Mutzig v. Board of Adjustment of Borough of Hatboro, Montgomery County

• Decision Date: 09 October 1970
• Citation: 440 Pa. 455,269 A.2d 694
• Parties: John MUTZIG, Appellant, v. BOARD OF ADJUSTMENT OF the BOROUGH OF HATBORO, MONTGOMERY COUNTY, Pennsylvania.
• Court: Pennsylvania Supreme Court

Page 694

269 A.2d 694

440 Pa. 455

John MUTZIG, Appellant, v. BOARD OF ADJUSTMENT OF the BOROUGH OF HATBORO, MONTGOMERY COUNTY, Pennsylvania.

Supreme Court of Pennsylvania.

Oct. 9, 1970.

Butera and Detwiler, Norristown, for appellant; Clarke F. Hess, Norristown, of counsel.

Edward Fackenthal, Knox Henderson, Henderson, Wetherill & O'Hey, Norristown, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

This is an appeal from the decision of the Court of Common Pleas of Montgomery County affirming the decision of the Board of Adjustment of the Borough of Hatboro denying appellant an application for a building permit to erect and operate a gasoline service station at the northeast corner of South York Road and Lehman Avenue in the Borough of Hatboro.

Under § 1101(N)(10) of the Zoning Ordinance then in effect, gasoline service stations were permitted in that section of Hatboro when allowed as a special exception. Appellant filed an application for a special exception with the Zoning Board of Adjustment on May 9, 1967. However, on May 31, 1967, when appellant appeared with his counsel and witnesses before the Board of Adjustment, the Board refused to entertain appellant's application until the Borough Council had an opportunity to pass upon proposed Amendment 506 to the Zoning Code which would prohibit the erection and operation of gasoline service stations within one thousand feet of other service stations and drive-in restaurants and within two hundred feet of schools, churches and other public facilities. The amendment was adopted August 22, 1967.

The meeting of the Zoning Board immediately following the adoption of the amendment was on August 27, 1967. Because the special exception application made by appellant did not conform with the amended ordinance, the application was denied.

The calendar of significant events in the instant case is as follows:

                April 10, 1967  Borough Council resolved to
                                conduct a public hearing on the
                                following June 12 to consider
                                amending the special exception
                                provisions dealing with gasoline
                                service stations and drive-in
                                restaurants
                May 9, 1967     Appellant applied to Zoning Board
                                for a special exception granting
                                a building permit
                May 18, 1967    The Hatboro Borough Council
                                advertised that a public hearing
                                would be held to consider the
                                adoption of the amendment to the
                                Zoning Ordinance
                May 31, 1967    Hearing on appellant's appeal
                                scheduled before Board of Adjustment
                                Board of Adjustment refuses
                                to hold hearing on basis that afore-
                                said amendment was pending.
                

In argument both parties assume that the major issue is whether the proposed amendment was pending on May 9, 1967, when appellant first applied to the Board of Adjustment for a special exception. If this were true, this action by the Board of Adjustment could not be upheld. At the time of appellant's appeal to the Board, the proposed amendment was not yet pending.

Appellee contends that Ordinance #506 was pending as of April 10, 1967, when it was first mentioned at a regular Borough Council meeting in the form it was ultimately adopted. At that time it was resolved by the council to conduct a public hearing on the following June 12 to consider the proposed amendment.

We cannot agree with appellee's contention that the amendment was pending after it was first discussed at the Borough Council meeting on April 10.

The facts in Lhormer v. Bowen, 410 Pa. 508, 18 A.2d 747 (1963), are somewhat similar to those in the case at bar. In Lhormer, the ordinance was first considered by council on June 12, 1961, when it was referred to the Planning Commission. The Planning Commission reported back to the Council December 11, 1961, unanimously recommending that the ordinance be adopted. On March 12, 1962, the Council directed the solicitor to prepare a zoning amendment ordinance. The owners did not apply for a permit until March 16, 1962.

In Lhormer, the court held that the owner was entitled to a permit because the amendment was not yet pending. The opinion in Lhormer is particular helpful:

'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 terms of an ordinance then Pending upon the date the application is filed, and which is subsequently enacted. With this we agree; however, we disagree that the ordinance herein was legally 'pending' on the date involved.

