Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

COMMONWEALTH PENNSYLVANIA v. ZONING BOARD ADJUSTMENT CITY PHILADELPHIA ET AL. (04/21/83)

April 21, 1983

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES
v.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA ET AL., OGONTZ AREA NEIGHBORS ASSOCIATION, APPELLANT



No. 768 C.D. 1982

Before Honorable Theodore O. Rogers, Judge Honorable Genevieve Blatt, Judge Honorable David W. Craig, Judge Honorable Joseph T. Doyle, Judge

[EDIT ] PER CURIAM

AND NOW, this 21st day of April, 1983, the court being equally divided, the order of the Court of Common Pleas of Philadelphia County dated March 8, 1982 is affirmed.

Judge Rogers files an opinion in support of affirming, in which Judge Blatt joins.

Judge Craig files an opinion in support of reversal, in which Judge Doyle joins.

President Judge Crumlish, Jr., did not participate.

Order

AND NOW, this 21st day of April, 1983, by unanimous agreement of the Court it is ordered that the appeal of the Zoning Board of Adjustment of the City of Philadelphia docketed at 795 C.D. 1982 from the order of the Court of Common Pleas of Philadelphia County dated March 8, 1982 be and it is hereby quashed. Lansdowne Borough Board of Adjustment's Appeal, 313 Pa. 523, 170 A. 867 (1934), National Development Corporation v. Township of Harrison, 64 Pa. Commonwealth Ct. 54, 438 A.2d 1053 (1982).

President Judge Crumlish, Jr., did not participate.

[EDIT ] JUDGE ROGERS

The Ogontz Area Neighbors Association, an intervenor in a zoning case, has appealed an order of the Philadelphia Common Pleas Court, per Judge Charles A. Lord, reversing an order of the Philadelphia Zoning Board of Adjustment refusing a variance to the Commonwealth for the use of land in a residential zoning district as a facility for the mentally handicapped. The Zoning Board of Adjustment also appealed but it has no standing and its appeal will be quashed. Lansdowne Borough Board of Adjustment's Appeal, 313 Pa. 523, 170 A. 867 (1934); National Development Corporation v. Township of Harrison, 64 Pa. Commonwealth Ct. 59, 438 A.2d 1053 (1982).

This is another case presenting the issue of which shall govern the use of property -- a Commonwealth agency (in this case proposing to establish a facility for mentally handicapped citizens committed to its care) or the municipality opposing its establishment as a use prohibited at the location proposed by the municipality's zoning ordinance. The issue has been definitively treated by the Pennsylvania Supreme Court in City of Pittsburgh v. Commonwealth, 468 Pa. 174, 360 A.2d 607 (1976). There the fundamental question was stated to be that of whether the Legislature intended the state agency to be immune from local zoning regulations and the answer to be found by examination of the grant of statutory power to the state agency on the one hand and the grant of zoning power to the municipality on the other and by balancing the one against the other. In City of Pittsburgh, the Supreme Court wrote that the Legislature "evinces an intent to override municipal zoning powers by the inclusion of the power of eminent domain to the state agency," Id. at 184-185, 360 A.2d at 613, and "if the Legislature intended that the Bureau [of Corrections] site selection was to transcend local land use regulation, it could have expressed that intention in more definite ways, e.g.,... by the grant of eminent domain." Id. at 183 n.7, 360 A.2d at 612 n.7.

The site here is owned by the Department of General Services, having been acquired by deed in lieu of condemnation; and the facility for the mentally handicapped, including persons lately removed by order of the federal courts from the Pennhurst State School and Hospital, is to be in the charge of the Department of Public Welfare. The Department of Public Welfare is given power by Section 202 of the Mental Health and Retardation Act, Act of October 20, 1966, Special Session, P.L. 96, as amended, 50 P.S. § 4202 to lease or otherwise acquire facilities through the Department of Property and Supplies, now the Department of General Services. The Department of General Services, in turn, is given power by Section 1 of the Act of July 15, 1915, P.L. 976, as amended, 71 P.S. § 1571 to purchase or condemn land and buildings for use of institutions of the Commonwealth. Hence, the Legislature has in this instance evinced an intent to override municipal zoning powers, as the common pleas court correctly concluded.

I would affirm the order of the Philadelphia Court of Common Pleas on the able and comprehensive opinion of Judge Charles A. Lord ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.