*1 453 A.2d 1385 Wife, Carlino, Appellants, His Peter and Elizabeth CARLINO INVESTORS, Township, Whitpain Whitpain WHITPAIN Supervisors Township Board of Transportation, Appellees. Department of Supreme Pennsylvania. Court Argued Oct. 23, 1982. Decided Dec. *2 Norristown, for appellants. J. Hughes, Edward and Bd. Gershman, Bell, Whitpain Tp. Blue for Howard Sup’rs. Hrubovcak, Asst. Norristown, John M. Anderson,

J. Peirce Transp. Dept, Gen. Atty. LARSEN, ROBERTS, NIX, O’BRIEN, C.J., and

Before JJ. HUTCHINSON, FLAHERTY, McDERMOTT *3 THE COURT OF OPINION FLAHERTY, Justice. in the Court of Com- action was commenced

This equity Peter the appellants, County by Montgomery mon Pleas of Carlino, injunc- seeking preliminary and Elizabeth Carlino (hereinafter Investors Whitpain the appellees, tion against and Township), (hereinafter Township Developer), Whitpain (hereinafter Transportation Department PennDOT, the action was motion of PennDOT). Upon Court, and, sustaining appel- transferred to Commonwealth Court dismissed Commonwealth objections, lees’ preliminary ensued. The instant appeal the complaint.1 of preliminary sustainment of the sought review is Since demurrers, the well pleaded the nature objections are to be the complaint forth in set allegations factual v. Kelly, of review. Papieves purposes as true for regarded as alleged by The facts (1970). 373, 263 A.2d is following. Developer the establish complaint appellants’ Investors, Whitpain 415 A.2d 1. Carlino v. 52 Pa.Commw.Ct. (1980). an constructing a 47 apartment complex Township on acre roads, tract land situated between three one of which, Avenue, Stenton is a state highway. Appellants’ residence lies across Stenton Avenue from the con- directly struction site. predecessor title Developer’s sought have the 47 acre tract rezoned from R-l an (single-family) classification to an R-3 classification to (multi-family) per- mit construction of residential rental units. At the hearing on tract, the then owner that a stipulated 300 foot buffer would be from the provided right-of-way line of Avenue, Stenton and further that no access specified road from the apartment complex Stenton Avenue would be built. In the requested zoning change was adopted by however, construction of Township. an access road from the apartment complex Stenton Avenue commenced, and appellants became aware that the land development plan approved had, finally Township at the insistence of the included a Township, provision for Avenue, access to Stenton and that a driveway permit authorizing construction the access road to Sten- ton Avenue had been PennDOT. issued by that the issued Penn-

Alleging driveway permit DOT to granted was without Developer adequate prelimi studies, nary the existence of asserting deficiencies in health, access road that endanger public safety, welfare, seek an injunction appellants requiring revocation of the permit. Established principles governing standing interest, however, raise public issues bar appellants’ *4 of assertion these claims. In Wm. Penn Parking Garage, 168, Inc. v. of City 192, 464 Pa. 346 Pittsburgh, 269, A.2d 280-281 our cases with (1975), dealing standing sum were marized as follows:

The core of is a concept, course, that who is person not in adversely affected the matter he seeks to any way by is not no challenge “aggrieved” has thereby standing to obtain a his judicial challenge. resolution of particu- lar, it is not sufficient for the to be person claiming

