Appeal, No. 245, Jan. T., 1957, from order of Court of Common Pleas of Montgomery County, Nov. T., 1956, No. 2, in case of Baederwood Center, Inc. v. R. Emerson Putney et al. Order affirmed.
Samuel H. High, Jr., with him Wm. Barclay Lex, for appellant.
Donald A. Gallagher, with him Waters, Cooper & Gallagher, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an action in equity wherein plaintiff, Baederwood Center, Inc., sought to enjoin the defendant, Rydal-Meadowbrook Civic Association, its "officers, directors, servants and agents" (Michie and Hopkin, specifically named as defendants are the President and Secretary respectively of said Association) and one Putney, a local property owner, from proceeding with a notice of appeal taken to the granting of a purported building permit, and from themselves bringing, or "persuading any other person" to bring any action which would impede the granting of building permits on any of the land which had been the subject of a prior suit in the Court of Quarter Sessions of Montgomery County, and affirmed on appeal by the Superior Court.
On September 11, 1952, Ordinance 700 was adopted by the Board of Commissioners of Abington Township, Montgomery County, after appropriate petition and a hearing, rezoning some 51 acres of plaintiff's land from "V" residential (it had been the former Baederwood Golf Club) to "F" commercial. The defendant Civic Association and several individuals thereupon filed a complaint in the Court of Quarter Sessions to test the legality of that amendment to the zoning ordinance, as provided for in Section 1502 of The First Class Township
Code, Act of June 24, 1931, P.L. 1206, 53 PS § 19092-1502. The amending ordinance was attacked on four grounds, three of them procedural and the fourth alleging unconstitutionality in that it was arbitrary, confiscatory and not in conformity with the enabling Act. The hearing judge considered the questions raised, found the ordinance to have been regularly enacted and valid constitutionally, and dismissed the complaint, Putney v. Abington Township, 70 Montg. Co. L.R. 102 (1953), which was affirmed by the Superior Court at 176 Pa. Superior Ct. 463, 108 A.2d 134.
In January, 1956, plaintiff sold five acres of the rezoned area to J. B. Van Sciver Company and in July, 1956 it sold 20 acres to John Wanamaker, Philadelphia, for the construction of large stores thereon. Wanamaker applied for a building permit and on August 27, 1956 the building inspector of the township gave verbal authorization to proceed with the necessary grading. From this administrative action the defendants lodged an appeal*fn1 with the Zoning Board of Adjustment under Section 3107 of the Act of June 24, 1931, P.L. 1206, as amended, 53 PS § 19092-3107, alleging (1) that the action of the building inspector was unlawful and improper because Ordinance 700 of Abington Township was invalid in that: it was not passed for the purpose of promoting health, safety and morals; it was not enacted in accordance with a comprehensive plan and design to benefit the public as required by Section 3101 of The First Class Township Law, nor did it properly consider the character of the district; it is unconstitutional as arbitrary, discriminatory
and confiscatory; and "'Conditions precedent to the effectiveness of the zoning reclassification under the ordinance have never been complied with.'". Furthermore the appeal alleged (2) that the conveyance of land to John Wanamaker, Philadelphia was in violation of Ordinance 705 of the township; (3) ...