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ANDREW NOWAK AND LORRAINE NOWAK v. ZONING BOARD BRIDGEVILLE BOROUGH (12/04/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 4, 1987.

ANDREW NOWAK AND LORRAINE NOWAK, APPELLANTS
v.
THE ZONING BOARD OF BRIDGEVILLE BOROUGH, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Andrew Nowak and Lorraine Nowak v. Zoning Hearing Board of Bridgeville Borough, No. SA 1522 of 1985.

COUNSEL

Charles E. Boyle, Campbell, Sherrard & Burke, P.C., for appellants.

Robert L. Campbell, Brenlove & Campbell, for appellee.

Gilbert S. Merritt, Jr., Merritt and Purcell, for applicant, Dawson C. Wright, Sr.

Judges Craig and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 111 Pa. Commw. Page 471]

This is an appeal brought by Andrew Nowak and Lorraine Nowak, his wife (Nowaks), from an order of the Court of Common Pleas of Allegheny County*fn1 affirming the decision of the Zoning Hearing Board of Bridgeville Borough (Board), dated August 21, 1985, which determined that a neighboring landowner (Wright) has acquired a vested right in a building permit issued to him by the Borough's zoning officer. We affirm.

This case has been before this Court on three previous occasions.*fn2 The facts are essentially as follows.

[ 111 Pa. Commw. Page 472]

On July 28, 1980, Mr. Wright filed an application for a building permit with the Borough of Bridgeville setting forth the proposed construction of a garage on his lot contained in an R-2 residential zone. Under the Bridgeville Zoning Ordinance a side yard of eight feet is required.

The side yard of Mr. Wright's property abuts the rear yard of the Nowaks' parcel. The Nowaks' predecessor in title was a grantee to whom Mr. Wright

[ 111 Pa. Commw. Page 473]

    originally conveyed that parcel with a rear yard seven feet shorter than at present. Some time following the original conveyance of the parcel and prior to the enactment of the Borough's Zoning Ordinance, Mr. Wright conveyed a seven foot strip to the Nowaks' predecessor in title for the purpose of creating a larger rear yard. This conveyance operated to reduce Mr. Wright's side yard between an existing two-story garage and that rear yard to 1.8 feet.

The plot plan submitted by Mr. Wright with his application for the building permit did not reflect the conveyance of the seven foot strip. However, the Borough's zoning officer personally and physically inspected the proposed construction site and was aware that the new garage, to be attached to the existing garage, would be in violation of the zoning ordinance's eight foot side yard requirement. Nevertheless, the permit was issued*fn3 and Mr. Wright began construction that same day.

On September 2, 1980, the Nowaks appeared at a meeting of the Borough Council to complain about Mr. Wright's construction. The Council then directed the zoning officer to re-evaluate the issuance of the permit which ultimately resulted in the revocation of the permit by letter of September 12, 1980, at which time 90% of the construction had been completed.

Mr. Wright filed a notice of appeal from the revocation of his permit to the Board and further, requested a variance. The Board, on August 21, 1985, determined that Mr. Wright had acquired a vested right in the

[ 111 Pa. Commw. Page 474]

    building permit. The Nowaks appealed to the Court of Common Pleas of Allegheny County which affirmed the Board and dismissed their appeal. Hence, this appeal.

Where, as here, the trial court, in reviewing a zoning appeal has taken no evidence beyond that presented to the zoning hearing board, the Pennsylvania Supreme Court has stated that:

[T]he scope of our review is limited to determining whether the Board committed a manifest abuse of discretion or an error of law . . . . We may conclude that the Board abused its discretion only if its findings are not supported by substantial evidence. 53 P.S. § 11010 (1972); 2 Pa. C.S. § 754(b) . . . . By substantial evidence we mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . . . .

Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554-55, 462 A.2d 637, 639-40 (1983), (citations omitted).

