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EDWARD J. KIRK AND EVA A. KIRK v. ROBERT SMAY (12/22/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 22, 1976.

EDWARD J. KIRK AND EVA A. KIRK, HUSBAND AND WIFE, INDIVIDUALS, AND PBS, INC., APPELLANTS
v.
ROBERT SMAY, BOROUGH MANAGER, BOROUGH OF HELLERTOWN, APPELLEE

Appeal from the Order of the Court of Common Pleas of Northampton County in case of Edward J. Kirk and Eva A. Kirk, husband and wife, individuals, and PBS, Inc. v. Robert Smay, Borough Manager, Borough of Hellertown, No. 221 May Term, 1975.

COUNSEL

Cregg E. Mayrosh, with him Cohn & Mayrosh, for appellants.

Donald B. Corriere, with him Haber and Corriere, for appellees.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 28 Pa. Commw. Page 14]

The appellants*fn1 here filed an action in mandamus with the Court of Common Pleas of Northampton County requesting that the court order Robert Smay, zoning officer of the Borough of Hellertown (Borough), to issue a building permit to them. The court sustained the appellee's preliminary objections, dismissed the complaint and this appeal followed.

The appellants wanted to build a medical office building on the premises of an existing shopping center, a permitted use under the Borough's zoning ordinance in the general commercial district here involved.*fn2 Section 64.6(1) of the ordinance provided,

[ 28 Pa. Commw. Page 15]

    however, that site plan approval was required for this permitted use, and Section 63 of the ordinance provided further as follows:

Site Plan Approval for Permitted Uses.

Where site plan approval is required for a permitted use in nonresidential districts said site plan shall be submitted to the Planning Commission for approval prior to issuing a building permit. (Emphasis added.)

It is clear, therefore, that the appellants were required to obtain site plan approval as a prerequisite to a building permit.

The lower court believed that the zoning officer's discretion and duty in regard to the issuance of a building permit was the same whether or not the site plan had been approved, and presumed, for the purpose of making its decision here, that the site plan had been approved by the planning commission. It then found that the building permit had been denied by the zoning officer because the proposed facility did not conform with the parking requirements of the zoning ordinance*fn3 and ruled that an action in mandamus to compel the issuance of a permit would not lie.

It is clear from the evidence in the record that the court below was mistaken, and that the zoning officer here denied the building permit because the appellants had not acquired site plan approval.*fn4 It is also clear,

[ 28 Pa. Commw. Page 16]

    however, that the planning commission disapproved the appellant's site plan because of its failure to provide adequate parking as required by the zoning ordinance, so the mistaken assumption by the lower court is of no consequence here.

Mandamus, of course, is an extraordinary writ which can only issue when the plaintiffs have a clear legal right to the performance of a ministerial act by the defendant, and it will not issue to compel the exercise of discretion. Commercial Properties, Inc. v. Peternal, 418 Pa. 304, 211 A.2d 514 (1965). When the legal right to the issuance of a building permit is clear, then mandamus may be used to compel its issuance. Commercial Properties, Inc. v. Peternal, supra. The right to a building permit is not clear, however, where the applicant has not met all of the necessary requirements of a zoning ordinance, Borough of Monroeville v. Effie's Ups and Downs, 12 Pa. Commonwealth Ct. 279, 315 A.2d 342 (1974), and a zoning officer may not issue a permit where there is such noncompliance. Section 614 of the Pennsylvania

[ 28 Pa. Commw. Page 17]

Municipalities Planning Code*fn5 (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10614.

In this case, because the zoning officer refused to issue the building permit on the basis that the requirements of the zoning ordinance had not been met, i.e., site plan approval was not obtained, the appellants did not have a clear legal right to the permit. Mandamus, therefore, was not a proper action.*fn6 The lower court, therefore, properly refused to exercise its discretion to issue a writ of mandamus. Lhormer v. Bowen, 410 Pa. 508, 188 A.2d 747 (1963).

The appellant argued below that its proposed construction constituted land development and that its site plan should be deemed to have been approved by the Borough's planning commission pursuant to Section 508 of the Code, 53 P.S. § 10508, which provides that all applications for approval of a plat shall be acted upon by the planning commission not later than ninety days after such application is filed. "Failure . . . to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented. . . ." Section 508(3) of the Code, 53 P.S. § 10508(3). The appellant then argued further that the parking area requirements of the zoning ordinance were among the criteria to be considered by the planning commission and that, because the site plan was "approved," the question of

[ 28 Pa. Commw. Page 18]

    compliance with the ordinance's parking requirements was thereby foreclosed. There being no other zoning non-conformities in the proposed construction, appellant concluded that its right to a building permit was clear.

We believe that the proposed construction of a single medical office building on the grounds of a completed shopping center clearly does not constitute land development or subdivision under Section 508 of the Code*fn7 and that the zoning officer's denial of the building permit was based properly upon noncompliance with the zoning ordinance. We, therefore, affirm the lower court's refusal to issue a writ of mandamus.

Order

And Now, this 22nd day of December, 1976, the order of the Court of Common Pleas of Northampton County, dated April 21, 1976, is affirmed.

Disposition

Affirmed.


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