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COMMERCIAL PROPERTIES v. PETERNEL (06/30/65)

decided: June 30, 1965.

COMMERCIAL PROPERTIES, INC.
v.
PETERNEL, APPELLANT



Appeals from order of Court of Common Pleas of Allegheny County, Jan. T., 1964, No. 527, in cases of Commercial Properties, Inc., Southgate Plaza, Inc. and Virginia Manor Land Company v. William C. Peternel, Director of Public Works, Board of Township Commissioners, James Cain, Chief Inspector, of Township of Mt. Lebanon et al.

COUNSEL

Frank L. Seamans, with him John H. Morgan, Edwin L. Klett, John B. Nicklas, Jr., and Eckert, Seamans & Cherin, and McCrady & Nicklas, for appellants.

Paul G. Perry and Walter A. Koegler, with them Robert M. Brown, and Burgwin, Ruffin, Perry & Pohl, for appellees.

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

Author: Eagen

[ 418 Pa. Page 306]

In this mandamus action, the court below ordered the issuance of certain grading and building permits to the plaintiffs for the construction of a shopping center in Mt. Lebanon Township, Allegheny County. The township and residential intervenor-defendants appeal.

The facts are lengthy and require extended discussion.

The particular property involved is a tract of approximately 10 acres of land located in the Virginia Manor section of the Township of Mt. Lebanon at the intersection of Cochran and Greentree Roads. Virginia Manor Land Company (Manor), the legal title holder of the property, has entered into a contract of sale for the property with Southgate Plaza, Inc. (Southgate), for a consideration of $210,000, contingent upon the acquisition of necessary township approvals and permits for the construction of a shopping center on the land in question. Commercial Properties, Inc. (Commercial), is the duly authorized agent of Southgate for the purpose of constructing the said shopping center.

[ 418 Pa. Page 307]

In 1948, a township zoning ordinance classified the present parcel of land as "Commercial"; in 1955, this classification was narrowed to "Neighborhood Shopping" (NS), which classification remained extant at all times relevant to the present action. (Either classification permits the proposed use as a shopping center.) However, on July 8, 1963, at a regular public meeting of the Board of Commissioners of Mt. Lebanon Township (Board), a proposed amendment to the zoning ordinance was introduced, changing the classification from NS to Residential (R-1), and a public hearing was scheduled for September 9, 1963 (which hearing was in fact held). On November 26, 1963, the Township Planning Commission (Commission) met, discussed the proposed amendment, and recommended that it not be adopted. Thereafter, the Board, on December 9, 1963, voted to table the proposed amendment, where it lay until June 8, 1964, at which time it was removed from the table and enacted as an ordinance.

In early April 1963, one Jennings, an officer of both Commercial and Southgate, met with the township manager, Finley, to determine the necessary procedure to be followed in order to erect the shopping center. He was told at that meeting that he was required to obtain "preliminary site plan approval" from the Commission, and to secure a grading permit under a separate grading ordinance before he could apply for a building permit. Shortly thereafter, Jennings filed copies of his plot plan with the Commission and appeared before them on April 23, 1963, to discuss obtaining their approval. At that meeting five objections were raised to the plot plan, which Jennings set about to remedy. The next meeting with township officials took place on the site proposed for development, at the suggestion of the township and in the presence of several abutting owners, on May 4, 1963. Further conversations and meetings ensued, during each of

[ 418 Pa. Page 308]

    which new objections were raised to the plot plan, until on June 25, 1963, the Commission voted not to approve the plot plan. As a result of this action and at the request of Jennings, a letter listing 16 objections to be overcome in order to secure approval was issued. Jennings then met with the township director of public works, Peternel, and one Williams, a township engineer, to discuss the objections and the manner of overcoming them. As a result, late in July (note that the proposal for rezoning had then intervened) a revised plot plan was given to Peternel, which plan was in fact approved by the township engineer as being in "technical compliance" with the local requirements.

A formal application for a grading permit, filed on August 7, 1963, was denied because it was not in triplicate, it was not prepared by a registered professional engineer, and it had no "specifications" attached. In the meantime, Jennings requested to be placed on the Board's agenda to obtain their approval of the site plan; but at their meeting the Board ignored his request and, in a move aimed directly at the plaintiffs, amended the grading ordinance (under which the plaintiffs had been proceeding) so as to make the securing of a building permit a prerequisite to obtaining a grading permit. Then, on August 30, 1963, the Board refused to issue a grading permit: because the Commission had not given approval, because no building permit had been obtained, and because they were "unsure" of the effect on the project of the proposed rezoning. Again, on September 20, 1963, ...


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