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

COMMONWEALTH COURT OF PENNSYLVANIA


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 § 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 and to accomplish any of the purposes of this Act."

[ 1 Pa. Commw. Page 618]

Even though the statutory language pertaining to the content and passage of zoning ordinances is strikingly similar to those of the sections pertaining to comprehensive plans, there can be no doubt that the Legislature intended them to be separate procedures.

The question arises, of course, on what happens if a borough council decides not to follow the recommendations of the comprehensive plan, and although there are no cases on this point, Ryan's Pennsylvania Zoning Law and Practice (1970), states at page 22 that the municipal legislative body is accorded a wide discretion in interpreting the spirit and intent of the plan, but that a clear and flagrant deviation from the plan may invalidate the portion of the ordinance affected.

And so we come to the real issue under the above analysis and that is, can a mayor break a tie vote of council so as to pass an amending zoning ordinance under Section 601 of the Planning Code (53 P.S. 10601). Section 1006(3) of the Borough Code (53 P.S. § 46006(3)) specifies the Duties of Council and outlines their normal voting procedure: "It shall be the duty of the borough council: (3) To enact, revise, repeal and amend such bylaws, rules, regulations, ordinances and resolutions, not inconsistent with the laws of the Commonwealth . . . All other powers shall be executed by vote of the majority of council present at a meeting, unless otherwise provided." (Emphasis added) Section 1003 of the Borough Code (53 P.S. 46003) provides the mayor with tie-breaking power, "In all cases where, by reason of a tie or split vote, the council of any borough shall be unable to enact or pass any ordinance, resolution or motion, . . . the mayor, if in attendance at the meeting, may at his option cast the deciding vote, . . ." This section applies to all normal voting procedures.

Since the statute gives the borough mayor the power to cast a vote to break a tie vote of council, we

[ 1 Pa. Commw. Page 619]

    now shift our view to determine if there is any limitation to the mayor's tie-breaking power.

One such area concerns the appointment of an independent auditor. Section 1005(7) of the Borough Code (53 P.S. 46005(7)) states: "The council of the borough shall have power (7) To provide by ordinance passed by a two-thirds vote of the entire number of councilmen elected for the appointment of an independent auditor. . . ." (Emphasis added)

There the normal voting procedure is not applicable and only by a two-thirds vote of the entire council membership can an independent auditor be appointed. Obviously, this is a limitation on the mayor's tie-breaking power.

A second area of limitation of this power is to be found in the appointment of a borough manager in Section 1141 of the Borough Code (53 P.S. 46141): "The council of any borough may, at its discretion, at any time, create by ordinance the office of borough manager and may in like manner abolish the same. While said office exists, the council shall, from time to time, and whenever there is a vacancy, elect by a vote of a majority of all the members, one person to fill said office, subject to removal by council at any time by a vote of the majority of all the members." (Emphasis added)

Again there is a specific deviation from normal voting procedure requiring a majority vote of all members, and therefore a limitation on the mayor's tie-breaking power.

A third area standing as an exception to the tie-breaking power was advanced by appellant, and that is Section 302 of the Planning Code (53 P.S. 10302) relating to passage or amendment of the comprehensive plan. It too calls for a vote "of not less than a majority of all the members of the governing body". However, for the purposes of the instant case this is not

[ 1 Pa. Commw. Page 620]

    relevant. As was stated earlier, we are of the opinion that the action taken here by council and thereafter by the mayor is controlled by Section 601 and not by Section 302.

We therefore are faced with the question as to whether the normal voting procedures apply in zoning ordinance enactments and amendments under Section 601. If the answer is in the affirmative, then the tie-breaking section (53 P.S. 46003) would also apply. Section 601, set forth above, does not contain any words of limitation and therefore we hold that normal voting procedures are applicable.

We conclude that the Mayor in this case properly cast the deciding vote, thereby breaking the tie vote of council, and the amending zoning ordinance (Act No. 942) was duly enacted.

The order of the court below is affirmed.

Disposition

Affirmed.

Dissenting Opinion by Judge Manderino:

I dissent. On August 4, 1969, the Planning Commission of the Borough of St. Marys, Pennsylvania, submitted to the Borough Council proposed Ordinance No. 942, a zoning and planning ordinance. The Borough Council consists of six members whose votes were evenly divided on Ordinance No. 942, three voting in favor of adopting it, and three voting against adoption. The Mayor of the Borough, who was present at the meeting, announced that he was casting his vote in favor of the proposed ordinance. With the addition of the Mayor's vote, the vote was declared to be four in favor of adoption and three against adoption. The ordinance was therefore declared enacted.

