Relosky v. Sacco

Decision Date03 April 1987
Citation514 Pa. 339,523 A.2d 1112
PartiesRonald R. RELOSKY and Frances G. Relosky, his wife, Appellants, v. John A. SACCO and the Borough of Ingram, Appellees. 119 W.D. 1985
CourtPennsylvania Supreme Court

William J. Murray, Murray & Difenderfer, William H. Difenderfer, Pittsburgh, for appellants.

James C. Larrimer, Dougherty, Larrimer & Lee, Pittsburgh, for appellees.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.

OPINION

NIX, Chief Justice.

In this case we are called upon to decide whether Article IX of the Municipalities Planning Code, which governs the formation and operation of zoning hearing boards, also applies to zoning-related decisions of a borough council where the borough has failed to create a zoning hearing board.

Appellants, Ronald and Frances Relosky, are the owners of a parcel of land, identified as lot 250, in the Borough of Ingram. Two buildings are situated on this lot. In July of 1980 appellants listed the rear building, consisting of a three-car garage on the first floor and an apartment on the second floor, for sale. In August of 1980 the Zoning Officer of Ingram, John A. Sacco, informed the Reloskys through their realtor that the rear unit could not be sold because the property was not approved for subdivision. Appellants then contacted the Ingram Solicitor, Clarence Biggs, and informed him of the Zoning Officer's ruling. Mr. Biggs advised appellants that if they wished to pursue the matter they should file for an occupancy permit with the Borough through the Zoning Officer's office.

On September 2, 1980, appellants filed an application to subdivide lot 250 by submitting a plot plan and letter addressed to the Ingram Planning Commission to Mr. Sacco. Mr. Sacco subsequently informed the appellants that the Ingram Borough Council would take action on the matter at the next council meeting, scheduled for October 13, 1980. No transcript was prepared of this meeting. Appellants contend that Mr. Relosky attended the meeting, but was not allowed to present any testimony regarding his application. Appellants further contend that Mr. Biggs announced at the October 13 meeting that a decision had been made one week before to deny appellants' application. Appellants finally contend that no written decision reflecting the denial of their application was ever rendered.

An appeal to the Court of Common Pleas of Allegheny County by appellants was filed. On November 30, 1980, appellees, John A. Sacco and the Borough of Ingram, filed an Answer and New Matter in which they claimed that the Borough of Ingram had never denied appellants' subdivision request; it had simply refused to act upon it because, never having enacted a subdivision ordinance, the Borough did not have jurisdiction to either approve or disapprove such a request. 1

After considering memoranda of law and the arguments of counsel, 2 Judge Nicholas P. Papadakos, now Mr. Justice Papadakos, issued an order dismissing the appellants' appeal and affirmed the Borough's decision on the basis that the Borough had lacked jurisdiction to consider the appellants' request. In his accompanying opinion Judge Papadakos explained that since Ingram did not have a subdivision ordinance, the County subdivision regulations controlled, 3 and the appellants should have applied for approval of their plan with the Allegheny County Planning Commission.

Appellants' next action was to submit a request for subdivision with the Allegheny County Planning Commission. On April 25, 1981, the Subdivision Administrator of the Department of Planning of the County of Allegheny informed the appellants that the Commission could not act on their request because it possessed only the authority to act on requests for subdivision of property into three or more parcels, whereas the appellants were seeking subdivision into two parcels.

On November 19, 1981, appellants returned to the Borough of Ingram and again requested occupancy permits to subdivide their property. By letter of December 3, 1981, the Building Inspector, Mr. Sacco, rejected the request on the basis that subdivision would be in violation of Ingram Borough Ordinance No. 982, Section 17, requiring "the lot area per dwelling unit shall be not less than 5,000 square feet for a One Family Dwelling, and not less than 2,500 square feet per dwelling unit for a Two Family Dwelling or Double House." The letter stated that "You have approximately 5538 square feet [in the total property]. If you remove 1810 square feet [the size of the rear unit], you make both lots illegal."

