Summary
In Shender v. Philadelphia, 375 Pa. 596, 101 A.2d 667, it was held that a property owner may not sue in equity to have a zoning ordinance declared invalid since all questions concerning such an ordinance must be considered and determined in accordance with the exclusive legal remedy provided by the zoning statute.
Summary of this case from Knup v. PhiladelphiaOpinion
November 11, 1953.
January 4, 1954.
Courts — Jurisdiction — Equity — Suit challenging zoning ordinance — Exclusiveness of statutory remedy.
A property owner may not sue in equity to have a zoning ordinance declared invalid; all questions concerning a zoning ordinance must be considered and determined in accordance with the exclusive legal remedy prescribed by the zoning statute.
Before STERN, C. J., STEARNE, JONES, BELL and CHIDSEY, JJ.
Appeal, No. 266, Jan. T., 1953, from order of Court of Common Pleas No. 7 of Philadelphia County, March T., 1953, No. 445, in case of Harry M. Shender v. City of Philadelphia. Order affirmed.
Bill in equity to set aside amendatory zoning ordinance.
The facts are stated in the opinion, by CRUMLISH, J., of the court below, as follows:
Plaintiff is the owner of a tract of land in the City of Philadelphia, which had been re-zoned by ordinance of counsel dated December 31, 1952. Prior to the passage of the said ordinance, the plaintiff had prepared plans for the erection of buildings upon the land in conformity with the then existing zoning regulations and had secured a zoning permit for the erection thereof.
He contends here that the new regulation is violative of his constitutional rights, and that he had no adequate remedy at law.
The sole question to be answered is whether plaintiff may proceed in Equity or is he restricted to his statutory remedy.
Plaintiff relies strongly on Huebner v. Phila. Sav. F. Society, 127 Pa. Super. 28 (1937), and the cases which follow it. In the Huebner case it was held that a court of equity had jurisdiction where the validity of an ordinance changing a zoning classification of a lot was questioned. However, in Hollearn v. Silverman, 338 Pa. 346 (1940), the Huebner case was overruled, and it was there held, at page 350, "The ordinance of 1933 fixing the boundaries of the zones did not result in a contract with plaintiffs preventing the city from subsequently changing the boundaries if the city found it desirable to change them: Ayars vs. Wyoming Valley Hospital, 274 Pa. 309, 118 A. 426. Generally, equity will not take jurisdiction to enjoin the enforcement of an ordinance merely because it might be condemned as void; other circumstances bringing the case under some acknowledged head of equity jurisdiction must be shown . . . ." Later, in Wojnar v. Yale and Towne Manufacturing Company, 348 Pa. 595 (1944), Mr. Justice ALLEN M. STEARNE held, at page 598, "Where a statutory remedy is provided, as in this case, the directions of the statute must be strictly pursued. The statutory remedy or procedure is exclusive, Taylor v. Moore, supra; White v. Old York Road Country Club, 318 Pa. 346, 178 A. 3. The complainants may not seek a change in the classification of their area in this suit."
In Commonwealth v. DeBaldo, 169 Pa. Superior Court 363, 368 (1951), it was held: " `All questions involved in zoning ordinances, whether they relate to confiscation of property or to the effect of any of the provisions of an ordinance, must be heard and considered under the remedy provided by the Zoning Acts of assembly': Taylor v. Moore, 303 Pa. 469, 476, 154 A. 799. This is required by the Act of March 21, 1806, P. L. 558, 4 Sm. L. 326, § 13, 46 P. S. § 156, which provides: `In all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law, in such cases, further than shall be necessary for carrying such act or acts into effect.' " See also Vogt v. Port Vue Borough, 170 Pa. Superior Court 526 (1952).
Concluding from the above authorities that the plaintiff has no standing to maintain his action in a court of equity, the preliminary objections are sustained and the complaint is dismissed.
Plaintiff appealed.
Edward Unterberger, for appellant.
James L. Stern, Assistant City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, and Abraham L. Freedman, City Solicitor, for appellee.
The order of the court below dismissing plaintiff's complaint is affirmed, at the cost of appellant, on the opinion of Judge CRUMLISH.