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decided: March 16, 1965.


Appeal from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1964, No. 3182, in case of School District of Philadelphia v. Zoning Board of Adjustment.


Levy Anderson, First Deputy City Solicitor, with him Gerald Gornish and Carl K. Zucker, Assistant City Solicitors, Matthew W. Bullock, Jr., Deputy City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for appellant.

Joseph W. Marshall, for school district, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Eagen

[ 417 Pa. Page 278]

This is an appeal by the City of Philadelphia from an order of the Court of Common Pleas No. 4 of Philadelphia County overruling the decision of the zoning board of adjustment (Board) and holding that the School District of Philadelphia (School District) is exempt from the zoning provisions of the City of Philadelphia Code of Ordinances.

This case brings into sharp contrast the conflicting assertions of authority by two coterminous municipal bodies within the boundaries of the City of Philadelphia, and thus poses the question: Does the City of Philadelphia, under its Home Rule Charter*fn1 and the Zoning Enabling Act,*fn2 have the power to regulate by means of zoning ordinances the construction of public school buildings by the School District within the city limits?

The facts are these:

There presently exists on the southerly side of W. Thompson Street, between N. 26th Street and N. Taney Street, a public school known as the Robert Morris Public School. Because of an increase in population, the existing building is inadequate to meet the needs in the area. Therefore, the School District proposes to raze this structure and replace it with a new and larger plant to accommodate a greater number of pupils.

[ 417 Pa. Page 279]

In order to accomplish this, the city vacated a public street immediately to the south of the present school property and, in addition, the School District acquired further property beyond this vacated street bed through its power of eminent domain. Thus, the School District has extended the assembled property in a southerly direction to the property line of another upon which is located a large structure, the acquisition of which is apparently beyond the present financial power of the School District.

The prevailing zoning requirements for a structure in this district include, inter alia, a maximum height of 35 feet, a rear yard depth of 9 feet and provisions for an off-street parking area which affords one parking space for each 1000 square feet of gross floor area of the building. In contravention of these requirements, the proposed structure is to be 50 feet in height, with no rear yard, and would provide no off-street parking area in spite of the fact that the gross floor area is 90,000 square feet.

The School District applied to the Department of Licenses and Inspections for a permit to construct the school plant, which was denied because of the above failures to comply with the zoning provisions, and also because a school was not a permitted use within the districts wherein the property was located.

Thereupon, the School District appealed to the Board for zoning variances and for a certificate of exception, all of which were refused after public hearing. The Board did find that a school building was a permitted use, but based its refusal on the ground that the proposed building would violate the other zoning criteria sought to be avoided, and that such violations would "substantially increase congestion in the public streets" and would be against the overall public interest and not in harmony with the spirit and purpose of the zoning ordinance.

[ 417 Pa. Page 280]

The School District appealed to the Court of Common Pleas of Philadelphia County which reversed the decision of the Board solely upon the basis and conclusion that the School District is exempt from all provisions of the City's code of ordinances relating to zoning. We granted certiorari.

As a result of concession at oral argument before this Court, it was stipulated that the Board would not continue to impose limitations upon the height of the proposed building and the depth of the rear yard appurtenant thereto. Thus, the sole area of dispute now is whether the Board is empowered to require the School District to comply with the zoning regulation concerning off-street parking. The restricted area of the present dispute does not change the nature of the basic question for decision. The issue still remains: does the City of Philadelphia have the power to enforce zoning regulations of any nature against the School District. If the power of the City to enact and enforce zoning regulations is statutorily limited in that school districts are exempt, or if the legislature has granted complete and plenary power to the School District over its physical plants, or even if it has reserved this power unto itself, then the City is without authority to enforce the regulation here involved. We emphasize that the question as to whether or not the Board abused its discretion in refusing to grant a zoning variance is not presently before us.

Hence, the issue is one of pure power in the City. Since the City is a municipal corporation created by the state, it possesses only those powers specifically granted by the legislature: Schultz v. Philadelphia, 385 Pa. 79, 122 A.2d 279 (1956), and Genkinger v. New Castle, 368 Pa. 547, 84 A.2d 303 (1951). Zoning laws, enacted in the exercise of the police power, are likewise ...

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