Radzunas v. Valentine

6 Pa. D. & C. 667

• Court: Pennsylvania Court of Common Pleas, Luzerne County
• Decided: July 1, 1924
• Docket: No. 17
• Status: Published

Opinion

McLean, J.

Plaintiff filed a bill to restrain the councilmen and officers of Plymouth Borough from interfering with the construction of plaintiff’s building on Cherry Street, in Plymouth Borough. A preliminary injunction was granted and subsequently counsel for plaintiff and defendants submitted certain facts agreed upon, and further agreed that the case should be disposed of by the court as if upon final hearing.

The parties submitted:

(1) An ordinance of the Borough of Plymouth, as follows:

“Section 1. Be it ordained and enacted by the Town Council of the Borough of Plymouth, and it is hereby ordained and enacted by the authority of the same: That a building-line is hereby established on all the streets and alleys in the Borough of Plymouth. Said building-line shall be the present front-line of each building of whatsoever kind at present abutting upon any street or alley in the Borough of Plymouth. The front-line of the nearest adjoining improved property shall establish the building-line for all vacant lots or plots of ground.

“Section 2. That upon the passage of this ordinance by the Town Council, the borough secretary is hereby directed to issue no permit for erecting any building of any character on any street or alley in the Borough of Plymouth unless said building or buildings are located at a distance from the curb-line as set forth in section 1 of this ordinance.

“Section 3. That all ordinances or parts of ordinances conflicting with the provisions of this ordinance be and the same are hereby repealed.

“Ordained and enacted by the Town Council of the Borough of Plymouth at a regular meeting held on the 2nd day of July, A. D. 1923.”

(2) A building permit issued by the borough secretary to the plaintiff.

(3) A map showing the location of the buildings and streets in question.

The questions to be determined are: 1. The validity of the ordinance. 2. If

the ordinance be valid, whether the construction of the building is in violation thereof.

In determining the case we are obliged to go no further than the consideration of the ordinance.

The Act of Assembly of June 29, 1923, P. L. 949, authorizes the establishing of building-lines in boroughs by ordinance and reads as follows:

“An act providing for the establishing and maintenance of uniform building-lines in boroughs and townships of the first class.

“Section 1. Be it enacted, etc., that boroughs and townships of the first class are hereby authorized and empowered, by suitable ordinance, to establish and maintain uniform building-lines upon any or all public streets, roads, highways, lanes and alleys of said boroughs and townships.”

Manifestly, the ordinance in question does not conform to the statutory authority; the provision in the ordinance is not for a uniform building-line, for it establishes no definite line on any street beyond which property owners are forbidden to construct buildings, but, on the contrary, after attempting to make the building-line on each street conform to the present front-line of each building at present abutting on any street, it provides, further, “the front-line of the nearest adjoining improved property shall establish the building-line for all vacant lots or plots of ground;” with the result that the building-line established is not at a uniform distance from the street, but requires each property owner to bow to the whim of his nearest neighbor. This was not contemplated and is not authorized by the act of assembly and permits the construction of buildings in the future with the same lack of uniformity as existed in the past.

We are of the opinion that the ordinance is invalid, and in accordance therewith, the prothonotary is directed to enter and give notice to the parties of the following decree nisi:

This cause came on to be heard and was argued by counsel, and upon consideration thereof, it is ordered adjudged and decreed as follows:

1. The ordinance of the Borough of Plymouth, dated July 2, 1923, establishing building-lines, etc., is held to be invalid.

2. The injunction heretofore granted is made perpetual.

Prom P. P. Slattery, Wilkes-Barre, Pa.