*1 Colligan Zoning Case.
Argued October Before 1,1959. J., Bell, C. Jones, Boic and JJ. Jones, Cohen, McBride,
reargument August refused 1960. 8, Loyal Gregg, H. Gregg appel- with him & for Price, lant.
Henry E. Rea, him Jr., Brandt, Riester, appellee. & Brandt for Malone, Opinion May 1960: 23, Mr. Justice Bell, taking The testimony, after Court, reversed the Adjustment Board of and directing entered an Order requested the issuancе building permit. of a The Bor- ough appealed. of Whitehall January Highlands
On 1, 1938, Baldwin Plan, 100 among contained lots, which were presently controversy, those was recorded in the of- fice of the Allegheny Recorder of Deeds County. plan recorded contained а dedication of all streets
127 of these forever. One tliereon use plotted Drive. J¡0 called ivide street streets was Earlford foot lots Nos. served This was a dead end street which only into it ran a public 100; 87, 88, 89, 90, 91, end. and Mrs. as Abbott Drive at the Mr. open known Nos. title to lots September acquired Aiken on 1950, S, of lot No. on June part they acquired title to lots Nos. the remaining is a in title portion of 89. who successor lot Colligan, the survivor and Mrs. from purchased Mr. Aiken, lot part them in lots Nos. June, No. 89. OAvnerand
William T. a successor Hinds, title Mrs. Aiken of lots Nos. 99 and 100, to Mr. and *3 of Earlford opposite Avliichare on other side Drive, and in 1951 and thereafter paved lots Nos. 87 88, as a used 100 feet of Earlford Drive approximately from his All means of access and egress property. that Earl- except of on fronting Colligan’s property, and ford is surrounded residential homes Drive, or there is no means ingress egress Colligan for than Drive. other Earlford applied a permit,
On for August Colligan to build a lots variance, residence on alternatively lot No. part Nos. his 89 is so small that SS; 87 and erected thereon. The per- no could house possibly Adjust- and mit official refused Board this refusal inter a sub- because, ment sustained alia, Avas pending ordinance Avas Council —it division November Coun- on 1957. The 1¡, passed approved and the Board of Adjustment reversed Averepeat, ty Court, issuance оf permit which and ordered the for. had applied Colligan of Whitehall Avas formed the Borough
When been opened. Drive never actually had Earlford portion of Earlford Borough vacated In Drive wliieh abuts Colligan’s lots property, namely Nos. as Hinds’ and well as namеly property, lots Nos. 99 and 100. Hinds continues to use Earlford Drive as an access from Ms egress property we this is sole means and, repeat, ingress egress which Colligan’s possesses. ordi of Whitehall passed
nance on 1955. The which February Colligan home proposеs to erect B-2 in this residential zone cost will $35,000 and will not conform will far only but with, requirements exceed of the zoning ordinance, minimum side including type front, area, dwelling, and rear with one Sec yard exception. requirements, tion 502 of the alia: ordinance inter provides, A “(1). lot with a minimum frontage feet* a minimum area of feet shall 9,000 square per family be provided for hereafter erected. . . .” every building lot have area square an Colligan’s 41,400 but feet, its on a is its 122 only street foot frontage frontage on the dedicated plotted street of Earlford Drive.
This case raises several novel difficult prob lems. The first contention is the re quested permit would violate its ordinance must be interpreted to mean “a minimum of 60 feet frontage on a or on a publicly dedicated street,” and Earlford Drive is since it has beеn vacated neither, *4 the by Borough. In Medinger 377 Pa. 104 Appeal, “ A. 2d the Court said : (page 221) ‘Restrictions imposed ordinances by zoning in are, however, deroga tion of the common law and (at times) the liberties, rights and privileges guaranteed Constitution of the United States and the Cоnstitution of Pennsyl vania and therefore must be construed: strictly Lukens v. Zoning Board 367 Pa. 80 2d A. throughout,
* Italics ours.
129 2dA. Pa. 68 Kline Harrisburg, 438, 451, v. ” 182.’ of its interpretation to the According a prop- 60 foot frontage ordinance-provision, minimum direc- in the owner not front his property could erty he fronted on a public tion it must be desires; inter- If the Borough’s dedicated street. publicly this correct it would pretation frontage provision safe- relation to have no clear or reasonably necessary unrea- it be an health or would morals; arbitrary, ty, private unjustifiable intermеddling sonable and unconstitu- and ownership consequently property, 2d 533; tional. Pa. 81 A. Lord Appeal, Pa. 587. O’Hara’s A. 2d Appeal, ordinance was The obvious purpose and to residential properties uses, to restrict twofold, and police garbage fire and рroper protection, give other disposals sewage rubbish collection, —in morals protect safety words, health, be justi- the ordinance can Unless community. it is uncon- principle fied under this welfare general it under if stitutional; may even constitutional, of a cаse be the facts and circumstances particular to a owner’s applied particular unconstitutional when property. repeat, residential we
Colligan’s property contains, a minimum of square feet, 9,000 contrast 41,400 and all required feet square ordinаnce, rear and similar re- the minimum side and yard area, forth Zon- those set exceed quirements Ordinance. house be 150 feet dis- Colligan’s ing to the tant the nearest house 150 feet dis- North, from the nearest house to feet distant East, tant from to the from the nearest house 238 feеt dis- South, tant from the nearest house West. Obviously it than a 60 foot frontage; has more likewise has a it *5 20* foot a 40 or foot on Earlford frontage Drive, public wide connects with paved end. open street of Abbott Drive at the after a The after a full hearing Court made mаny the testimony, careful consideration of fact and conclusions of law. Court findings “dwelling inter that Colligan’s proposed found, alia, a fire will be so it not situated will be, create, hazard . and wa- gas, . . electricity utilities, [that] are available to present sewer ter, facilities, service the . a drive- subject private . . property [that] 20 feet from subject wide way property leading Abbott a is of sufficient width Drive, street, be used fire in the of White- apparatus Borough hall . . . the erection of a residential dwelling [that] upon the have subjeсt will no detrimental ef- property fect on the and welfare residents health, safety nor it Whitehall, contrary the best interests of the owners adjacent and in the of appellant’s vicinity The trial property.” further found that “is Colligan not creating new not subdivision; is, therefore, violating subdivision ordinance Whitehall.” It not is clear whether the lower Court based its Order on ground plaintiff’s proposed residence did violate the or that plaintiff ordinance, was entitled to a variance.