Alfred J. Morelli and other property owners in the Borough of St. Mary's challenged the validity of the adoption of the zoning amendment, claiming that the Mayor was not entitled to vote. This appeal is from

[ 1 Pa. Commw. Page 621]

    an order from the Court of Common Pleas upholding the ordinance as validly adopted.

This appeal was originally filed in the Supreme Court of Pennsylvania and in accordance with the Commonwealth Court Act (Act No. 185, January 6, 1970; 17 P.S. 211.13, 1970), was transferred to this court.

The only issue before this court is whether or not the Mayor was entitled to vote. I think that the law is clear that the Mayor was not entitled to vote, since he was not a member of the Borough Council and only members of the Borough Council were entitled to vote under Section 302 of the Pennsylvania Municipalities Planning Code (Act of July 31, 1968, P.L. ; 53 P.S. 10101 et seq., 1970). The Code requires the affirmative votes of not less than a majority of all members of the governing body and defines the governing body as the Council. Since the Mayor of the Borough is not a member of council, he is not a member of the governing body and could therefore not have provided the fourth affirmative vote needed to meet the explicit requirement of the Municipalities Planning Code.

The Borough argues, however, that the Municipalities Planning Code does not govern this situation, but rather, that Section 1006(3) of the Borough Code (Act of February 1, 1966, P.L. ; 53 P.S. 46006, 1966) applies. That section allows a Mayor of a Borough to vote in all cases when the Council is unable to enact or pass an ordinance due to a tie or split vote. There appears to be a conflict between the provisions of the Municipalities Planning Code requiring the affirmative votes of four members of the governing body and the Borough Code stating that the Mayor may vote in case of a tie.

In reality there is no conflict. The provision in the Borough Code allowing the Mayor to vote in the case of a tie has been repealed by the subsequently enacted

[ 1 Pa. Commw. Page 622]

Municipalities Planning Code so far as the Code is concerned. The Municipalities Planning Code specifically states that prior laws inconsistent with any provision of the Municipalities Planning Code are repealed. The Municipalities Planning Code could not be clearer in requiring the affirmative votes of four members of the governing body or in its definition of governing body as the Council of the Borough.

Even if the provision in the Borough Code allowing the Mayor to vote in the case of a tie had not been repealed by the Municipalities Planning Code, the Borough Code provision would still not apply, because the provision in the Borough Code is a general provision applying to any situation and was enacted prior to the Municipalities Planning Code. The provision in the Municipalities Planning Code is a more specific subsequent provision.

In reconciling seemingly conflicting statutes, the court is bound by the Statutory Construction Act (Act of May 28, 1937, P.L. 1019; 46 P.S. 501 et seq., 1969), which provides as follows: "whenever a general provision in a law shall be in conflict with a special provision in the same or in another law, the two shall be construed if possible, so that effect may be given to both. If the conflict between two provisions be irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision unless the general provision shall be enacted later and it shall be the manifest intention of the Legislature that such general provision shall prevail."

The provision of the Borough Code predates and is more general than the Municipalities Planning Code. There is no manifest intention of the Legislature that the Borough Code should control. On the contrary, it appears quite clear that the later-enacted special provision in the Municipalities Planning Code indicates a manifest intention of the Legislature to be specific

[ 1 Pa. Commw. Page 623]

    about the passage of planning and zoning ordinances. The language used is "affirmative votes of not less than a majority of all the members of the governing body," which in the present dispute would mean four members of the Borough Council.

In the briefs submitted to the court by all parties, in the oral argument before the court, and in subsequent communication between the court and the attorneys, the only question raised before the court was whether or not Section 302 of the Planning Code was applicable to Ordinance No. 942 or whether Section 1006(3) of the Borough Code was applicable. No other issue was raised.

The majority on its own initiative has stated that another section of the Planning Code, Section 601, is applicable to Ordinance No. 942. According to the majority, Section 302 concerns the adoption of comprehensive plans by municipalities and does not apply to the passage of a zoning ordinance. Since the majority views Ordinance No. 942 as an amending zoning ordinance, it states that Ordinance No. 942 should be considered under Section 601 of the Planning Code and not Section 302. Under the majority's approach, a zoning ordinance cannot be a part of a comprehensive plan. I disagree.

A comprehensive plan by its very definition in the Planning Code includes zoning matters. The Code specifically states that a comprehensive plan shall include "a plan for land use."

A comprehensive plan and a zoning ordinance are two separate items only in the sense that the comprehensive plan may contain broader zoning regulations than the more specific zoning ordinance, but nonetheless the comprehensive plan by law must include a certain amount of zoning regulations which must have the force and effect of law.

