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SCHUBACH v. SILVER (06/08/73)

decided: June 8, 1973.

SCHUBACH, ET AL.
v.
SILVER, ET AL.



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Fred Schubach and Florence Schubach, Raymond Hrubovak and Doris Hrubovak, Dr. Leon S. Caplan and Rosemaire E. Caplan, and Alexander G. Allison and Dorothy M. Allison v. David Silver, Pine Hill Home, Inc., trading as Pine Hill Rehabilitation Center, Yellin and Co., City of Philadelphia and Girard Trust Bank, Intervening Defendant, No. 325 December Term, 1970. Transferred from the Supreme Court of Pennsylvania to the Commonwealth Court of Pennsylvania, August 14, 1972.

COUNSEL

J. Leon Rabben, for appellants.

Irvin Stander, for appellees, Silver, Pine Hill and Yellin and Co.

Howard D. Scher, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellee, City of Philadelphia.

David Maxey, with him Henry W. Sawyer and Drinker, Biddle & Reath, for intervenor, Girard Trust Bank.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.

Author: Blatt

[ 9 Pa. Commw. Page 155]

Various aspects of the controversy involved in this case have been argued at various times before the Philadelphia Zoning Board of Adjustment (Board), before numerous judges of the Court of Common Pleas of Philadelphia, at least twice before the Supreme Court of Pennsylvania and once in this Court.*fn1

The point in controversy here involves the current use of a tract of land in Philadelphia owned by Pine Hill Home, Inc. (Pine Hill) and having erected thereon by Pine Hill a 162-bed nursing home and rehabilitation center for physically and mentally retarded children. The city block on which the property is located is bounded on the north by Red Lion Road, on the east by Verree Road, on the south by Chesworth Road, and on the west by Ferndale Street. The Pine Hill property consists of approximately two acres, abutting on Verree Road.

When Pine Hill purchased the land concerned in 1966, the entire block in which it was located was zoned R-4 Residential, a classification which permits a nursing home only if a certificate therefor is issued by the Board.*fn2 The Philadelphia Code, Zoning and Planning, ยงยง 14-203(2)(f) and (h). The area across Verree Road was zoned R-3 or R-4 Residential, and that across Chesworth Road was zoned R-4 Residential, while that across Ferndale Street, where the 1966 zoning had permitted

[ 9 Pa. Commw. Page 156]

    the erection of a shopping center, was rezoned to R-12 Residential in April, 1970, a classification which permits the erection of apartments. All other property in the general area south of Red Lion Road was zoned R-3, R-4 or R-5 Residential. On the north, immediately across Red Lion Road from the block in which the Pine Hill tract is located, about half the frontage was R-5 Residential, and the other half was C-2 Commercial, containing a few small stores and a gasoline station, and about one block west along Red Lion Road there was a large tract of land zoned G-2 General Industrial. The other land to the north of Red Lion Road was zoned mostly R-2 and R-5 Residential.

Beginning in 1966, Pine Hill made repeated efforts to obtain a special certificate so as to build a rehabilitation center on its land, and, when those requests were refused by the Board, Pine Hill then sought to have the land rezoned to C-2 Commercial. This effort was also unsuccessful. In 1968 Pine Hill once more sought a rezoning, and this time City Council approved the change in Ordinance 36. The City of Philadelphia thereafter granted the zoning and building permits required by Pine Hill to commence construction.

The validity of Ordinance 36 was challenged by a group of neighboring property owners (essentially the same appellants as here), and they, being unsuccessful both before the Board and before the Court of Common Pleas of Philadelphia County, appealed to the Supreme Court. Meanwhile, Pine Hill had begun construction of the rehabilitation center, and construction continued throughout the course of these proceedings, Pine Hill conceding that it was proceeding at its own risk. On October 9, 1970, the Supreme Court handed down its opinion,*fn3 holding that Ordinance 36 constituted a "classic instance of 'spot zoning,'" and was thus invalid.

