CHANCEFORD AVIATION PROPERTIES, L.L.P. and Chanceford Aviation, Inc., Appellants, v. CHANCEFORD TOWNSHIP BOARD OF SUPERVISORS, Appellee.
Supreme Court of Pennsylvania.
Argued Dec. 7, 2005. Decided May 31, 2007.
923 A.2d 1099
Timothy J. Bupp, Esq., for Chanceford Township Board of Supervisors.
BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
OPINION
Justice EAKIN.
Appellants, Chanceford Aviation Properties, LLP and Chanceford Aviation, Inc., own five acres of land in Chanceford Township, York County, upon which a public airport1 is situated. Appellants are successors in interest to the property‘s former owner, Loretta Baublitz. Baublitz brought a mandamus action asking the trial court to enter judgment against the Chanceford Township Board of Supervisors, directing the Township to enact a zoning ordinance in compliance with the Airport Zoning Act (AZA),
Loretta Baublitz‘s late husband, Levere, owned and operated a private airport prior to the Township‘s adoption of a zoning ordinance in 1979. R.R., at 61a. In the early 1980s, Mr. Baublitz received a public airport license from the Pennsylvania Department of Transportation, Bureau of Aviation (PennDOT). Id. The legislature enacted the AZA in 1984. See
Mr. Baublitz died in 2000, and the license expired since it was in his name only. Id., at 65a. PennDOT, however, issued a “letter of continued operation” authorizing Loretta Baublitz to continue operating the airport. Id., at 66a. PennDOT continues to extend that authorization. See id., at 99a. In January, 2002, Baublitz requested the Township enact an airport hazard zoning ordinance in accordance with the AZA. Id., at 27a. Such an ordinance was discussed at a number of meetings of the Township‘s Board of Supervisors. The minutes of the January 13, 2003 meeting reflect that airport hazard zoning was discussed, and the Township solicitor stated he and his predecessor discussed the matter, and his predecessor stated unless the airport‘s owner wanted to bring a mandamus action, the topic should not be approached. Id., at 29a, 120a. Notwithstanding that statement, airport hazard zoning was discussed in subsequent Board meetings during 2003; however, no such ordinance was adopted. Id., at 30a-44a.
In July, 2003, Baublitz filed a complaint requesting the trial court enter a mandamus judgment in her favor directing the Township “to enact a zoning ordinance in compliance with the [AZA], within the shortest time frame permitted by laws
§ 5912. Power to adopt airport zoning regulations
(a) General rule. In order to prevent the creation or establishment of airport hazards, every municipality having an airport hazard area within its territorial limits shall adopt, administer and enforce, under the police power and in the manner and upon the conditions prescribed in this subchapter and in applicable zoning law unless clearly inconsistent with this subchapter, airport zoning regulations for such airport hazard area. The regulations may divide the area into zones and, within the zones, specify the land uses permitted and regulate and restrict the height to which structures may be erected or objects of natural growth may be allowed to grow. A municipality which includes an airport hazard area created by the location of a public airport is required to adopt, administer and enforce zoning ordinances pursuant to this subchapter if the existing comprehensive zoning ordinance for the municipality does not provide for the land uses permitted and regulate and restrict the height to which structures may be erected or objects of natural growth may be allowed to grow in an airport hazard area.
The Township appealed. The Commonwealth Court reversed, concluding the AZA does not mandate that “the Township adopt a model airport hazard zoning ordinance that will result in a servitude being imposed on the properties of hundreds of landowners and thousands of acres of property, potentially at the Township‘s expense, all to favor the owner of a single, privately owned five-acre tract of land.” Baublitz v. Chanceford Township Board of Supervisors, 865 A.2d 975, 979 (Pa.Cmwlth.2005). The court noted
An appellate court may reverse the grant of a motion for summary judgment if there has been an error of law or an abuse of discretion. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1221 (2002). Since the issue as to whether there are no genuine issues as to any material fact presents a question of law, our standard of review is de novo; thus, we need not defer to the determinations made by the lower tribunals. Our scope of review, to the extent necessary to resolve the legal question before us, is plenary. Buffalo Township v. Jones, 571 Pa. 637, 813 A.2d 659, 664 n. 4 (2002). We must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038, 1041 (1996) (citing Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303, 304 (1992)).
Appellants separate their argument into three sections: whether the AZA mandates the Township enact an airport zoning ordinance; whether § 411 of the Township Zoning Ordinance meets the AZA‘s requirements; and whether mandamus can compel a local municipality to enact an ordinance mandated by the legislature.
