Jacobs v. Fetzer, Appellant.
Supreme Court of Pennsylvania
March 23, 1955
381 Pa. 262
MR. JUSTICE JONES
Theodore Smithers, with him Chadwick, Curran, Petrikin & Smithers, for appellants.
OPINION BY MR. JUSTICE JONES, March 23, 1955:
The Borough of Ridley Park in Delaware County enacted a zoning ordinance on October 12, 1948, which provided a comprehensive plan of zoning for the entire borough. Approximately four years later, William Jacobs, the plaintiff, purchased a number of contiguous unimproved lots in the borough for development purposes. All of the lots so purchased were situated in a district zoned by the ordinance as R-1 Residential. The minimum building standards prescribed for an R-1 Residential District were single-family dwellings, one to a lot, the lots having a minimum width of forty feet each.
Desiring to build semi-detached or other type two-family houses on his lots, Jacobs petitioned the borough council for an amendment of the zoning ordinance to the end that his property would be reclassified as R-2 Residential. Twin or other type two-family houses were permitted by the ordinance in an R-2 Residential District. The council refused Jacobs’ petition. Thereupon, he file his complaint in equity in the instant suit against the burgess, the members of council and the secretary of council of Ridley Park, averring that the property of which he was the owner, was zoned discriminatorily when compared with the zoning of other designated properties lying to the rear of his property. In other words, the plaintiff‘s property was on the one side of the R-1 Residential Zone. The complainant prayed the court to declare the zoning ordinance unconstitutional, illegal and void insofar as it classifies his property as located in an R-1 Residential District; that an injunction issue restraining the defendants from taking any action under the
It is unnecessary to enter upon a discussion or consideration of the chancellor‘s findings and conclusions. The bill of complaint must be dismissed. Equity is without jurisdiction of the matter. The borough‘s zoning ordinance was enacted pursuant to authority legislatively conferred on boroughs, originally, by the Act of June 29, 1923, P. L. 957, later supplemented and added to The General Borough Act of 1927, P. L. 519, as Article XXXIII by Section 93 of The Borough Code of 1947, P. L. 1621, 1833,
The ordinance provides, as authorized and required by the empowering Act of Assembly, for a board of adjustment, a right of appeal thereto by any person aggrieved by a decision of an administrative officer
Section 13 of the Act of March 21, 1806, P. L. 558, 4 Sm. L. 326,
In Taylor v. Moore, supra, the plaintiff sought a permit from the zoning inspector for a gasoline station in a district zoned residential. The inspector refused a permit. The plaintiff appealed to the board of adjustment with like result. Instead of pursuing further the statutorily prescribed procedure (i.e., an appeal to the common pleas), the plaintiff sought by mandamus to compel issuance of a permit. The defendant moved to quash the writ on the ground that the plаintiff should have appealed to the court of common pleas from the action of the board of adjustment.
Of course, “If officials act without authority or without power, any appropriate remedy may be used to prevent enforcement of their orders: Byers v. Hempfield Twp., 226 Pa. 278 (1910)“: Taylor v. Moore, supra. The distinction was well drawn for this cоurt by Mr. Justice LINN in Dougherty v. Philadelphia, 314 Pa. 298, 301, 171 A. 583 (1934), as follows: “Equity has jurisdiction
Neither the learned court below nor counsel for either side questioned еquity‘s jurisdiction in the premises. When attention was called to the apparent oversight at the argument of this appeal, counsel cited an article entitled Equity Jurisdiction in Zoning Cases (50 Dickinson Law Review 23) by Judge TOAL who had heard and disposed of the instant case and whose article, in turn, made reference to Lukens v. Ridley Township Zoning Board of Adjustment, 367 Pa. 608, 80 A. 2d 765 (1951). There is nothing in the Lukens case holding or intended to hold that equity has jurisdiction to relieve against the restrictions of a zoning ordinance which has been enacted pursuant to аn empowering Act of Assembly. The question was not there involved. True, it was said in the Lukens case that “A petition to change and reclassify approximately 16 acres . . appears, because of the large acreage involved, to be an application for re-zoning and not for a variance, and if so, the application should be made to the Township Commissioners and not to the Board of Adjustment.” But different rules do not obtain for relieving against oрpressive zoning restrictions according to differences in the relative sizes of affected properties. All properties within the same zoned district are subject to the same zoning regulations. If, however, a property owner desires to test the constitutionality or validity otherwise of zoning regulations, application to the Board of Adjustment, in the first instance, for relief, followed by an appeal
The learned court below erred in entertaining the bill of complaint which should have been dismissed for want of jurisdiction of the subject-matter.
Decree reversed and bill dismissed at the appellee‘s costs.
DISSENTING OPINION BY MR. JUSTICE BELL:
The majority Opinion, in my judgment, is both erroneous and unwise. Equity has possessed from time immemorial jurisdiction to protect property rights, especially when there is no adequate remedy at law.*
Plaintiff filed a bill of complaint in equity against the Burgess and Council to compel them to re-zone or to have the zoning ordinance declared invalid and void. The Court below granted the alternative relief requested and declared the ordinance invalid. The majority holds that Equity has no jurisdiction, bas-
The distinction which the majority opinion has completely overlooked is, we repeat, this: Plaintiff is not seeking a building permit or an exception or a variance; he is seeking a “re-zoning” and he properly brought his bill of complaint, not against the Board of Adjustment, which is utterly without power, authority or jurisdiction to re-zone or to declare an ordinance invalid, but against the Burgess and the members of Council of Ridley Park. In such a case, we repeat, neither The Borough Code nor the Ordinance in question nor any Statute prescribe a method of procedure or a remedy and consequently Equity has jurisdiction to protect plaintiff‘s property rights.
