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BORON OIL COMPANY v. L. C. KIMPLE (12/29/70)

decided: December 29, 1970.

BORON OIL COMPANY, A CORPORATION
v.
L. C. KIMPLE, BOROUGH MANAGER, ADMINISTRATIVE OFFICER OF THE ZONING ORDINANCE OF THE BOROUGH OF BEAVER



Appeal from the judgment of the Court of Common Pleas of Beaver County, Civil Division, No. 863 of 1968, in case of Boron Oil Company, a corporation, v. L. C. Kimple, Borough Manager, Administrative Officer of the Zoning Ordinance of the Borough of Beaver. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Robert L. Orr, with him Orr & Orr, for appellant.

Norman S. Faulk, Borough Solicitor, for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Barbieri. Opinion by Judge Barbieri, in support of the order per curiam. Dissenting Opinion by Judge Crumlish, Jr.

Author: Per Curiam

[ 1 Pa. Commw. Page 57]

The judgment of the Court of Common Pleas of Beaver County is affirmed upon opinion of Judge James E. Rowley.

Disposition

Affirmed on the opinion of Judge Rowley.

[EDIT ]

Opinion by Judge Barbieri, in support of the order per curiam, filed December 29, 1970:

I join with the majority, but feel that in disposing of this appeal some comment supplementing what the lower court has said is in order.

As an appellate review body I think we should affirm for two reasons. First, with the majority of this court I accept Judge Rowley's legal conclusions as set forth in his opinion of February 17, 1970, but I do so because I believe that his views are now supported by the Supreme Court's decision in the case of Mutzig v. Board of Adjustment of the Borough of Hatboro, 440 Pa. 455, 269 A.2d 694 (1970), decided on October 9, 1970. Although three opinions were filed in Mutzig,

[ 1 Pa. Commw. Page 58]

    there is unanimity that a zoning ordinance is considered to be "pending" when there is a ". . . public declaration by the municipality that it intended to rezone the area. . ." Lhormer v. Bowen, 410 Pa. 508, 511, 188 A.2d 747, 748 (1963).

My second reason is that there is sufficient legally competent evidence in the record in this case to support the controlling findings of the trial judge who sat and tried this case without a jury. In the en banc decision below, in discussing exceptions to the trial judge's holding and verdict, the following appears: ". . . we adopt the findings, conclusions, and discussion of the trial judge as the findings, conclusions, and discussion of the Court en banc."

Judge Rowley's findings which I believe are supported and are binding upon this court are contained in the following statement by him in his opinion: "Moreover, the zoning commission, pursuant to ยง 3206 of the Borough Code, on July 8, 1968, had given public notice of a public meeting at which it would present the new proposed zoning ordinance. This was a public declaration that the Borough intended to rezone the area in question. Under these circumstances we are of the opinion that the new zoning ordinance was 'pending' at the time plaintiff applied for its permit. For this reason defendant was justified in refusing to issue the permit requested by plaintiff. It is also to be noted that plaintiff, more than two weeks after public notice was given, and just two days before the public meeting of July 24, 1968, presented its application to the defendant. Thus, it is proper to conclude that plaintiff was attempting to establish a nonconforming use ...


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