Appeal of Hertrick
| Decision Date | 06 January 1958 |
| Citation | 137 A.2d 310,391 Pa. 148 |
| Parties | Appeal of Theodore HERTRICK, Secretary of the Borough of Green Tree, Allegheny County, Pennsylvania, and W. J. Dunbar, Building Inspector of the Borough of Green Tree, Allegheny County, Pennsylvania, from the Granting of a Permit by the Board of Adjustment of the Borough of Green Tree to Esso Standard Oil Co. for the Erection of a Gasoline Service Station at 956 Greentree Road, Borough of Green Tree, Allegheny County. Appeal of Theodore HERTRICK, Secretary, and W. J. Dunbar, Building Inspector of the Borough of Green Tree. |
| Court | Pennsylvania Supreme Court |
T. Robert Brennan, Edward A. Damrau and Brennan, Brennan & Damrau, Pittsburgh, for appellants.
William H. Eckert, John H. Morgan, Smith, Buchanan, Ingersoll, Rodewald & Eckert, Pittsburgh, for appellee.
Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, ARNOLD, BENJAMIN R. JONES, and COHEN, JJ.
On December 21, 1953, the Borough of Green Tree enacted Ordinance No. 419 which added the following provision to the borough zoning regulations:
In 1955 the Standard Oil Company (referred to as Esso) obtained an option to purchase a property in Green Tree Borough belonging to one Amelia Ramsey. Esso exercised the option on a portion of the Ramsey property in February 1956, took title on May 31, and on June 1 of that year filed with the borough's secretary an application for a building permit. Attached to the application were the written consents of three adjacent property owners, Meehan, Ramsey and McClay, to the erection of a service station by Esso. Only their three properties were within 100 feet of the main building which Esso proposed to erect. Subsequently, McClay revoked his consent. The building inspector and chairman of the borough zoning committee refused the application, and Esso appealed to the board of adjustment. The board held that since Esso had complied with all of the provisions of the borough's zoning ordinance, it was entitled to a building permit. From this decision the borough appealed to the county court contending that the consent of the owners in interest and number of a majority of all property within 100 feet of the proposed structure was lacking. The applicant, Esso, upon petition to intervene was duly joined as a party respondent in the proceeding.
While the appeal was pending in the county court, the borough on November 28, 1956, by Ordinance No. 497, amended the zoning ordinance of 1953 to require an application for a building permit to be accompanied by the written consent of the owners of 'eighty (80%) percent of all the property within one hundred ten (110) feet of the deed line of the property in question.' (Emphasis supplied.) $The court nevertheless proceeded under the 1953 ordinance, and concluded that the board of adjustment had properly granted the permit. From the judgment of the county court directing the building inspector to issue the building permit to Esso, Theodore Hertrick, Secretary of the Borough of Green Tree, and W. J. Dunbar, Building Inspector of the Borough, have taken this joint appeal.
The issues before us are whether errors of law have been made in the construction of the ordinance of 1953 and in the refusal of the court below to apply the ordinance of 1956 to the present proceedings. See Archbishop O'Hara's Appeal, 1957, 389 Pa. 35, 51, 131 A.2d 587.
The first question raised by the appellants is whether the written consents filed by Esso in support of its application for a permit to construct a gasoline service station meet the requirements of the 1953 zoning ordinance with regard to number and interest of the adjoining land owners.
This ordinance provides that a 'Gas Service Station may be established * * * with * * * the consent of the owners in interest and number, of a majority of all of the property within one hundred (100) feet of the proposed structure.' (Emphasis supplied.)
The appellants contend that 'the proposed structure' as used in this section refers to the whole, integrated service station installation including signs, light standards, pumps, gasoline tanks and other facilities. Since there are seven properties within a hundred feet of the perimeter of the area of the installation, under the appellants' theory Esso did not obtain the consent of the requisite number of property owners.
The zoning ordinance itself defines 'structure' as '[a]nything constructed or erected, the use of which demands a permanent location on the soil.' Granting that tanks, pumps and other facilities might all be 'structures' as that term is defined in the zoning ordinance, the question remains what did the borough council intend by its use of the phrase 'the proposed structure' in section 14 of the ordinance?
