Com. v. Bucks County

• Decision Date: 01 August 1973
• Citation: 8 Pa.Cmwlth. 295,302 A.2d 897
• Parties: COMMONWEALTH of Pennsylvania et al., Appellants, v. COUNTY OF BUCKS et al., Appellees.
• Court: Pennsylvania Commonwealth Court

Page 897

302 A.2d 897

8 Pa.Cmwlth. 295

COMMONWEALTH of Pennsylvania et al., Appellants, v. COUNTY OF BUCKS et al., Appellees.

Commonwealth Court of Pennsylvania.

Argued Dec. 5, 1972.

Decided April 3, 1973.

Petition for Anowance of Appeal Denied August 1, 1973.

Stephen C. Miller, Asst. Atty. Gen., Philadelphia, Barry Kohn, Asst. Atty. Gen., Doylestown, for appellant Commonwealth

David H. Moskowitz, Chief Litigation Atty., Larry W. Post, Executive Director, Bucks County Legal Aid Soc., Doylestown, for other appellants; Prof. Jan Krasnowiecki, U. of Pa. School of Law, Philadelphia, Richard Bellman, National Committee Against Discrimination in Housing, Inc., Denison Ray, Gen. Counsel, Suburban Action Institute, of counsel.

George Kelton, Thomas J. Profy, III, Richard M. Snyder, Begley, Carlin, Mandio, Kelton & Popkin, Bristol, Stephen B. Harris, Harris & Harris, Warrington, for appellees.

Samuel A. Litzenberger, Quakertown, for Haycock Township.

John Philip Diefenderfer, Stuckert, Yates & Krewson, Newton, for Newton Borough and Newton Township.

J. Scott Calkins, Shaffer, Calkins & Balaban, Harrisburg, John P. Trevaskis, Jr., Trevaskis, Doyle, Currie, Nolan & Bunting, Media, Herbert S. Colton, Colton, Murphy & Boykin, Washington, D.C., for Pa. Builders Assn. and Nat. Assn. of Home Builders of the U.S., amicus curiae.

Carl S. Bisgaier, Camden, N.J., for Camden Regional Legal Services, Inc., amicus curiae.

Franklin Poul, Philadelphia, for American Civil Liberties Union--Greater Philadelphia Branch, amicus curiae.

Robert J. Reinstein, Philadelphia, Nathaniel R. Jones, James I. Meyerson, New York City, for the N.A.A.C.P., amicus curiae.

Anita G. Cella, Strawbridge & Clothier, Philadelphia, for League of Women Voters of Pa., amicus curiae.

Donald B. McCoy, Dean & McCoy, Langhorne, for Bensalem Township.

E. Dillwyn Darlington, Feasterville, for Northampton and Lower Southampton Townships.

J. Lawrence Grim, Jr., Perkasie, for Borough of Silverdale.

Robert W. Valimont, Doylestown, for Nockamixon Township.

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

OPINION

PER CURIAM.

President Judge Satterthwaite of the Court of Common Pleas of Bucks County ably and thoroughly discusses and disposes of the issues raised. We affirm the order of the lower court upon his opinion reported in 22 Bucks Co.L.Rep. 179 (1972).

Opinion of President Judge Satterthwaite follows:

OPINION AND ORDER OF THE COURT

Plaintiffs seek sweeping and drastic equitable relief against all fifty-four local municipalities in Bucks County, as well as the County itself and its planning commission and housing authority. The gravamen of the action is that the zoning ordinances of the several municipalities are all said to be unconstitutional and invalid in that they are contended to exclude so-called low and moderate income housing throughout the County.

Plaintiffs are twelve individuals who claim to be representative of both resident and non-resident classes of low and middle income persons, as well as members of black and nonEnglish-speaking minorities, all of whom desire to reside within Bucks County but who, although they have made no applications or otherwise attempted objectively to obtain permits, allegedly will be discriminated against by reason of their station or race and will not be permitted to enjoy housing anywhere therein under such existing zoning ordinances. Also joined as plaintiffs are the Commonwealth, through the Attorney General, and two corporations allegedly desirous of developing and building low and moderate income housing in the County, although presently owning or acquiring no particular land sought to be applied to such purpose.

