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JARED A. COOPER WITH BORON OIL COMPANY v. CITY GREENSBURG AND ZONING OFFICER CITY GREENSBURG V. WILLIAM B. COURTNEY AND ELIZABETH K. COURTNEY (09/08/76)

decided: September 8, 1976.

JARED A. COOPER WITH BORON OIL COMPANY, A CORPORATION
v.
THE CITY OF GREENSBURG AND THE ZONING OFFICER OF THE CITY OF GREENSBURG V. WILLIAM B. COURTNEY AND ELIZABETH K. COURTNEY, HIS WIFE; HARRY DANIELS; RAE M. DANIELS; WILLIAM T. DOM, III AND MARGARET B. DOM, HIS WIFE; ELWOOD S. BAKER AND MARTHA J. BAKER, HIS WIFE; BERNARD P. WALKER AND BEVERLY J. WALKER, HIS WIFE; JOHN M. BACESKI AND HELEN M. BACESKI, HIS WIFE; PAUL G. NOLDER AND DONNA L. NOLDER, HIS WIFE; WILLIAM B. SAUTTER AND ALICE I. SAUTTER, HIS WIFE. WILLIAM B. COURTNEY ET AL., APPELLANTS



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Jared A. Cooper with Boron Oil Company, a corporation v. The City of Greensburg and The Zoning Officer of the City of Greensburg, Defendants, and William B. Courtney and Elizabeth K. Courtney, his wife; Harry Daniels; Rae M. Daniels; William T. Dom III and Margaret B. Dom, his wife; Elwood S. Baker and Martha J. Baker, his wife; Bernard P. Walker and Beverly J. Walker, his wife; John M. Baceski and Helen M. Baceski, his wife; Paul G. Nolder and Donna L. Nolder, his wife; William B. Sautter and Alice I. Sautter, his wife, No. 230 October Term, 1973.

COUNSEL

John M. Campfield, with him A. C. Scales, for appellants.

Charles F. Wade, with him Thomas R. Ceraso, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Mencer.

Author: Crumlish

[ 26 Pa. Commw. Page 247]

For the past nine years, Jared A. Cooper and the City of Greensburg (City) have been engaged in litigation over Cooper's right to construct a gasoline station on land which he owns in the City. Hopefully, this will be the last chapter in that struggle.

Presently before us is the City's appeal from an order of the Court of Common Pleas of Westmoreland

[ 26 Pa. Commw. Page 248]

County, sitting en banc, which dismissed the exceptions filed by the City and several of its residents (Intervenors) and which affirmed the decree nisi of the court which granted Cooper's petition for mandamus and ordered the issuance of the permits required for construction of Cooper's gasoline station. We affirm.

We will first summarize the facts and complicated litigation history of this case. In 1967, Cooper acquired 66.928 acres of land in the City. The land was part of territory which had been annexed by the City from a neighboring township in 1958. When the City annexed the territory, it had a zoning ordinance which provided that territory annexed to the City would automatically become zoned single-family residential (R-1). In June, 1967, Cooper applied for certain building permits for the portion of this newly annexed land which he had acquired from the City. One of the permits, the one with which we are here concerned, was for the construction of a gasoline service station on approximately 0.575 acres of the tract. The permit application was refused. After much litigation, this Court, in an opinion written by Judge Wilkinson, held invalid the City's automatic zoning ordinance and ordered the necessary certificates of compliance and occupancy to be issued. Cameron v. Greensburg, 3 Pa. Commonwealth Ct. 209, 281 A.2d 271 (1971).*fn1 After this decision, Cooper, although he had lost a prospective tenant during the pendency of the litigation, began excavation work on his land in preparation for new tenants. However, prior to our decision in

[ 26 Pa. Commw. Page 249]

    judgment and remanded the matter for the making of a record. City of Greensburg v. Cooper, 14 Pa. Commonwealth Ct. 419, 322 A.2d 152 (1974). In an opinion written by Judge Kramer, we held that our decision in Cameron v. Greensburg, supra, gave Cooper a "vested right" to the permits requested in the 1967 application, not because he had purchased his property prior to the effective date of the 1971 zoning ordinance, but, rather, because the permits had been applied for before the 1971 zoning ordinance was "pending." In City of Greensburg v. Cooper, supra, we also held that there was an issue of fact as to whether Cooper's original compliance and building permits (the ones issued after our decision in Cameron v. Greensburg), had been abandoned because they had not been renewed. Apparently, the lower court did not have Cooper's 1973 application before it, only his 1971 application and the 1973 subdivision plan. Finding that the court below not only misinterpreted our decision in Cameron v. Greensburg but also failed to recognize the existence of issues of fact, we remanded the matter.

In May, 1975, after hearings were held, the court below again ordered that the requested permits be issued. The City's exceptions were dismissed and the dismissal was affirmed by the court below sitting ...


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