The law is clearly settled that “a re-zoning and a variance are fundamentally different; and that it [the Board of Adjustment] has jurisdiction only when the petition is for a variance and not where it is for a re-zoning under the guise of a variance. The legislature expressly vested the power to zone in the Board of Township Commissioners* . . . and did not ‘em-
A ruling that a person who is deprived of his centuries-old property rights by an unconstitutional ordinance should be compelled to do a futile, fruitless and, in my judgmеnt, an absurd thing—namely, present a petition for a re-zoning to an administrative permit official and appeal from his decision to the Board of Adjustment, neither of whom have any power, authority or jurisdiction to re-zone or to declare an ordinance illegal, unconstitutional and void—undoubtedly, I regret to say, holds the parties litigant, the Law and the Courts up to ridicule and contempt. Where, as here, there is no statutory or decisional authority requiring it, the Courts should not compel such an absurd proceeding.
All the parties and the Court below agree that it is the common practice to resort to Equity in the situation here involved; and the statutes and cases relied upon in the majority opinion do not support it or oust Equity‘s jurisdiction.
Moreover, even if it be assumed arguendo that the Act of 1806 or The Borough Code provides a procedure or a remedy, we should not hold it to be exclusive in this case (a) for the reasons above stated, and (b) because the rule is subject to numerous exceptions, one of which is that it will not be applied if an additional or more adequate remedy can be supplied by Equity. See: Boggs v. Werner, 372 Pa. 312, 94 A. 2d 50 (1953) and Everett v. Harron, 380 Pa. 123, 110 A. 2d 383 (1955), and the many cases cited therein. For example, in Everett v. Harron, 380 Pa. 123 (1955), supra, The Penal Code of 1939 provided that all persons, irrespective of race, creed or color, shall be entitled to equal accommodations in places of public amusement or resort. The Act provided a remedy and severe penalties, viz., a fine of $100. or less for each offense or imprisonment for 90 days or less, or both, so that the refusal to admit negroes to the swimming pool or resort could in one day result in bankrupting the violator and putting him in jail for many years. In spite of the general principles of law
The other cases cited in the majority opinion are clearly neither analogous nor controlling. For example, in Taylor v. Moore, supra, relied on by thе majority, the Court said: “If officials [Board of Adjustment] act without authority or without power, any appropriate remedy may be used to prevent enforcement of their orders: Byers v. Hempfield Twp., 226 Pa. 278 (1910).” That supports our position, not that of the majority. Moreover, in Collegeville Borough v. Philadelphia Suburban Water Co., 377 Pa. 636, 654, 105 A. 2d 722 (1954), this Court, speaking through Mr. Jus-
The distinction or line of demarcation was clearly delineated in Dougherty v. Philadelphia (which was relied upon by the majority), supra, (page 301): “Equity has jurisdiction to restrain attempted taxation for total want of power to tax: [citing cases]. But, where the power to tax appears, and the complaint is over-assessment, or inadequate exemption, the remedy is by appeal to the common pleas from the action of the board of revision: . . . .” While, in my judgment, that case is not analogous, it tends to support, not the majority, but this dissenting opinion, since Equity‘s jurisdiction to protect propеrty rights cannot be ousted where neither the ministerial permit official nor the Board of Adjustment has the power or authority to re-zone or to declare the ordinance unconstitutional. Cf. Kline v. Harrisburg, 362 Pa. 438, 68 A. 2d 182 (1949); Narehood v. Pearson, 374 Pa. 299, 310, 96 A. 2d 895 (1953); Genkinger v. New Castle, 368 Pa. 547, 84 A. 2d 303 (1951); English v. Robinson Township School District, 358 Pa. 45, 55, 55 A. 2d 803 (1947); Commonwealth v. Dauphin County, 354 Pa. 556, 563, 47 A. 2d 807 (1946).
The criticism of Lukens v. Zoning Board, supra, in the majority opinion is, in my judgment, both unnecessary and regrettable. In the Lukens case, which was decided by a unanimous Court, petitioners bypassed the permit official and petitioned the Board of Adjustment to grant (a) a variance for several lots, each containing less than twо acres, and (b) a variance for a 16 acre tract without averring “unnecessary hardship“. The Board ruled it had no jurisdiction of such a petition for a variance and refused to consider
While the majority opinion lays down no test for determining the difference between a variance and a re-zoning, it is clear that one of the important tests must be the size of the property for which a variance is sought, in relation to the area in which it is zoned (R1 or Cоmmercial, or whatever the case may be). If that is not one of the tests, I don‘t know what the test is or can be, and the majority opinion does nothing to answer that question, but merely obscures it.
The Lukens case did not expressly hold that Equity lies sur an application for a re-zoning or to have an ordinance declared unconstitutional, but that is the only logical conclusion from that Opinion.
The decision of the lower Court was likewise correct on the merits. The map which is part of the record in this case shows clearly and indisputably that plaintiff‘s lots are hemmed in by twin houses which are erected on the adjacent land just in front of his lots
“But this case involves more than just an adjacent area. Here one block in which single homes were required to be erected was hemmed on either side by blocks which in fact were predominantly established with twin houses. It is true that the dividing line must be somewhere, but to place the same where the legislative body did in this case was discriminatory and arbitrary.”
For these reasons I would affirm the decree of the Court below.
Mr. Justice MUSMANNO joins in this dissenting opinion.