March 13, 1962
WYNNEWOOD CIVIC ASSOCIATION, APPELLANT,
LOWER MERION TOWNSHIP BOARD OF ADJUSTMENT.
Appeal, No. 40, Jan. T., 1962, from order of Court of Common Pleas of Montgomery County, June T., 1960, No. 2, in case of Wynnewood Civic Association v. Board of Adjustment of Lower Merion Township and Thomas Wynne, Incorporated. Appeal quashed.
Leo Vernon, with him Desmond J. McTighe, J. Grant McCabe, iii, and William W. Cancelmo, for appellant.
Robert L. Trescher, with him Arthur H. Moss, Cassin W. Craig, C. Brewster Rhoads, and Montgomery, McCracken, Walker & Rhoads, and Wisler, Pearlstine, Talone & Gerber for corporation, appellee.
Edmind B. Spaeth, Jr., with him John E. Forsythe, Township Solicitor, and Wright, Mauck & Spencer, for Board of Adjustment of Lower Merion Township and Lower Merion Township, appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
[ 406 Pa. Page 415]
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This is a controversy between the owner of a tract of land, located in Wynnewood, Lower Merion Township, Montgomery County, who seeks to erect thereon a twelve-story apartment building, and a civic association, composed of residents in and about the area, which opposes the erection of such building. In the background of this controversy is a record of litigation, extending in item over a decade, before the Township Board of Adjustment (Board), the Township Commissioners (Township), the Courts of Common Pleas and Quarter Sessions of Montgomery County and the Superior Court.
Thomas Wynne, Inc. (Wynne), owns a tract of land which is now zoned under Township Ordinance 1031 as an "R-7" district wherein the erection of apartment buildings is permitted. This tract of land is bounded on the east by land owned by Wynne upon which apartment buildings are located, on the south by the right of way and the Wynnewood Station of the Pennsylvania Railroad and on the north and west by land which is zoned and used only for single family dwellings.
In 1950, under the then existing Township zoning ordinance, this land (part of a larger tract of land owned by a Miss Gibson) was zoned as a district within which was permitted the erection of only single family dwellings. On April 12, 1950, Miss Gibson applied for a change of zoning to permit the erection of apartment buildings on this land. Her application having been rejected by the Township Planning Commission and the Township, Miss Gibson on Auguse 2, 1950 petitioned
[ 406 Pa. Page 416]
for a declaratory judgment in the Court of Common Pleas of Montgomery County wherein she sought to have the then existing zoning ordinance declared unconstitutional in its application to this land; that petition was dismissed. In 1951, Miss Gibson and Wynne's predecessor in title again applied to the Board for permission to erect apartment buildings on this land; both the Township and Wynnewood Civic Association (Association) were opposed and, after hearing, the Board denied the application. Although an appeal was then taken to the Court of Common Pleas of Montgomery County it was not prosecuted.
In 1952, Miss Gibson and Wynne again appealed to the Township to change the then existing zoning ordinance so as to allow erection of apartment buildings on this land and, on July 16, 1952, the Township, over the Association's vigorous opposition, tentatively approved such change. On December 8, 1952, the Township passed Ordinance 1031 under the terms of which this land was zoned as an "R-7" district wherein apartment buildings are permitted to be erected.
The Association then instituted an action in the Court of Quarter Sessions of Montgomery County contending that the ordinance of December 8, 1952 was both procedurally and substantively defective.*fn1 The Township sought to have this action dismissed on the ground that the only manner in which the legality of the ordinance could be raised was under the particular remedy provided by the applicable zoning statute. The Court held (Wynnewood Civic Association v. Lower
[ 406 Pa. Page 417]
additional testimony and denied the Association's appeal. The Association then appealed to the Court of Common Pleas of Montgomery County which directed that the record be remanded to the Board for taking additional testimony. After hearing, the Board on December 15, 1960 again denied the Association's appeal and, on appeal from that ruling, the Court of Common Pleas of Montgomery County, without taking any additional testimony or hearing the matter de novo, on March 9, 1961 upheld the Board's action. From that order this appeal has been taken.*fn2
Before the order which is the subject matter of this present appeal was entered, the Association presented a petition to the Court of Quarter Sessions of Montgomery County seeking to have that Court set aside it previous order of May 27, 1955 which had been the order appealed from in Wynnewood Civic Association v. Lower Merion Township, 180 Pa. Superior Ct. 453. After taking extensive testimony in that proceeding, the Court of Quarter Sessions refused to reopen and set aside its previous order. From that order no appeal has been taken.*fn3
In the instant appeal, the Association presents only one question: whether the ordinance of December 8,
[ 406 Pa. Page 4191952]
is invalid because it is "vague and indefinite in that it fails adequately to describe the boundaries of the area to be rezoned and incorporates as one of the boundaries a 'proposed road' which is not defined or identified in the Ordinance."*fn4
Both Wynne and the Township have filed motions to quash or dismiss the Association's appeal. The one reason*fn5 set forth in these motions which commands our attention is that the question presented for our consideration was not properly raised in the court below.
