Philadelphia Presbytery Homes, Inc. v. Board of Com'rs of Abington Tp.

• Decision Date: 09 October 1970
• Citation: 269 A.2d 871,440 Pa. 299
• Parties: PHILADELPHIA PRESBYTERY HOMES, INC. v. BOARD OF COMMISSIONERS OF ABINGTON TOWNSHIP, Appellant.
• Court: Pennsylvania Supreme Court

Page 871

269 A.2d 871

440 Pa. 299

PHILADELPHIA PRESBYTERY HOMES, INC. v. BOARD OF COMMISSIONERS OF ABINGTON TOWNSHIP, Appellant.

Supreme Court of Pennsylvania.

Oct. 9, 1970.

Daniel B. Michie, Jr., Philadelphia, for appellant

Gilbert P. High, High, Swartz, Roberts & Seidel, Norristown, for Philadelphia Presbytery Homes, Inc.

William C. Cahall, III, Waters, Fleer, Cooper & Gallager, Jenkintown, for Earl S. Vollmer and another.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

POMEROY, Justice.

On May 22, 1968, appellee, Philadelphia Presbytery Homes, Inc., filed an application with Abington Township, in accordance with the provisions of the Abington Township Zoning Ordinance, to have the zoning classification of a fourteen acre tract of land in the Township owned by it changed from 'V' Residential to 'AO' Apartment Office, thereby permitting appellee to erect upon the tract a facility for the housing of elderly and retired people. A public hearing was held upon this application on September 19, 1968, at which Mr. and Mrs. William C. Adamson, owners of the property abutting the tract in question, entered a protest against the proposed change of zoning. Thereafter, on January 9, 1969, appellant Board of Commissioners held another public meeting at which a vote was taken on appellee's application. At that meeting only fourteen of fifteen authorized commissioners were in office, one having died and no replacement having been appointed. When the roll was called, nine commissioners voted for the amendment and five voted against it. The Township Solicitor ruled that this vote fell short of the requisite margin for adoption in light of the provisions of Section 1905 of the Township Zoning Ordinance, and that the amendment had not been adopted. Section 1905 provides that if the owners of twenty percent of the land immediately abutting any side of an area to be affected by a proposed zoning amendment protest its adoption, affirmative votes of three-fourths of the Board of Commissioners (as distinguished from a simple majority) are required for its adoption. ¹

Following the Solicitor's adverse ruling, appellee brought this action in mandamus asserting that the zoning amendment had been properly adopted and seeking an order compelling the Board of Commissioners to enter the amendment in the Ordinance Book and advertise it as required by the First Class Township Code. Act of June 24, 1931, P.L. 1206, Section 1502, as amended, 53 P.S. § 56502. Upon the completion of the pleadings (which consisted of complaint, answer and new matter, and reply), appellee moved for judgment thereon. The court below concluded that the protest provision was invalid because it did not comport with the applicable enabling statute. It accordingly entered judgment for appellee, and this appeal by the Township followed.

Although not considered by the parties in their briefs or arguments, the threshold question to be resolved is whether a writ of mandamus is an available remedy to appellee. In Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970), we reaffirmed the well settled principle that, '(m)andamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is a Clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy.' 437 Pa. at 401, 263 A.2d at 387. While it is true that the publication of an ordinance duly adopted by the Township is a mandatory, ministerial duty under Section 1502 of the First Class Township Code, Supra, the real issue presented in the present case is whether the amendment to the zoning ordinance was or was not adopted by the vote on January 9, 1969. The parties do not question the correctness of the Solicitor's application of the protest provision; only the validity of the provision is challenged. A prerequisite to the resolution of this challenge is, therefore, a determination of the validity or invalidity of the protest provision at the time of the vote on the amendment.

