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BOROUGH BROOKHAVEN v. DALE L. REESE (05/06/75)

decided: May 6, 1975.

BOROUGH OF BROOKHAVEN, APPELLANT,
v.
DALE L. REESE, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Borough of Brookhaven v. Dale L. Reese, No. 13784 of 1973.

COUNSEL

James P. Gannon, for appellant.

Francis R. Lord, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 19 Pa. Commw. Page 17]

The appellee, Dale L. Reese, acquired an equitable interest in a parcel of land located in a zoning district of the appellant, Borough of Brookhaven, Delaware County, in which apartment dwellings were and are a permitted use. As required by the zoning ordinance, Reese filed with Borough Council for its approval plans for the construction of 200 apartment units on February 22, 1971. The plans were approved on March 22, 1971. Borough Council then apparently experienced a change of heart and Reese was unable to obtain the building permit which should have followed. In December 1971, Reese commenced an action in mandamus in the Delaware County Court of Common Pleas seeking an order requiring the borough building inspector to issue the building permit. In February 1972, incident to that litigation, Reese and the borough entered into a written agreement by which the borough agreed that a permit would issue forthwith. A judge of the Court of Common Pleas of Delaware County directed the issuance of the permit in accordance with the agreement of the parties on March 10, 1972.

The building permit was issued on March 15, 1972. Reese paid a permit fee in excess of $4000, made final settlement for the land for the purchase price of $200,000 and commenced grading operations.

On June 2, 1972, Reese was advised by the borough building inspector that his building permit had been revoked. Reese thereupon filed a petition with the court

[ 19 Pa. Commw. Page 18]

    below seeking the attachment of the building inspector for contempt of the court's order of March 10, 1972. On October 6, 1972, after hearing, the court directed the building inspector to reissue the permit within 45 days. In early December 1972, Reese filed, and on December 15, 1972, Borough Council approved a revision of the plans, the most notable feature of which was a reduction in the number of units to 190. On December 15, 1972, the building permit was reissued.

In or about February 1973, the building inspector again notified Reese that his permit was revoked. Reese instituted a second contempt proceeding, and on July 24, 1973, the court below, after hearing, adjudged the building inspector to be in contempt of its order of March 10, 1972, and allowed him five days in which to purge himself by reissuing the permit. The permit was thereupon again reissued and Reese again commenced work on the tract, this time in accordance with the revised plans of December 1972 approved by Borough Council. It is noted that the borough did not appeal from any of the orders entered in the court proceedings just mentioned and that Reese never surrendered, and always maintained the validity of, the permit issued on March 15, 1972.

On December 23, 1973, the borough commenced the instant action in equity seeking a decree enjoining Reese from continuing construction of the project. It complained that the plans according to which the construction was then proceeding were not those on which the March 15, 1972 permit was issued, and that they are not in compliance with the borough zoning ordinance and another ordinance identified only as ordinance 310. This pleading disingenuously fails to mention that the plans in question, the revision by which ten units were deleted, were approved by council just before and incident to its reissuance of the ...


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