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JACOBS v. FETZER (03/23/55)

March 23, 1955

JACOBS
v.
FETZER, APPELLANT.



Appeal, No. 48, Jan. T., 1955, from decree of Court of Common Pleas of Delaware County, June T., 1953, in Equity, No. 952, in case of William Jacobs v. Paul L. Fetzer, et al., members of Council of Ridley Park Borough, et al. Decree reversed.

COUNSEL

Theodore Smithers, with him Chadwick, Curran, Petrikin & Smithers, for appellants.

Thomas J. Reilly, with him Albert H. Pearce and Reilly & Pearce, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 381 Pa. Page 263]

OPINION BY MR. JUSTICE JONES

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

[ 381 Pa. Page 264]

    provisions of the ordinance, or its amendments, affecting his property; and that the court order and direct the borough council to amend the ordinance so that the plaintiff's land would be reclassified as located within an R-2 Residential District. The defendants answered to the merits. Following a hearing of the case, the chancellor entered a decree nisi which, upon the dismissal of exceptions thereto, was made final by the court en banc. The decree sustained the plaintiff's bill, declared the ordinance unconstitutional, invalid and of no effect as it applied to the property owned by the plaintiff and restrained the defendants from enforcing the provisions of the ordinance, or its amendments, against the plaintiff's land insofar as it imposed the restrictions of an R-1 Residential classification upon his property. The matter is here on the defendants' appeal from the final decree.

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, 53 PS § 15211.1 et seq. The constitutionality of zoning statutes has long since been recognized in this State: see Taylor v. Moore, 303 Pa. 469, 472, 154 A. 799. Consequently, no question as to the power of the borough to enact the ordinance is present.

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

[ 381 Pa. Page 265]

    and also for an appeal to the court of common pleas of the county by any person aggrieved by a decision of the board of adjustment. In the instant case, however, the plaintiff's application with respect to his requested use of his property was never taken to the board of adjustment. He applied directly to the borough council for an amendment re-zoning his property, which the council refused to do. It is plain enough that the procedure statutorily prescribed for testing the validity of substantive provisions of a zoning ordinance or the method of its administration is through application to the board of adjustment by one aggrieved by the decision of a borough administrative officer in respect thereof and, thereafter, by appeal to the court of common pleas if the decision of the board of adjustment is likewise adverse.

Section 13 of the Act of March 21, 1806, P.L. 558, 4 Sm.L. 326, 46 PS § 156, prescribes that "In all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law, in such cases, further than shall be necessary for carrying such act or acts into effect."

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 ...


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