502 of all citizens the common interest to assert

“aggrieved” to the law. obedience procuring is not standing This rule omitted). respecting (footnotes a breach of injured by to bar from relief persons intended others have incurred simi- because merely many public duty breach; rather, that lar as a of injuries consequence suffered some those who have distinguish “concern is to the common from those asserting only individual injury Id., 464 of the entire that the law public obeyed.” added). at 287 Since 203, (emphasis Pa. at 346 A.2d a assertion broad although containing instant complaint, “have a unique access road will that deficiencies individual any injury on fails to appellants, specify impact” in the itself and roadway to deficiencies attributable as studies, regarded lacking must be preparatory appellants PennDOT’s action. objections to raise standing PennDOT’s challenge grant further Appellants the access road that presence on grounds driveway permit will cause inconven to their property immediately adjacent the value of their thereby impairing and annoyance, ience We in damages. a manner not compensable property state a cause of as inadequate this assertion regard of Highways, v. Department action. In Wolf case, an owner an eminent domain A.2d 868 highway alleged a state abutting business property value had diminished property’s highway improvements reduc ingress, thereby circuitous route necessitating to enter the willing of business customers the number ing insofar as damages the owner’s claim Denying premises. such a diversion of occasioned by diminution value abutting of properties held that owners this Court traffic, interest in preserving no cognizable legal roads have state Wolf, Thus, on those roads. of traffic flow particular of Missouri ex rel. State A.2d at quoting Pa. at (Mo. Meier, 388 S.W.2d Comm. Highway State owner were stated an abutting 1965), rights follows:

503 as an a “Respondent, abutting owner on property public does not now highway, have and has never had any other interest in the property public other than a highway reasonable of right ingress egress, stated. Respon- dent has never traffic, had a in the right great or property small, on the highway, right nor a to recover damages for a decrease in value her reason of premises by the diversion of traffic away from her nor has she property, had a to the property right have same amount traffic her pass as before or to property have it move in the same direction.”

(emphasis added). Since contention that appellants’ access road in will question cause inconvenience and annoy- is, ance in essence, an to assertion maintain right traffic conditions on existing Avenue, Stenton and since the existence of has been our negated holding Wolf, claim appellants’ against fails to PennDOT state a cause of action.

With respect Township and Developer, appellants seek an injunction former to refrain requiring from condition- ing construction Developer’s permit upon provision access road in question, the latter requiring to eliminate that road and restore the zone 300 foot buffer along Stenton Avenue. The complaint alleges Developer’s predecessor title, an pursuant with the agreement Township, stipulat- ed as to plans preserve the buffer area and forego an access road Avenue, to Stenton thereby rendering conditioned rezoning there contractually upon being no ac- cess route the buffer traversing zone.

The concept conditioned contractually ad zoning vanced appellants lacks precedent this Commonw ealth,2 and authorities elsewhere with differ respect to Gladwyne Colony, Township, Inc. v. Lower Merion alleged gave A.2d it was that a landowner considera- (parkland) municipality exchange tion for enactment of a contractually ordinance. The case did not involve condi- however, rezoning, special tioned since no land use limitations or accepted by conditions were owner order secure rezoning.

whether to accord the See Nich- concept validity. generally *6 Tourtellotte, 411, olson v. 110 R.I. 293 A.2d 909 (1972); State 22, ex 174 Schimenz, rel. v. 46 Wis.2d N.W.2d 533 Zupancic has been (1970); long 70 ALR 3d 125. The proposition cannot, in this that individuals recognized by Commonwealth contract, which abridge police powers protect general welfare interest. As stated in v. Balti- Leiper and public Co., 328, 332, more 105 A. & Railroad Philadelphia 551, 553 “Where the of individuals under a (1918), rights contract which would be valid are in perfectly otherwise State,’ conflict with the of the ‘general well-being rights of the must to the welfare.” give general individuals way also, v. Municipal Authority See Blythe Commission, 334, Public 185 A.2d 628 Pa.Super. Utility (1962). The cannot be sub- police power municipalities to which restrict or condition jected zoning agreements as to district classifications We are particular properties. accord with the Court of position adopted by Supreme v. New in Houston Petroleum Co. Automotive Prod- Jersey, Association, Inc., ucts 9 N.J. 87 A.2d Credit wherein the Court stated: “Contracts thus have no and a contract between a municipality place zoning plan not enter into the enactment or and a owner should Houston, In covenants enforcement of zoning regulations.” to a landowner as a means of agreed and restrictions were held invalid on that zoning change grounds effecting made, was, with regard contract thereby purported ultra vires contrary public policy. the municipality, in V.F. the Court relied its decision holding, upon so Board of Zoning Adjust- Zahodiakin Engineering Corp. 394-395, ment, (1952), setting 8 N.J. 86 A.2d with which we following principle, agree, govern- forth municipal zoning power: exercise of ing of the to serve the police power is an exercise Zoning that welfare. It is general elementary common good or cur- function not be surrendered may the legislative the consider- or its exercise controlled by tailed by bargain contracts. The use enter into the law of ations which The application. needs have general restriction must power private not be exerted to serve interests may nor to that end. principle subverted merely, may we the view that and con- Accordingly, reject agreements, comitant or which induce representations stipulations, district classifications limit the effect of changes zoning those it changes Thus, once enacted. if were proven, alleged in the that complaint, Developer’s predecessor title of the land procured exchange subject land, covenanted use restrictions that applicable unenforceable; hence, restrictions would be proceedings enforce the restrictions were dismissed the court properly below.3 contend

