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HERTRICK APPEAL. (01/06/58)

January 6, 1958

HERTRICK APPEAL.


Appeal, No. 168, March T., 1957, from order of County Court of Allegheny County, 1956, No. A 1916, in re appeal of Theodore Hertrick, Secretary and W. J. Dunbar, Building Inspector of the Borough of Greentree. Order affirmed.

COUNSEL

T. Robert Brennan, with him Edward A. Damrau and Brennan, Brennan, Damrau & Mohan, for appellant.

William H. Eckert, with him John H. Morgan and Smith, Buchanan, Ingersoll, Rodewald & Eckert, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Cohen

[ 391 Pa. Page 149]

OPINION BY MR. JUSTICE COHEN

On December 21, 1953, the Borough of Green Tree enacted Ordinance No. 419 which added the following provision to the borough zoning regulations: "Section 14: In Local Business District a Gasoline Service Station may be established, erected or enlarged provided there is filed with the application for a permit the written consent of the owners in interest and number, of a majority of all of the property*fn1 within one hundred (100) feet of the proposed structure and not separated therefrom by more than one street forty

[ 391 Pa. Page 150]

    feet or more in width. In computing the percentage of consents required under this provision so much property as is already used for Gasoline Service Stations shall be counted as consenting. The property owned by the applicant shall not be counted in determining the consents required."

In 1955 the Standard Oil Company (referred to as Esso) obtained an option to purchase a property in Green Tree Borough belonging to one Amelia Ramsey. Esso exercised the option on a portion of the Ramsey property in February 1956, took title on May 31, and on June 1 of that year filed with the borough's secretary an application for a building permit. Attached to the application were the written consents of three adjacent property owners, Meehan, Ramsey and McClay, to the erection of a service station by Esso. Only their three properties were within one hundred feet of the main building which Esso proposed to erect. Subsequently, McClay revoked his consent. The building inspector and chairman of the borough zoning committee refused the application, and Esso appealed to the board of adjustment. The board held that since Esso had complied with all of the provisions of the borough's zoning ordinance, it was entitled to a building permit. From this decision the borough appealed to the county court contending that the consent of the owners in interest and number of a majority of all property within one hundred feet of the proposed structure was lacking. The applicant, Esso, upon petition to intervene was duly joined as a party respondent in the proceeding.

While the appeal was pending in the county court, the borough on November 28, 1956, by Ordinance No. 497, amended the zoning ordinance of 1953 to require an application for a building permit to be accompanied by the written consent of the owners of "eighty (80%)

[ 391 Pa. Page 151]

    per cent of all the property within one hundred ten (110) feet of the deed line of the property in ...


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