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B.B. & C. CONSTRUCTION v. TOWNSHIP BENZINGER (11/19/81)

decided: November 19, 1981.

B.B. & C. CONSTRUCTION, INC., APPELLANT
v.
TOWNSHIP OF BENZINGER, APPELLEE



Appeal from the Order of the Court of Common Pleas of the 59th Judicial District, Elk County Branch, in case of B.B. & C. Construction, Inc. v. Township of Benzinger, No. 79-266.

COUNSEL

John R. Fernan, Cartwright, Fernan & Whitney, for appellant.

Thomas G. Wagner, Meyer & Wagner, for appellee.

Judges Rogers, Blatt and Craig, Sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 62 Pa. Commw. Page 488]

B.B. & C. Construction, Inc. has appealed an order of the Elk County Court of Common Pleas upholding the Benzinger Township Board of Supervisor's decision to deny B.B. & C. building permits. We affirm.

B.B. & C. owned six adjacent lots in Benzinger Township's R-U zoning district. In January, 1977, B.B. & C. applied for and was granted special exceptions for the construction of one six-unit apartment building on each of its six lots and building permits good for two years were issued on January 28, 1977. Under the existing township regulations, B.B. & C.

[ 62 Pa. Commw. Page 489]

    was required to commence the work authorized by each of the permits within six months or the permits would be void.

In July, 1977, the township made amendments to its zoning ordinance by virtue of which six-unit apartment buildings were no longer uses permitted by special exception or indeed otherwise permitted in the R-U zone. In January, 1979, B.B. & C. applied to renew five of the building permits. At this time, B.B. & C. had completed one apartment building and had begun foundation work on a second. No building had been begun on the remaining four sites. The township renewed the permit for the site with the foundation but refused permits for the remaining four sites because construction had not begun on the lots within six months of their issuance in January of 1977. B.B. & C. then made applications for four new building permits for the four remaining units but these were refused because six-unit apartment buildings were no longer permitted uses in the R-U district.

B.B. & C.'s principal contention on this appeal is that it had a vested right to complete the remaining four units because it spent about $3,000 in improvements at the site.

One claiming a vested right in a permit must establish that his application was made in good faith, that he made a substantial commitment or expenditure in justifiable reliance upon the permit and that the permit was lawfully issued under existing zoning law, Borough of Middletown v. Agway Petroleum Company, 41 Pa. Commonwealth Ct. 436, 400 A.2d 647 (1979); Klavon v. Zoning Hearing Board of Marlborough Township, 20 Pa. Commonwealth Ct. 22, 340 A.2d 631 (1975).

There is no evidence that B.B. & C.'s applications for the four permits in question were not sought in good faith or that ...


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