429 Pa. 626 | Pa. | 1968
Opinion by
Under traditional concepts of zoning the task of determining the type, density and placement of buildings which should exist within any given zoning dis
This general approach to zoning fares reasonably well so long as development takes place on a lot-by-lot basis, and so long as no one cares that the overall appearance of the municipality resembles the designed achieved by using a cookie cutter on a sheet of dough. However, with the increasing popularity of large scale residential developments, particularly in suburban areas, it has become apparent to many local municipalities that land can be more efficiently used, and developments more aesthetically pleasing, if zoning regulations focus on density requirements rather than on •specific rules for each individual lot. Under density zoning, the legislature determines what percentage of a particular district must be devoted to open space, for example, and what percentage used for dwelling units. The task of filling in the particular district with real houses and real open spaces then falls upon the planning commission usually working in conjunction with
Spurred by the desire of appellant developer to construct a Planned Unit Development in the Borough of New Hope, in December of 1964 borough council began considering the passage of a new zoning ordinance to establish a PUD district in New Hope. After extensive consultation with appellant, council referred the matter to the New Hope Planning Commission for further study. This body, approximately six months after the project idea was first proposed, formally recommended to council that a PUD district be created. Council consulted with members of the Bucks County Planning Commission on the text of the proposed ordinance, held public hearings, and finally on June 14, 1965 enacted ordinance 160 which created the PUD district, and ordinance 161 which amended the borough zoning map, rezoning a large tract of land known as the Rauch farm from low density residential to PUD. Pursuant to the procedural requirements of ordinance 160, appellant presented plans for a Planned Unit Development on the Rauch tract to the borough planning commission. These plans were approved on November 8, 1965, and accordingly four days later two
The procedural posture of this case is identical to that of National Land & Investment Co. v. Easttown Twp. Bd. of Adjustment, 419 Pa. 504, 523, 215 A. 2d 597, 607 (1965). Our scope of review may thus be stated by reference to that decision: “The zoning enabling act being silent as to a right of appeal,, we consider this case on broad certiorari, reviewing the testimony, the evidence, and the entire record. Keystone Raceway Corp. v. State Harness Racing Comm’n, 405 Pa. 1, 173 A. 2d 97 (1961); Schmidt v. Philadelphia Zoning Bd. of Adjustment, 382 Pa. 521, 114 A. 2d 902 (1955). Because the court below took no additional testimony, we will look at the decision of the board- of adjustment to determine if, in upholding . . . [ordinances 160 and 161], the board committed an abuse of discretion or an error of law. Upper Providence Twp. Appeal, 414 Pa. 46, 198 A. 2d 522 (1964).” Applying this standard, we hold that no error of law or abuse of discretion was committed by the New Hope Board of Adjustment, and that therefore the Court of Common Pleas of Bucks County must be reversed.
■ Approximately one year before the PUD seed was planted in New Hope, borough council had approved the New Hope Comprehensive Plan. This detailed land use projection clearly envisioned the Rauch tract as containing only single family dwellings of low density. The court below therefore concluded that the enactment of ordinance 160, and more specifically the placing of a PUD district on the Rauch tract by ordinance 161 was not “in accordance with a comprehensive plan,” as required by the Act of February 1, 1966, P. L. (1965) 1656, §3203, 53 P.S. §48203. See also Eves v. Zoning Bd. of Adjustment, 401 Pa. 211, 164 A. 2d 7 (1960).
The fallacy in the court’s reasoning lies in its mistaken belief that a comprehensive plan, once , established, is forever binding on the municipality and can never'be amended. Cases subsequent to Eves haye made it clear, however, that these plans may be changed by the passage of hew zoning ordinances, provided the local legislature passes the new ordinance with some demonstration of sensitivity to the community as a whole, and the impact that the new ordinance will have on this community. As Mr. Chief Justice Bell so artfully stated in Furniss v. Lower Merion Twp., 412 Pa. 404, 406, 194 A. 2d 926, 927 (1963): “It is a matter of common sense and reality that a comprehensive plan is not like the law of the Medes and the Persians; it must be subject to reasonable change from time to time as conditions in an area or a township or a large neighborhood change.” This salutary rule that comprehensive plans may be later amended by the passage of new zoning ordinances has been approved not only in Furniss, but also in Donahue v. Zoning Bd. of Adjustment, 412 Pa. 332, 194 A. 2d 610 (1963).
Given this rule of law allowing post-plan zoning changes, and the presumption in favor of an ordinance’s validity, see National Land, supra at 521-22, 215 A. 2d at 607, we are not in a position, having reviewed the record in the present case, to say that the zoning board committed an abuse of discretion or an error of law when it concluded that ordinances 160 and 161 were properly passed. Presented as it was with evidence that the PUD district had been under consideration by council for over six months and had been specifically recommended by the borough planning commission, a body specially equipped to view proposed ordinances as they relate to the rest of the community, we hold that the board, within its sound discretion, could have concluded that council passed the ordinances with the proper overall considerations in mind. The PUD district established by ordinance 160 is not the type of use which by its very nature could have no place in the middle of a predominantly residential borough. It is not a steel mill, a fat rendering plant, or a desiccated egg factory. It is, in fact, nothing more than a miniature residential community.
