Opinion
Argued September 16, 1982
March 24, 1983.
Zoning — Equity — Scope of appellate review — Abuse of discretion — Error of law — Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805 — Stay of proceedings — Injunction — Deemed approval — Mandamus — Unclean hands.
1. Review by the Commonwealth Court of Pennsylvania in an equity case is to determine whether the lower court committed an error of law or abuse of discretion. [126]
2. Provisions of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, do not dictate that an action in equity to compel compliance with a zoning ordinance be stayed merely because a party seeking a permit to use the property in an unauthorized manner has appealed the denial of the requested permit. [126]
3. A municipality may properly seek injunctive relief to compel compliance with a zoning ordinance, and such action not involving a land development and seeking to enforce existing zoning provisions is not required to be stayed during the pendency of an appeal from the denial of a permit. [128]
4. An assertion that a request for a zoning permit has been deemed to be approved is properly raised in a mandamus action not in an appeal from the granting of injunctive relief. [129]
5. Equitable relief will not be denied a municipality on the grounds of unclean hand, when the municipality is merely seeking to restrain an unlawful use of property under an existing zoning ordinance. [129]
Argued September 16, 1982, before Judges BLATT, WILLIAMS, JR. and CRAIG, sitting as a panel of three.
Appeal, No. 2352 C.D. 1980, from the Order of the Court of Common Pleas of Schuylkill County in case of County of Schuylkill v. Joe's Enterprises of Stroudsburg, Inc. and Elvin H. Vernon, No. S-1017-79.
Lessee filed application for permit to continue commercial and retail sales use. Permit denied. County filed action in equity in the Court of Common Pleas of Schuylkill County, seeking injunction. Requested stay denied. Decree Nisi entered. Exceptions to Decree Nisi filed. Exceptions dismissed. Conduct of activity restrained. McCLOSKEY, J. Lessee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
William G. Sherr, with him Howard N. Stark, Stark and Sherr, for appellants.
Charles L. Frank, for appellee.
This case comes before the Court on appeal from an order of the Schuylkill County Court of Common Pleas, which restrained defendant property lessee from operating its adult bookstore in a residential district. We affirm.
Joe's Enterprises, Inc. and its president, Elvin Vernon, were both parties defendant in the equity action.
The premises involved is an improved parcel located in an R-2 single family residential district which Joe's Enterprises of Stroudsburg, Inc. (Joe's) leased from the non-party owners effective June 15, 1979. Joe's commenced the controversial use of the building in early July, 1979, and was promptly notified that it was in violation of several sections of the Schuylkill County Zoning Ordinance (ordinance). Joe's then applied for, and was denied, a permit to continue its commercial and retail sales use of the structure. Within days of that denial, the county filed an action in equity seeking to restrain Joe's from further allegedly illegal activity. Some forty-four days after the denial Joe's filed an untimely appeal from it to the zoning hearing board (board) which unilaterally decided to hold the appeal in abeyance pending the outcome of the equity action now under review.
The county also filed another action based on the Crimes Code, which is not material to this appeal.
See Section 1006(2) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 11006(2), which establishes a thirty-day appeal period. See, Ryan, Pennsylvania Zoning Law and Practice, § 9.4.3.
Appellant Joe's raises three questions for our examination: (1) whether the appeal from the zoning permit request stays the equity action sub judice under Section 916 of the Pennsylvania Municipalities Planning Code (MPC), 53 P. S. § 10916, (2) whether the board's presumption that the equity action is not stayed, and its resultant failure to hold a hearing, cause the permit request to be "deemed" approved under Section 908(9) of the MPC, 53 P. S. § 10908(9), and (3) whether the county's alleged lack of clean hands defeats the equity action. We shall address these issues seriatim, within the limits of our scope of review in equity matters — ascertainment of whether the trial court abused its discretion or committed an error of law. Borough of Trappe v. Longaker, 59 Pa. Commw. 572, 576, 430 A.2d 713, 716 (1981).
