Appeal, No. 87, Jan. T., 1951, from judgment of Court of Common Pleas of Delaware County, March T., 1950, No. 528, in case of James W. Lukens et ux. v. Zoning Board of Adjustment of Ridley Township, Delaware County. Judgment reversed.
R. Paul Lessy, with him Francis J. Catania, for appellant.
Paul C. Van Dyke, with him James A. Cochrane, for appellees.
Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE BELL
This is an appeal in a mandamus proceeding from an order of the Court of the Common Pleas of Delaware County. Petitioners (appellees) requested the Board of Adjustment to grant a special exception or variance -- they erroneously used the terms interchangeably and synonymously -- changing, reclassifying or redesignating "Business"*fn1 1.66 acres of their 20 acre tract of real estate, known as Tract No. 1, "now classified 'A residence' in part and 'B residence' in part"; and approximately .29 acres, known as Tract No. 3, "now classified as 'A residence' in part and 'B residence' in part"; and approximately. 74 acres, known as Tract No. 4, "now classified as 'B residence'"; and approximately.28 acres of their 21 acre tract, known as Tract No. 5, "now classified as 'B residence'"; and changing, reclassifying or redesignating "'C residence'" 16 acres of their 20 acre tract of improved ground known as Tract No. 2, and "now classified as
'A residence' in part, 'B residence' in part, and 'C residence' in part." These changes or reclassifications were requested because "the present zoning restrictions... are confiscatory"; and in violation of the Constitution of the Commonwealth of Pennsylvania and of the Constitution of the United States; and "bear no reasonable relation to the health, safety, morals or general welfare of the community and constitute a gross and excessive exercise of the police power... and are unreasonable, unconstitutional, and unlawful."
The Board ruled it had no jurisdiction and refused to consider of owners' petition. Thereupon the owners filed a complaint in mandamus to compel the Board to consider their application. After answer was filed, the court sustained relators' motion for judgment on the pleadings and directed the Board of Adjustment of the Township of Ridley to hold a public hearing sur relators' petition to the Board.
Has the Board of Adjustment jurisdiction under the facts in this case, and, if so, will mandamus lie to compel the Board to consider the petition?
It will be noted at the outset that this application was an original petition and not an appeal to the Board; and there is no specific averment of unnecessary hardship or other statutory conditions required for a variance (although this latter point was not raised by appellant).
Pursuant to The First Class Township Code enacted May 27, 1949, P.L. 1955 sec. 59, 53 PS § 19092-3107, the Township of Ridley passed a zoning ordinance, Ordinance No. 237, which inter alia classified the location and use of all lands in the township; established a comprehensive plan, and adopted a zoning map for the entire ...