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MONESSEN v. BELMAR LAND DEVELOPMENT CO. (07/09/71)

decided: July 9, 1971.

MONESSEN
v.
BELMAR LAND DEVELOPMENT CO., INC., AND NATIONAL DEVELOPMENT CORPORATION



Appeal from the Order of the Court of Common Pleas of Westmoreland County at No. 867 July Term, 1970, in case of Belmar Land Development Co., Inc. and National Development Corporation v. Nello Tineri, Zoning Officer and Building Inspector of the City of Monessen, and Hugo J. Parente, Mayor of the City of Monessen, and Thomas P. Dalfonso, John F. Billy, Steve Sinchak, and Jack L. Bergstein, Councilmen of the City of Monessen.

COUNSEL

Albert C. Gaudio, for appellant.

Jerome M. Libenson, with him David W. Craig, Harold Gondelman, and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellees.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Judge Manderino disqualified himself. Opinion by Judge Rogers.

Author: Rogers

[ 2 Pa. Commw. Page 485]

This appeal by the City of Monessen is from a summary judgment in mandamus commanding the appropriate city officials to issue building permits, accept bond and permit recording of subdivision plans for a low income housing development.

Belmar Land Development Company, Inc. and National Development Corporation, appellees, are respectively owner and developer of a parcel of land located in an R-1 one-family residence district established by the zoning ordinance of the City of Monessen enacted in the year 1960. Among the uses permitted in the R-1 district is a conditional use for large-scale multiple-family housing development upon approval of the city planning commission after public hearing. After meetings

[ 2 Pa. Commw. Page 486]

    with city council, the city planning commission and the zoning hearing board, the appellees applied to the planning commission for and, on March 25, 1969, received approval of conditional use of their land for multiple-family housing, consisting of eight apartment structures containing a total of about two hundred housing units. Appellees required and obtained from the zoning hearing board variances from lot area, set back, building separation and yard requirements, some by decision of that board and others by reason of its failure to render a decision within 45 days. The planning commission also specifically approved the site plan as required by the zoning ordinance and the subdivision plan pursuant to city subdivision regulations. Having then obtained all approvals required by municipal regulations, the appellees applied to the zoning administrator for building permits. These were refused pursuant to instructions of the mayor and city council. Appellees filed their complaint in mandamus, affidavits and a motion for summary judgment pursuant to Rule of Civil Procedure 1098. The defendants, the zoning administrator, the mayor and councilmen of Monessen, answered the complaint and the motion. The court entered the summary judgment requested and thereafter dismissed the city's exceptions and motion to open.

On this appeal the city raises three issues.

I. Without citing appellate authority, it contends that summary judgment should not have been entered because the pleadings developed controverted issues of fact. Reading the pleadings shows that the material facts are undisputed. Indeed, the city's brief is disingenuous on this point. It informs us that it denied the immaterial averment that there had been meetings of appellees with city council. Its answer to this averment denies that there had been meetings at which appellees requested council approval of conditional uses

[ 2 Pa. Commw. Page 487]

    or variances. Again the brief tells us that the city had denied that city council had instructed the building officer not to issue permits; in fact the answer admits that city council instructed the building officer to refuse a permit "until all of the legal ramifications . . . have been satisfied." The other asserted denials relate to conclusions of law or are ineffective general denials, the intended implications of which are revealed as untrue by exhibits to the affidavits filed with the motion for judgment. The appellees' complaint, the city's answer and the affidavits filed with the motion for judgment establish that the appellees performed all of the acts and received all of the official approvals prerequisite to obtaining a ...


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