Planning Code on two grounds, namely, that the exercise of the police power of the state as provided in the Code offends their federal constitutional rights, and that the Code is so vague, arbitrary, indefinite and uncertain as to deny them due process of law. They also assert and have sought to prove that the further consideration of the Fridays' application by the Fox Chapel Zoning Hearing Board, pursuant to the authority granted it by the Code, will cause them irreparable injury entitling them to the injunctive relief they seek. The defendants deny that the Code offends any federal constitutional mandates and assert, by way of further defense, that the defendant members of the Zoning Hearing Board of the Borough of Fox Chapel are not state officers or engaged in the enforcement or execution of the state statute under attack, within the meaning of 28 U.S.C. § 2281. We do not reach these questions of constitutionality and standing which have been raised by the parties, however, since the plaintiffs have failed to make the showing of clear, imminent and irreparable injury directly affecting their rights which, as we have seen, is a necessary prerequisite to a grant of the injunctive relief which they seek.
In an attempt to establish irreparable injury, the plaintiffs have offered evidence of three kinds of injury which they allege has resulted or will result from the conduct of hearings by the Zoning Hearing Board as to the validity of the Fox Chapel Zoning Ordinance.
The first is injury to the value of their residential properties. Plaintiff Neimann testified that, in his opinion, his property has depreciated in value since the Fridays' application for a hearing was filed. There was other testimony, very general in nature, as to the possibility of such depreciation. It is obvious, however, that this alleged injury is presently purely speculative and wholly based upon the possibility that in the state proceeding it may be judicially determined on appeal that the Zoning Ordinance is invalid, under the rule adopted by the Supreme Court of Pennsylvania in Girsh Appeal, 1970, 437 Pa. 237, 263 A.2d 395, and that the Fridays are, therefore, not restricted thereby from developing their property with multi-family dwelling units. This event has not occurred, however, and indeed may never occur, and if it should eventuate, any injury suffered by the plaintiffs through depreciation of the value of their properties would be damnum absque injuria since, in the absence of a showing that the Fridays' actual use of their property will constitute a nuisance, which is not suggested, the injury would be merely the incidental result of the lawful and reasonable use of their property by neighboring property owners. Gunther v. E. I. duPont de Nemours & Co., N.D.W.Va., 1957, 157 F. Supp. 25, 33, app. dism., 4 Cir., 255 F.2d 710; Commonwealth v. Mayer, Ky., 1962, 357 S.W.2d 879, 881. And see 1 Am.Jur.2d, Adjoining Landowners, §§ 2, 3, 15. Indeed, the plaintiffs concede in their brief that the result sought by the Fridays might lawfully be effected at any time by the Borough Council through the amendment or repeal of the Zoning Ordinance. Mestre v. City of Atlanta, 5 Cir. 1958, 255 F.2d 401. Certainly the result would not be different if the ordinance should be judicially determined to be a nullity.
The plaintiffs next urge that irreparable injury to the Borough of Fox Chapel will result through imposing on the Borough budget the burden of providing added municipal services for the increased population to be expected from an apartment development on the Friday property. However, it is the normal function of a municipality to provide such additional services as are required when its population and their needs increase, and the necessity of doing so is not a legally recognized injury, reparable or irreparable. Mansfield & Swett v. Town of West Orange, 1938, 120 N.J.L. 145, 160, 161, 198 A. 225. Moreover, it is obvious that any such increased financial burden upon the Borough is speculative at the best and would not involve a direct injury to the plaintiffs' rights. And, again, if the suggested burden on the Borough should occur it could only realistically result from the application of the law of Pennsylvania by the courts to the Borough Zoning Ordinance and not by reason of the procedural operations of the Zoning Hearing Board.
Finally, the plaintiffs offered evidence that they have incurred and will incur large expenses for investigation and conduct of the litigation, including counsel fees, in the proceeding before the Zoning Hearing Board and on appeal in the Pennsylvania courts, and that these constitute irreparable injury which entitles them to injunctive relief. This type of injury is the only one claimed by the plaintiffs which relates to the Board proceeding under the Code rather than to the feared end result of a determination of invalidity of the Zoning Ordinance. However, absent special circumstances not present here, this is not injury in the special legal sense of that term, even if the statute under which the proceeding is brought is unconstitutional. Petroleum Exploration v. Public Service Commission of Kentucky, 1938, 304 U.S. 209, 220-221, 58 S. Ct. 834, 82 L. Ed. 1294; Whitehouse v. Illinois Central R. Co., 1955, 349 U.S. 366, 374, 75 S. Ct. 845, 99 L. Ed. 1155; Younger v. Harris, 1971, 401 U.S. 37, 41, 91 S. Ct. 746, 27 L. Ed. 2d 669. Nor does the incidental threat to the value of their properties which may be involved in the mere conduct of the proceeding before the Zoning Hearing Board amount to such injury. Allen v. Grand Central Aircraft Co., 1954, 347 U.S. 535, 540, 74 S. Ct. 745, 98 L. Ed. 933. And the fact, which the plaintiffs stress, that their legal rights are first being determined by an administrative board does not, by itself, inflict legal injury upon them, since they have a full judicial remedy on appeal to the courts. Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 48, 58 S. Ct. 459, 82 L. Ed. 638.
In addition to their request for injunctive relief, the plaintiffs have asked for a declaratory judgment that the Pennsylvania Municipalities Planning Code of 1972 is unconstitutional. It is clear, however, that this prayer is in reality a request for a conclusion of law to that effect which would support the issuance of an injunction and that it is subordinate to and in support of that requested relief rather than an independent and separable species of relief. It, therefore, must fall with the denial of injunctive relief.
Since the plaintiffs have failed to show that clear, imminent and irreparable injury directly affecting their rights will result from the hearings which the Fox Chapel Zoning Hearing Board has been temporarily restrained from holding, their claim for injunctive relief must be denied, the temporary restraining order heretofore entered must be vacated and the complaint must be dismissed with costs.
A judgment to that effect will accordingly be entered.
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