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RUBEN v. CITY OF PITTSBURGH

June 29, 1956

Sam R. RUBEN et al.
v.
CITY OF PITTSBURGH et al.



The opinion of the court was delivered by: GOURLEY

This is another phase of the convulsion and reverberation of the Pittsburgh renaissance, commonly described as the 'Pittsburgh Story.' The circumstances which give rise to this chapter in Pittsburgh's redevelopment might be appropriately called -- 'Squirrel Hill', 'a Mountain or Luxury Apartment.'

The matter comes before the court on plaintiffs' twofold request for injunctive relief:

 1. To enjoin a rezoning ordinance of the City of Pittsburgh permitting apartment house construction on a tract of 2 1/4 acres in the vicinity of Whiteman Street and Munhall Road. Ordinance 325, City Council File No. 288, File No. 1740, Series 1955.

 2. To specifically enjoin the rezoning of a tract of land within the rezoned area having a frontage of 80 feet and a depth of 233 feet, owned by Public Relations Research Service, Inc., upon which it proposes to erect a luxury type eight story apartment house.

 Petitioners' property owners allege a deprivation of property without due process of law. 14th Amendment, United States Constitution.

 At first impression, I had felt that since the issue posed related to the constitutionality of a municipal ordinance, the matter would require adjudication by a statutory court. Nevertheless, since the suit is not one to restrain the enforcement, operation or execution of a statute of a state within the meaning of the judicial code, it is not within the purview of such court. Ex parte Collins, 277 U.S. 565, 48 S. Ct. 585, 72 L. Ed. 990; 28 U.S.C.A. § 2284.

 The general zoning ordinance of 1923, which limited the possible use of defendants' property for 2 1/2 story apartment houses, was in accord with the uses and development of the district at the time of the enactment of said ordinance. Book Vol. 34, page 556, Ordinances, City of Pittsburgh.

 The ordinance to which objection is now directed amended the general ordinance of 1923. It is recognized that a previously adopted zoning plan can be changed by either amendment of the adopting ordinance or by application for a variance. No dispute exists that the pronounced change in the provisions of the general ordinance as presently enacted required amendment.

 Governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals or general welfare. Nectow v. City of Cambridge, 277 U.S. 183, 48 S. Ct. 447, 72 L. Ed. 842.

 Zoning ordinance which bears no reasonable relation to public safety, health or morals, or the general welfare constitutes taking property without due process of law either under the Fifth or Fourteenth Amendment to the Federal Constitution. American University v. Prentiss, D.C.D.C., 113 F.Supp. 389, affirmed 94 U.S.App.D.C. 204, 214 F.2d 282.

 The ordinance now under review must find its justification in some aspect of the police power, asserted for the public welfare.

 Besides a most complete and exhaustive hearing held in connection with this proceeding, the court, of its own volition, personally viewed the area encompassed by the amending ordinance as well as the surrounding environs.

 Upon a most thorough evaluation of the evidence, I am compelled to recognize that the comprehensive zoning ordinance as originally passed in 1923 had reference to a neighborhood which was almost entirely residential in nature, with a small ...


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