2 Pa. Commw. 484 | Pa. Commw. Ct. | 1971
Opinion by
This appeal by the City of Monessen is from a summary judgment in mandamus commanding the appropriate city officials to issue building permits, accept bond and permit recording of subdivision plans for a low income housing development.
Belmar Land Development Company, Inc. and National Development Corporation, appellees, are respectively owner and developer of a parcel of land located in an R-l one-family residence district established by the zoning ordinance of the City of Monessen enacted in the year 1960. Among the uses permitted in the R-l district is a conditional use for large-scale multiple-family housing development upon approval of the city planning commission after public hearing. After meet
On this appeal the city raises three issues.
I. Without citing appellate authority, it contends that summary judgment should not have been entered because the pleadings developed controverted issues of fact. Reading the pleadings shows that the material facts are undisputed. Indeed, the city’s brief is disingenuous on this point. It informs us that it denied the immaterial averment that there had been meetings of appellees with city council. Its answer to this averment denies that there had been meetings at which appellees requested council approval of conditional uses
II. The city contends that the provision of its ordinance empowering the planning commission to approve conditional uses is invalid as not authorized by statute. Village 2 at New Hope, Inc. Appeals, 429 Pa. 626, 241 A. 2d 81 (1968), held that under the borough zoning enabling statute the municipality might vest authority to approve the details of a planned unit development in a planning commission. The provisions of the borough enabling act there involved was in all materia] respects identical with those in the Third Class City Code, with which we are here concerned. Act of 1931, June 23, P. L. 932, Section 4101, 53 P.S. 39101. Hence, Monessen city’s provision conferring approval power in the case of conditional uses upon its planning commission was valid. The only question remaining is the effect, if any, upon this provision of Section 603(4) of the Pennsylvania Municipalities Planning Code, 1968, July 31, P. L. , No. 247, Article YI, 53 P.S. 10603, which provides that zoning or
We hold, therefore, that the provision for planning commission approval of a conditional use contained in the Monessen Zoning Ordinance was valid, that it was saved from repeal by the Pennsylvania Municipalities Planning Code, that there was no requirement under the law for city council approval of this project and that the appellees had established a clear right to summary judgment in mandamus.
III. The city’s contention that the planning commission’s approval of the conditional use was ineffective because not rendered within a forty day period from the date the application was made as required by the zoning ordinance is without merit. A reading of the provision in context shows that it is clearly directory and that its only purpose is to expedite commission
These conclusions make it unnecessary for us to comment upon the standing of the city to assert the illegality of its own ordinance as a ground for denying permits to applicants who have faithfully performed all things the ordinance prescribes as conditions to the issuance of such permits.
Decree affirmed.