Finally, appellants court below *7 abused its discretion their while by dismissing complaint, objections, without sustaining preliminary leave to granting amend the in an pleadings effort to avoid As dismissal. stated in Otto v. American Mutual Insurance Co., 482 Pa. A.2d “The to amend should be not where is some withheld there reasonable that can accomplished amendment be successful possibility would, Where allowance an ly.” however, amendment be exercise, futile the complaint be dismissed may properly without allowance for amendment. In Nationwide Mutual Barbera, (1971). surance Co. A.2d 821 that, submit if the to Appellants granted opportunity only amend their ... they “would a sufficient complaint, plead . standing interest to confer . . and would assert party third . out the beneficiary rights arising stipulation . . and agreement Township between the and the and the Developer the conditional tract.” rezoning principle Since conditioned lacks and in contractually rezoning viability, view of new allege failure what interest would appellants’ be as a appears asserted basis for there no reason standing, able that amendment could accom- possibility be successfully rezoning subject validly not to Since of the tract is held condi- Avenue, upon being tioned there no access road to Stenton there is municipalities authori- no need to address claim that lack PennDOT’s ty highways. deny access to state

plished. an Accordingly, opportunity amend the com- plaint was denied. properly

Order affirmed. LARSEN, J., files a dissenting opinion which McDER- MOTT, J., joins.

LARSEN, Justice dissenting. I dissent to the conclusion majority’s that the appellants have no enforceable rights and devel- against township The Carlinos oper. were apparently prepared oppose application and, if necessary, challenge by appeal of a new any approval zoning classification. How- ever, the appellants were misled to inaction conduct of and the township developer’s when the predecessor prop- was erty rezoned. The flames of potential opposition were doused quickly nectar efficiently by soothing promises, stipulations representations and offi- publicly made officials and cially by township the then owner of the premises. There is before us to nothing suggest Carlinos were other than completely assured that the threats to the public health and which safety, perceived, were they minimized effectively establishment of a 300 feet buffer zone and the committment that no access road to Stenton Avenue would be built. The appellants’ faith good beliefs in this were regard derived from the directly pacify- ing actions of the and the former township owner. *8 Carlinos, The who were into cajoled valuable and giving up should not be left legally protected rights, without a remedy when discover that were deceived. they they circumstances,

Under these it be said that the rezon- may with ing application accompanying plan representations were detrimentaly as to the Carlinos. misleading instances, our courts have said that or negligent wrongful official conduct which misleads an aggrieved party his detriment can be to fraud. equated See: of Girola- Appeal mo, 49 Pa.Commw. 410 A.2d 940 (1980); also: See Devices, Visual-Education Inc. v. Springettsbury Township, (1980). Pa.Commw. A.2d 235 Although facts specific issues Girolamo and dis- are Springettsbury similar to those in the case, the present judicial disapproval of deceit and conduct misleading viable is principle applicable to the Carlinos’ situation. I

Accordingly, would hold that the appellants’ right to heard, which were they induced to wrongfully forego should be under the recognized facts in this case and would, therefore, reverse.

McDERMOTT, J., joins in this dissenting opinion.

454 A.2d 1 COMMONWEALTH of SMITH, Emory Charles Petitioner.

Supreme Pennsylvania. Court of

Dec.