458 Pa. 219 | Pa. | 1974
Opinion by
Appellants, who are owners and lessees of properties fronting on State Street in the City of Erie, brought this action against the City of Erie and the Erie Redevelopment Authority to enjoin the creation of a four block “Transitway Mall” on State Street between Sixth and Tenth Streets. The chancellor denied the requested relief, and the court en banc dismissed appellants’ exceptions to the decree nisi in a final decree. This appeal followed.
By a resolution of February 12, 1965, the Erie City Council adopted a redevelopment proposal submitted by
By a resolution adopted February 22, 1967, City Council determined that Eighth Street would remain open to vehicular traffic between Peach Street and State Street. Shortly thereafter, on March 15, 1968, a revised version of the Plan was recorded in the office of the Recorder of Deeds. This version of the Plan retained a provision for a “Pedestrian Mall or Plaza” as a part of the proposal for the downtown area, but the precise location of the mall was not specified either in the revised Plan itself or in the accompanying land use map.
On April 8, 1970, following a comprehensive study of traffic flow in the downtown area, City Council adopted a resolution approving preliminary plans for a “Transitway Mall” on State Street. Final plans submitted by the Authority for the Transitway Mall were approved by a resolution of City Council on March 29, 1972. These plans call for a division of the hundred foot right-of-way of State Street into two broad sidewalk areas, embellished with benches, trees and planters, and bisected by a two lane roadway, twenty-eight feet in width. The plans envisage that traffic on the
Appellants commenced this action on August 16, 1972 by filing a complaint in equity against the Redevelopment Authority and the City of Erie. A joint answer to the complaint was filed by the City and the Authority,
At the outset, appellees challenge the equitable jurisdiction of the court on the ground that appellants had an adequate and exclusive remedy at law, vim., an “appeal from the validity of the ordinance [authorizing the Transitway Mall] to the court of common pleas”
As we indicated above, this action was commenced and the chancellor’s decree was entered before the ordinance of July 18, 1973 was passed. Appellees did not object in the court below that the action was prematurely brought, and the objection to equity jurisdiction was raised for the first time on appeal. To dismiss the case now would be be an affront to justice if the result would be to preclude appellants from proceeding under §2920 because the statutory thirty day period for challenging the ordinance has expired. On the other hand, were we to vacate the decree below and direct a transfer to the law side of the court, thus in effect tolling the statutory time limitation, the ensuing retrial of the case would
The main substantive issue before us is a narrow one: Is it within the powers delegated to the City Council of the City of Erie to alter the character of State Street, a public thoroughfare, in accordance with the proposal adopted by the Transitway Mall resolution of March 29, 1972? Erie is a city of the third class, and the police powers delegated by the state legislature to cities of this class are enumerated in the Third Class City Code.
With respect to the regulation of traffic on the roadway of the mall, we find a similarly broad grant of power to cities and other political subdivisions in §1103 (a) of the The Vehicle Code.
Appellants contend that, even if the City Council is legally empowered to create the Transitway Mall, the proposed alteration of State Street will constitute a de facto vacation of the street, entitling abutting property owners to damages from the city. We need not pass on this contention, for even if it has merit, appellants are not entitled to injunctive relief. See Schwab v. Pottstown Borough, 407 Pa. 531, 180 A.2d 921 (1962). If construction of the mall will result in compensable injury to property of appellants, they have an adequate statutory remedy under the Eminent Domain Code.
First, although the recorded Plan provides for a “Pedestrian Mall or Plaza” with “pedestrian walkways and vehicular access” in “a public area”, the exact location of the mall is not specified in the Plan or in the accompanying land use map, and no provision of the Plan excludes State Street as a possible location for the mall. The choice of State Street as the site for the mall is not a “modification” of the Plan.
Third, the consent provision is in any event unenforceable against the City of Erie, in which is vested ultimate control over the fate of State Street. This is so even were we to assume (which we do not) that by approving the Urban Development Plan the City Council became a party to agreements between the Authority and its purchasers, such as Weber. “The state cannot bargain away its light to exercise at all times its police power, nor can a municipality, to which is delegated the right to exercise the state’s police power over streets and highways, enter into any contract by which the free exercise of the power granted can be abridged, limited or destroyed”. City of McKeesport v. McKeesport & Reynoldton Passenger Ry., 2 Pa. Superior Ct. 242, 247 (1896); see generally 39 Am. Jur. 2d Highways, Streets and Bridges, §208 (1968).
Because this appeal primarily involves the powers of a city of the third class, jurisdiction of the appeal would ordinarily lie in the Commonwealth Court under the Appellate Court Jurisdiction Act, Act of July 31, 1970, P. L. 673, No. 223, Art. IV, §402, 17 P.S. §211.402. Since this Court has not transferred the case to the Commonwealth Court, the failure of appellees to object to our appellate jurisdiction perfects that jurisdiction under §503(a) of the Act, 17 P.S. §211.503(a).
Thirty-seven local commercial and banking establishments and a local college were permitted to intervene in the action as parties defendant under Pennsylvania Rule of Civil Procedure 2328 before an answer to the complaint was filed. It does not appear that they filed a separate answer to the complaint, but their counsel participated in the trial, and the record on appeal indicates that they are here as appellees. Three additional parties were permitted to join the original intervenors after the City and the Authority filed their joint answer to the. complaint.
This ordinance was enacted pursuant to the filing of petitions by a majority of abutting property owners in number and front footage along the site of the proposed mall. See the Act of June 23, 1931, P.L. 932, art. XXIX, §2918 et seq. Maintenance agreements relative to the proposed mall were also filed by a majority of abutting property owners. No challenge has been raised to the procedure by which the ordinance was enacted into law.
Act of .Tune 23, 1931, PX. 932, art. XXIX, §2920, as amended by the Act of June 28, 1951, PX. 662, §29, 53 P.S. §37920.
Act of June 23, 1931, P.L. 932, art. X, §101 et seq., as amended by the Act of June 28, 1951, P.L. 662, §1 et seq., and other acts, 53 P.S. §35101 et seq.
§2403 of the Code, supra, n.4, 53 P.S. §37403(60).
§2915 of the Code, supra, n.4, 53 P.S. §37915.
§2930 of the Code, supra, n.4, 53 P.S. §37930.
Aet of April 29, 1959, P.D. 58, §1103(a), 75 P.S. §1103.
Act of June 22, 1964, Speeial Session, P.D. 84, art. I, §101 et scq., as amended, 26 P.S. §1-101 et seq. (1974 Supp.). See particularly §502 (e), as amended by the Aet of December 5, 1969, P.D. 316, No. 137, §1, 26 P.S. §1-502 (e).
The deed from the Authority to the Webers does not purport to convey title to any part of State Street. The property described in the deed is bounded on its western side by “the east line of State Street”.
Appellants also contend, presumably in their capacity as taxpayers, that evidence of waste and mismanagement by the Authority