Appeal, No. 246, Jan. T., 1955, from decree of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1954, No. 2518, in case of Paul A. Barth, Jr., et ux. v. Joseph N. Gorson, Joseph S. Clark, Jr., Mayor of City of Philadelphia, et al. Decree affirmed.
John E. Walsh, Jr., with him C. Laurence Cushmore, Jr., and White, Williams & Scott, for appellants.
James L. Stern, Deputy City Solicitor and Marcus Manoff, with them Abraham L. Freedman, City Solicitor, Karl I. Schofield, Assistant City Solicitor, Robert McCay Green, and Dilworth, Paxson, Kalish & Green, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
Where the constitutionality of a zoning ordinance is questioned, should the procedure be in equity or by statute? The learned court below ruled that the statutory provisions must be strictly pursued and exclusively applied. An appeal followed.
Paul A. Barth, Jr., and wife, plaintiffs, are owners of a single dwelling and lot located on the northwest
side of Knights Road, 652 feet southwest of the intersection of Knights and Byberry Roads, in the City of Philadelphia. The lot has a frontage on Knights Road of 75 feet and a depth of approximately 197 feet. Joseph N. Gorson, a defendant, is the owner of a tract of land of over 33 acres in area, across the road from plaintiffs' land, approximately 350 feet southwest therefrom. Both tracts were zoned "A" Residential. By Ordinance No. 340, dated June 10, 1954, most of the Gorson tract was down-graded from Class "A" Residential to Class "C-1" Residential. Plaintiffs filed a complaint in equity against defendant Joseph N. Gorson and defendant City of Philadelphia and officials of the City, praying (a) that the ordinance of 1954 rezoning the premises in question be declared unconstitutional, (b) that the proper city officials be directed to replace upon the zoning map a re-classification of the property, (c) that defendant Joseph N. Gorson be enjoined and restrained from applying for a permit under the re-zoning ordinance, (d) that the city officials be enjoined and restrained from issuing a permit or license under the ordinance, and (e) that the City Planning Commission be enjoined and restrained from filing a copy of such ordinance in the office of the Recorder of Deeds and changing the classification on the zoning maps as directed by the ordinance. Defendants filed preliminary objections which were sustained.
Zoning by council of cities of the first class is authorized by the Act of May 6, 1929, P.L. 1551, section 1, 53 PS 3822 et seq. Procedure is specifically provided under Section 6 of the Act. The Act directs the establishment of a zoning commission which is to make reports to the city council recommending appropriate zoning. The procedure before council is stated. Section 8 of the Act provides for the erection of a Board
of Adjustment, to which appeals may be taken "... by any person aggrieved ... by any decision of [an] administrative officer...." It is also provided in Section 8 that the Board of Adjustment shall have power: "1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this act, or of any ordinance adopted pursuant thereto." It is further provided: "Any person or persons jointly or severally aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board or bureau of the city, may ...