Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Atlantic Richfield Company v. Michael A. Della Vecchia, Recorder of Deeds of the County of Allegheny, No. GD 80-25289.
Burton C. Duerring, for appellant.
Victor R. Delle Donne, Baskin and Sears, P.C., for appellee, Atlantic Richfield Company.
Judges Blatt, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.
[ 69 Pa. Commw. Page 236]
The genesis of this appeal was an action in mandamus brought in the Court of Common Pleas of Allegheny County by the Atlantic Richfield Company (Arco) to compel the Recorder of Deeds in Allegheny County (Recorder) to accept and to record a subdivision plan which had been approved by the Allegheny County Planning Commission.
The plan, which provided for subdividing property owned by Arco in Marshall Township (Township) into two lots, had been submitted to the Recorder on August 21, 1980, but he advised Arco by letter of August 25, 1980 that it would "not be recorded until the plan is approved by Township officials. The Marshall Township solicitor informed this Office that a subdivision ordinance is in effect in the township and that
[ 69 Pa. Commw. Page 237]
the local approvals are necessary for recording." The trial court permitted the Township to intervene and the matter was adjudicated on the basis of written stipulations of fact submitted by Arco and the Township; the Recorder did not participate in the matter. The trial court then granted Arco's motion for peremptory judgment in mandamus, reasoning that the Allegheny County Planning Commission regulations, which addressed the subdivision of parcels into two or more lots rather than the Township Subdivision Ordinance (Ordinance No. 51), which addressed the "division of a single lot, tract or parcel of land . . . into three or more lots, tracts or parcels of land," controlled. The trial court then concluded that, inasmuch as "[t]he plan submitted to the Recorder is free from any defects on its face and has the approval of the Planning Commission of Allegheny County . . . the defendant Recorder had no discretion but to accept the plan as presented on August 21, 1980 and record it." It dismissed the Township's subsequent exceptions and this appeal followed.
On February 18, 1980, Arco had appeared before the Township Planning Commission to seek approval of a site plan in which the property was to be divided into two parts, with a service station and a minimarket to be constructed on one part of the property. The Planning Commission initially rejected the plan because of the proposed division of the property, but later granted approval when Arco agreed not to subdivide the property. On May 20, 1980 the Township Zoning Hearing Board granted Arco's request for a setback variance. The Township Board of Supervisors on July 2, 1980 declared its zoning ordinance relative to business districts invalid, as not in compliance with the updated Comprehensive Plan, and declared a moratorium "on building and uses of land within certain commercial districts" until adoption of
[ 69 Pa. Commw. Page 238]
an ordinance which conformed to the newly adopted comprehensive plan. The Township Board of Supervisors announced on August 6, 1980 that it would hold its first public hearing on the proposed new ordinance on August 25, 1980 which ordinance, inter alia, defined a subdivision as a division of a single lot into two or more lots. Because of the aforementioned moratorium, Arco chose not to seek approval from the Township and instead sought and secured the approval of the Allegheny County Planning Commission for a plan which subdivided its property into two lots.
The question before us is whether or not mandamus lies to compel the recording of Arco's plan as approved by the County Planning Commission, and our resolution of that inquiry will rest upon whether the County plan, which defined "subdivision" as a division of a single tract into two or more lots, or the Township's Ordinance No. 51, which defined "subdivision" as a division of a single tract into three or more lots, is controlling here. Mandamus is, of course, an extraordinary writ which lies to compel the performance of a ministerial act or a mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant and no other appropriate or adequate remedy available. Anderson v. Shaffer, 39 Pa. Commonwealth Ct. 636, 396 A.2d 91 (1979). It does not lie, however, to compel ...