No. 299 January Term, 1979, Appeal from the Order of Commonwealth Court of Pennsylvania at No. 1374 C.D. 1976 reversing the Order of the Court of Common Pleas of Philadelphia County at No. 4299 April Term, 1974.
Herbert S. Levin, Philadelphia, for appellant.
Barbara Gilbert, Deputy City Sol., for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.
This is an appeal from an order of the Commonwealth Court*fn1 which reversed an order of the Court of Common Pleas of Philadelphia County directing the issuance of a writ of mandamus to compel reinstatement of revoked zoning and building permits held by Lindy Homes, Inc., the appellant herein.
In 1972, the appellant, as owner of a tract of land in a zoning district where multi-family dwellings were permissible, was granted zoning and building permits for construction of a thirty unit apartment building. The permits, issued by the Department of Licenses & Inspections of the City of Philadelphia (hereinafter Department), were revoked in March, 1972, when a determination was made that the thirty unit structure would not be in compliance with applicable ordinances. Consequently, appellant altered the design of the building to provide for twenty-three units, rather than the original thirty, thereby achieving full compliance with all applicable land use regulations. In response to this design change, the Department issued new zoning and building
permits on September 27, 1973. On November 1, 1973, however, an ordinance was introduced in the Philadelphia City Council seeking to rezone the subject building site to prohibit multi-family structures. This ordinance was adopted on December 14, 1973, and, on January 3, 1974 and January 4, 1974, respectively, the Department, citing the change in zoning classification, revoked appellant's zoning and building permits.
No administrative appeal was taken following the permit revocations, but rather, on April 22, 1974, a complaint in mandamus was filed seeking to compel reinstatement of the building permit,*fn2 and claiming damages. The trial court ordered reinstatement of the zoning and building permits, and awarded damages in the amount of $3,500.00 against the Department's Commissioner, Dominic Sabatini, the appellee herein (hereinafter Commissioner). The Court of Common Pleas, sitting en banc, affirmed reinstatement of the permits, but increased the damage award to $35,245.00. Commonwealth Court reversed, holding that appellant's remedy was to have appealed the permit revocations to the Zoning Board of Adjustment, and that, due to the availability of that remedy, mandamus was improper.
The sole issue on the instant appeal is whether mandamus is an appropriate vehicle by which appellant may seek reinstatement of the permits in question.*fn3 In Lhormer v. Bowen, 410 Pa. 508, 514, 188 A.2d 747, 749-750 (1963), this Court clearly prescribed mandamus as an appropriate means by which to secure issuance of such permits: "[W]here the right to the [building] permit is clear, the issuance thereof by the proper official is no more than the performance of a ...