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BP OIL v. ZONING HEARING BOARD BOROUGH BROOKHAVEN (08/16/78)

decided: August 16, 1978.

BP OIL, INC., APPELLANT
v.
ZONING HEARING BOARD OF THE BOROUGH OF BROOKHAVEN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in case of BP Oil, Inc. v. Zoning Hearing Board of the Borough of Brookhaven, No. 76-5390.

COUNSEL

Reese A. Davis, with him Greenwell, Porter, Smaltz & Royal, for appellant.

James P. Gannon, with him Beagan, Gannon and Barnard, for appellee.

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

Author: Blatt

[ 37 Pa. Commw. Page 259]

The Appellant, BP Oil, Inc., appeals here from an order of the Court of Common Pleas of Delaware

[ 37 Pa. Commw. Page 260]

County. In 1976 it had applied for and had been denied a permit to erect a gasoline station on its property in Brookhaven Borough. It had been given a zoning map by the zoning hearing officer of the Borough showing the property to be in a "C" commercial district and it was advised that gas stations were not a permitted use there. The record indicates that the property concerned had been originally zoned in 1960 as "C" commercial, a zone in which gasoline stations were a permitted use, but that an amendment made in 1964 eliminated all "C" commercial districts and created an "A" commercial district wherein gas stations are not permitted and a "B" commercial district wherein they are permitted. The Appellant's property was therefore rezoned "A" commercial, with appropriate changes to the zoning map approved and adopted. The 1975 edition of the map, however, did not reflect these changes but designated "C" and "B," instead of "A" and "B," commercial districts. The Appellant petitioned the Brookhaven Zoning Hearing Board (Board) requesting a variance*fn1 and in the alternative challenging the validity of the ordinance. The Board denied both the request for the variance and the challenge to the ordinance and it was affirmed on appeal to the lower court. This appeal followed.

Our scope of review when the lower court has not taken additional evidence is to determine whether or not the Board abused its discretion or committed an error of law. Schaffer v. Zoning Hearing Board, 32 Pa. Commonwealth Ct. 261, 378 A.2d 1054 (1977).

The Appellant argues first that the 1964 amendment to the zoning ordinance is invalid because a zoning map was never prepared correctly designating the "A" and "B" commercial districts nor was there

[ 37 Pa. Commw. Page 261]

    a metes and bounds description showing which properties had been rezoned. Our Supreme Court has said that "[w]hile it is undoubtedly true that a property owner has no vested interest in an existing zoning map . . . the zoning ordinance and its accompanying zoning maps should nevertheless at any given time reflect the current planned use of the community's land so as to afford as much notice as possible." Eves v. Zoning Board of Adjustment, 401 Pa. 211, 218, 164 A.2d 7, 11 (1960).*fn2 The Board argues that because the zoning map here specifically designated "B" and "C" commercial districts, the mere failure to reflect a change in the lettering from "C" to "A" on the map cannot invalidate the ordinance, and it emphasizes that the law is clear that a zoning ordinance is presumed to be valid and the burden of establishing its invalidity is upon the one who challenges it. Campbell v. Zoning Hearing Board, 10 Pa. Commonwealth Ct. 251, 310 A.2d 444 (1973). The Board also notes that the map in existence at the time the Appellant applied for a variance clearly defined two separate commercial districts, and, inasmuch as the amendment had ...


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