Boron Oil Co. v. Kimple

• Decision Date: 20 December 1971
• Citation: 445 Pa. 327,284 A.2d 744
• Parties: BORON OIL COMPANY, a corporation, Appellant, v. L. C. KIMPLE, Borough Manager, Administrative Officer of the Zoning Ordinanceof the Borough of Beaver.
• Court: Pennsylvania Supreme Court

Page 744

284 A.2d 744

445 Pa. 327

BORON OIL COMPANY, a corporation, Appellant, v. L. C. KIMPLE, Borough Manager, Administrative Officer of the Zoning Ordinanceof the Borough of Beaver.

Supreme Court of Pennsylvania.

Dec. 20, 1971.

Robert L. Orr, Wilson & Orr, Beaver, for appellant

Norman S. Faulk, Sol., Borough of Beaver, Beaver, for appellee.

Before JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY, and BARBIERI, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

On July 22, 1968, appellant Boron Oil Company applied to the Borough of Beaver for a building permit for the construction of a gasoline station on property which it owned in the Borough. On the following day, the Borough Manager notified appellant that the Borough was in the process of revising its present zoning ordinance and that the requested permit could not issue for the reason that the proposed rezoning, if adopted, would prohibit a service station at appellant's wite.

Appellant thereafter brought an action of mandamus to compel the issuance of the permit. Following trial without a jury in the Court of Common Pleas of Beaver County, judgment was entered against appellant. The Commonwealth Court affirmed, 1 Pa.Cmwlth. 55, 275 A.2d 406, and we allowed a further appeal to this Court. For reasons which follow, we likewise affirm.

It is the settled law of this Commonwealth '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.' 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 Kensington, 377 Pa. 520, 105 A.2d 586 (1954); Gold v. Building Committee of Warren Borough, 334 Pa. 10, 5 A.2d 367 (1939). Accordingly, the sole and dispositive issue in this appeal is whether such an ordinance was 'pending' as of the date of appellant's application for a building permit. In resolving this issue, the following chronology is of note:

April 12, 1966--Borough Council creates Planning Commission to consider a new zoning scheme for the Borough and appoints its members.

July 11, 1967--Borough Council and Planning Commission meet to discuss a master plan.

August 8, 1967--Borough Solicitor directed to study County's proposal for master plan.

September 12, 1967--Borough Council resolves to invite County Planning Office to submit a contract for the preparation of a master plan.

October 10, 1967--Borough Council accepts County Planning Office's proposal.

March 14, 1968--appellant obtains option to purchase the property involves in this appeal.

April 9, 1968--Borough Council adopts ordinance transforming Borough Planning Commission into Borough Zoning Commission.

April 10, 1968--appellant exercises option and orders survey and abstract of the property.

May, 1968--appellant applies to commonwealth for permit.

June 26, 1968--Commonwealth grants approval.

July 8, 1968--Borough Zoning Commission publishes legal advertisement notifying public of a public meeting to be held on June 24, 1968 to consider a proposed new zoning ordinance and advising interested persons that the ordinance would be available for inspection at the office of the Borough Secretary after July 15, 1968.

July 22, 1968--appellant applies to Borough for building permit.

July 24, 1968--public meeting held on the proposed ordinance.

July 25, 1968--Borough Zoning Commission recommends to Borough Council adoption of the proposed ordinance.

October 9, 1968--ordinance approved on first reading subject to revision before final reading.

January 14, 1969--ordinance finally adopted by Borough Council.

The record thus reveals that for approximately two years prior to appellant's application, the Borough had expended substantial effort and had seriously considered an extensive revision of its existing zoning ordinance, and the new ordinance had been prepared pursuant to a comprehensive master plan. There is no evidence and appellant does not even suggest that the new ordinance was directed specifically against or for its property. The Borough Zoning Commission advertised a public meeting on the proposed rezoning two weeks prior to appellant's application, and the proposed ordinance was available for public inspection one week prior to the application. These facts taken together constitute a sufficient 'public declaration by the municipality that it intended to rezone the area.' Lhormer v. Bowen, 410 Pa. 508, 511, 188 A.2d 747, 748 (1963). We therefore conclude that the proposed ordinance was 'pending' at the date of appellant's application and that the Borough Manager's refusal of a building permit was not improper.

The recent case of Mutzig v. Hatboro Board of Adjustment, 440 Pa. 455, 269 A.2d 694 (1970), involved a similar issue of whether or not an ordinance was...