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MERVIN C. ALTLAND AND LAURA ALTLAND v. DAVID SPRENKLE (03/17/81)

decided: March 17, 1981.

MERVIN C. ALTLAND AND LAURA ALTLAND, APPELLANTS
v.
DAVID SPRENKLE, NORMAN LAU AND ERVIN LINEHART, AS SUPERVISORS OF JACKSON TOWNSHIP AND STERLING BENTZEL, AS ZONING OFFICER OF JACKSON TOWNSHIP, APPELLEES



Appeal from the Order of the Court of Common Pleas of York County in case of Mervin C. Altland and Laura Altland v. David Sprenkle, Norman Lau and Ervin Linehart, as Supervisors of Jackson Township, and Sterling Bentzel, as Zoning Officer of Jackson Township, No. 79-S-1921.

COUNSEL

William H. Poole, Jr., with him Daniel W. Shoemaker, Shoemaker, Thompson & Ness, for appellants.

Michael C. Baldauff, with him Samuel K. Gates, for appellees.

Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 57 Pa. Commw. Page 549]

Landowners appeal to this Court to reverse an order of the York County Court of Common Pleas, which refused to grant a writ of mandamus directing the supervisors of Jackson Township to issue building permits to appellants. We hereby affirm that order.

[ 57 Pa. Commw. Page 550]

The facts of the case have never been in dispute. Appellants are owners of a plot of land which they bought from their corporation in 1976. Over the years, they, and/or their corporation, have been slowly establishing a development pursuant to a subdivision plan which was approved and recorded in 1959. On April 4, 1977, Jackson Township adopted a zoning ordinance which required lot sizes larger than those remaining undeveloped in the appellants' 1959 plan.

Therefore, when the appellants wished to continue with the next phase of development, and applied for building permits in 1978 and 1979, the permits were denied, because the lots did not conform to the requirements of the new zoning ordinance.

The issue before the Court is whether the lower court committed an error of law in determining that a writ of mandamus mandating the issuance of building permits cannot issue in a case where a development plan complies with the zoning ordinance which existed when it was approved, but does not comply with the zoning as it now exists.

Mandamus*fn1 is an extraordinary writ which may be utilized solely to compel the performance of a duty which is either purely ministerial or mandatory. Suburban Group, Inc. v. Gittings, 22 Pa. Commonwealth Ct. 295, 348 A.2d 490 (1975). It will not issue to compel the exercise of discretion in a specific manner. Accord, Commercial Properties, Inc. v. Peternal, 418 Pa. 304, 211 A.2d 514 (1965). To demonstrate entitlement, the plaintiff must prove that he holds a clear

[ 57 Pa. Commw. Page 551]

    legal right, for which there is a corresponding duty in the defendant, and that there is no other adequate and appropriate remedy. Unger v. Hampton ...


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