[ 9 Pa. Commw. Page 157]

The events occurring immediately following the issuance of the Supreme Court's order in the above case (hereinafter Schubach I) are in dispute, but it seems clear that the City refused to revoke the permits previously granted to Pine Hill despite repeated requests for such action made by the appellants. It is also alleged that work continued on the rehabilitation center.

The appellants had filed equity proceedings in the lower court on December 8, 1970, asking injunctive and other relief. After the Supreme Court's ruling on October 9, 1970, and the failure of Pine Hill to cease construction, they then petitioned the Supreme Court on January 12, 1971 for an order to enforce its ruling of October 9, 1970. The City thereupon revoked the building and zoning permits which had been granted to Pine Hill, and passed another ordinance (Ordinance 2139) which again rezoned the Pine Hill tract as C-2 Commercial. This time, however, the ordinance also applied to that portion of the block between the northern edge of the Pine Hill tract and Red Lion Road. The property thereby rezoned included about 1 1/2 acres more, therefore, than the 2 acres covered by Ordinance 36, and it included not only Pine Hill's tract and the adjacent land then zoned R-4, but also that piece of ground owned by the Girard Trust Bank which on December 15, 1969 had been rezoned from R-4 to O-C Office-Commercial. On January 27, 1971, the zoning permit to Pine Hill was reinstated by the City and an occupancy permit was also issued.

On January 29, 1971, the Supreme Court entered an order which, inter alia, directed that no further construction of the rehabilitation center be continued nor any operation of said center commenced until after the determination of the equity proceedings (this case) then pending in the lower court. An answer and new matter were filed by the defendants in the equity action begun on December 8, 1970, and subsequently, on February

[ 9 Pa. Commw. Page 1584]

, 1971, leave was granted to the defendants to file supplemental new matter, specifically evidence of the enactment of Ordinance 2139. The appellants asserted as a basis for the relief sought that: (1) the rehabilitation center was constructed contrary to the decision of the Supreme Court in Schubach I ; (2) Schubach I is res judicata; (3) the rehabilitation center constitutes a private nuisance to the abutting landowners; and (4) Ordinance 2139 is arbitrary, discriminatory, special legislation, constitutes spot zoning and is therefore unconstitutional.

Following extensive hearings, Judge Sporkin handed down a Decree Nisi for the lower court, and this was followed by an Opinion dated September 10, 1971, whose essential elements are well summarized in appellee Pine Hill's brief, as follows: "(1) That the Court has equitable jurisdiction of the subject matter and the parties; (2) That Bill No. 2139 was a valid and constitutional zoning ordinance; (3) That the nursing home does not constitute a nuisance; (4) That Pine Hill Home, Inc., may proceed to utilize the structure erected on its premises as a nursing home; (5) That no damages, compensatory or punitive, are awarded; (6) That the continued erection of the nursing home after the Supreme Court's decision of October 9, 1970 declaring Bill 36 unconstitutional violated the then existing R-4 Residential classification; (7) That the continued construction of the nursing home after January 29, 1971 was not in compliance with the directive of the Supreme Court entered that date, and that the imposition of sanctions lies within the sound judgment of the Supreme Court; (8) That the nursing home is required to install certain specified shrubbery on its property; (9) The nursing home is required to install certain corrective measures to secure proper drainage of surface waters on its property; and (10) Pine Hill Home, Inc. is required to pay the costs of this proceeding."

[ 9 Pa. Commw. Page 159]

Exceptions were filed by the appellants and by certain of the appellees, and a Supplemental Opinion was filed by the lower court en banc on February 14, 1972. In that opinion, the court dismissed the exceptions and made the Decree Nisi final, but it also assessed a fine against Pine Hill in the amount of $4200.00 for violations of the City Zoning Code, with the fine to be paid to the City.

An appeal was thereafter taken to the Supreme Court by the neighboring property owners (Pine Hill did not appeal from the imposition of the $4200.00 fine), which transferred the appeal to this Court "while retaining jurisdiction of the case insofar as it relates to this Court's order of January 29, 1971."

We shall limit our attention, therefore, to: (1) the validity of Bill No. 2139; (2) the res judicata effect of Schubach I ; (3) the building of the rehabilitation center as constituting a nuisance; and (4) the right of ...


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