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DUNLAP APPEAL (03/24/52)

March 24, 1952

DUNLAP APPEAL


Appeal, No. 37, Jan. T., 1952, from decree of Court of Common Pleas of Delaware County, March T., 1950, No. 1725, in re Appeal of George M. Dunlap, Jr. and Floyd B. Mousley from decision of Zoning Board of Adjustment of Borough of Sharon Hill, Delaware county. Decree affirmed.

COUNSEL

Fronefield Crawford, with him MacCarter & Crawford, for appellants.

John V. Diggins, for appellee.

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

Author: Stearne

[ 370 Pa. Page 32]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

This is an appeal from a decree affirming a decision of the Zoning Board of Adjustment of Sharon Hill, which refused to grant appellants a variance permitting them to construct row houses in that community. Appellants attack the constitutionality of the ordinance which prohibits row houses on the theory that it invades vested rights and is an unreasonable classification.

Appellants' "vested rights" are said to stem from the expenditure between 1928 and 1930 of $27,971.16 for installation of water, sewer, and gas mains, and street curbing in accordance with an established plan for development of their property. Laterals from the various mains were so installed as to accommodate row housing, and maximum use of them can be made only if such housing is permitted. At the time of their installation, no permit for the improvements was required or issued and no zoning ordinance prohibited the type of housing contemplated. Appellants' theory is that, when they in good faith effected these substantial improvements with a view toward using the property for row housing, they acquired a vested right to proceed with such a development.

Adoption of appellants' contention would require a substantial enlargement of the rule announced by this Court through Chief Justice MOSCHZISKER in Herskovits v. Irwin, 299 Pa. 155, 149 A. 195 (p. 162): "... a property interest arises where, after permit granted, a landowner begins construction of a building and incurs

[ 370 Pa. Page 33]

    liability for future work." (italics supplied) We recently reaffirmed this principle: Lower Merion Township v. Frankel, 358 Pa. 430, 57 A.2d 900. But in this case the borough took no affirmative action which would encourage appellants or lead them to believe that the proposed development met with the sanction of the community. Appellants could not by laying pipes and sewers in the ground forever defeat the right of the community to decide by appropriate legislative action the type of homes which it might thereafter desire to permit. No case in this Commonwealth has ever gone that far. Appellants cite cases from other jurisdictions which contain language apparently supporting their contention, but our study reveals that each of them involved situations where the municipality was aware of the activities of the complainant and passed the disputed ordinance specifically to block the proposed development: Rosenbery v. Village of Whitefish Bay, 199 Wis. 214, 225 N.W. 838; Darlington v. Board of Councilmen of City of Frankfort, 282 Ky. 778, 140 S.W. 2d 392. There is no suggestion in the record of the present case that the ordinance was directed against appellants. On the contrary, it appears to be general legislation adopted by the borough in entire ignorance of what appellants had done some sixteen years earlier. No element of equitable estoppel is presented.

We adhere to the rule that a vested right to build in futuro a structure which violates a zoning ordinance can only be acquired by first securing a permit and thereafter expending substantial sums in reliance thereon. This does not mean that a building actively under construction at the time of the passage of an ordinance could not qualify as a non-conforming use. This was the basis for the decision in City of Coldwater v. ...


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