[ 1 Pa. Commw. Page 624]

The entire thrust of the Municipalities Planning Code in setting up a comprehensive plan to be followed by various ordinances is that the comprehensive plan has legal effect and must cover certain matters and may cover all matters which will later be reduced to more specificity by individual ordinances. To say that the individual ordinances, in the planning and developing area, called for by the Code are not a part of the comprehensive plan is to ignore the entire legislative attempt to provide an orderly procedure within the framework of a single municipalities planning code for communities to plan for their future and to implement these plans by specific ordinances. The majority takes the view that a comprehensive plan is a guide and does not have legal effect; that it is something abstract and recommendatory. I cannot agree. The Planning Code requires the adoption of a comprehensive plan by the governing body and specifically states in Section 303, the legal status of a comprehensive plan. It is not merely a recommendation or a guide without legal effect. Section 303 gives the comprehensive plan legal status and prohibits the governing body from adopting anything "not specifically found by the governing body to be in accordance with the spirit and intent of the formally adopted portions of the comprehensive plan." Section 303 speaks of a formally adopted comprehensive plan and does not allow the Council to merely look upon it as a guide or recommendation which can be ignored. A comprehensive plan does have legal effect and must be honored by City Council.

Even were we to assume that a zoning ordinance could not be a part of a comprehensive plan and could not be controlled by the provisions in the Code dealing with comprehensive plans, we would still not conclude that Ordinance 942 was validly adopted.

Section 601 of the Planning Code, relied on by the majority contains the following provision for the

[ 1 Pa. Commw. Page 625]

    adoption of a zoning ordinance: "The governing body of each municipality, in accordance with the conditions and procedures set forth in this act, may enact, amend, and repeal zoning ordinances to implement comprehensive plans and to accomplish any of the purposes of this Act." (Emphasis supplied.)

The majority takes the position that since Section 601 does not specifically state that the affirmative votes of not less than a majority of all the members of the governing body are required, the Mayor may break a tie vote.

If we examine the clear language of Section 601, however, the same affirmative four votes of council are needed. Section 601 states that the Borough may enact a zoning ordinance "in accordance with the conditions and procedures set forth in the Act." Such a specific reference to "conditions and procedures set forth in this act" can only apply to the conditions and procedures outlined in Section 302 for the enactment of a comprehensive plan or any part thereof. Otherwise the language of Section 601 would have no meaning and be totally unnecessary. The conditions and procedures for enactment of ordinances spelled out in Section 302 are the only such procedures appearing in the Municipalities Planning Code.

In addition, the court should again be guided by the provisions of the Statutory Construction Act. Section 562 of the Statutory Construction Act states that "laws or parts of laws are in pari materia when they relate to the same persons or things or to the same class of persons or things. Laws in pari materia shall be construed together if possible as one law." If we consider the Code as a single unity, which it is, we must conclude that the requirements of Section 302 are the same ones referred to in Section 601.

The Pennsylvania Municipalities Planning Code was clearly intended by the Legislature to provide an integrated

[ 1 Pa. Commw. Page 626]

    scheme covering zoning and planning matters for most municipalities in Pennsylvania. What the majority has done is to construe Section 302 and Section 601 as if they were totally unrelated and appeared in different laws of the Commonwealth on totally different subjects. This is clearly not so. They appear in the same law on the same subject. In addition, there is a specific reference in Section 601 that in the adoption of a zoning ordinance, conditions and procedures specified elsewhere in the Act should be followed. Section 601 can only mean that the procedures and conditions in Section 302 must be followed. As stated above, Section 302 requires the affirmative vote of four members of the governing body, specifically defined as the Council.

The effect of the majority holding is that although four votes of the governing body in the Borough of St. Mary's may be necessary for the adoption of a comprehensive plan, less than that number can provide the votes for the passage of ordinances which are a part of the comprehensive plan.

The Pennsylvania Municipalities Planning Code was a specific attempt to create order out of chaos in the multiplicity of Pennsylvania municipalities in planning and zoning matters. The code specifically repealed certain provisions previously appearing in the Borough Code, the First Class Township Code, the Third Class City Code, the Second Class Township Code, and the County Code covering planning and zoning matters. The Pennsylvania Municipalities Planning Code was to provide a consolidated orderly single procedure to be followed by almost all municipalities in the Commonwealth. The Legislature's attempt to provide a single uniform procedure in the various municipalities has been frustrated by the majority ruling because the majority in effect states that uniform procedures can still be modified by a general provision of a Borough

[ 1 Pa. Commw. Page 627]

Code which has been repealed by the Municipalities Planning Code.

I would reverse the order of the Court below because Ordinance No. 942 of the Borough of St. Marys was not validly adopted and has no force and effect as municipal law.


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