Appeal from decree of Court of Common Pleas of Allegheny County, Jan. T., 1962, No. 1920, in case of Wilkinsburg-Penn Joint Water Authority v. Borough of Churchill.
T. W. Pomeroy, Jr., with him N. K. Parker, Jr., John H. Elder, Jr., and Kirkpatrick, Pomeroy, Lockhart & Johnson, for appellant.
Robert F. Banks, with him Elder W. Marshall, Charles I. Ziegler, and Reed, Smith, Shaw & McClay, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell and Mr. Justice Musmanno dissent.
This is an appeal by the defendant, Borough of Churchill, from the decree of the lower court restraining it "from interfering in any shape, manner, or form with the construction of the proposed 500,000 gallon elevated [water] tank at the site of Reservoir No. 5 as proposed by plaintiff, Wilkinsburg-Penn Joint Water Authority." The decree became absolute on April 8, 1964.
Plaintiff-appellee (Authority) is a joint municipal authority, incorporated by the Borough of Wilkinsburg and the Township of Penn Hills under the Municipal Authorities Act of 1945. Act of May 2, 1945, P. L. 382, § 1 et seq., 53 P.S. § 301 et seq. Its function is to provide public water service for consumption, health, and fire protection. Defendant-appellant (Borough) is a Borough, regulated by The Borough Code, Act of July 10, 1947, P. L. 1621, § 1 et seq., 53 P.S. § 45001 et seq. The Authority supplies water service to more than 20 boroughs and townships including defendant Borough.
In 1949, the Authority purchased a five or six acre tract of land in the Borough, on which it constructed a 10,000,000 gallon reservoir. The parties agree that for years preceding this litigation the Authority's water pressure has been inadequate to meet expanding needs in its "high service area,"*fn1 which includes defendant Borough. For some time the Authority has wanted to improve its service by building a 500,000 gallon elevated water tank on the same land in the Borough where the aforementioned reservoir is located.
The Borough's zoning ordinances prohibit such a structure.*fn2 It further appears that, since 1954, the Borough has taken the position that the Authority should solve this service problem by a closed pressure pumping system which would not involve any structure that violates its zoning ordinances. The Authority, on the other hand, has continually maintained a decided preference for the elevated tank method of increasing pressure.
In 1954, the Authority requested a building permit for the aforementioned structure. It was denied as being in violation of the zoning ordinances. In 1959,
the Authority submitted another application for a permit, which again was denied. The Authority then appealed to the Borough's board of adjustment for a variance, which also was denied.*fn3 In June of 1961, the Authority applied again for a permit, which was refused; and again, the Authority appealed to the board of adjustment for a variance, which was also refused.
In 1961, after the Board refused the Authority's last request for a variance, the Authority filed a complaint in equity seeking to restrain the Borough from interfering with its proposed plan to construct an elevated water tank. Also, the Authority filed an appeal in the county court from the ...