In the Unger case, Supra, one of our grounds for decision was that where it is necessary to establish the invalidity of an ordinance before the right sought to be vindicated by the plaintiff in mandamus can be said to exist, the right is not sufficiently 'clear' to form the basis upon which to issue the writ. Reliance was placed upon Booz v. Reed, 398 Pa. 172, 157 A.2d 170 (1960) which had held that '(m)andamus to compel a governmental ministerial officer to act in disobedience of the requirements of the relevant statute, before there has been a judicial pronouncement of the Act's invalidity, is not the normal procedure for testing the constitutionality of a statute.' We cannot avoid the conclusion that the case at bar falls clearly within the holdings of Booz and Unger, supra. See, also, Roeder v. Borough Council of Borough of Hatfield, Pa., 266 A.2d 691 (1970). As we said in Unger, the proper procedure for plaintiff to have followed was that set forth in the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. ---, No. 247, 53 P.S. § 10101 et seq. If, after it had been thus judicially established that the protest provision was invalid and hence that the amendment to which the protest had been interposed was legally adopted, the township officials had failed to act to effectuate the amendment, then would have been the proper time to invoke mandamus; it continues to be an extraordinary writ.

Unlike the situation in Unger, however, the use of mandamus in the case at bar has not been challenged by the appellant, and was tacitly approved by the lower court. The Planning Code had become effective on January 1, 1969, only nine days prior to the challenged vote on the amendatory ordinance, and its terms may not have been known to the parties when this action was commenced on the 4th of March following. Unger and Roeder were not decided until March 20, 1970 and July 2, 1970, respectively. Had the Planning Code provisions been followed, the question of the validity Vel non of the protest provision would have been decided by the same lower court, presumably in the same way, following a report by the zoning hearing board (which itself has no power to pass upon the validity of any provision of an ordinance or map (§ 910)) and 'appeal' therefrom under § 1001 et seq. Under these unique circumstances, therefore, and because adherence to the letter of the procedural law would but serve to prolong for many months litigation now over two years old, we have decided not to vacate the order of the lower court and dismiss the case, but to consider the appeal on its merits.

As already indicated, the substantive issue presented is whether the Township's protest provision, Section 1905 of its zoning ordinance, was valid on January 9, 1969, when the Board of Commissioners voted on the zoning change applied for by appellee. As background to the understanding of this issue, it will be helpful to have in mind some of the zoning provisions of the First Class Township Code, Supra. Although these provisions were repealed as of January 1, 1969, by Section 1201 of the Pennsylvania Municipalities Planning Code, Supra, 53 P.S. § 11201, they were in force at the time the Township protest provision was adopted in 1966. By Art. 31, § 3101 of the First Class Township Code (53 P.S. § 58101 (1957 Edition)), townships of that class were given the power to adopt zoning ordinances. Section 3104 of the same Act, 53 P.S. § 58104 (1957 Edition) provided that, '(t)he board of township commissioners * * * shall provide by ordinance, the manner in which such regulations and restrictions * * * shall be determined, established and enforced, and, from time to time, amended, supplemented or changed.' Thus, Abington Township was granted authority to establish the procedure through which its zoning ordinances could be amended. Finally, however, section 3105 of the Act, 53 P.S. § 58105 (1957 Edition) placed a restriction on the power to amend or change zoning ordinances: 'In case, however, if a protest against such change, signed by the owners of twenty per centum or more, either of the area of the lots included in such proposed change, or of those immediately adjacent in the rear or in the front or to either side thereof extending one hundred feet therefrom (,) (s)uch amendment shall not become effective except by the favorable vote of three-fourths of al the members of the board of township commissioners.' The Abington Township protest provision is virtually identical to the portion of section 3105 of the First Class Township Code here quoted.

On October 19, 1967, section 3105 of the First Class Township Code was amended by Act 210 of 1967 so that a protest by the owners of more than 20% 'of the total abutting linear periphery of the parcel of land proposed to be changed' was necessary before more than a simple majority vote was required to adopt a zoning amendment; at the same time, the voting majority required to effectuate the protested amendment was reduced from three-fourths to two-thirds. Section 3105 of the First Class Township Code was thereafter specifically repealed by the...