Schmidt v. Philadelphia Zoning Bd. of Adjustment
| Decision Date | 27 June 1955 |
| Citation | 114 A.2d 902,382 Pa. 521 |
| Parties | John G. SCHMIDT, Robert W. Sigmund, Charles F. Roth and Somerton Civic Association v. PHILADELPHIA ZONING BOARD OF ADJUSTMENT and American Meter Company, Intervenor. Appeal of John G. SCHMIDT. |
| Court | Pennsylvania Supreme Court |
Thomas A. Matthews, Philadelphia, for appellant.
Matthew W. Bullock, Jr., Asst. City Sol., Herbert M Linsenberg, Asst. City Sol., Abraham L. Freedman, City Sol., Philadelphia, (J. B. H. Carter, Francis H. Scheetz, Philadelphia, for Appellee-Intervenor, American Meter Co, Pepper, Bodine, Frick & Scheetz, Philadelphia, of counsel.
Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, and ARNOLD, JJ.
The court below dismissed an objecting property owner's appeal from an order of the Zoning Board of Adjustment of Philadelphia sustaining the issuance by the City's administrative zoning officer of a use registration permit to the applicant (and present intervenor) for the construction of an office and factory on property in the Somerton section of the 35th Ward of the City. The objecting property owner has appealed.
The sole question involved is whether the City's amendatory zoning ordinance of 1952, which reclassified the property in question as available for industrial uses, constituted ‘ spot-zoning’ and was, therefore, invalid as an unconstitutional exercise of the City's police power.
The subject property is owned by the American Meter Company and consists of a substantially rectangular tract of unimproved land of 7 1/2 acres abutting, on its north side, on Philmont Avenue which, in general, runs east and west. For present convenience, the property may be described as follows: Beginning at a point on Philmont Avenue some 859 feet west from the southwest corner of Philmont and Bustleton Avenues, thence west along Philmont Avenue for a distance of approximately 877 feet and Philmont Avenue and the right of between Philmont Avenue and the right of way of the New York division of the Reading Railroad on the south.
On the eastern side of this property there is another tract of 4 1/2 acres of unimproved land (also owned by the American Meter Company) which is bounded on the north by Philmont Avenue, on the east by Bustleton Avenue and on the south by the right of way of the Reading Railroad. Opposite both of these properties, i. e., across the railroad, there is a still larger tract of unimproved land which is bounded on the north by the railroad's right of way, on the east by the village of Bustleton, on the south by Audubon Avenue (as yet unopened) and on the west by Byberry Road.
Under Philadelphia's basic zoning ordinance of 1933, all three of the above described properties were zoned General Industrial and so remained for a period of eighteen years. Following studies by the City Planning Commission and recommendations by that body and by the Zoning Board of Adjustment, City Council, on July 3, 1951, passed an amendatory ordinance, which the Mayor duly signed, changing the zoning classification of the properties above described from General Industrial to ‘ B’ Residential. A year later, however, viz., on July 10, 1952, City Council enacted, and the Mayor duly signed, a further amendatory ordinance, effective August 5, 1952, which reclassified the 7 1/2 acre tract, herein first above described, as General Industrial instead of ‘ B’ Residential. This action was likewise taken on favorable recommendations by the City Planning Commission and the Zoning Board of Adjustment.
In the situation then obtaining, the administrative zoning officer on the application of the American Meter Company issued to the applicant on April 1, 1954, the use registration permit above mentioned for the erection on the 7 1/2 acre tract of a plant for the manufacture of meters. The issuance of the permit was protested by residents of the area who appealed the action of the zoning administrator to the Board of Adjustment. After hearings, at which testimony was taken, the Board sustained the issuance of the permit. Thereafter John G. Schmidt, one of the objectors, filed with the court below his petition for a certiorari to the action of the Board of Adjustment. The court approved the petition, and a certiorari duly issued. On petition, the American Meter Company was formally allowed to intervene in the proceeding. The matter later came on for a hearing before the court below which, after taking additional testimony, sustained the action of the Board of Adjustment. This appeal by Schmidt, individually, followed.
At the outset, it is important that the procedural situation be clearly fixed in mind. The matter is here on certiorari. The Act of May 6, 1929, P.L. 1551, 53 P.S. § 3822 et seq., empowering cities of the first class to enact zoning ordinances, makes no provision for an appeal from an order of a court of common pleas in a case arising under such an ordinance. The statute being silent as to a right of appeal to a higher court, this case is necessarily before us as on certiorari in its broadest sense: Fleming v. Prospect Park Board of Adjustment, 318 Pa. 582, 583-584, 178 A. 813. As stated by Mr. Chief Justice Stern in Walker v. Zoning Board of Adjustment, 380 Pa. 228, 230, 110 A.2d 414, 415,-‘ Since the Act of May 6, 1929, P.L. 1551, 53 P.S. § 3822 et seq., which deals with zoning ordinances of cities of the first class, does not provide for any appeal from the court below our review is merely as on certiorari and we examine the record only to see whether there is any evidence to sustain the findings and whether the proceeding is free from a violation of positive law and any flagrant abuse of discretion.’ And, that is so whether or not...
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