Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Jared A. Cooper with Boron Oil Company v. The City of Greensburg and the Zoning Officer of the City of Greensburg, No. 230 October Term, 1973.
Joseph B. Mitinger, City Solicitor, for appellants.
A. C. Scales, with him John M. Campfield, for intervening appellants.
Thomas R. Ceraso, for appellee.
Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Kramer.
[ 14 Pa. Commw. Page 421]
This is an appeal filed by the City of Greensburg and the Zoning Officer of the City of Greensburg (appellants) from an order dated November 30, 1973, of the Court of Common Pleas of Westmoreland County dismissing a petition to open judgment filed by the appellants to an order of summary judgment in mandamus rendered in favor of Jared A. Cooper (Cooper) with Boron Oil Corporation.
For a better understanding of the result of this opinion, it will be necessary to highlight some of the historical background of the case. In October of 1955, the City of Greensburg (City) enacted a zoning ordinance which provided inter alia that if territory was annexed to the City, it would automatically become zoned R-1, a one-family residential district. In 1958, the City annexed from the Township of Hempfield certain territory which included 66.928 acres of land which eventually became the property of Cooper in 1967. Thereafter, Cooper applied under the zoning ordinance for four compliance building permits, one of which was for a gasoline service station comprising approximately 0.575 acres of said tract. The City refused to issue the permit and after much litigation, this Court on September 15, 1971, held the annexation zoning provision to be invalid, and ordered the issuance of the permits, one of which was for the gasoline service station. See Cameron v. Greensburg, 3 Pa. Commonwealth Ct. 209, 281 A.2d 271 (1971). The permits were issued and revalidated following our decision.
Cooper's original application for the permit was dated June 29, 1967. After this application was filed
[ 14 Pa. Commw. Page 422]
and before this Court's decision in Cameron, supra, the City, on April 14, 1971, adopted a new zoning ordinance covering the entire City.*fn1 Cooper received his permit as a result of the Cameron case, but in the meantime, he had lost his prospective tenant. He proceeded to perform certain excavation work to the entire tract preparatory to future construction for new tenants. On April 7, 1969, Cooper received the approval of the City of a subdivision plan, which was duly recorded. The filed subdivision plan contains some slight differences in the metes and bounds for that portion intended to be set aside for the gasoline service station, but the description of the property is substantially the same as the description set forth in the application for a permit filed in 1967. On February 16, 1973, Cooper (together with his wife as a tenant by the entirety) entered into an option agreement with Boron Oil Company for the sale of the 0.575 acre tract. It should be noted that Boron was not the same intended user of the subject property as was involved in the 1967 application for a permit. However, there can be no question that the intended usage of the property by Boron is the same as was intended in the 1967 application.
On June 14, 1973, apparently in accordance with directions given to him by the Zoning Officer of the City, Cooper presented an application for a new compliance permit in accordance with the provisions of the new zoning ordinance. This application was refused for the reason that the use Cooper ...