Bensalem Township v. Salem Harbour Joint Venture

21 Pa. D. & C.3d 341, 1981 Pa. Dist. & Cnty. Dec. LEXIS 253
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedMay 27, 1981
Docketno. 1844-09-5
StatusPublished

This text of 21 Pa. D. & C.3d 341 (Bensalem Township v. Salem Harbour Joint Venture) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bensalem Township v. Salem Harbour Joint Venture, 21 Pa. D. & C.3d 341, 1981 Pa. Dist. & Cnty. Dec. LEXIS 253 (Pa. Super. Ct. 1981).

Opinion

RUFE, J.,

Defendant, Salem Harbour Joint Venture, is the owner of a large apartment complex in plaintiff township, and is in the process of converting said complex to condominium ownership. Defendant, Commonwealth Land Title Insurance Company, is insuring all of the condominium titles acquired by purchasers from defendant, Salem Harbour. Plaintiff township seeks to enjoin the further sale of condominium units, and the title insurance thereof by Commonwealth, as violative of the township subdivision ordinance. Stipulated facts and briefs were submitted to the court, whereupon we denied the injunction motions, and dismissed plaintiff’s complaint upon defendants’ preliminary objections in the nature of a demurrer. Plaintiff has appealed this order to the Commonwealth Court, whereupon we prepare this opinion pursuant to Pennsylvania Rule of Civil Procedure 1925.

The stipulated facts established, inter alia, that Salem Harbor is a complex composed of 813 mid-rise and garden apartments with a club house, golf course, tennis courts, swimming pools and a gar[343]*343den club. The original site plan thereof was approved by the township on June 15, 1966. On October 19, 1979, appropriate documents to convert the complex to condominium ownership under the Pennsylvania Unit Property Act1 were recorded in the Bucks County Recorder of Deeds Office.

Condominium conversion sales began in January, 1980, supported by an intensive advertising campaign. Within a very short time over 300 persons made deposits for units as they might subsequently become available because present tenants were given the prior opportunity to acquire their presently occupied units. On February 4, 1980, the first five units were actually conveyed, and a sixth on March 17, 1980.

No subdivision or land development plan was ever filed with plaintiff township in connection with the condominium conversion. In addition, no application was ever filed with the township zoning officer for zoning classification certification on legality of the existing use as allegedly required by the Township Ordinance no. 211, and finally, no application was ever filed with the township manager for a certification that there were no notices of uncorrected violations of the housing, building, safety, or fire ordinances of the township, as also allegedly required by Ordinance No. 211. On January 21, 1980, and January 24, 1980, the fire chief and electrical inspector respectively made inspections of the apartment complex and notified the owners of several alleged violations found, whereupon the owners notified all prospective owners of such notification and that they were in the process of rectifying the violations.

Commonwealth Land Title Insurance Company [344]*344is listed in the sales documents as the title insurer of all condominium titles to be purchased, and in fact has insured the titles transferred prior to the instant action.

INJUNCTIVE RELIEF

This court denied plaintiff township’s motion for prehminary and permanent injunctions after finding that “Plaintiff has an adequate remedy at law; that no immediate or irreparable harm that is not compensable by appropriate monetary damages is hkely to occur in the absence of an injunction, and that injunctive rehef is not clear and manifest.”

The guidehnes for granting injunctions have long since been estabhshed: “And the essential prerequisites for the issuance of a prehminary injunction are: first, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct. (Citations omitted). Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And unless plaintiff’s right is clear and the wrong is manifest, a prehminary injuction will not generally be awarded: Keystone Guild, Inc. v. Pappas, 399 Pa. 46, 159 A. 2d 681 (1960); and Herman v. Dixon, 393 Pa. 33, 141 A. 2d 576 (1958).” New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 464, 392 A. 2d 1383 (1978).

We note that the stipulation of facts makes no reference whatsoever to any immediate and irreparable harm to plaintiff township whether the [345]*345injunction is granted or not. Assuming arguendo that the township is seeking to protect its residents who are present tenants in the apartment complex, there is no reference in the facts to any detrimental effect on any of them, and in any event they would have their lease remedies at law for their protection. Similarly, assuming arguendo that the township seeks to protect prospective purchasers of the converted condominium units, it is apparent that such purchasers would have their contract remedies at law which they could further insure with title insurance.

Plaintiff township in its brief does make passing reference to the Pennsylvania Municipalities Planning Code provision empowering “municipalities to bring actions to restrain the use of land in violation of their ordinance enacted pursuant to the Act.”2 However, since this section refers to actions regarding the use of land rather than the ownership thereof, and the present condominium conversion does not contemplate a single change in the actual use of the land, i.e., no new walls, or structures, no new boundary lines or subdivision not previously approved, no new parking areas or other ancillary land uses not already existing, and no additional or different size living units than those established and previously approved, we fail to see the need for equitable relief, and particularly any urgency for such relief.

Similarly, as to the second requirement for obtaining injunctive relief (that greater injury would result by refusing it than by granting it), we note again that plaintiff township has not shown any injury whatsoever, much less greater injury, by refusing the injunction than by granting it.

[346]*346As to the third element, restoring parties to the status quo, we observe that as to the township the use of the land will be identical after the conversion as it was before. There is no status quo to be maintained for there are no changes in the use of the land contemplated, and we quickly observe that should any structural or use changes begin then plaintiff’s injunctive relief might be warranted. It appears that the only change contemplated is in the form of ownership of the units, from the present leasehold for stated period, to a more permanent fee title ownership for each unit, together with joint ownership arrangement in the common ground.

Finally, as will be pointed out subsequently herein, we do not find that the activity sought to be restrained is actionable, nor that plaintiff’s right to injunctive relief is clear and manifest. On the contrary, there is no basis for injunctive relief whatsoever.

CONDOMINIUM CONVERSION AS SUBDIVISION VIOLATION

There is no question, as plaintiff township urges, that a municipality has the power and authority to regulate the establishment and development of condominiums through its zoning, land development and subdivision ordinances.3

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Related

Herman v. Dixon
141 A.2d 576 (Supreme Court of Pennsylvania, 1958)
Keystone Guild, Inc. v. Pappas
159 A.2d 681 (Supreme Court of Pennsylvania, 1960)
New Castle Orthopedic Associates v. Burns
392 A.2d 1383 (Supreme Court of Pennsylvania, 1978)
Kaufman & Broad, Inc. v. Board of Supervisors
340 A.2d 909 (Commonwealth Court of Pennsylvania, 1975)
Dublin Properties v. Board of Commissioners
342 A.2d 821 (Commonwealth Court of Pennsylvania, 1975)
In re Freid-El Corp.
383 A.2d 1286 (Commonwealth Court of Pennsylvania, 1978)
Goldstein v. Upper Merion Township
403 A.2d 211 (Commonwealth Court of Pennsylvania, 1979)

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Bluebook (online)
21 Pa. D. & C.3d 341, 1981 Pa. Dist. & Cnty. Dec. LEXIS 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bensalem-township-v-salem-harbour-joint-venture-pactcomplbucks-1981.