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decided: February 19, 1976.


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of School District of Pittsburgh v. City of Pittsburgh, the Planning Commission of the City of Pittsburgh, the Board of Adjustment of the City of Pittsburgh, the Council of the City of Pittsburgh, James P. Brown, individually and as Zoning Administrator, Paul J. Imhoff, individually and as Superintendent, Bureau of Building Inspection and Robert Paternoster, individually and as Planning Director, No. 4261 October Term, 1974.


Daniel M. Curtin, Assistant City Solicitor, with him Eugene B. Strassburger, III, Deputy City Solicitor, for appellants.

Justin M. Johnson, Solicitor, with him Robert J. Stefanko, First Assistant Solicitor, for appellee.

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

Author: Kramer

[ 23 Pa. Commw. Page 407]

This is an appeal by the City of Pittsburgh from two orders of the Court of Common Pleas of Allegheny County arising out of a mandamus action brought by the School District of Pittsburgh. The first order granted a preemptory writ directing the City's Zoning Administrator "to issue his approval for zoning" of the occupancy, building, and land operations permit applications filed by the School District. The second order denied the City's motions for a new trial and judgment n.o.v. following an award of $646,286.52 to the School District based upon a jury's verdict which was remolded by the trial judge to be a judgment against the City alone. We affirm the first order and reverse the second.

In 1927 the School District erected the Herron Hill Junior High School. In accord with a plan for school reorganization adopted prior to 1970, Herron Hill was to be converted from a junior high school (grades 7-8-9) to a middle school (grades 6-7-8). Although enrollment in the school had exceeded capacity during the period following World War II, the planned capacity for the facility remained constant at about 1,200 pupils. In 1972, the School District submitted a long-range development plan to the State Department of Education indicating the capacity to be 1,200 pupils. In 1973 the School District

[ 23 Pa. Commw. Page 408]

    filed with the State Department of Education a study calling for the use of the Herron High School as a middle school with a 1,200-student capacity, and in 1974 the School District engaged architects for the purpose of designing the conversion of the Herron Hill facility to become available for that purpose for the school year 1975-76. The contract with the architects expressly provided deadlines which would schedule the opening of bids of contractors in June of 1974.

On February 26, 1974, the School District filed with the Zoning Administrator of the City four applications for: (1) an occupancy permit; (2) a building permit; (3) a land operations permit; and (4) approval of a conditional use. From a review of these various applications, it is fair to say, generally, that they sought approval of the construction of a permanent addition to the existing school, together with an increase in the size of the automobile parking lot. Under the City's zoning ordinance, a public school use is permitted as a conditional use in the residential area where the Herron Hill School exists. The zoning ordinance mentions only elementary, secondary and vocational schools, but both junior high schools and middle schools are considered secondary schools.

Between February 26 and June 25, 1974, representatives of the City and School District conferred and corresponded concerning the various applications. Throughout all of these negotiations, certain of the City officials made it clear that no affirmative action would be taken upon the application for conditional use approval until the School District submitted information on "student enrollment and feeder patterns." On April 10, 1974, the Board of Standards and Appeals of the City approved the open-well construction for the school. The proposed addition to Herron Hill School violated certain side-yard and parking requirements in the zoning ordinance, but on August 2, 1974, the City's Board of Adjustment granted

[ 23 Pa. Commw. Page 409]

    variances, pending conditional use approval.*fn1 The Planning Commission of the City attempted to induce the School District to withdraw the application for a conditional use because of the Planning Commission's "feeling" that the School District was overbuilding. The Planning Commission ultimately recommended that the application for a conditional use be disapproved. The application was forwarded to City Council which voted 6-3 in favor of a conditional use. The Chairman of the Planning Commission and the Zoning Administrator still refused to approve the conditional use because in their opinions the zoning ordinance required an affirmative vote by seven members of City Council to approve a conditional use application for which the Planning Commission had recommended disapproval. On September 20, 1974, the School District submitted a second application for approval of a conditional use which was returned without any action having been taken. The record indicates that, under the zoning ordinance, the building, occupancy and land operations control permits could not be issued without conditional use approval.

The record indicates that the Planning Commission recommended disapproval of the conditional use application because (1) it found no justification for the expansion; (2) it allegedly could not judge the effect the school expansion would have on the neighborhood because the School District failed to provide estimated enrollment figures and student-feeder patterns; (3) it could not determine the number of buses and other vehicles which the School District would use in the Herron Hill operations or how many of the surrounding schools might be closed by the School District as a result of the proposed expansion; and (4) it did not have the benefit of a current, long-range development plan for the School District which

[ 23 Pa. Commw. Page 410]

    would permit it to determine the effect individual school building projects would have on the orderly development of the City. The School District satisfied all of the requirements of the City's zoning ordinance and building ...

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