The complaint, in extremely prolix and multifarious fashion, including many averments of an evidentiary rather than pleading nature, ultimately sets forth various conclusionary allegations which may be taken for present purposes to place before the Court contentions of violations of constitutional due process, denial of equal protection of the laws and other related infirmities in the provisions and applications of local zoning ordinances throughout the County, insofar as they would arguably exclude the individual and corporate plaintiffs if they actually did attempt to furnish or acquire low or moderate cost housing anywhere within such geographic limits. The relief sought is of an on-going and continuing nature against the respective municipalities, enjoining them from such allegedly discriminatory exercise of the zoning function and requiring them either to legislate in the zoning field or to require special exceptions by local zoning hearing boards so that low and moderate income housing would be permitted; against the County planning commission, directing it to prepare such a housing plan and allocate the required number of units thereof among the respective municipalities of the County; against the County housing authority, requiring it to 'cooperate with . . . (the other parties, and) . . . take all necessary steps to plan for, promote and provide for the construction' of such required housing; and against the County, directing it to 'take all necessary steps, including the expenditure of County funds, to ensure the construction and development of the number of dwelling units required.'

Many, if not all, of the respective defendants have filed preliminary objections asserting all imaginable types of procedural as well as substantive deficiencies alleged to inhere in the complaint. For present purposes, we need not be concerned with most of these contentions. Argued improprieties of pleading form and content, as well as possible questions of non-joinder or misjoinder of parties, and of jurisdiction at law rather than in equity, and the many other interlocutory and inconclusive problems of a like character, may be disregarded. Even assuming that all of these questions should be resolved in plaintiffs' favor or might be cured by the filing of an amended complaint, we believe that in any event plaintiffs neither have stated, nor can state, a presently cognizable and justiciable cause of action.

It is almost hornbook law that the statutory remedies and methods of procedure to raise questions of interpretation, application and validity of zoning ordinances are exclusive and must be strictly pursued. Ever since since Taylor v. Moore, 303 Pa. 469, 154 A. 799 (1931), the rule has been followed that all questions involving zoning problems must be resolved in the zoning forum and not through other theoretically applicable forms of action, such as an action in equity, as here, to enjoin enforcement of allegedly invalid ordinance provisions: Jacobs v. Fetzer, 381 Pa. 262, 112 A.2d 356 (1955); Knup v. Philadelphia, 386 Pa. 350, 126 A.2d 399 (1956); Bliss Excavating Company v. Luzerne County, 418 Pa. 446, 211 A.2d 532 (1965). Notwithstanding the somewhat altered forms of statutory procedures provided in zoning cases by the Pennsylvania Municipalities Planning Code, the Act of July 31, 1968, P.L. 805 (No. 247), 53 P.S. 10101, et seq., that legislative recodification in no sense modified or overturned the exclusiveness-of-remedy doctrine: Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970).

It is true that an established exception to the exclusiveness rule has been recognized to allow for cases where the zoning remedy is not adequate or complete or is nonexistent. See, e.g., Duquesne Light Company v. Upper St. Clair Township, 377 Pa. 323, 105 A.2d 287 (1954); Honey Brook Township v. Alenovitz, 430 Pa. 614, 624, 243 A.2d 330 (1968). Plaintiffs apparently feel that their situation is within some such exception, recognizing that they have no pending applications for permits which have been denied at the local level, but urging that this very lack of occasion to invoke the administrative remedy demonstrates the propriety of their resort to equity. This position involves a non-sequitur; it necessarily assumes that they do have a presently cognizable cause of action and that equity must therefore necessarily be appropriate since the same may not be litigated in the zoning forum. Such a premise is unfounded. Any cause of action which they In the future may be thought to have, if and when they ultimately do present a concrete and subsisting factual situation which would be ripe for judicial determination, is not Presently available to them even assuming the merit of their position on the academic constitutional and other legal propositions for which they contend.

In reality, plaintiffs seek a premature and merely advisory opinion or adjudication of the theoretical or abstract invalidity of the various zoning ordinances, as they might relate to persons of the classes they purport to represent, if and when such persons should take actual steps to procure low or moderate cost housing in Bucks County. The rendering of advisory opinions on hypothetical facts is no part of the judicial function: Silver v. Zoning Board of Adjustment, 381 Pa. 41, 46, 112 A.2d 84 (1955) and cases cited. See also, Sgarlat v. Kingston Borough Board of Adjustment, 407 Pa. 324, 180 A.2d 769 (1962); Raezer v. Raezer, 428 Pa. 163, 236 A.2d 513 (1968); Havertown Savings and Loan Association v. Commonwealth, 3 Pa.Cmwlth. 266 (1971).

A court will take jurisdiction only in a case in which a challenged statute, ordinance or rule of court has been actually applied to a litigant; it does not undertake to decide academically the unconstitutionality or other alleged invalidity of legislation until it is brought into operation so as to impinge upon the rights of some person or persons: Knup v. Philadelphia, supra, 386 Pa. at 353, 126 A.2d 399.

In Home Life Insurance Company of America v. Board of Adjustment, 393 Pa. 447, 143 A.2d 21 (1958), the Supreme Court affirmed the refusal of the lower court to declare a zoning ordinance unconstitutional as to a particular property,...