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decided: July 6, 1976.



Eugene B. Strassburger, III, Deputy City Sol., Mead J. Mulvihill, Jr., City Sol., Pittsburgh, for appellant.

Janet Moschetta, Asst. Atty. Gen., Paul H. Titus, Kaufman & Harris, Frederick R. Nene, Asst. Atty. Gen., Pittsburgh, for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., filed a dissenting opinion in which Jones, C. J., and Nix, J., join.

Author: Roberts

[ 468 Pa. Page 177]


On April 22, 1974, the Commonwealth Bureau of Corrections of the Department of Justice (appellee) entered into an agreement to lease premises on South Aiken Avenue in Pittsburgh for use as a pre-release center for women convicts.*fn1 Neither the Commonwealth nor the lessor applied to the City of Pittsburgh (appellant) for a certificate of occupancy, variance or other zoning authorization for the intended use. The City filed an action in the Commonwealth Court seeking to enjoin use of the premises as a pre-release center because no certificate of occupancy had been obtained.*fn2

On January 24, 1975, Judge Rogers issued an adjudication with findings of fact and conclusions of law, and entered a decree nisi dismissing the complaint. The City filed exceptions to the decree which were dismissed by the Commonwealth Court en banc in an opinion by Judge Rogers. This appeal ensued.*fn3

The Commonwealth Court held that state agencies were not subject to the zoning ordinances of municipalities.

[ 468 Pa. Page 178]

In the opinion dismissing the exceptions, the court stated:

"The law of Pennsylvania is that the Commonwealth is not subject to the zoning requirements of municipal subdivisions and that it is not required to obtain or apply for zoning permits. General State Authority v. Borough of Moosic, 10 Pa. Commw. 270, 310 A.2d 91 (1973); Township of Lower Allen v. Commonwealth, 10 Pa. Commw. 272, 310 A.2d 90 (1973)."

We do not agree. Because we do not find that the Legislature intended the Bureau of Corrections to be immune from local zoning regulations we reverse the order of the Commonwealth Court.

Appellee and the Commonwealth Court perceive this action as merely a controversy between a city and a state.*fn4 This case, however, presents a conflict between

[ 468 Pa. Page 179]

    two instrumentalities of the state attempting to wield their legislatively created powers rather than an action between an inferior and a superior government body.

In Commonwealth v. Moir, 199 Pa. 534, 541, 49 A. 351, 352 (1901), this Court stated:

"Municipal corporations are agents of the state, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed, and the extent of their powers determined by the Legislature and subject to change, repeal or total abolition at its will."

Cf. Warren Borough v. Willey, 359 Pa. 144, 146, 58 A.2d 454, 455 (1948). See also Pa.Const., Art. 9, § 1; Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962). Municipalities derive their power to enact zoning ordinances from specific grants by the Legislature. Kline v. City of Harrisburg, 362 Pa. 438, 68 A.2d 182 (1949); Act of March 31, 1927, P.L. 98, § 1, 53 P.S. § 25051 (1957). For that reason it is important to realize that

[ 468 Pa. Page 180]

    the municipalities exercising such state powers are "equally agents of the state." Note, 84 Harv.L.Rev. 869, 877 (1971).

Resolving the conflict simply by saying that the "state" agency must prevail because it is exercising the power of the sovereign overlooks that the zoning power the city seeks to exercise is also a sovereign power. Such a resolution ignores the interests the state seeks to promote by legislative grants of powers to municipalities. Interests such as those fostered by comprehensive land use planning statutes are too important not to be recognized as involving exercises of state power.

The error of oversimplifying such disputes was pointed out by Justice Hall of the Supreme Court of New Jersey in Rutgers, State University v. Piluso, 60 N.J. 142, 286 A.2d 697 (1972):

"The question of what governmental units or instrumentalities are immune from municipal land use regulations, and to what extent, is not one properly susceptible of absolute or ritualistic answer. Courts have, however, frequently resolved such conflicts in perhaps too simplistic terms and by the use of labels rather than through reasoned adjudication of the critical question of which governmental interest should pevail in the particular relationship or factual situation."

60 N.J. at 150, 286 A.2d at 701.*fn5 We therefore approach

[ 468 Pa. Page 181]

    this case as one involving conflicting governmental interests by public bodies seeking to exercise ...

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