'In the instant case, no public hearings were held by either the borough planning commission or the borough council prior to the date of the filing of the application for the permit, or the complaint in mandamus. Neither was there a prior public declaration by the municipality that it intended to rezone the area, nor is there evidence to justify a conclusion that the permit was sought in an effort to circumvent the ordinance. Under such circumstances, the ordinance involved was not 'pending. " (Emphasis in original.)

In Lhormer, as in the instant case, the proposed amendment had been discussed in council. However, in both cases no public hearings had been held by either the borough planning commission or the borough council prior to the owner's application. Discussion in the council alone is not a public declaration because it is not communicated to the public.

The case of Beverly Building Corp. v. Board of Adjustment, 28 Pa.Dist. & Co.2d 761, 1961 (affirmed per curiam, 409 Pa. 417, 187 A.2d 567, 1963), on which appellee borough relies, can be distinguished from the present case. In the Beverly case, although the application was made on October 1, 1957, and the hearing on the proposed amendment was not held until October 21, 1957, the date for the hearing was fixed publicly in July of 1957, before the application for the permit was made. In the instant case, the public hearing was first advertised on May 18, 1967, nine days after appellant had filed his appeal with the Zoning Board. Therefore, if the only issue were whether the proposed amendment was pending on May 9, 1967, the appellant could not be denied his permit because Ordinance #506 could not apply to appellant's land.

However, in the instant case, the state of the proposed amendment as of May 9, 1967, when appellant applied for a special exception, is not the real issue. The adoption of a zoning ordinance normally requires an extended period of time. In attempting to draw a line before which a party obtains a vested interest in a building permit, notwithstanding the fact that the governing body is considering a change in the zoning ordinance, which will perpetuate a nonconforming use, our cases have led to the following rule outlined in Penn Twp. v. Yecko Bros., 420 Pa. 386, 217 A.2d 171 (1966):

'(A) property owner who is able to demonstrate (1) that he has obtained a valid building permit under the old zoning ordinance, (2) that he got it in good faith--that is to say without 'racing' to get it before a proposed change was made in the zoning ordinance--and (3) that in good faith he spent money or incurred liabilities in reliance on his building permit has acquired a vested right and need not conform with the zoning ordinance as changed.'

Admittedly, appellee could not be denied the special exception as of May 9, 1967, because the amendment was not yet pending. However, that application gave appellee no vested right. He could not spend money or incur liabilities in reliance upon the application. He would need a permit to do that. By May 31, 1967, when the Board was to meet to decide on his application, the amendment was pending. Therefore, the Board was correct in refusing to entertain appellant's application until the Borough council had acted.

The case of Lhormer v. Bowen, Supra, bears an important distinction from the present case. In Lhormer, once the plaintiffs had applied for a permit, no steps needed to be taken as under the law existing at the time of this application, the owner was immediately entitled to a permit. As we said in Lhormer, when explaining why the issuance of a writ of mandamus was appropriate:

'* * * where the right to the permit is clear, the issuance thereof by the proper official is no more than the performance of a ministerial act which admits no discretion in the municipal officer, * * *' (410 Pa. p. 514, 188 A.2d p. 749)

In the instant case, however, under the law existing at the time of his application on May 9, 1967, appellant was not immediately entitled to a permit. He had to go first to the Board of Adjustment for a special exception. There is no evidence and appellant does not contend that the appellee borough made any attempt to delay the normal process by which such applications were considered in order to allow the proposed amendment to reach a stage where it could be applied to appellee's land. Instead, appellant's application was scheduled to be heard at the next regularly scheduled meeting of the Board of Adjustment on May 31, 1967. By that time, there had been the May 18 public notice which marks the time after which the amendment became pending. Consequently, the proposed amendment could legally be applied to appellant's land. Therefore, the board's action of refusing to conduct a hearing on appellant's application was proper.

Appellant next argues that if the Hatboro zoning ordinance is found to apply to appellant's application, the ordinance is unconstitutional in its practical prohibition of any additional service stations within the Borough and that Hatboro's proximity test for new service stations is unconstitutional. However, appellant cannot now raise such issues for the first time. If appellant wished to question the...