Appeal from decision of Commonwealth Court of Pennsylvania, No. 1117 C.D. 1971, affirming judgment of Court of Common Pleas of Delaware County, No. 12429 of 1971, in re The Township of Middletown, Delaware County, Pennsylvania et al. v. The Institution District of The County of Delaware.
John W. Nilon, Jr., with him Rodger L. Mutzel, and Kassab, Cherry & Archbold, for appellants.
Francis P. Connors, with him Levis, Connors & Swanick, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result.
This is an appeal by the Township of Middletown from the decision of the Commonwealth Court affirming the order of summary judgment directing the Township to issue a building permit to plaintiff-appellee, Institution District of Delaware County. The issue presented is whether the Township of Middletown [Township], through its Board of Supervisors, has zoning jurisdiction, and therefore, the power to restrict the height of the building proposed to be erected on the county nursing facility known as "Fair Acres Farm" by the Institution District of Delaware County [Institution District].
The present controversy is best explained by a recital of the factual circumstances involved. The Institution District is a state-created*fn1 agency, administered by the County Commissioners, operated "to provide care for incapacitated and infirm county residents who are unable to reasonably provide for their own care elsewhere." On April 7, 1971, the Institution District applied to the Township for a building permit to construct a 504-bed separate facility as an addition to Fair Acres Farm. Upon receipt of the application the Township refused to grant the permit. Also on April 7 the Institution District filed an application with the Middletown Township Zoning Hearing Board for a special exception permitting construction of the proposed building in an area zoned R-1A residential. Simultaneously, it filed an appeal from the refusal to issue a building permit, requesting a variance from Article XII, the General Provisions, Section 1201 of the Township Zoning Ordinance prohibiting the erection of structures in excess of 65 feet in height. The
proposed building was to be a 14-story structure with a height of 197 feet.
On September 22, 1971, after a hearing on these applications and a mutually agreed to delay, the Zoning Hearing Board informed the Institution District that the Board had no jurisdiction to issue either the special exception or the variance. Subsequently on November 5, 1971, the Hearing Board reversed this jurisdictional determination and informed the Institution District that it refused to issue the building permit. The Board's reversal was based on Department of Public Welfare Regulation 1203.1 requiring the approval of local zoning departments prior to any construction of public agencies such as the Institution District.
Appellee, Institution District, thereupon filed a writ of mandamus in the Common Pleas Court of Delaware County on November 24, 1971, to compel the issuance of the building permit. On December 3, 1971, appellee forwarded to appellant a copy of a motion for summary judgment in this action scheduled for hearing on December 10, 1971. Appellant then filed preliminary objections to the original complaint on December 8, 1971. At the December 10 hearing the Common Pleas Court dismissed appellant's preliminary objections and granted appellee's motion for summary judgment. On appeal the Commonwealth Court affirmed, and this Court granted allocatur.
The causal nexus of this dispute arises from certain apparently conflicting powers delegated by the Commonwealth to the Township and the Department of Public Welfare. The Township derives its relevant zoning powers from two sources. The Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P. L. 805, art. I, §§ 101 et seq., 53 P.S. §§ 10101 et seq. (Supp. 1971), gave municipalities such as Middletown ...