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GALLAGHER v. BUILDING INSPECTOR (11/12/68)

decided: November 12, 1968.

GALLAGHER
v.
BUILDING INSPECTOR, CITY OF ERIE, APPELLANT



Appeal from judgment of Court of Common Pleas of Erie County, No. 265-A of 1968, in case of Richard L. Gallagher et ux. v. Building Inspector, City of Erie.

COUNSEL

A. L. Gambatese, Assistant City Solicitor, with him James G. Hanes, City Solicitor, for appellant.

Irving Murphy, with him MacDonald, Illig, Jones & Britton, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno did not participate in the decision of this case. Concurring Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell joins in this concurring opinion.

Author: O'brien

[ 432 Pa. Page 302]

This is an appeal by the defendant, Building Inspector of the City of Erie, from the grant of the plaintiffs' motion for summary judgment, and the order to issue the building permits in question. Appellees had acquired certain property in the City of Erie suitable for the construction of town houses. Building permits were issued to appellees on december 12, 1966.

After protests by the neighbors in January, 1967, the City Solicitor advised appellees that their building permits were suspended. On March 9, 1967, the City of Erie amended its Zoning Ordinance, so that a six-block area, including appellees' land, was reclassified from "B" residential to "A" residential, thus prohibiting the erection of town houses. On March 17, 1967, the building permits were revoked. Appellees then brought this action in mandamus to require the permits

[ 432 Pa. Page 303]

    to be reissued. The court below granted plaintiffs' motion for summary judgment, held appellee had a vested right in the permits, and ordered the permits reissued. This appeal followed.

[ 432 Pa. Page 304]

Appellant urges that the appellees acquired no vested right by virtue of the issuance of the building permits. Appellant relies chiefly upon the allegation that appellees spent no money and incurred no liabilities in reliance upon their permits. Although this factual question is hotly disputed, for the purpose of the motion for summary judgment, we must assume appellant's allegations to be true. Appellant's main authority for the proposition that an outlay of money or an incurring of liabilities is required is Penn Twp. v. Yecko Bros., 420 Pa. 386, 217 A.2d 171 (1966). This Court there stated: "We have held in a long line of cases that even when an applicant is issued a building permit, unless he proceeds in good faith to incur substantial obligations in reliance thereon, the permit may be vacated or revoked if an amendment to the zoning ordinance or subsequent adoption of such an ordinance prohibits the proposed use of the land. The rule established by these cases was designed to prevent the creation of what would become a nonconforming use after the effective date of a pending zoning ordinance. It has been generally acknowledged that when a property owner in good faith has expended money or incurred liability in reliance on a building permit which he obtained under an existing ordinance, he acquires a vested right which entitles him to protection against a change in the zoning ordinance." See also Penn Twp. v. Fratto, 430 Pa. 487, 244 A.2d 39 (1968); Honey Brook Twp. v. Alenovitz, 430 Pa. 614, 243 A.2d 330 (1968); Aberman, Inc. v. New Kensington, 377 Pa. 520, 105 A.2d 586 (1954); A. N. "Ab" Young Co. Zoning Case, 360 Pa. 429, 61 A.2d 839 (1948); and Gold Page 304} v. Bldg. Com. of Warren Boro., 334 Pa. 10, 5 A.2d 367 (1939).

However, all of the above cited cases differ from the instant case in one material respect. They all involved cases where a zoning ordinance was pending at the time the building permit was applied for. They involved races to create nonconforming uses before the passage of a pending ordinance.

This Court in Penn Twp. v. Yecko Bros., supra, noted: "Throughout the cases in which the rule appears there runs the dominating theme of fairness and good faith." Fairness there dictated against the claims of a ...


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