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BORON OIL COMPANY v. KIMPLE (12/20/71)

decided: December 20, 1971.

BORON OIL COMPANY, APPELLANT,
v.
KIMPLE



Appeal from order of Commonwealth Court, No. 986 of 1970, in case of Boron Oil Company v. L. C. Kimple.

COUNSEL

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

Norman S. Faulk, Solicitor, Borough of Beaver, for appellee.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Barbieri took no part in the consideration or decision of this case.

Author: Roberts

[ 445 Pa. Page 328]

On July 22, 1968, appellant Boron Oil Company applied to the Borough of Beaver for a building permit for the construction of a gasoline station on property which it owned in the Borough. On the following day, the Borough Manager notified appellant that the Borough was in the process of revising its present zoning ordinance and that the requested permit could not issue

[ 445 Pa. Page 329]

    for the reason that the proposed rezoning, if adopted, would prohibit a service station at appellant's site.

Appellant thereafter brought an action of mandamus to compel the issuance of the permit. Following trial without a jury in the Court of Common Pleas of Beaver County, judgment was entered against appellant. The Commonwealth Court affirmed, and we allowed a further appeal to this Court. For reasons which follow, we likewise affirm.

It is the settled law of this Commonwealth "that a building permit may be refused if at the time of application there is pending an amendment to a zoning ordinance which would prohibit the use of the land for which the permit is sought." Hertrick Appeal, 391 Pa. 148, 153, 137 A.2d 310, 313-14 (1958); see also Shender v. Zoning Board of Adjustment, 388 Pa. 265, 131 A.2d 90 (1957); A. J. Aberman, Inc. v. New Kensington, 377 Pa. 520, 105 A.2d 586 (1954); Gold v. Building Committee of Warren Borough, 334 Pa. 10, 5 A.2d 367 (1939). Accordingly, the sole and dispositive issue in this appeal is whether such an ordinance was "pending" as of the date of appellant's application for a building permit. In resolving this issue, the following chronology is of note:

April 12, 1966 -- Borough Council creates Planning Commission to consider a new zoning scheme for the Borough and appoints its members.

July 11, 1967 -- Borough Council and Planning Commission meet to ...


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