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June 27, 1955


Appeals, Nos. 128, 129, and 169, Jan. T., 1955, from orders of Court of Common Pleas No. 2 of Philadelphia County, March T., 1953, Nos. 5153 and 5383, in cases of John B. Kelly v. City of Philadelphia et al., and Queen Lane Park, Inc., v. City of Philadelphia et al. Decree, as modified, affirmed.


James L. Stern, Deputy City Solicitor, and Herbert M. Linsenberg, Assistant City Solicitor, with them Jerome J. Shestack, First Deputy City Solicitor and Abraham L. Freedman, City Solicitor, for defendants, appellants.

John Edward Sheridan, for plaintiff, Kelly, appellee.

Walter B. Saul, and Henry J. Morgan, with them James P. Gilliland and Joseph P. Flanagan, for Queen Lane Park, Inc., appellant.

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

Author: Chidsey

[ 382 Pa. Page 461]


These appeals present two principal questions (1) whether the evidence supports the chancellor's conclusion that the operation of a proposed municipal incinerator of 600-ton capacity on an area of land in the City of Philadelphia would create a nuisance in fact; (2) whether a certain ordinance of the City changing the classification of the area in question to allow the construction of the incinerator thereon was validly enacted. The litigation arose out of complaints in equity filed by John B. Kelly, a taxpayer, and Queen Lane Park, Inc., the owner of an undeveloped tract of land immediately adjacent to the proposed site of the

[ 382 Pa. Page 462]

    incinerator, seeking to restrain the City of Philadelphia and its officials from enforcing in any manner the ordinance approved March 13, 1953 changing the classification of a City-owned tract of land in the vicinity of Fox Street and Abbottsford Avenue from Class "B" and Class "C" Residential to Class "Least Restricted" and from proceeding with the erection of the incinerator on the property so rezoned.

In an attempt to cope with a serious refuse disposal problem, the City administration had for some time under consideration a plan to build new municipal incinerators and to increase the capacity of existing ones, the aim being to provide for complete disposal of refuse by incineration in four sanitation districts, each district encompassing approximately one-fourth of the present and anticipated further population of the City. The proposed incinerator involved in this case was to serve the Northwest District of the City, having a population of approximately 550,000 residents.

To effectuate this purpose, on or about June 26, 1952 Bill No. 315 was introduced in Council entitled "An ordinance to amend an ordinance known as 'Philadelphia Zoning Ordinance and Zoning Maps' approved August 10, 1933, by changing designation for the following portion of the City of Philadelphia from partly Class B residential and partly Class C residential to Class Least Restricted: Northeast side of Fox Street 280 feet 8 5/8 inches northwest of Abbottsford Avenue". In July of 1952 protests were filed with the President of City Council by more than 20% of the owners of land immediately adjacent to the area sought to be rezoned opposing the change of zoning. Notice of a public councilmanic hearing on the bill, to be held on September 16, 1952, was published in three newspapers of general circulation in the City

[ 382 Pa. Page 463]

    of Philadelphia eight days prior to the hearing. At the hearing the plaintiffs and numerous other persons appeared to protest the proposed zoning change. Thereafter, on February 26, 1953, a committee of Council reported out an amended bill which subdivided the City's lot and rezoned it so that two strips of land, each approximately 100 feet in width, immediately adjacent to the tracts owned by the protestants, were eliminated from the north and south ends thereof. Under this amendment these strips retained their classification of "B" and "C" Residential.*fn1 As amended, the bill was passed on March 12, 1953 by a vote of 11 to 5, which was less than three-fourths of the membership of Countil, without readvertisement or further public hearing, and on the following day, March 13, 1953, it was approved by the Mayor.

After many hearings producing a printed record of more than 1,000 pages, the chancellor upheld the validity of the ordinance but concluded that the operation of the incinerator, if erected, would constitute a nuisance in fact, and thereupon entered the following decree nisi: "... That the City of Philadelphia is hereby restrained from operating a six hundred ton incinerator at Fox Street and Abbottsford Avenue; this decree to remain in effect 'until such time as the Court shall determine that such a substantial and material change in the character ...

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