President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Craig, MacPhail and Williams, Jr. Judge Blatt did not participate. Opinion by Judge Craig. Judge Wilkinson, Jr. dissents. Dissenting Opinion by Judge Mencer. Judge MacPhail join in this dissent.
[ 51 Pa. Commw. Page 506]
This appeal from an order of the Court of Common Pleas of Bucks County, which dismissed preliminary objections questioning the propriety of mandamus, was initially argued before a panel of three judges of this court, a majority of whom issued a
[ 51 Pa. Commw. Page 507]
decision affirming the court below. Thereafter we granted reargument before the court en banc, a majority of whom continue to conclude that the decision should be affirmed.
The procedural issues and the pleadings were summarized by Judge Garb, writer of the opinion below, as follows:
This is an action in mandamus against the building inspector of the Township of Bensalem, the Zoning Officer of that Township and the Township. Defendants filed preliminary objections to the complaint as in the nature of a petition raising a question of jurisdiction, pendency of prior action, a motion to strike, a motion for a more specific pleading and a demurrer. Essentially the thrust of all of these preliminary objections is the assertion that the plaintiff has an adequate statutory remedy and, therefore, that mandamus does not lie.
Essentially the complaint asserts that the plaintiff is the owner of a substantial property in Bensalem Township upon which it has begun construction and development of a high density housing project. The complaint alleges that in 1972 the plaintiff sought and ultimately received from the Township a change of zoning for the property to permit its development. Thereafter, and as a result of a certain agreement entered into between the plaintiff and the Township building permits were issued. Upon the issuance of said permits construction was begun including the installation of streets, curbs, water and sewer facilities and a large number of the housing units. In fact, a substantial number of the housing units have been completed and some of them have been sold
[ 51 Pa. Commw. Page 508]
consistently with a declaration of condominium recorded pursuant to the Pennsylvania Unit Property Act, the Act of July 3, 1963, P.L. 196, 68 P.S. 700.101 et seq. In addition, it is averred that a number of the dwelling units have been begun but are not as yet completed. It is pleaded in the complaint that somthing in excess of $1,500,000.00 has already been invested in this project and that additional investments as well as mortgage commitments are jeopardized by any failure to complete the development. It is asserted that subsequent to the foregoing the zoning officer of the Township did revoke the building permits. Upon application made for re-issuance of those building permits the plaintiff was denied same and it is that which gives rise to this action in mandamus. These facts must be established as true for purposes of the preliminary objections which we dismissed by virtue of our previously cited order.
We add only that the complaint definitively avers that 296 dwelling units had been approved and 296 building permits had been issued by Bensalem Township, and that, moreover, "foundations had been poured and/or the entire course of construction for all 296 units was underway. . . ."
Also of some significance is the specific averment that the permits now in question were suspended (not revoked) by the township, "alleging various unsafe conditions", expressly upon the basis of a section of the building code -- a point of possible significance, as noted below.
Other averments of the complaint indicate that the troubles of the developer here with the township occurred during the same period that Bensalem ...