holding that a petitioner may not obtain mandamus relief unless he establishes the absence of another adequate reme dy
How later courts described this case
- holding that a petitioner may not obtain mandamus relief unless he establishes the absence of another adequate reme dy
- holding that the language of Section 908(9) of the MPC explicitly directs a zoning board to render a written decision
- mandamus is not appropriate where another adequate remedy exists
- an oral denial of a zoning application does not toll the clock on the “deemed approved” sanction authorized by section 10908(09) of The Pennsylvania Municipalities Planning Code, 53 P.S. §10908(9)
Written by the judges who cited it.
The opinion
ZAPPALA, Justice,
concurring.
While I concur in the result reached by the majority, I am compelled to write separately to correct an obvious error in the majority’s analysis. Section 903 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805 et seq. as amended, 53 P.S. § 10101 et seq. (“Code”), specifically sets forth that, “[mjembers of the (zoning) board shall hold no other office in the municipality, except that no more than one member of the board may also be a member of the planning commission.” 53 P.S. § 10903. Since a zoning board member cannot hold any other municipal office, the members of the Ingram Borough Council could not act as a zoning hearing board.
*350 Since the Borough of Ingram adopted a zoning ordinance and apparently created the position of building inspector and zoning officer, it is untenable that the Borough would not have created a zoning board to review the decisions of the building inspector/zoning officer. Section 909 of the Code provides that the board shall hear appeals from determinations of the zoning officer. More importantly, § 909 contains the following provision:
Nothing contained herein shall be construed to deny the appellant the right to proceed directly in court, where appropriate, pursuant to Pa.R.C.P., sections 1091 to 1098 relating to mandamus.
53 P.S. § 10909. (Footnote omitted).
As the majority correctly states, mandamus is an extraordinary action requesting performance of a ministerial act or mandatory duty where a clear legal right and duty exists and where there exists a lack of any other adequate remedy. Delaware River Port Authority v. Thornburgh, 508 Pa. 11 , 493 A.2d 1351 (1985) and County of Allegheny v. Commonwealth, 507 Pa. 360 , 490 A.2d 402 (1985). In this situation where the Borough failed to create the mechanism for reviewing the building inspector/zoning officer’s decision, § 909 permitted direct appeal to the Court of Common Pleas if a mandamus action would lie. Since the Borough failed to create a zoning board as required by § 901 of the Code, there existed no other adequate remedy for relief. Furthermore, as the trial court specifically held, the Appellants’ existing use constituted a legal non-conforming use, obviating a need to strictly comply with the appropriate lot area provisions of the Borough’s zoning ordinance. Thus, the zoning officer clearly acted improperly in denying the Appellants an occupancy permit. Because the Borough acted improperly in failing to create a zoning board, the Court of Common Pleas had jurisdiction to hear the mandamus action under § 909. Furthermore, the record supports the trial court’s action in issuing the writ of mandamus, requiring the issuance of the occupancy permit. Based upon this reasoning, I would reverse the Commonwealth *351 Court and affirm the Court of Common Pleas of Allegheny County.
HUTCHINSON, J., joins in this concurring opinion.