Whether the AZA mandates the Township to enact a zoning ordinance is a question of statutory construction. The purpose of the interpretation and construction of statutes is to ascertain and effectuate the legislature‘s intent.
The word “shall” by definition is mandatory, and it is generally applied as such. Oberneder v. Link Computer Corp., 548 Pa. 201, 696 A.2d 148, 150 (1997). However, the context in which “shall” is used may leave its precise meaning in doubt. See Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 888 A.2d 758, 764-65 (2005); see also In re Canvass of Absentee Ballots of November 4, 2003 General Election, 577 Pa. 231, 843 A.2d 1223, 1231-32 (citations omitted) (“Although some contexts may leave the precise meaning of the word ‘shall’ in doubt . . . this Court has repeatedly recognized the unambiguous meaning of the word in most contexts.“). When the context in which “shall” is used creates ambiguity, this Court has used the factors in
Appellants argue the requirements of the AZA are mandatory, not directory. They contend the AZA, and specifically the term “shall” in
The Township asserts the Commonwealth Court‘s review of the AZA properly considered the Act in its entirety, the Act‘s nature and objective, and the consequences of its construction, and correctly concluded “shall” is directory rather than mandatory. It argues the effects on Chanceford Township and other municipalities of interpreting the AZA as mandatory indicate the legislature intended the Act to be a directory grant of authority, not mandatory. It asserts mandatory adoption of the model ordinance will affect thousands of acres of property in favor of a single five-acre parcel of property, and such is not in accord with the Act‘s mandate that regulations adopted under it be reasonable. Township‘s Brief, at 11-12 (citing
The Pennsylvania State Association of Township Supervisors (PSATS) filed an amicus curiae brief, asserting because the AZA is ambiguous, statutory interpretation tools must be used to determine the legislature‘s intent. It asserts the statute‘s ambiguity is created by the legislature‘s use of both mandatory and permissive language. It further asserts that reading the AZA as a whole suggests the legislature intended
The first sentence of
In order to prevent the creation or establishment of airport hazards, every municipality having an airport hazard area within its territorial limits shall adopt, administer and enforce, under the police power and in the manner and upon the conditions prescribed in this subchapter and in applicable zoning law unless clearly inconsistent with this subchapter, airport zoning regulations for such airport hazard area.
A municipality which includes an airport hazard area created by the location of a public airport is required to adopt, administer and enforce zoning ordinances pursuant to this subchapter if the existing comprehensive zoning ordinance for the municipality does not provide for the land uses permitted and regulate and restrict the height to which structures may be erected or objects of natural growth may be allowed to grow in an airport hazard area.
Id. (emphasis added). This sentence requires a municipality with an airport hazard area to adopt, administer, and enforce airport zoning, if its zoning ordinance does not (1) provide for
The plain language of
Neither the title of
The clearly expressed purpose of the AZA is “to prevent the creation or establishment of airport hazards.” See
Third, appellants argue mandamus is appropriate to compel a municipality to enact an ordinance mandated by the legislature. “Mandamus is an extraordinary writ that will only lie to compel official 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 want of any other appropriate or adequate remedy.” Jackson v. Vaughn, 565 Pa. 601, 777 A.2d 436, 438 (2001) (citation omitted). It may be used to compel performance of a ministerial duty, or to compel action in a matter involving judgment or discretion. Pennsylvania Dental Association v. Commonwealth Insurance Department, 512 Pa. 217, 516 A.2d 647, 652 (1986). However, it may not be used to direct the exercise of judgment or discretion in a particular way, or to direct the retraction or reversal of an action already taken. Id. “Mandamus is a device that is available in our system to compel a tribunal or administrative agency to act when that tribunal or agency has been ‘sitting on its hands.‘” Id.
Appellants assert mandamus is appropriate here because the legislature required the Township to enact an airport zoning ordinance consistent with the AZA. The Township argues mandamus is not appropriate because the AZA is a directory grant of power and not a legislative mandate. The Township argues it is outside the province of the judicial and executive branches to compel local legislative bodies to amend, repeal, and reenact their zoning ordinances since these legislative bodies may act, or not act, as they wish. Township‘s Brief, at 16 (citing East Lampeter Township v. County of Lancaster, 744 A.2d 359, 365 (Pa.Cmwlth.2000)).