Joe's assigns as error the common pleas court analysis and application of Section 916 of the MPC, 53 P. S. § 10916. That provision reads, in pertinent part:
Upon filing of any proceeding referred to in section 914 and during its pendency before the board all land development pursuant to any challenged ordinance, order or approval of the zoning officer or of any agency or body, and all official action thereunder shall be stayed. . . . (Footnote deleted.) (Emphasis added.)
Joe's argues to this Court that the quoted language must be construed to mean that an appeal to the board from a denial of a zoning permit, special exception, variance, or other zoning relief, would effect a stay of any or all attempts by the municipality to halt the unpermitted activity. It cites no authority in support of this broad and novel proposition, and our research has disclosed none. Indeed, such an interpretation would render the enforcement provisions of Section 617, 53 P. S. § 10617, nugatory, and would thus contradict the Statutory Construction Act of 1972. Further eroding Joe's assertion is the case of Vernon v. Borough of Darby, 59 Pa. Commw. 11, 428 A.2d 770 (1981), in which one Elvin Vernon appealed from a court order denying his preliminary injunction request. The borough had, without due process of law, chained and padlocked Vernon's adult products business, and the court had refused to enjoin that rather drastic measure. This Court modified the common pleas order, enjoined only the illegal use to which the premises had been put and directed that access to the building not be physically obstructed. In so doing, we stated:
Some kind of borough action was . . . merited by appellant's violation of both ordinances. However, the borough had less drastic legally prescribed alternatives available to rectify the situation. Appellant may be subject to fines and an injunction by the borough for the violations, but not to physical obstruction accomplished without the benefit of legal process.
Id. at 15, 428 A.2d at 772. We therefore conclude that a request for, and grant of an injunction in this matter was a legally appropriate remedy for the county.
In determining whether Joe's limited appeal stays such proper restraining action, we must examine Section 916, 53 P. S. § 10916. What is required to activate its stay provisions?
Our examination of the record establishes that what was appealed to the board was an application for a zoning permit, since that was the only request that had been filed with the zoning officer.
1. Filing of a proceeding referred to in Section 914, 53 P. S. § 10914.
2. Land development.
3. A challenged ordinance, order, or approval of the zoning officer, agency or body.
4. Official action under the challenged ordinance, order, or approval.
In the instant case there has been an appeal from the permit denial, which appeal challenges that order of the zoning officer; these satisfy the first and third requirements listed above. The Court notes, however, that there is no "land development" involved in this proceeding, and that the official action here opposed (the equity suit) is for enforcement of the existing zoning rather than "under" the denial of the permit. We therefore conclude that this case is not one contemplated by the language of Section 916, and that the determination of the common pleas court on that issue was not in error.
"Land development" is defined in Section 107 of the MPC, 53 P. S. § 10107.
Joe's next asserts that Section 908(9), 53 P. S. § 10908(9), applies in this instance to effect a "deemed approval" of his permit request. That issue is not properly before us in the text of an appeal from an injunction. This Court has previously determined that "a landowner who claims the benefit of a deemed approval can look only to mandamus for the issuance of a permit." Bensalem Township v. Weber, 58 Pa. Commw. 350, 352, 427 A.2d 781, 782(1980).
Joe's finally raises the bar of unclean hands, and in support thereof, argues that the denial of the permit request and the filing of the equity actions to restrain its illegal use of the property demonstrates a concerted effort, on the part of county officials to bar it from said use. This Court sees nothing improper or inappropriate about the conduct of which Joe's complains, and perceives no merit in this argument.
Having found no error of law or abuse of discretion on the part of the common pleas court in granting the requested injunction, we hereby affirm that order.
ORDER
AND NOW, this 24th day of March, 1983, the order of the Court of Common Pleas of Schuylkill County, entered to Docket No. S-1017-79, is hereby affirmed.