A. J. Aberman, Inc. v. City of New Kensington

• Decision Date: 01 June 1954
• Citation: 105 A.2d 586,377 Pa. 520
• Parties: A. J. ABERMAN, Inc. v. CITY OF NEW KENSINGTON et al.
• Court: Pennsylvania Supreme Court

Page 586

105 A.2d 586

377 Pa. 520

A. J. ABERMAN, Inc. v. CITY OF NEW KENSINGTON et al.

Supreme Court of Pennsylvania.

June 1, 1954.

Rehearing Denied June 19, 1954.

Fred B. Trescher, D. J. Snyder, Jr., Kunkle & Trescher, Greensburg, for appellant.

R. E. Best, Smith, Best & Horn, Greensburg, Anthony J. Bonadia, New Kensington, Milton W. Lamproplos, Smith, Buchanan, Ingersoll, Rhodewald & Eckert, Pittsburgh, for appellees. Before STERN, C. J., and STEARNE, JONES, BELL, MUSMANNO and ARNOLD, Jj.

JONES, Justice.

This appeal arises out of an action in mandamus to compel the issuance of a building permit for the construction of a shopping center. Preliminary objections by the defendant municipality and its city clerk were dismissed; and the writ was issued peremptorily. Subsequently, the defendants petitioned to have the judgment opened and be let into a defense whereon a rule to show cause was granted. After answer and argument, the rule was made absolute; the preliminary objections formerly dismissed were reconsidered and sustained; and the writ of mandamus was refused. From that order, the plaintiff has appealed.

The basic question raised by the appellant corporation is whether it is entitled to a building permit for the construction of a shopping center in an area which, when the application for the permit was filed, was in the process of being zoned so as to exclude such a use of the land. The facts need be recited with considerable detail.

New Kensington is a Third Class City situated in Westmoreland County. On May 6, 1947, city council enacted an ordinance (No. 176) which prohibited the construction or alteration of any building within the City without a permit so to do. Such permit was obtainable as a matter of course from the city clerk upon the payment of a fee of $2. Some time prior to March, 1953, city council, in accordance with Section 41(b) of The Third Class City Code of 1951, P.L. 662, 53 P.S. § 12198-4110 et seq., appointed a commission to prepare a zoning ordinance for the City. When the commission had completed its preliminary report, notice was given that public hearings thereon would be held on March 19th and April 2, 1953. Meanwhile, on March 9, 1953, Ordinance No. 261 was introduced in city council and was finally enacted on March 17th. It is this ordinance (No. 261) with which much of the present controversy is concerned. According to its title, the ordinance provided 'for the Issuance of a Building Permit for the Alteration and Improvement of a Building in Existence and for the Erection and Construction of Buildings: * * * for the Type and Use of Said Buildings and the Locations Permissible Therefor: and * * * for a Fee for Said Building Permit, in the City of New Kensington * * *.' The ordinance declared that construction or alteration of any building within the City without a permit was unlawful; that applications for building permits should be in writing and accompanied by a complete set of the plans and specifications for the proposed construction or alteration; that applications for permits must be approved by a majority vote of the city council provided the application conformed to 'the regulations, locations, and purposes and uses' set forth in the ordinance, which regulations, by reference to a 'Building Map', divided the City into four districts, ¹ the building regulations in each district being substantially the same imposed by a later enacted zoning ordinance to which further reference will hereinafter be made; that a building permit would be issued by the city clerk (upon payment of two dollars) if city council approved the application therefor; and expressly repealed Ordinance No. 176 enacted May 6, 1947.

On April 28, 1953, the zoning commission made its final report and submitted to city council a proposed zoning ordinance. A public hearing was scheduled for May 5th. On the same day that the zoning commission presented its final report to city council (viz., April 28th), the plaintiff, A. J. Aberman, Inc., a Pennsylvania corporation, applied to the city clerk for a building permit for the construction of a shopping center on a tract of land owned or controlled by it. ² The city clerk advised the plaintiff that its application should, under the provisions of Ordinance No. 261, be submitted to city council where it could be acted upon at its next scheduled meeting on May 5th. The plaintiff, disregarding the advice of the city clerk and ignoring the provisions of Ordinance No. 261, chose instead to institute the mandamus proceeding against the City and the city clerk which is involved in this appeal.

