422 Pa. 34, 220 A.2d 868 (1966), an eminent domain case, an owner of business property abutting a state highway alleged that highway improvements had diminished the property's value by necessitating a circuitous route of ingress, thereby reducing the number of business customers willing to enter the premises. Denying the owner's claim for damages insofar as property value diminution occasioned by such a diversion of traffic, this Court held that owners of properties abutting state roads have no cognizable legal interest in preserving a particular flow of traffic on those roads. Thus, in Wolf, 422 Pa. at 47, 220 A.2d at 875, quoting State of Missouri ex rel. State Highway Comm. v. Meier, 388 S.W.2d 855, 857 (Mo.1965), the rights of an abutting owner were stated as follows:

"Respondent, as an abutting property owner on a public highway, does not now have and has never had any other property interest in the public highway other than a reasonable right of ingress and egress, as stated. Respondent has never had a property right in the traffic, great or small, on the highway, nor a right to recover damages for a decrease in value of her premises by reason of the diversion of traffic away from her property, nor has she had a property right to have the same amount of traffic pass her property as before or to have it move in the same direction."

(emphasis added). Since appellants' contention that the access road in question will cause inconvenience and annoyance is, in essence, an assertion of right to maintain the existing traffic conditions on Stenton Avenue, and since the existence of such a right has been negated by our holding in Wolf, appellants' claim against PennDOT fails to state a cause of action.

With respect to Township and Developer, appellants seek an injunction requiring the former to refrain from conditioning Developer's construction permit upon provision of the access road in question, and requiring the latter to eliminate that road and restore the 300 foot buffer zone along Stenton Avenue. The complaint alleges that Developer's predecessor in title, pursuant an agreement with the Township, stipulated as to plans to preserve the buffer area and forego an access road to Stenton Avenue, thereby rendering the 1973 rezoning contractually conditioned upon there being no access route traversing the buffer zone.

The concept of contractually conditioned zoning advanced by appellants lacks precedent in this Commonwealth, ² and authorities elsewhere differ with respect to whether to accord the concept validity. See generally Nicholson v. Tourtellotte, 110 R.I 411, 293 A.2d 909 (1972); State ex rel. Zupancic v. Schimenz, 46 Wis.2d 22, 174 N.W.2d 533 (1970); 70 ALR 3d 125. The proposition has long been recognized in this Commonwealth that individuals cannot, by contract, abridge police powers which...