Appellants thereupon filed an action in the Court of Common Pleas of Allegheny County seeking a writ of mandamus to compel issuance of the occupancy permits. A hearing on the matter was held on October 12, 1982, and on the same day the Honorable Richard G. Zeleznik issued a writ of mandamus ordering appellees to grant appellants occupancy permits. Following the filing of exceptions, Judge Zeleznik issued an opinion stating that mandamus had been ordered because (1) Ingram Borough did not have a land subdivision ordinance and therefore had no basis to interfere with appellants' proposed subdivision; (2) Ingram Borough had not followed the formal procedures set forth in Title IX of the Municipalities Planning Code; and (3) the proposed subdivision and sale would not affect the long-standing use of the property and thus would not increase the non-compliance with Ingram Borough Ordinance No. 982. Appellees appealed to Commonwealth Court which reversed the Court of Common Pleas, stating that mandamus was not warranted in the instant case because permitting separate occupancy permits for the two structures would clearly violate ordinance No. 982.

Appellants filed a petition for review in this Court which we granted in order to decide whether mandamus was properly issued on the basis that the Ingram Borough Council had failed to comply with the procedures set forth in Title IX of the Municipalities Planning Code for zoning appeals.

Mandamus is an extraordinary writ which will issue to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the petitioner, a corresponding duty in the respondent, and want of any other adequate and appropriate remedy. Shaler Area School District v. Salakas, 494 Pa. 630, 432 A.2d 165 (1981); Coleman v. Board of Education of the School District of Philadelphia, 477 Pa. 414, 383 A.2d 1275 (1978); Rylke v. Portage Area School District, 473 Pa. 481, 375 A.2d 692 (1977). The determination of whether or not mandamus lies in a given case is within the discretion of the trial court. The role of an appellate court in reviewing the trial court's decision in a mandamus action is to determine whether the trial court abused its discretion. Coleman, supra; Porter v. Bloomsburg State College, 450 Pa. 375, 301 A.2d 621, cert. denied, 414 U.S. 844, 94 S.Ct. 105, 38 L.Ed.2d 82 (1973).

Upon our review of the record in this case and the applicable statutory enactments, we determine, for the reasons set forth below, that the Court of Common Pleas did not abuse its discretion in issuing the writ of mandamus.

The Pennsylvania Municipalities Planning Code ("Code"), Act of July 31, 1968, P.L. 805, as amended, § 101 et seq., 53 P.S. § 10101 et seq., governing zoning and residential development in this Commonwealth, is applicable to various municipalities, including boroughs. See Section 107(13) of the Code, 53 P.S. § 10107(13); Historical Note to Section 101, 53 P.S. § 10101. Section 601 of the Code, 53 P.S. § 10601, enables municipalities to enact zoning ordinances. The requirement that municipalities create zoning hearing boards is set forth in Section 901, 53 P.S. § 10901, which provides that "[e]very municipality which has enacted or enacts a zoning ordinance pursuant to this act or prior enabling laws, shall create a zoning hearing board." 53 P.S. § 10901. The Code further provides, in Section 909, that the zoning hearing board shall hear and decide appeals from adverse decisions of the zoning officer. 4 53 P.S. § 10909. The procedure for hearings before the zoning hearing board is set forth in Section 908, 53 P.S. § 10908. Section 908(5) states that the parties shall have the right to be represented by counsel and shall be afforded the opportunity to present evidence and argument and cross-examine adverse witnesses on all relevant issues. Section 908(9) provides for the timely filing of a written decision by the zoning board as follows:

The board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within forty-five days after the last hearing before the board or hearing officer. Where the application is contested or denied, each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor. Conclusions based on any provisions of this act or of any ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found. If the hearing is conducted by a hearing officer, and there has been no stipulation that his decision or findings are final, the board shall make his report and recommendations available to the parties and the parties shall be entitled to make written representations thereon to the board prior to final decision or entry of findings and the board's decision shall be entered no later than forty-five days after the decision of the hearing officer. Where the board fails to render the decision within the period required by this subsection, or fails to hold the required hearing within sixty days from the date of the applicant's request for a hearing, the decision shall be deemed to have been rendered in favor of the applicant unless the applicant...

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  • Pascal v. City of Pittsburgh Zoning Bd. of Adjustment
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    • September 22, 2021
    ...the hearing is materially inconsistent with the Code provisions, which must be strictly construed. See id. , citing Relosky v. Sacco , 514 Pa. 339, 523 A.2d 1112, 1116 (1987) ("procedural provisions of zoning statutes must be rigidly adhered to"). Appellants thus claim the zoning applicatio......
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