Closely tied to the comprehensive plan issue is the argument raised by appellees that ordinances 160 and 161 constitute spot zoning outlawed by Eves, supra. Given the fact situation in Eves, however, as well as the post -Eves cases, we do not believe that there is any spot zoning here. In Eves, the municipality created a limited industrial district, F-l, which, by explicit legislative pronouncement, was not to be applied to any particular tract until the individual landowner requested that his own tract be so re-zoned. The obvious evil in this procedure did not lie in the fact that a limited industrial district might be placed
■ : Quite to "the contrary,'no such, “floating zone” exists in the present case.. On the very day that the PUD-¿district' was created by ordinance 160, it was brought to earth by, .ordinance 161; and, as discussed supra, this was: done “in accordance with • a ■ comprehensive: plan.”. Speaking of' a similar procedure ,in Donahue v. Zoning Bd. of Adjustment, 412 Pa. 332, 194 A. 2d 610- (1963), this Court faced squarely an attack based'upon Eves and responded thusly: “It was this case by case review, [in Eves] which' demonstrated -the absence- dfv a .comprehensive plan and which sought to enable the board of .supervisors. [the local legislative body] to exercise powers, they did not-statutorily'posses's.." ‘ -"
“In the instant case, the new classification- .was. established and the zoning map amended within a very short period of time ,[in the case at bar,- on the. same day]: Under the rules of statutory construction which are' likewise' applicable to ordinances, see Cloverleaf Trailer Sales Co. v. Pleasant Hills Borough, 366 Pa. 116, 76 A. 2d 872 (1950); Philadelphia v. Phillips, 179 Pa. Superior Ct. 87, 116 A. 2d 243 (1955); these ordinances should be read together as one enactment. See Statutory Construction Act, May 28, 1937, P. L. 1019, §62, 46 P.S. §562. ■ So construed,- ordinances 151 [creating new zone] and 155 [amending zoning map] do not create the ‘floating zone’, anchored only upon
II.
The court below next concluded that even if the two ordinances, were properly passed, they must, fall as vesting authority in the planning commission greater than that permitted under Pennsylvania’s zoning enabling legislation. More specifically,, it is- now contended by appellees that complete project approval J)y the planning commission under ordinance 160 requires that commission to encroach upon legislative territory whenever it decides where, within a particular PUD district, specific types of buildings should be placed.
In order to appreciate fully the arguments of counsel on both sides it is necessary to explain in some detail exactly what is permitted within a PÚD district, and who decides whether a particular landowner has complied with these requirements. Admittedly the range of permissible uses within the PUD district is greater than that normally found in a traditional zon
The procedure to be followed by the aspiring developer reduces itself to presenting a detailed plan for his planned unit development to the planning commission, obtaining that body’s approval and then securing building permits. Of course, the planning commission may not approve any development that fails to meet the requirements set forth in the ordinance as outlined above.
We begin with the observation that there is nothing in the borough zoning enabling act which would prohibit council from creating a zoning district with
We must next examine the statutory - power of the borough planning commission to determine whether such an administrative body may regulate the internal development of a PUD district. The Act of February 1, 1966, P. L. (1965) 1656, §1155, 53 P.S. §46155 requires that all plans for land “laid out in building lots” be approved by the planning commission before they may be recorded. Thus, the traditional job of the commission has been to examine tract plans to determine whether they conform to the applicable borough
However, in the case of PUD the entire development (including specific structures) is mapped out and submitted to the administrative agency at once. Accordingly, the requirements set forth in a PUD ordinance must relate not only to those areas traditionally ad: ministered by the planning commission, but also to areas traditionally administered by the building inspector. Therefore, quite logically, the job of approving a particular PUD should rest with a single municipal body. The question then is simply which one:Borough Council (a legislative body), the Planning Commission (an administrative body), or the Zoning Board of Adjustment (an administrative body)?
There is no doubt that it would be statutorily permissible for council itself to pass a PUD ordinance and simultaneous zoning map amendment so specific that no details would be left for any administrator. The
The remaining two municipal bodies which could oversee the shaping of specific Planned Unit Developments are both administrative agencies, the zoning board of adjustment and the planning commission. As this Court views both reality and zoning enabling act, the zoning board of adjustment is not the proper body. The Act of February 1, 1966, P. L. (1965) 1656, §3207(g), 53 P.S. §48207(g) specifically sets forth the powers of a borough zoning board of adjustment. These powers are three in number, and only three. The board may (1) hear and decide appeals where there is an alleged error made by an administrator in the enforcement of the enabling act or any ordinance enacted pursuant thereto; (2) hear and decide special exceptions; and (3) authorize the grant of variances from the terms of existing ordinances. ■ These powers in no way encompass the authority to review and approve the plan for an entire development when such plan is neither at variance with the existing ordinance nor is a special exception to it; nor does (1) above supply the necessary power since the board would not be reviewing an alleged administrative error.
