Gratton v. Conte

• Decision Date: 22 May 1950
• Citation: 73 A.2d 381,364 Pa. 578
• Parties: GRATTON v. CONTE et al. Appeal of GRATTON et al.
• Court: Pennsylvania Supreme Court

73 A.2d 381

364 Pa. 578

GRATTON v. CONTE et al.

Appeal of GRATTON et al.

Supreme Court of Pennsylvania

May 22, 1950

Argued April 18, 1950

Appeal, No. 87, March T., 1950, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1949, in Equity No. 1374, in case of Mercer C. Gratton, et al. v. John C. T Conte et al. Decree affirmed.

Bill in equity to restrain enforcement of zoning ordinance. Before ELLENBOGEN, J.

Adjudication filed finding for defendants; exceptions to adjudication dismissed and final decree entered. Plaintiffs appealed.

Decree affirmed; costs to be divided equally between plaintiffs and defendants.

Alexander J. Bielski, with him Draga Musulin, for appellants.

James A. Wright, with him Michael Evashwick, Anne X Alpern, City Solicitor and James H. Wallace, Jr., Assistant City Solicitor, for appellees.

Before DREW, C.J., STERN, STEARNE, JONES and BELL, JJ.

OPINION

MR. JUSTICE HORACE STERN

An attack is made in these proceedings on the validity of an ordinance changing the zoning classification of a tract of land in the 14th ward of the City of Pittsburgh.

The Act of June 10, 1911, P.L. 872, established in cities of the second class a Department of City Planning in charge of a City Planning Commission. The Act of March 31, 1927, P.L. 98, authorized the Council in second class cities to divide the city into districts and to regulate therein the construction and use of buildings, such regulations to be made in accordance with a comprehensive plan and designed to lessen congestion in the streets, promote health and the general welfare, provide adequate light and air, prevent the overcrowding of land and avoid undue concentration of population; such regulations were to be made with reasonable attention, among other things, to the topography and character of the district with its peculiar suitability for particular uses, and with a view to encouraging the most appropriate use of land throughout the city. It was made the duty of the City Planning Commission to recommend the boundaries of the various districts and appropriate regulations to be enforced therein, and the duty of the Council to provide for the manner in which such regulations, restrictions and boundaries of the districts should be determined, established and enforced, and, from time to time, amended, supplemented or changed; in case of a protest against any such change, or when disapproved by the City Planning Commission, such amendment was not to become effective except by the favorable vote of three-fourths of all the members of the Council of the city.

Pursuant to authority given by former acts the Council of the City of Pittsburgh enacted an ordinance, approved by the Mayor on August 9, 1923, which established certain use districts -- industrial, commercial, retail and residence -- and provided for the regulation therein of buildings and occupancies. The residence districts were sub-divided into "A", "A-B", "B" and "C"; in the "A-B" residence districts there were to be allowed, inter alia, one-family dwellings, two family dwellings and multiple dwellings, in the "B" residence districts, inter alia, one-family dwellings and two-family dwellings but not multiple dwellings. The ordinance contained a section similar to the provision of the Act of 1927 that when a protest was made against a proposed change in the boundaries of the districts or the regulations, or when such change was disapproved by the City Planning Commission, the ordinance providing for such amendment, supplement or change should not become effective except by a favorable vote of three-fourths of the members of Council.

The tract with which the present case is concerned is land consisting of 7.647 acres lying between Beechwood Boulevard near its intersection with Shady Avenue, and Saline Street. It, together with the entire surrounding area, was originally zoned as "B" residential. It had been laid out by one Miller, a former owner, as a lot plan for single and double-family dwellings but the lots could not be sold because the topography of the tract did not reasonably permit of the erection and use of such dwellings. Land adjoining it on Beechwood Boulevard and land across the Boulevard was largely built up and occupied by private homeowners, but the tract in question has a frontage of only about 260 feet on the Boulevard and, as it cannot be reached from any other street, building lots located on the inside of the tract would be cut off entirely from access to the system of city streets; to permit of its use for single or double-family dwellings it would be necessary to resort to an extensive project of leveling and grading, laying expensive sewer lines, and constructing and paving streets inside the tract so as to connect it with Beechwood Boulevard. As a result of these obstacles this 7 acre tract remained vacant and overgrown with weeds and bushes. Miller sold the tract to Ralph B. Hartman, one of the present defendants, who subsequently entered into a written agreement to sell it to John C. T. Conte, another defendant, and at the latter's request and solicitation an amendatory ordinance was presented to Council to change the zoning of the tract to "A-B" residential and to raise the height limitation of the buildings from 35 to 45 feet, thereby permitting the construction of multiple dwellings. Notice having been given to the City Planning Commission, that body disapproved the proposed zoning reclassification, largely on...