The Township further asserts mandamus is inappropriate since mandamus is appropriate only when refusal to perform an act or duty is clear, and not speculative. Id., at 18 (quoting Nason v. Commonwealth, 90 Pa.Cmwlth. 130, 494 A.2d 499 (1985)). The Township asserts it never refused appellants’ request for adoption of an airport zoning ordinance and, in fact, was “actively investigating the AZA‘s model ordinance and had discussed the ordinance at numerous public meetings.” Id., at 18. Appellants reply without citation to authority, but instead argue the Township clearly indicated its decision to not adopt an ordinance, pointing to the period of time the Township had notice of the requirement to adopt the ordinance. Appellants’ Reply Brief, at 6-7. Appellants note the AZA was enacted in 1984, and every township with a public airport received notice of the AZA‘s requirements in 1985. Id. (citing R.R., at 50a). Further, appellants claim they notified the Township of its duty to adopt an airport zoning ordinance pursuant to the AZA in 1991, id. (citing R.R., at 119a, 125a), and again requested the Township enact an ordinance to comply with the AZA in 2002. Id. (citing R.R., at 119a, 131a). Appellants state although the Township studied the feasibility of adopting an ordinance from January, 2002, through the filing of the complaint in July, 2003, no ordinance has been adopted. Id. (citing R.R., at 121a, 123a).
While it does not appear the Township has formally refused to adopt an airport hazard zoning ordinance in compliance with AZA, it does appear the Township has been sitting on its hands. It is clear the Township has not adopted an airport zoning ordinance even though it has been aware of the AZA‘s requirements for over 20 years. Thus, in this case, common sense dictates that the Township‘s failure to comply with the AZA‘s requirements, of which it was on notice for two dec-
Finally, the Township argues appellants have means other than mandamus to gain control of airspace surrounding their property. It suggests appellants could obtain easements or purchase neighboring properties or the air rights to such properties in order to control the airspace. The Township contends appellants clearly have other means, but are attempting to “impose the burden and cost of controlling its airspace on the Township and its residents.” Township‘s Brief, at 19. Appellants assert this argument is without merit because it assumes the owners of the neighboring properties will sell an easement or property rights. We agree with appellants. The mandamus action here is seeking to have the Township comply with the legislature‘s statutory mandate. No purchase of property rights could bring the Township into compliance with the AZA. Thus, mandamus is appropriate to compel the Township to comply with the AZA‘s mandate.
For the above reasons, the Order of the Commonwealth Court is reversed. Jurisdiction relinquished.
Former Justice NIGRO did not participate in the consideration or decision of this case.
Former Justice NEWMAN did not participate in the decision of this case.
Chief Justice CAPPY and Justice CASTILLE and BAER join the opinion.
Justice SAYLOR files a dissenting opinion.
Justice SAYLOR, dissenting.
For the reasons stated by the majority, I agree with its holding that the Commonwealth Court erred in its indication that the Airport Zoning Act (“AZA“) is directory rather than mandatory. Nevertheless, I support the Commonwealth Court‘s conclusion that Section 411 of the Chanceford Township Zoning Ordinance, in its general application, is sufficient to comply with the terms of the AZA. See Baublitz v. Chance-ford Twp. Bd. of Supervisors, 865 A.2d 975, 978-79 (Pa.Cmwlth.2005). Since I believe, however, that there is an issue concerning Section 411‘s applicability in the circumstances involved in the present case, I would remand to the Commonwealth Court for further consideration. My reasoning follows.
As the majority notes, the AZA requires an affected municipality to enact zoning regulations preventing the creation of airport hazards if its existing zoning ordinance does not already do so by providing for permitted land uses and restricting the height of objects and structures lying within airport hazard areas. Further, the statute requires that such municipalities adopt, in full or by reference, the provisions of model zoning ordinances or other similar guidelines set forth by the FAA related to airport hazards. See Majority Opinion, op. at 105, 923 A.2d at 1102.
For its part, Section 411 provides that an airport may be established by special exception within the Township, subject to certain conditions related to airport obstructions. See Majority Opinion, op. at 112 n. 5, 923 A.2d at 1106 n. 5. Among other things, the conditions set forth in Section 411 prohibit the existence of tall structures and natural objects lying outside the airport but within approach zones and mandate compliance with applicable FAA regulations. See id.
