Boron Oil Co. v. Kimple

• Decision Date: 29 December 1970
• Citation: 1 Pa.Cmwlth. 55,275 A.2d 406
• Parties: BORON OIL COMPANY, a corporation, Appellant, v. L. C. KIMPLE, Borough Manager, Administrative Officer of the Zoning Ordinance of the Borough of Beaver.
• Court: Pennsylvania Commonwealth Court

Page 406

275 A.2d 406

1 Pa.Cmwlth. 55

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

Commonwealth Court of Pennsylvania.

Dec. 29, 1970.

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

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

Before BOWMAN, P.J., and CRUMLISH, KRAMER, WILKINSON, MANDERINO, MENCER and BARBIERI, JJ.

PER CURIAM.

The judgment of the Court of Common Pleas of Beaver County is affirmed upon the opinion of Judge James E. Rowley.

OPINION

(Filed February 18, 1970.)

ROWLEY, J.

Plaintiff filed an action in Mandamus asking that defendant, the Zoning Administrative Officer of the Borough of Beaver, be directed to issue to plaintiff a permit for the erection of a gasoline service station at the northwest corner of Third and Commerce Streets in Beaver, Pennsylvania. Defendant filed Preliminary Objections raising the question of jurisdiction. The objections were overruled and defendant was directed to file an Answer to the Complaint. Boron Oil Company v. Kimple, 29 B.C.L.J. 182 (1969). Defendant, in his Answer and New Matter, avers that at the time plaintiff applied for the permit there was a new zoning ordinance pending which justified his refusal to issue the permit. He also avers, that the construction of a gasoline service station at the proposed location would be dangerous and hazardous to the public. Final disposition of the matter has been delayed due to the illness of defendant and his counsel. A total of six (6) continuances were requested and granted, all of which were either concurred in or to which no objection was raised by plaintiff's counsel. However, the matter has now been tried before the Court and briefs filed by the parties.

The issue raised in this case has been before the Supreme Court of Pennsylvania on numerous occasions. Actions in Mandamus and Equity, and Appeals from decisions of Zoning Boards have all been used as the vehicle for 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 follows:

'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, 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); But cf. Kline v. Harrisburg, 362 Pa. 438, 68 A.2d 182 (1949). 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. A.N 'Ab' Young Co. Zoning Case, 360 Pa. 429, 61 A.2d 839 (1948); Herskovits v. Irwin, 299 Pa. 155, 149 Atl. 195 (1930). The rule established by these cases was designed to prevent the creation of what would become a nonconforming use after the effective date of a pending zoning ordinance.'

The idea of fairness and good faith runs throughout the cases which have considered this problem. Penn Twp. v. Yecko Bros., 420 Pa. 386 (1966).

Plaintiff filed its application for a building permit on July 22, 1968. It is conceded that under the zoning ordinance in effect on that day, ¹ the erection of a gasoline of borough council's actions used by was permissible. On the other hand, it is undisputed that on January 14, 1969 the Borough Council finally enacted a new zoning ordinance which prohibits the erection of a gasoline service station at that corner. The question we must answer is whether the new zoning ordinance was 'pending' at the time plaintiff filed its application for a permit on July 22, 1968. An understanding of the chronology of events is necessary in order to arrive at the correct answer.

