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BOROUGH BROOKHAVEN AND WILLIAM WETTEN v. ALBERT D. PARK (11/08/79)

decided: November 8, 1979.

BOROUGH OF BROOKHAVEN AND WILLIAM WETTEN, APPELLANTS
v.
ALBERT D. PARK, III, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Albert D. Park, III v. Borough of Brookhaven and William Wetten, No. 77-9794.

COUNSEL

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

Vincent B. Mancini, with him Kassab, Cherry, Curran and Archbold, for appellee.

Judges Rogers, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 47 Pa. Commw. Page 224]

On March 9, 1976 Albert D. Park, III, by an agent, submitted building plans for an addition to his commercial building located in the Borough of Brookhaven to the borough building inspector. It is agreed that the proposed addition conformed to the then zoning regulations. A few weeks later the plans got back into Park's hands for the supply of more construction details. On April 19, 1976 the Borough of Brookhaven caused due public notice of a new proposed comprehensive zoning ordinance to be given by advertisement in local newspapers. Park's proposal did not conform to the new regulations. On August 16, 1976 Park resubmitted his plans for the addition with details. On May 2, 1977 Borough Council rejected Park's plans. On May 9, 1977 the new comprehensive zoning ordinance of the Borough of Brookhaven was adopted.

The present litigation was begun with Park's complaint in mandamus in which he sought an order requiring

[ 47 Pa. Commw. Page 225]

    the issuance of the building permit for his addition. Park alleged that he had applied for a permit in March 1976. The Borough of Brookhaven answered that Park made no application for a permit in March 1976 and that when he did apply in August 1976 the Borough then had pending its new comprehensive zoning ordinance, later adopted, which did not allow the proposed addition. After evidence was adduced Park filed a motion for summary judgment which the Court of Common Pleas granted, concluding that Park had indeed applied for a permit on March 9, 1976, a date before that on which the Borough first gave public notice of its proposal to adopt a new comprehensive zoning ordinance.

The Borough contended below, and still contends, that Park made no application on March 9, 1976. It is true that Park did not execute a formal application. However, on that date an agent for Park submitted plans with a letter explaining what was intended, concerning which the building inspector agreed in his deposition "that on March 9 [1976] Mr. Park made application to extend his building and to start to seek approval for a building permit." It is true that the plans first submitted found themselves back in Park's hands. This circumstance is, however, described by the building inspector as follows:

Q. You said on March 9th, 1976, you received the plans and you thereafter, I would assume, within days or a week or something communicated with Mr. Park.

A. Correct.

Q. At that time, what was the purpose of your communication?

A. Well, actually, I think what happened was Mr. ...


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