The majority reasons that, because Section 411‘s provisions merely establish the conditions that must be met by an applicant seeking to operate an airport as a special exception within the Township and do not place direct zoning restrictions on properties lying adjacent to permitted airports, their scope is too limited to satisfy the mandates of the AZA. Section 411, however, relates directly to the types of hazard that are the concern of the AZA—in keeping with the AZA, it provides for the land uses permitted in airport hazards areas, restricts the height of structures and objects in those areas, and incorporates FAA regulations.1 As applied, Section 411
merely shifts the financial responsibility of insuring safe airport operations from the Township and neighboring landowners to the party seeking to establish an airport by special exception.2 Significantly, once the conditions of Section 411 have been met by a landowner, the Pennsylvania Municipalities Planning Code,
Although I therefore differ with the majority‘s conclusions concerning the general effect of Section 411 and the outcome of this appeal to the degree that Section 411 applies, I would agree that the AZA does require the Township to enact additional zoning regulations aimed at preventing hazards that might affect the airport if Section 411 does not apply to regulate the use of Appellants’ lands. In this regard, Appellants suggest that the airport is exempted from the zoning regulation as a prior nonconforming use.
Notably, the Township concedes in its brief that the airport was established prior to the enactment of the Ordinance in 1979, but suggests that it was not a public airport at that time, and thus, by implication, that the nonconforming use is limited to the airport‘s operations as a private facility. See Appellee‘s Brief at 1. Appellants, by contrast, claim that the airport has
In terms of the disposition of the appeal, in my estimation it is significant that Appellants initiated the underlying proceedings through a mandamus action. It is well established that mandamus is an extraordinary remedy and that a writ of mandamus may only be issued where there is a clear legal right in the petitioner, a corresponding duty in the respondent, and a lack of any other appropriate remedy. See McGriff v. Com. of Pennsylvania Bd. of Probation and Parole, 809 A.2d 455, 458 (Pa.Cmwlth., 2002), aff‘d, 575 Pa. 537, 838 A.2d 564 (2003). Furthermore, within the context of mandamus proceedings, “the burden of proof . . . falls upon the party seeking the extraordinary remedy to establish his legal right to such relief.” Werner v. Zazyczny, 545 Pa. 570, 578, 681 A.2d 1331, 1335 (1996). Under my rationale as described above, the characterization of Appellants’ property as a prior non-conforming use is essential to the applicability of the AZA and, correspondingly, the availability of mandamus relief. Within this framework, I would remand for a determination concerning whether relief was available to either party in the procedural posture of this case (i.e., on consideration of the parties’ cross-motions for summary judgment).
Notes
Any area of land or water which is used, or intended to be used, for the landing and takeoff of aircraft and any appurtenant areas which are used, or intended to be used, for airport buildings or air navigation facilities or rights-of-way, together with all airport buildings and facilities thereon. Unless indicated otherwise, airport shall include heliports and public airports.
Id. As the majority observes, the Aviation Code defines airport hazards as structures or objects which might obstruct or pose a hazard to the airspace required for the landing and taking off of aircraft, and de-- The occasion and necessity for the statute.
- The circumstances under which it was enacted.
- The mischief to be remedied.
- The object to be attained.
- The former law, if any, including other statutes upon the same or similar subjects.
- The consequences of a particular interpretation.
- The contemporaneous legislative history.
- Legislative and administrative interpretations of such statute.
(b) Zoning ordinances may permit, prohibit, regulate, restrict and determine:
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(2) Size, height, bulk, location, erection, construction, repair, maintenance, alteration, razing, removal and use of structures.
Where indicated as permitted by special exception, this use is permitted subject to the following:
- Lot Area: ten (10) acres minimum.
- The approach zone to any of the proposed runway landing strips shall be in accordance with the regulations of applicable Federal and/or State agencies.
- There shall be no existing flight obstructions such as towers, chimneys or other tall structures or natural obstructions outside of the airport and located within the proposed approach zones.
- Any building, hanger or structure shall be located a sufficient distance away from the landing strip in accordance with the recommendations of applicable Federal and/or State agencies.
- Building heights in airport approach zones shall be limited to provide a clear glide path from the end of the usable landing strip. The glide path shall be a plane surface laid out in accordance with the operating characteristics of the aircraft for which the airport is designed. The first five hundred (500) feet of the glide path shall be wholly within the airport property.
- The facility must be permitted under applicable PAA and FAA regulations.
- If in the Conservation Zone or Agricultural Zone, the provisions of Sections 206.9 and 207.9 shall apply to the site location and to reduce the number of dwelling units permitted on the tract where the use is located.