It is well settled that a question not raised properly in the court below will not be considered by this Court on appeal (Rome Township Referendum Recount Case, 397 Pa. 331, 155 A.2d 361; Muse-Art Corporation v. Philadelphia, 373 Pa. 329, 95 A.2d 542; Prenzel v. Apex Hosiery Co., Inc., 299 Pa. 17, 148 A. 915), and that rule applies even though the question sought to be raised involves a constitutional issue (Archbishop O'Hara's Appeal, 389 Pa. 35, 46, 47, 131 A.2d 587 and cases therein cited).
In zoning cases where an appeal is taken from the decision of a board of adjustment to a court of common pleas and the latter takes no additional testimony, judicial review is limited to an examination by the court of the record presented before the board to determine whether the board has been guilty of a manifest abuse of discretion or has committed an error of law: Magrann v. Zoning Board of Adjustment, 404 Pa. 198, 200,
[ 406 Pa. Page 420170]
A.2d 553; Mignatti Appeal, 403 Pa. 144, 146, 168 A.2d 567; Upper St. Clair Township Grange Zoning Case, 397 Pa. 67, 152 A.2d 768; Tidewater Oil Co. v. Poore, 395 Pa. 89, 93, 149 A.2d 636. Likewise, in zoning appeals, on an appeal from an order of a court of common pleas to this Court, where the court below took no additional testimony, we review the record to determine whether the board, not the court, has manifestly abused its discretion or committed an error of law: Kotzin v. Plymouth Township Zoning Board of Adjustment, 395 Pa. 125, 127, 149 A.2d 116; Nicholson v. Zoning Board of Adjustment, 392 Pa. 278, 282, 140, A.2d 604.
In the case at bar, the court of common pleas did not take any additional testimony and, therefore, it became its duty to determine whether the board had manifestly abused its discretion or committed an error of law on the basis of the record which was before the board. The board, in its opinion, stated, inter alia: "Turning to the attack on the validity of the Ordinance which was the subject of the most recent hearings before the Board, as the Board understands the contentions of the Civic Association, that organization urges two basic points: (a) In the Civic Association's view, the Ordinance does not promote the public health, safety, morals and welfare and is not in accordance with any comprehensive zoning plan. (b) The Civic Association argues that the Commissioners were misled when passing the Ordinance by representations to the effect that Miss Gibson and Thomas Wynne would so restrict the property that an apartment of the type now proposed could not be erected ...." While the Board stated that it had "no jurisdiction to pass upon the validity of the ordinance", yet the fact remains that, in the proceedings before the Board, the Association never raised the question of the ordinance being vague and indefinite as is evidenced both by the opinion of the
[ 406 Pa. Page 421]
board and the record before it. Had that question been raised before the board the opportunity would then have arisen for the presentation of testimony as to the location of the "proposed road", the availability to the public of a map or maps which precisely and definitely fixed the location of that road, etc., such as was presented in the proceedings before the Court of Quarter Sessions in 1961 when that Court was requested to reopen its order of May 27, 1955.
Furthermore, when the Association initially appealed from the board's order, i.e., before the court remanded the record to the board for the taking of additional testimony, the grounds upon which the appeal was based were enumerated but the ordinance was not then attacked on the ground it was vague and indefinite. The Association now urges that it did file another appeal from the board to the Court of Common Pleas on January 9, 1961 wherein the ordinance was attacked on the ground that it was vague and indefinite. Such appeal was apparently misfiled and did not come to the attention of counsel for the Township or Wynne or the court until months after the present appeal to this Court was filed.
At the time of oral argument before the court below, for the first time in this proceeding the Association revealed to the Court and opposing counsel that it was attacking the validity of this ordinance on the ground that it was vague and indefinite. At that time the court could not pass upon this question; it had not been raised before the board, on this subject the record of the board was silent, no evidence - essential to a resolution of the question - had been presented nor an opportunity to present such evidence given. Very properly, the court, as an examination of its opinion will reveal, did not pass upon this question.
Under these circumstances, the sole question sought to be argued on this appeal not having been properly
[ 406 Pa. Page 422]
raised in the court below, cannot now be considered and the appeal just be quashed.*fn6
Appeal quashed. Costs on the Association.