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RAYMOND J. FASSMAN v. STANLEY A. SKROCKI ET AL. (08/23/78)

decided: August 23, 1978.

RAYMOND J. FASSMAN, APPELLANT
v.
STANLEY A. SKROCKI ET AL.



Appeal from the Orders of the Court of Common Pleas of Northampton County in case of Raymond J. Fassman v. Stanley A. Skrocki, John Daumer, James DeLucia, Edward Daumer, Sandra Oswald, Howard Dotter, John Eberhardt, Charles Kramer, Alvin Hoffman, Andrew Magochy and John Mauruk, No. 203 August Term, 1973.

COUNSEL

Gary M. Miller, with him Morris Mindlin, for appellant.

Sandor Engel, with him Clayton T. Hyman, and Coleman and Hyman, for appellees.

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

Author: Disalle

[ 37 Pa. Commw. Page 303]

This is an appeal from an order of the Court of Common Pleas of Northampton County which dismissed two consolidated actions brought by Raymond

[ 37 Pa. Commw. Page 304]

J. Fassman (Builder), challenging the validity of a zoning ordinance and the revocation of building permits issued to him.

In June, 1972, the Builder acquired a number of building lots in the Borough of Northampton. At that time, the Northampton Borough Zoning Ordinance No. 43 of 1948, as amended, was in effect and the lots which the Builder acquired were in an R-2 district, which permitted the erection of twin duplex dwellings. Section 901(b) of this ordinance required continuous and uninterrupted construction to commence within sixty days of the issuance of any building permit, although an extension could be granted when authorized as a special exception.

On December 4, 1972, and on July 6, 1973, certain building permits were issued to the Builder to permit the erection of twin duplex dwellings on the lots which he had acquired. On June 26 and July 3, 1973, Northampton Borough Council published in two newspapers notice of public hearing on a proposed zoning ordinance for the Borough. The zoning map accompanying the proposed ordinance made no change in the district wherein Builder's lots were located.

On July 11, 1973, after the issuance of the permits to the Builder, he and his attorney attended the public hearing and urged council that the district wherein his property was located be zoned less restrictively than it had been under the 1948 ordinance. At the same hearing, a number of residents urged that the district be reclassified to R-1, a more restrictive classification.*fn1 On July 16, 1973, Northampton Borough Council adopted the proposed ordinance. In it, the district encompassing Builder's property was classified R-1.

[ 37 Pa. Commw. Page 305]

On August 14, 1973, pursuant to Section 1003 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11003, the Builder filed an action in the lower court challenging the validity of the new ordinance. On September 13, 1973, the Northampton Borough zoning officer revoked the building permits previously issued to the Builder under the 1948 ordinance. The Builder then filed, on October 3, 1973, an action in mandamus in the lower court requesting the court to order that the building permits be reissued. This second suit was instituted without first appealing the zoning officer's action to the Zoning Hearing Board. With respect ...


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