Gary D. Reihart, Inc. v. TP. OF CARROLL

409 A.2d 1167, 487 Pa. 461, 1979 Pa. LEXIS 807

• Court: Supreme Court of Pennsylvania
• Decided: December 21, 1979
• Docket: 56
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

On July 11,1974 appellant Gary D. Reihart, Inc. submitted a revised plan for subdividing its 177 acre tract of land to the Carroll Township Planning Commission. The Commission, pursuant to the powers granted by the Legislature in the Municipalities Planning Code, Act of July 31, 1968, P.L. 805, §§ 101 et seq., 53 P.S. §§ 10101 et seq., tentatively approved the plan, but withheld final approval pending appellant’s compliance with thirteen conditions. Most pertinent to this litigation was the condition that appellant dedicate portions of its tract along existing roads to Carroll Township so that the Township could increase the width of these roads if necessary. Appellant had the option of fulfilling the condition, or challenging it by procedures specified in the Municipalities Planning Code. Appellant chose not to challenge the condition, and instead dedicated the land to the Township. The Planning Commission then approved appellant’s subdivision plan.

Appellant thereafter sought compensation for the land it had dedicated to the Township by filing a petition for appointment of a board of viewers. The petition averred that a de facto taking had occurred which was compensable pursuant to § 502(e) of the Eminent Domain Code. Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § l-502(e) (Supp.1979). The court of common pleas disagreed, and granted the Township’s motion for summary judgment:

“[A]n eminent domain proceeding is not available to [Reihart, Inc.]. ... If the conditions which the Township sought to attack were unreasonable, as [Reihart, Inc.] . contends, we believe that its proper course of action was to directly attack the refusal of the Township authorities to approve the plan without such conditions, not to accept the same and then seek damages on the theory of a take.”

Reihart, Inc. v. Township of Carroll, 91 York 77, 78 (1977) (Blakey, J.). The Commonwealth Court affirmed per curiam without opinion, and this Court granted allocatur.¹

Appellant now contends that it is entitled to damages under the Eminent Domain Code. We disagree. In our view, this action for damages is not cognizable under the Eminent Domain Code. The Legislature has expressly stated that landowners and other aggrieved persons may seek relief for improper subdivision action exclusively under the Municipalities Planning Code. Accordingly, we affirm the order of the Commonwealth Court.

Article X of the Municipalities Planning Code, enacted in 1972, sets forth the various modes for challenging municipal decisions. See 53 P.S. §§ 11001-11011. Section 11001 directs that an appeal from a municipality’s decision concerning subdivision, or any other subject matter covered by the Municipalities Planning Code, lies only as provided in the Municipalities Planning Code:²

“The proceedings set forth in this article shall constitute the exclusive mode for securing review of any ordinance, decision, determination or order of the governing body of a municipality, its agencies or officers adopted or issued pursuant to this act.”

A landowner, such as appellant, who desires relief from a claimed invalid application of a subdivision ordinance, must raise that challenge in accordance with the provisions of section 11006.³ Appellant’s suit is plainly an attempt to secure review under the Eminent Domain Code of the Carroll Township Planning Commission’s conditional approval of the subdivision plan. Such a review is expressly prohibited by the Municipalities Planning Code.

The Municipalities Planning Code is the Legislature’s mandate for the unified regulation of land use and development. The Code also sets forth procedures by which landowners and others may challenge municipal decisionmaking in this area. These procedures are, in the Legislature’s judgment, the best means of balancing the interests of municipalities with those of land owners and others. Commentators view the Municipalities Planning Code’s procedures for challenging local land regulations as a significant advance over prior methods.⁴ To permit actions for damages in disputes over local subdivision planning, as appellant urges, would surely undermine the Legislature’s established procedures for resolution of controversies involving land use and development.

Appellant’s efforts to obtain relief on the theory of a de facto taking, pursuant to the Eminent Domain Code, must fail. There is no evidence in the record of a de facto taking. Instead, the record clearly demonstrates that appellant voluntarily submitted a subdivision plan to the Carroll Township Planning Commission, and voluntarily dedicated portions of its land to the Township, in accordance with the Commission’s conditional approval.

It is thus clear that appellant failed to properly attack the Commission’s decision on its subdivision plan, and then voluntarily complied with that decision. We are therefore satisfied that there is no reason to disturb the order of the Commonwealth Court.

Order affirmed.

MANDERINO, J., did not participate in the decision of this case. LARSEN, J., filed a dissenting opinion.

1 . This case was reassigned to the writer on October 17, 1979 for the purpose of preparing an opinion expressing the views of a majority of this Court.

2 . Even before the enactment of Article X of the Municipalities Planning Code, the law of this Commonwealth precluded dissatisfied landowners from suing for damages when a specific statutory remedy was available. In Jonnet v. Bodick, 431 Pa. 59, 244 A.2d 751 (1968), a property owner desired to build a motel in an area of the township where such use was prohibited by zoning ordinance. The property owner inquired as to what would be required to obtain approval of his project, and then applied for a building permit in accordance with the information he had received from the Township Supervisors. When his permit was nonetheless denied by the zoning officer for failure to comply with the zoning ordinance, the property owner brought an action in damages to recover his out-of-pocket expenses and lost profits. This Court refused to “permit an action for damages flowing from the refusal of a building permit, where the plaintiff had a full statutory remedy which he chose to ignore,” namely to appeal to the Board of Adjustment, and then, if necessary, to the courts. Id., 431 Pa. at 61, 244 A.2d at 753. See also Taylor v. Moore, 303 Pa. 469, 476, 154 A. 799, 801 (1931) (“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.”); see generally ALI A Model Land Development Code 403-04 (1975 Official Draft).

3 . Section 11006 provides:

“(1) A landowner who desires to file a zoning application or to secure review or correction of a decision or order of the governing body or of any officer or agency of the municipality which prohibits or restricts the use or development of land in which he has an interest on the grounds that such decision or order is not authorized by or is contrary to the provisions of an ordinance or map shall proceed as follows:

(a) From a decision of the governing body or planning agency under a subdivision or land development ordinance the landowner may appeal directly to court or to the zoning hearing board under section 913.1 in cases where that section is applicable. If the municipality provides a procedure, formal or informal, for the submission of preliminary or tentative plans an adverse decision thereon shall, at the landowner’s election, be treated as final and appealable.

(b) From the decision of the governing body or planning agency denying tentative approval of a development plan under section 709(3) or, if tentative approval has been granted, from any adverse decision on an application for final approval, the landowner may appeal directly to court or to the zoning hearing board under section 913.1 in cases where that section is applicable.

(c) To the extent that the board has jurisdiction of the same under section 909 all other appeals shall lie exclusively to the zoning hearing board.

(d) Application under sections 912 and 913 shall be made exclusively to the zoning hearing board.

(2) Appeals to the zoning hearing board pursuant to subsections (l)(a) and (l)(c) shall be filed within thirty days after notice of the decision is issued or, if no decision is made, within thirty days from the date when a decision is deemed to have been made under this act.

(3) (a) Appeals to court may be taken by the landowner from any decision of the governing body or planning agency under subsections (l)(a) and (l)(b), after the decision is issued or, if no decision is made when a decision is deemed to have been made under this act.

(b) Appeals to court from any decision of the zoning hearing board may be taken by any party aggrieved.”

4 . Jan Z. Krasnowiecki, Zoning Litigation and the New Pennsylvania Procedures, 120 U.Pa.L.Rev. 1029, 1093 (1972); Lenard L. Wolffe, Procedure Under the Pennsylvania Municipalities Planning Code, 14 Duquesne L.Rev. 1, 5-7 (1975).