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ALFRED J. MORELLI v. BOROUGH ST. MARYS AND INTERVENING (04/12/71)

decided: April 12, 1971.

ALFRED J. MORELLI, ET UX., ET AL.
v.
BOROUGH OF ST. MARYS AND INTERVENING APPELLEE, PURE CARBON CO., INC.



Appeal from the order of the Court of Common Pleas, 59th Judicial District, Elk County Branch, Civil Division, No. 412 April Term, 1969, in case of Alfred J. Morelli, et ux., et al. v. Borough of St. Marys. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Norbert J. Pontzer, with him Pontzer & Pontzer, for appellants.

Alvin B. Coppolo, for the Borough of St. Marys, appellee.

Dan P. Arnold, for intervening appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer, and Barbieri (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision in this case). Opinion by Judge Kramer. Dissenting Opinion by Judge Manderino.

Author: Kramer

[ 1 Pa. Commw. Page 614]

This is an appeal by Alfred J. Morelli and other property owners in the Borough of St. Marys from an Order of the Court of Common Pleas of Elk County dated December 30, 1969, upholding an ordinance, adopted August 4, 1969, amending the zoning ordinance of the Borough of St. Marys (Appellee).

It was filed originally in the Supreme Court of Pennsylvania and in accordance with ยง 507 of the Appellate Court Jurisdiction Act (Act No. 223 of July 31, 1970) was transferred to this Court on September 14, 1970.

In March of 1968, the Borough published a detailed document entitled " A Comprehensive Plan ". During 1968, the Borough inaugurated a program to amend extensively its existing zoning ordinance (dated October 4, 1937, as amended over the years); and its planning commission was directed to hold hearings and prepare the necessary proposed amendatory legislation for presentation to Borough Council. After carrying out these directions, the Planning Commission presented to Council, on June 27, 1969, its proposal which, on August 4, 1969, was voted upon by the Borough Council. In this vote there was an even split of three votes in favor of the proposed amendatory zoning ordinance and three votes against it.*fn1 Whereupon the Mayor, who was in attendance at the meeting, elected to cast a vote in favor of the proposal, thereby breaking a tie

[ 1 Pa. Commw. Page 615]

    vote. As a result, the ordinance was declared enacted as Act No. 942.

To complete the factual picture which precipitated this appeal, we note that the intervening appellee (Pure Carbon Company) owns a lot located in the vicinity of the properties of the appellants. Pure Carbon Company intends to use its lot as a parking area, and it is within an area reclassified from R-2 to R-3 by Act No. 942. This reclassification would now permit the intended parking usage on the lot which its prior classification prohibited.

The appellants appealed to the Court of Common Pleas of Elk County, and their appeal was dismissed. The sole issue presented to this Court in this appeal is whether, under the facts of this case, the Mayor was authorized to cast a tie-breaking vote which would thereby enact into law the Zoning Ordinance No. 942.

Appellants argue that the Ordinance No. 942 is an amendment of the Borough's comprehensive plan and therefore under the provisions of Section 302 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. , 53 P.S. 10101, et seq., the vote was restricted to a vote of the "governing body", i.e., Borough Council, and that the mayor had no authority to cast such a tie-breaking vote. If the appellants are correct, Ordinance No. 942 was not passed because there was a failure to achieve a majority vote. We believe the appellants' argument must fail.

During the past decade there has been much confusion over the difference between a "comprehensive plan" and a "zoning ordinance". Prior to 1968 they often were looked upon as one and the same thing. The courts, then, looked to see if the zoning ordinance had been passed "pursuant to" or "in accordance with" a comprehensive plan, which was not specifically described in the statute.

[ 1 Pa. Commw. Page 616]

In Appeal of Key Realty Company, 408 Pa. 98, 182 A.2d 187 (1962), the majority and concurring opinions discussed comprehensive plans under the Borough Code of 1947, and pointed out that comprehensive plans, even then, were only the guidelines for reasonable municipal land utilization. This same reasoning is found in Eves v. Zoning Board of Adjustment, 401 Pa. 211, 164 A.2d 7 (1960); Donahue v. Zoning Board of Adjustment, 412 Pa. 330, 194 A.2d 609 (1963); Furniss v. Lower Merion Township, 412 Pa. 404, 194 A.2d 926 (1963); Jacobi v. Zoning Board of Adjustment, 413 Pa. 286, 196 A.2d 742 (1964); and Village 2 at New Hope, Inc., 429 Pa. 626, 241 A.2d 81 (1968).

As we shall see, they (comprehensive plan and zoning ordinance) are now two separate tools to be used in the statutory scheme on municipal land utilization.

In 1968, the Legislature made a specific distinction between them. A comprehensive plan is provided for in Article III of the 1968 Planning Code, infra (53 P.S. 10301 through 10306). It is an overall plan or guide to land utilization and to meeting the needs and desires of the community. As Section 301*fn2 provides, it

[ 1 Pa. Commw. Page 617]

    must contain certain basic elements, statutorily described in general terms, and in addition may contain many other elements, such as studies, treatises, newspaper articles, and any other item the planning commission believes adds flavor to its objectives. This overall plan or any amendment thereto is given a governmental imprimatur of approval by the passing of a resolution by a majority of the "governing body". The comprehensive plan does not have the legal effect of a zoning ordinance, which actually regulates the land use as may be recommended by the comprehensive plan. The planning commission may recommend all kinds of desirable approaches to land utilization and development. Not all of these may become eventually legally enforceable in a zoning ordinance. In other words, a comprehensive plan is abstract and recommendatory; whereas the zoning ordinance is specific and regulatory.

By contrast, zoning ordinances are provided for in Section 601*fn3 of the Planning Code, and there the Legislature clearly spells out that zoning ordinances "implement comprehensive plans ...


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