Where a takes testimony addition to that taken beforе Board of question on is appeal this Court whether the lower Court’s find- of fact were supported ings adequate evidence and it whether committed clear abuse of discretion or an error of law. Volpe Pa. Appeal, A. 2d
*
conflicting
paved pоrtion
as to
The record
whether
feet
Earlford
is 40
or 20
wide.
Drive
feet
*6
Rolling
97 A.
Pa.
97;
Case,
Green
Club
374
450,
Golf
However, (а) is not because ligan permit entitled a building permit the Subdivision prohibited Section Novem- Ordinance repeat) approved was (we ber (b) because 4, 1957, Allegheny lacked to hear the Section jurisdiction appeal. 14 of the Subdivision “No provides: Ordinance *7 to erect the lot shall be issued unless any building abuts a dedicated street.” This ordinance also pro- vides that each subdivision must be plan approved by the Borough aggrieved owner Engineer, any his decision to appeal whose may Borough Council, decision shall be this provi- Notwithstanding final. the Subdivision sion, Ordinance then on to goes pro- vide in Section 17: “In case dis- where Council any a approves subdivision plan, person aggrieved . . thereby appeal . therefrom may ... Court Quarter Sessions .. . which Court shall hear the mat- ter de and after novo, enter a decree affirm- hearing or ing, reversing the action of the modifying Council as appear just in the may premises. . . The . decision shall Court be final.”
We are aware of the law which was not referred to or by any parties the lower Court that an ap plication for a building permit may refused when the proposed or use violate a or zoning dinance which is even pending Council, though ordinance is enacted several months after the permit was for: applied Shender v. Zoning Board Adjust 388 Pa. 131 A. 2d ment, Inc. v. Aberman, Nеw 377 Pa. Kensington, 105 A. 2d 586. However, Borough contends that the Subdivision Ordinance is con- further ordinance. The a zoning a zoning both secure that home owner must tends he desires when permit and a subdivision permit one lot; on instead of his home on two lots erect the lot abuts can be unlеss granted no that to a happens dedicated street —what a street which pub- the lot abuts owner’s right when contends further The lic without dedication? to the be appealed must questions that on the subject all questions arising County Court, Quarter Ses- must be appealed оf subdivision sions Court. important in this question appeal primary subject and that matter question
involves ;of is one over Coun- Allegheny There is no jurisdiction. provision has undoubtedly ty Ordinance for a in the Subdivision and we variance, or or need not consider decide the va- meaning or the of this lidity constitutionality Borough Subdi- either vision Ordinance as applied generally Col- It will suffice that the Alle- ligan’s property. say had this jurisdiction gheny County matter; adequate there was evidence to support *8 fact of findings Court’s that it conclusions; did abuse or commit its disсretion not error of any law; it and that directed the issuance of a wisely permit to Colligan. affirmed; paid
Order costs appellant. by Opinion by Mb. Chief Dissenting Justice Jones: present petitioned William the Colligan, appellee, the of Adjustment the Board Zoning Borough vаriance. The has juris for a Whitehall Board, over matters refused the zoning grant diction only, variance. Mr. to the Colligan appealed County proposed that his which held Allegheny County with the terms of zoning would building comply record, ordinance. not explained Somehow question compliance subdivision with al ordinance was before the argued Court, County it was not and could have be though argued been fore the Board of the case Zoning whence arose. Article XYI prescribes Code* that handle all concern questions Council subdivision ing that regulation and from a appeal decision of the in Council such regard shall be taken Quarter the Court of where the issue is to Sessions, be heard de novo. The County Court, nevertheless, took jurisdiction injected subdivision wrongly question and held that Colligan was not subject terms of the subdivision ordinance. The County then further “that ordered permit be building issued” to Colligan. (Emphasis supplied.) It is from that order that the Borough of Whitehall appealed.
The opinion for this court holds that the County Court was right concluding Colligan’s proposed building would cоmply ordinance. With I agree. that, opinion majority takes note of the Borough’s assertion that Court had no jurisdiction over the subdivision but fails issue, it to meet that issue. In the opinion fact, for the court ignores the Borough’s contention that all that the Zon- ing Board Adjustment could hаve competently is- sued and, consequently, the County Court it could order was a issue, permit and not a building permit. To for a qualify the Borough of Whitehall an applicant must not only * May 4, 1927, Act of July P. L. as amended *9 tbe Act of 217,. §7, P. L. No. §§46671-46678. PS but and subdivision ordinances, with comply as to also and electrical with plumbing codes, compliance. there is no evidence of contentions on these appellant seem to me to be unanswerable. If points so, Coun- jurisdiction Court was without of the subdivision ty issue. The order of that court should, therefore, so modified that a be issued to Col- may but permit. ligan, I dissent.
Accordingly, Lehigh Valley Company, Appellant, Trust v.
Pennsylvania Turnpike Commission.