# Michener Appeal

> Supreme Court of Pennsylvania · June 27, 1955 · 382 Pa. 401

URL: https://www.frixlaw.com/law-library/cases/9755121

## Case

- **Full name:** Michener Appeal
- **Court:** Supreme Court of Pennsylvania
- **Decided:** June 27, 1955
- **Citations:** 382 Pa. 401; 115 A.2d 367; 1955 Pa. LEXIS 418
- **Precedential status:** Published
- **Opinion:** Concurring in part by Bell
- **Judges:** Steen, Stern, Stearns, Jones, Bell, Chidsey, Musmanno, Arnold
- **Cited by:** 87 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9755121

## How later opinions describe it (automated extraction)

- stating that “[c]ontracts between property owners . . . should not enter into the enforcement *496 of zoning regulations. . . . [I]t has been uniformly held that any consideration of building restrictions placed upon the property by private contract has no place in proceedings…
- stating that "[c]ontracts between property owners . . . should not enter into the enforcement of zoning regulations. . . . [I]t has been uniformly held that any consideration of building restrictions placed upon the property by private contract has no place in proceedings unde…
- holding that consideration of building restrictions placed upon property by private contract has no place in proceedings under zoning laws
- noting zoning and private restrictions are unrelated, and that private restrictions are properly enforced by injunction or an action for damages

## Opinion text

Opinion by
Me. Justice Bell,
Dissenting in Paet and Concussing in Paet :
I would affirm this case on the Opinion of President Judge Heney G. Sweney.
The majority opinion correctly states, “If these applicants were to succeed in obtaining a variance relieving them from the restrictions of the zoning ordinance they would still be subject to the restrictions contained in their deeds, but the enforcement of those restrictions could be sought only in proceedings in equity in which the grantors, their representatives, heirs and assigns, would be the moving parties.”
The net result of the majority opinion is this: A Judge sitting in the Court of Common Pleas can grant a variance to a property owner in defiance and in violation of the building restriction on his lot or any other covenant running with the land. One day later the same Judge, sitting in the same chair and in the same courtroom will be compelled to grant an injunction sur a complaint by the owner of the dominant tenement to restrain the servient property owner from doing exactly what he authorized him to do one day before. * The feelings of the property owner in such eventuality can be easily imagined!
*411 I am fundamentally opposed to any decision, the effect of which is to impair or diminish, even though entirely unintentionally, the prestige and high reputation of our Courts. For these reasons I dissent from a part of the majority opinion, and I would hold that the building restriction, unless it was waived, abandoned, released or lost, barred the grant of a variance in violation thereof. **
However, I agree with Chief Justice Stern, for the reasons he has so convincingly set forth, that no unnecessary hardship, as that term is known to the law, was proved by the plaintiffs and consequently this is an additional reason why the application for a variance was properly refused.
Moreover, inevitable damage to someone will frequently result from tbe majority opinion in cases where the dominant owner does not learn that a variance has been granted until a month has elapsed and in the meantime the servient owner or purchaser has spent a considerable amount of money on the faith of the Court’s decision.
This principle would not violate, as the majority imply, any rule or decision in Pennsylvania, technical or otherwise. The person seeking a variance would merely have to first bring a proceeding in equity to have the restriction judicially declared to be no longer valid and subsisting; or he could produce in the Court of Common Pleas in the “variance” proceeding a release of the restriction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755121. Public record. Not legal advice.