The plaintiff's complaint in mandamus was filed on May 4, 1953, just one day before the scheduled meeting of city council and the public hearing on the final report and recommendations of the zoning commission. City council met in regular session on May 5th, and hearings were conducted on the proposed zoning ordinance. On May 27th, the defendant city and city clerk filed preliminary objections to the complaint in mandamus, contending, inter alia, that city council had not been given an opportunity to exercise, with respect to the permit application, the discretion vested in it by Ordinance No. 261. Argument on the petition for mandamus and preliminary objections thereto was listed for June 8th, but, on that day, 'No hearing was had, the matter just being informally discussed before the Court en banc.' On the same day, the court dismissed the preliminary objections and, without opportunity for answer or hearing, issued the writ sought. The plaintiff, upon receiving the permit the succeeding day (June 9th), at once began construction of its shopping center. June 9th was also the very day that the final zoning ordinance was formally introduced in city council. Ten days later (viz., on June 19th), the defendants petitioned to open the judgment in mandamus, asserting that no opportunity had been accorded them to defend on the merits. The rule to show cause already mentioned was granted on the petition which the plaintiff answered on July 3rd. The order granting the rule also provided that all proceedings should be stayed in the meantime. On July 8th, the zoning ordinance was finally enacted and became effective ten days later (July 18th).

A hearing on the petition to open the judgment in mandamus was scheduled for September 21, 1953, but, at that time, a continuance was granted and the stay of proceedings was extended, 'such stay to include but not be limited to any change of the status of the parties to the proceeding, or the premises or property more particularly described in the plaintiff's Petition for Writ.' In October, 1953, a supplement to the petition to open (alleging that the plaintiff had not exhausted its administrative remedies) was allowed, and answer thereto was filed. Finally, on February 2, 1954, the court made absolute the rule to open, reconsidered and sustained the preliminary objections and denied the writ of mandamus. In its opinion accompanying the order, the court below stated,--'We are now of the opinion that [Ordinance No. 261, enacted March 17, 1953] requiring the issuance of a building permit by the City Council was valid and that the application of the plaintiff for the writ of mandamus was premature. The summary judgment awarding the writ of mandamus was inadvertently granted and must be set aside.'

The appellant contends that Ordinance No. 261 (the building permit ordinance enacted March 17, 1953) is a nullity, being allegedly a zoning ordinance not enacted in accordance with Section 41(b) of The Third Class City Code of 1951, P.L. 662, 53 P.S. § 12198-4110 et seq.; that it did not, therefore, repeal Ordinance No. 176 (the building permit ordinance of 1947); that the plaintiff's application for a building permit was properly made to the city clerk under the provisions of Ordinance No. 176; and that the appellant acquired a vested right in the permit issued to it on June 9th when, in reliance thereon, it began construction of its shopping center.

The municipality does not claim that Ordinance No. 261 was enacted in accordance with the requirements of The Third Class City Code relating to zoning. Nor does it dispute that a zoning ordinance must be enacted in strict conformity with the requirements of the relevant enabling legislation. Kline v. City of Harrisburg, 362 Pa. 438, 68 A.2d 182. What the municipality does assert is that Ordinance No. 261 was not a zoning ordinance. If that be so, it is immaterial that the ordinance did not conform to the requirements of The Third Class City Code relating to zoning legislation.

Ordinance No. 261 reposed in city council discretionary power to refuse the issuance of a building permit when an application therefor conflicted with certain regulations contained in that ordinance even though such regulations were substantially the same as were contained in the then pending and later enacted zoning ordinance. It is the appellant's contention that, in enacting Ordinance No. 261, city council attempted to enact a 'stopgap' or 'interim' zoning ordinance such as was struck down in Kline v City of Harrisburg, supra. On the other hand, the municipality contends that, in enacting Ordinance No. 261, city council (following decisions of this court to the effect that a property owner has no absolute or vested right to obtain a building permit for a land use in harmony with existing legislation but in conflict with a pending and later enacted zoning ordinance was merely announcing its intention to refuse any building permit which conflicted with the proposed final zoning ordinance. The contention is well founded.

In Gold v. Building Committee of Warren Borough, 334 Pa. 10, 5 A.2d 367, an application was made for a permit to construct a gasoline station on a lot which, on the date of application was zoned to permit such use. The application was refused, however, since there was then pending in borough council...