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GARRETT v. BEAVER BOROUGH (06/27/51)

June 27, 1951

GARRETT, APPELLANT,
v.
BEAVER BOROUGH



Appeal, No. 79, March T., 1951, from order of Court of Common Pleas of Beaver County, Dec. T., 1949, in Equity, No. 5, in case of Perry A. Garrett v. The Borough of Beaver et al. Order affirmed.

COUNSEL

Stewart P. McConnel, for appellant.

Frank E. Reed, with him Moorhead, Marshall & Sawyer and John G. Marshall, for appellees.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Chidsey

[ 367 Pa. Page 627]

OPINION BY MR. JUSTICE CHIDSEY

Perry A. Garrett, appellant, petitioned for declaratory judgment under the provisions of the Uniform Declaratory Judgments Act of June 18, 1923, P.L. 840, 12 PS ยงยง 831-846, as amended, asking that the erection of a public gasoline service station on the northeast corner of Beaver and Third Streets in the Borough of Beaver be declared a valid and lawful use of the premises. The lower court dismissed the petition and directed the Borough Council not to issue a building permit for the structure. Appeal is taken from the decree of the court below en banc, dismissing appellant's exceptions and affirming the decree nisi.

Appellant acquired the property in question on February 26, 1947, and has since used it for display and

[ 367 Pa. Page 628]

    sale of used cars. Sun Oil Company, proposed lessee of the premises, applied for a permit to erect a gasoline station there and was refused by the Borough Council. Application for permit was opposed by appellees, Strayer and Koss, adjoining property owners and householders, on the east and north sides of appellant's property. Appellant thereupon petitioned the court below for declaratory judgment.

The property is located on the northeast corner of Third and Beaver Streets. Third Street, the principal thoroughfare of the Borough, runs east and west, and intersects Beaver Street which runs north and south. East of Beaver Street, Third Street is residential, while west of Beaver Street, it is the principal business street and attains a width of about 100 feet. The district east of Beaver is residential, with an occasional doctor's office or dentist's office in some of the buildings.The Borough is the county seat, has a population of about 7,000, with practically no manufacturing within its limits. There is no zoning ordinance in the Borough.

Appellant contends that he should be entitled to the declaration for which he petitioned inasmuch as his property is in close proximity to the principal business district and that three of the four corners at the intersection are used for commercial purposes.

Burke v. Hollinger, 296 Pa. 510, 146 A. 115, defined an exclusively residential district as one with one-family dwellings, churches, libraries, with an occasional grocery store, and doctors' and lawyers' offices in homes. One not so exclusive would contain double houses, schools, public or private gardens with accessory uses. Both would be entitled to protection from the erection of a public gasoline service station. In the instant case the business district lay west of Beaver Street. There are no strictly business ...


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