Appeal, No. 41, March T., 1963, from order of Court of Common Pleas of Allegheny County, July T., 1962, No. 207, in case of Arch Lhormer and Eugene Lebowitz v. Ralph D. Bowen, Borough Manager of Borough of Bethel Park. Order affirmed.
Owen B. McManus, with him Brandt, Riester, Brandt & Malone, for appellant.
Frank W. Ittel, with him John H. Demmler, and Reed, Smith, Shaw & McClay, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE EAGEN
This appeal is from the final ordr below in an action of mandamus directing that the defendant issue to the plaintiffs a building permit for the erection of an automobile service station.
The relevant facts in summary are as follows:
The plaintiffs, owners of land in the borough involved, on February 2, 1962, gave an option to purchase to the Humble Oil and Refining Company, conditioned upon the optionee's securing from the borough a permit to construct a gasoline service station thereon. Subsequently on March 16, 1962, the plaintiffs filed an application for such a permit. As of that date, the property was zoned Commercial District C-2, which zoning classification permitted such a use. The permit was refused on March 19, 1962.This action was instituted on April 5, 1962.
The refusal of the permit was based solely on the ground that when the application was filed, there was then pending before council an amending zoning ordinance prohibiting the use of plaintiffs' property for a service station. The facts incident to this facet of the case are these. Early in the year of 1961, the borough council directed its solicitor to prepare an ordinance reclassifying several hundred acres of land in the northwest section of the borough. The plaintiffs' land was included in this area. An ordinance to this effect was prepared and introduced before council on June 12, 1961. No action was taken except to refer it to the borough planning commission for study and review. The commission held many meetings and conferences
on the subject but no public hearings were held or no publication was given of the change contemplated, prior to the filing of its final report with council. On December 11, 1961, the commission submitted a unanimous report to council recommending that the rezoning be legislated. Under the proposed plan, plaintiffs' property, as well as others in the immediate area, was to be reclassified Commercial C-3, which would not permit a gasoline service station use. No determinative action was taken by council until March 12, 1962, when the solicitor was directed to prepare a zoning amendment ordinance in conformity with the commission's recommendations. This ordinance was introduced at the next meeting of council on April 11, 1962. After notice, a public hearing was held, May 7, 1962. The ordinance was finally adopted on May 14, 1962.
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 ...