For more than two (2) years prior to July, 1968, the Borough Council had been concerned with revising its zoning ordinance. In April of 1966, council created a planning commission which was to frame a new zoning ordinance for the Borough. In July of 1967, council and the planning commission met informally to discuss a master plan for the Borough. On December 7, 1967, the members of council formally authorized the execution of an agreement between the borough and the county planning office for the preparation of a master plan for the borough. On March 14, 1968, the plaintiff obtained an option for One ($1.00) Dollar to purchase the property involved in this proceeding. The option contained a provision giving plaintiff the election to cancel or terminate the contract in the event it was unable to obtain he necessary permit for the erection of a gasoline service station. Plaintiff made a market analysis and traffic survey of the area and on April 10, 1968 exercised the option. After exercising the option, plaintiff ordered a property survey and a title abstract. A plot plan was also prepared by its own engineering department. On April 9, 1968, ² the borough council enacted an ordinance appointing the planning commission as the borough zoning commission. In May the plaintiff's plot plan was completed and it applied to the Commonwealth for approval of the plan. The approval was granted on June 26, 1968. On July 8, 1968 the planning and zoning commission published, in the local newspaper, a written notice of a public meeting to be held on July 24, 1968 in the Beaver Junior High School Building. The notice, published on July 8, 1968, advised that a proposed zoning ordinance would be presented by the planning and zoning commission at the meeting. The notice further advised that the proposed ordinance would be available for public inspection at the office of the borough's secretary in the Municipal Building, after July 15, 1968. On July 22, 1968, the plaintiff filed its application for a permit with the defendant. On the following day, July 23, 1968, defendant wrote to the plaintiff stating that the borough was in the process of rezoning. For this reason he did not issue the permit. He pointed out that the proposed rezoning regulation would prohibit a service station at the proposed location. The public meeting of the borough planning and zoning commission was held as scheduled on July 24, 1968 at the Junior High School. At a meeting of council on August 13, 1968, the proposed zoning ordinance and map were delivered by the planning and zoning commission to council with a resolution recommending that the proposed ordinance and map be adopted. The resolution of the planning and zoning commission was dated July 25, 1968. On September 16, 1968, council held a public hearing on the proposed ordinance and on October 9, 1968, the proposed new ordinance passed council on first reading. As we have indicated, the ordinance was finally enacted on January 14, 1969. Meanwhile, plaintiff had filed its complaint in mandamus on August 9, 1968, but as indicated, disposition has been delayed due to the illness of defendant and his counsel.

An examination of these events discloses that prior to plaintiff making application for a building permit the borough council had created a planning commission to consider a new zoning scheme for the borough. Upon the advice of the planning commission the borough had entered into a written contract with the county planning commission for the preparation of a comprehensive master plan for the borough. The planning commission had been recreated as a zoning commission in order that the borough could avail itself of its zoning powers under the Borough Code. Act of February 1, 1966 P.L. (1965) (1656, § 3206, 53 P.S. § 48206. Moreover, the zoning commission, pursuant to § 3206 of the Borough Code, on July 8, 1968, had given public notice of a public meeting at which it would present the new proposed zoning ordinance. This was a public declaration that the Borough intended to rezone the area in question. Under these circumstances we are of the opinion that the new zoning ordinance was 'pending' at the time plaintiff applied for its permit. For this reason defendant was justified in refusing to issue the permit requested by plaintiff. It is also to be noted that plaintiff, more than two weeks after public notice was given, and just two days before the public meeting of July 24, 1968, presented its application to the defendant. Thus, it is proper to conclude that plaintiff was attempting to establish a nonconforming use before the ordinance could be enacted by the borough council. The borough's subsequent enactment of that ordinance requires that we approve the action of the defendant in refusing plaintiff's application, and enter a verdict for the defendant.

Plaintiff cites and relies on the case of Lhormer v. Bowen, 410 Pa. 508 (1963). In that case the plaintiff sought a permit to construct a gasoline service station. The permit was refused on the basis that when the application was filed there was 'pending' an amending zoning ordinance which would prohibit the use of the property in question for a service station. The opinion in that case discloses that plaintiff filed its application for a permit on March 16, 1962. The council had been studying and considering proposed rezoning prior to that time. On March 12, 1962, council instructed their solicitor to prepare a zoning amendment ordinance in conformity with recommendations made by the borough planning commission. The court, in holding that plaintiff was entitled to a building permit and that the proposed ordinance was not 'pending' on the date of plaintiff's application, said:

'The defendant contends that a property owner does not have a vested right to obtain a building permit, when the intended use is repugnant to the...