Moreover, from a practical standpoint, a zoning board of adjustment is, of the three bodies here under discussion, the one least equipped, to handle the problem of PUD approval. Zoning boards are accustomed to focusing on one lot at a time. They traditionally examine hardship cases and unique uses proposed by landowners. As Professor Krasnowiecki has noted: “To suggest that the board is intended, or competent, to handle large scale planning and design decisions is,.
Thus, the borough planning commission remains the only other body both qualified and statutorily permitted to approve PUD. Of course, we realize that a planning commission is not authorized to engage in actual re-zoning of land. But merely because the commission here has the power to approve more than one type of building for a particular lot within the PUD district does not mean that the commission is usurping the zoning function. Indeed, it is acting in strict accordance with the applicable zoning ordinance, for that ordinance, No. 160, permits more than one type of building for a particular lot. To be sure, if the commission approved a plan for a PUD district where 30% of the land were being used commercially, then we would have an example of illegal re-zoning by an administrator. But no one argues in the present case that appellant’s plan does not conform to the requirements of ordinance 160.
Nor is this Court sympathetic to appellees’ argument that ordinance 160 permits the planning commission to grant variances and special exceptions. We fail to see how a development such as appellant’s that meets every single requirement of the applicable zoning ordinance can be said to be the product of a variance or a special exception. The very essence of variances and special exceptions lies in their departure from ordinance requirements, not in their compliance with them. We therefore conclude that the New Hope Planning Commission has the power to approve development plans submitted to it under ordinance 160.
III.
One further matter remains for discussion. Technically, we are faced today with five separate appeals.
In this regard we believe that the proper forum to resolve the grant or denial of appellant’s preliminary objections is the court below, for the simple reason that, as to this Court, the appeals are from interlocutory orders and must be quashed. The orders entered below in the two equity cases were merely orders deferring any decision on preliminary objections. Thus, the effect of both orders was to suspend the proceedings temporarily, pending the outcome of three related
■ . Nor does the fact that the preliminary objections went to equity’s jurisdiction alter the appealability vel non of the orders below. Although the Act of March 5, 1925, P. L. 23, §1, 12 P.S. §672 makes appealable all preliminary determinations as to the jurisdiction of a lower tribunal, it cannot fairly be said that orders deferring .'the preliminary determination of jurisdiction .fall.within the statutory language. Finally, while we note that no motion to quash was presented, this Court may take such action on its own motion. Steel v. Levy, 282 Pa. 338, 127 Atl. 766 (1925); Kennedy v. Banbury Equipment Corp., 202 Pa. Superior Ct. 242, 195 A. 2d 832 (1963). Accordingly, we shall quash appeals Nos. 110 and 111.
. ■ Subsequent to the filing of the two equity actions, appellees went before the zoning board of adjustment to contest the issuance of building permits 68. and 69. On January 17, 1966 the board, sustained both permits. On January 26, 1966 and February 2, 1966, respectively, appeals from the board’s decision were taken to the court of common pleas. However, before the court could render a decision, both permits were allegedly revoked on February 14, 1966. On April 11, 1966 a third building permit, number 75, was issued and its issuance appealed to the zoning board of adjustment. As with permits 68 and 69, the- board upheld the issuance of permit 75 on July 1, 1966. Finally, on July 27, 1966 the board’s decision on permit 75 was appealed to the court of common pleas. In addition to its two May 1, 1967 orders on the equity cases, the court below, on May 1, also entered three separate orders de
We find ourselves both confused and troubled by the orders of the court below invalidating permits 68 and 69, for it is contended by appellees that these permits had been revoked by borough council prior to the decision of that court. If this be true and if borough council has power to revoke permits,
The only faint explanation of what really occurred here is found on page 571a of the record. During the zoning board’s hearing on permit 75, counsel for appellant stated that he did not appeal the revocation of permits 68 and 69 since, in his view, these permits were never legally revoked. He claimed that the purported act of revocation was made by council, whereas only the building inspector or the board of adjustment was empowered to perform this act. Neither the board nor the court below has ever ruled on this contention. Nor, in fact, have the parties explained the current status of these permits to this Court.
The appeals from the orders of the Court of Common Pleas of Bucks County in appeals No. 110 and No. Ill are quashed. The orders of the court in appeals No. 112 and No. 113 are vacated and the records remanded for further proceedings consistent with this opinion. The order of the court in appeal No. 114 is reversed.
Mr. Chief Justice Bell took no part in the consideration or decision of this case.
The Act of February 1, 1966, P. L. (1965) 1656, §3207(d), 53 P.S. §48207(d) apparently contemplates that only the zoning “administrative officer” (the building inspector) is empowered in the first instance to revoke buiíding permits.