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BOROUGH MIDDLETOWN v. AGWAY PETROLEUM COMPANY (03/29/79)

decided: March 29, 1979.

BOROUGH OF MIDDLETOWN, APPELLANT
v.
AGWAY PETROLEUM COMPANY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Agway Petroleum Company v. Borough of Middletown, Pennsylvania, No. 3539 Equity Docket, dated October 20, 1977.

COUNSEL

Michael H. Schaeffer, for appellant.

Robert L. Knupp, with him Knupp and Andrews, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson, Jr. Dissenting Opinion by Judge Mencer.

Author: Wilkinson

[ 41 Pa. Commw. Page 437]

In this appeal appellant, Borough of Middletown (Borough), challenges an order in mandamus of the Court of Common Pleas of Dauphin County*fn1 directing the Borough to reissue a building permit to appellee, Agway Petroleum Company (Agway), and awarding damages for the Borough's erroneous revocation of a building permit. We affirm.

The facts underlying this appeal are not disputed. Following discussions with officials of the Borough and the Lower Dauphin Code Enforcement Agency*fn2 a building permit was issued to Agway for construction of a self-service gasoline station for the exclusive

[ 41 Pa. Commw. Page 438]

    use*fn3 of the residents of Pineford Village a planned residential development (PRB) located in the Borough. Construction on the project was started on June 1, 1976 and by June 16, 1976 was two-thirds completed at a cost of about $20,000. On this latter date, pursuant to action taken at Borough Council's regular meeting on June 15, 1976, Agway was ordered to stop construction. By letter dated June 24, 1976, Borough Council revoked the building permit on the ground it had been issued in contravention of Borough zoning ordinances and was therefore illegal. The present litigation ensued.

The court below was persuaded that Agway had acquired a vested right in the building permit issued on April 29, 1976 making the Borough's subsequent revocation improper. Although the courts of this Commonwealth have had a number of opportunities to consider it in the past, "the concept of a claim of 'vested right', lacks a precise niche in zoning terminology."*fn4

As announced by this Court, the general rule is that "one claiming a vested right in a building permit must establish that the application was made in good faith, that a substantial commitment or expenditure was made in justifiable reliance upon the granting of the permit, and that the permit was issued lawfully under zoning law then existing." Cooper v. City of Greensburg, 26 Pa. Commonwealth Ct. 245, 251, 363 A.2d 813, 815 (1976).

The only material point of disagreement between the parties concerns the validity of the permit at the time of issuance. To ...


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