A reading of this section indicates that the phrase 'the proposed structure' refers to the 'gasoline service station.' A gasoline service station is, in common usage, a building from which gasoline and auto supplies are sold. Appellants' position that the word 'structure' was used in section 14 to denote the entire service station installation, which is itself composed of separate 'structures', is justified neither by the definition of the word given in the ordinance itself nor by common usage. We are of the opinion that the council having used the singular 'the proposed structure'--intended to refer to and contemplated only the proposed main building and consequently, it is from this 'structure' that the hundred feet measurement must be made in order to determine from which properties owners' consent is required. On this basis, only Meehan, McClay and Ramsey are the property owners whose consents to the Esso application would be required by the ordinance of 1953.
No question is raised as to the validity of the Meehan consent. However, the appellants seek the disqualification of the consent given by Mrs. Ramsey for the reason that she was the record owner of the tract of land from which the applicant, Esso's, property was obtained. This circumstance is patently irrelevant to our consideration. Mrs. Ramsey is the owner of property situated within a hundred feet of the proposed main building of Esso. She is not the applicant for a permit to construct a gasoline service station. Hence, her consent is valid under the ordinance, and thus must be included in determining whether the applicant, Esso, has complied with the ordinance.
Because the consents of owners Ramsey and Meehan are valid, Esso has obtained the required written consents from the majority of the owners both in interest and in number of the relevant adjacent property, and would therefore be entitled to the issuance of a building permit. Consequently, we are not required to determine the effect of McClay's withdrawal of his consent after the filing of Esso's application.
The second contention of the appellants require us to determine the relevancy to the present proceedings of the 1956 ordinance requiring consent of the owners of eighty percent of property within one hundred ten feet of the deed line of the land upon which the service station is to be built.
We have held that a building permit may be refused if at the time of application there is pending an amendment to a zoning ordinance which would prohibit the use of the land for which the permit is sought. Shender v. Zoning Board of Adjustment, 1957, 388 Pa. 265, 131 A.2d 90; A. J. Aberman, Inc. v. City of New Kensington, 1954, 377 Pa. 520, 105 A.2d 586; Gold v. Building Committee of Warren Borough, 1939, 334 Pa. 10, 5 A.2d 367; But cf. Kline v. City of Harrisburg, 1949, 362 Pa. 438, 68 A.2d 182. Even when an applicant is issued a permit, unless he proceeds in good faith to incur substantial obligations in reliance thereon, the permit may be vacated or revoked because of subsequently adopted amendments to the zoning ordinance which prohibit the proposed use of the land. In re A. N. 'Ab' Young Co. Zoning Case, 1948, 360 Pa. 429, 61 A.2d 839; Herskovits v. Irwin, 1930, 299 Pa. 155, 149 A. 195. The rule established by these cases was designed to prevent the creation of what would become a non-conforming use after the effective date of a pending zoning ordinance. However, no such policy is involved in the case before us.
The 1956 amendment to the Green Tree zoning ordinance does not affect or change the use to which land may be put. Instead, it introduces a change in the procedure necessary to obtain a building permit by increasing the number of consents required from land owners in the area. Thus the amendment was not an effort to improve the community by upgrading land use, but rather an...
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Boron Oil Co. v. Kimple
...raising the question. However, the controlling principle of law is the same regardless of the form of action. In Hertrick Appeal, 391 Pa. 148 (1958), at pages 153 and 154, the rule is stated as 'We have held that a building permit may be refused if at the time of application there is pendin......
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Boron Oil Co. v. Kimple
...an amendment to a zoning ordinance which would prohibit the use of the land for which the permit is sought.' Hertrick Appeal, 391 Pa. 148, 153, 137 A.2d 310, 313--314 (1958); see also Shender v. Zoning Board of Adjustment, 388 Pa. 265, 131 A.2d 90 (1957); A. J. Aberman, Inc. v. New Kensingt......
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Mutzig v. Board of Adjustment of Borough of Hatboro, Montgomery County
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