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RONALD PETROSKY AND PATRICIA PETROSKY v. ZONING HEARING BOARD TOWNSHIP UPPER CHICHESTER (07/06/79)

decided: July 6, 1979.

RONALD PETROSKY AND PATRICIA PETROSKY, HIS WIFE, APPELLANTS,
v.
THE ZONING HEARING BOARD OF THE TOWNSHIP OF UPPER CHICHESTER, DELAWARE COUNTY, PENNSYLVANIA, AND TOWNSHIP OF UPPER CHICHESTER DELAWARE COUNTY, PENNSYLVANIA, APPELLEES



No. 298 January Term, 1977, Appeal from the Order of the Commonwealth Court of Pennsylvania, at No. 1545 C.D. of 1975, dated October 21, 1976

COUNSEL

Ronald J. Klimas, Media, for appellants.

John Nails, Chester, for appellee, Zoning Hearing Bd.

Peter Nolan, Chester, for appellee, Upper Chichester Tp.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Pomeroy, former Justice did not participate in the consideration or decision of this case. Eagen, C. J., concurred in the result. Larsen, J., filed a dissenting opinion.

Author: Manderino

[ 485 Pa. Page 505]

OPINION

Appellants, Ronald Petrosky and Patricia Petrosky, husband and wife, obtained an option to purchase a parcel of ground from the husband's father. The parcel under option was part of a larger parcel to which the husband's father held legal title. After obtaining the option to purchase, appellants submitted a request to the Township of Upper Chichester for permission to erect a garage on the premises to be used for the housing of trucks. In requesting permission, appellants advised the Township that they had an option to purchase the premises. Zoning, building, and use permits were issued by the Township. Subsequently, on July 11, 1973, appellants, having exercised their option, the property was conveyed to them. Soon thereafter, appellants began constructing the garage expending more than $15,000. During the construction period the Township building inspector visited the site at least three times. During one of these visits the inspector gave advise concerning the proper location of footings for the building. At no time during the construction of the building were any complaints presented to either appellants or township officials. Appellants began using the garage after its completion. The appellants' property is located in a light industrial zone and the property's use as a garage is a permitted use in that zone. An auto transmission repair garage is located next to the appellants' property.

About seven months after the completion of the garage, the Township determined that the garage, although located and constructed in accordance with the permits that had been issued, was in violation of the setback requirements of the zoning ordinance. Under the appropriate section of that ordinance a fifty foot setback from a street line and a twenty-five foot setback from an adjoining property line was required. Appellants' garage, as constructed, was 7.5 foot from the street line and 11 foot from an adjoining property line. As a result of its determination, the Township notified appellants that it was revoking all of the

[ 485 Pa. Page 506]

    permits, upon which appellants had relied in constructing their garage, and ordered appellants to remove the garage or alter it to comply with the setback requirements.

Appellants then commenced an action in the Court of Common Pleas of Delaware County requesting a declaratory judgment of their right to maintain the existing use of their property. By agreement of the parties, the court, while retaining jurisdiction, delayed consideration of the matter in order that the parties might first submit the dispute to the Township's Zoning Hearing Board. After hearing, the Zoning Board denied relief. On appeal, the Court of Common Pleas reversed, concluding that appellants were permitted to continue their use for two reasons. First, because they had acquired a vested right in the permits issued; and, second, because they were entitled to a variance. On appeal to the Commonwealth Court the order of the Court of Common Pleas was reversed and the order of the Zoning Board was reinstated. Zoning Hearing Board, Township of Upper Chichester v. Petrosky, 26 Pa. Commw. 614, 365 A.2d 184 (1976). This Court then granted appellants' petition for allowance of appeal.

Because we conclude that appellants have acquired a vested right in the existing use of their property, it is not necessary that we consider the variance issue. In Commonwealth of Pennsylvania, Department of Environmental Resources v. Flynn, 21 Pa. Commw. 264, 344 A.2d 720 (1975), the Commonwealth Court applied the doctrine of vested rights observing:

"Ryan, in his scholarly work, discusses the applicability of the vested right doctrine to situations where a municipality has erroneously issued a building permit. His conclusion at Section 8.3.2 seems to be that after the appeal period has expired and the owner has incurred significant non-recoverable costs in reliance on the permit, the owner's good faith reliance on the permit should afford him a vested right to complete the work, albeit the permit was issued in error. Support for such a doctrine is found by him in cases such as Heidorn Appeal, 412 Pa. 570, 195 A.2d

[ 485 Pa. Page 507349]

(1963); Sheedy v. Zoning Board of Adjustment, 409 Pa. 655, 187 A.2d 907 (1963); Moyerman v. Glansberg, 391 Pa. 387, 138 A.2d 681 (1958), and Al Monzo Construction Company, Inc. v. Monroeville Borough, 5 Pa. Commw. 97, 289 ...


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