The Nowaks argue first, that the trial court erred in concluding that Mr. Wright acquired a vested right in the building permit inasmuch as it was issued contrary to the zoning ordinance side yard setback requirements and was therefore void ab initio. They rely principally upon Klavon v. Zoning Hearing Board of Marlborough Township, 20 Pa. Commonwealth Ct. 22, 340 A.2d 631 (1975) for the proposition that a permit issued illegally or in violation of law, or under a mistake of fact, confers no vested right or privilege upon the person to whom it is issued, even though the person may have made expenditures in reliance on that permit.

We agree with the Nowaks but only to the extent that Klavon articulates a general rule of law. Therefore, our examination of the applicable law in this case cannot

[ 111 Pa. Commw. Page 475]

    end with the application of Klavon. We must go further and apply the rules set forth in Department of Environmental Resources v. Flynn, 21 Pa. Commonwealth Ct. 264, 344 A.2d 720 (1975) as adopted by our Supreme Court in Petrosky v. Zoning Hearing Board of the Township of Upper Chichester, 485 Pa. 501, 402 A.2d 1385 (1979).

Flynn instructs us that Klavon is the general rule but that the doctrine of vested rights may be applied as an exception to that general rule if the facts of a case so dictate.*fn4 Accordingly, we will proceed to apply the five Petrosky factors to determine whether Mr. Wright has acquired a vested right in the building permit issued to him by the Borough's zoning officer on July 28, 1980.*fn5

First, Mr. Wright must have used due diligence in attempting to comply with the law. His due diligence is evidenced by the fact that he properly applied for a building permit as did the landowner in Petrosky where due diligence was found. Mr. Wright did not let the permit lapse and immediately commenced his construction, unlike the landowner in Highland Park Community Club of Pittsburgh v. Zoning Board of Adjustment of the City of Pittsburgh, 509 Pa. 605, 506 A.2d 887 (1986) where due diligence was not found and the Court rejected the landowner's vested rights argument. Further, upon the revocation of his building permit Mr. Wright filed a timely appeal and, at the suggestion of the zoning officer, requested a variance.

[ 111 Pa. Commw. Page 476]

Second, Mr. Wright must have acted with good faith throughout the proceedings. The Nowaks allege that Mr. Wright submitted an erroneous plot plan with his application for the building permit which failed to show the true distance between the proposed garage and their property.*fn6 Were this the case, we would agree with the Nowaks. However, the Board and the trial court found that Mr. Wright at no time acted fraudulently or misrepresented any facts concerning the proposed construction. The Nowaks at no point in their brief acknowledge the fact that the Zoning Officer who issued the permit inspected the proposed construction site and testified that Mr. Wright personally demonstrated to him that the true side yard was only 1.8 feet.*fn7 Accordingly, we find that Mr. Wright acted with good faith throughout the proceedings.

Third, Mr. Wright must demonstrate that he expended substantial unrecoverable funds. The record is clear that at the time the permit was revoked, nearly two months after its issuance, Mr. Wright had completed 90% of the construction which had a total cost of over $6,400.00. We must conclude that to require Mr. Wright to dismantle his garage "would amount to

[ 111 Pa. Commw. Page 477]

    economic waste." Petrosky, 485 Pa. at 510, 402 A.2d at 1390.

Fourth, we must consider the fact that no appeal was taken from the issuance of the permit. The Nowaks observed the commencement of construction on the day the permit was issued. Accordingly, they had notice of its issuance. See Lycoming Burial Vault Co., Inc. v. Zoning Hearing Board of the Borough of Montoursville, 41 Pa. Commonwealth Ct. 294, 399 A.2d 144 (1979). They did contact the zoning officer and a member of the Borough Council to object to the building of the garage. However, the record is devoid of any evidence that they appealed from the issuance of the building permit in the manner consistent with Section 915 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10915.*fn8

Finally, we must consider the sufficiency of the evidence introduced to prove that individual property rights or the public health, safety or welfare would be adversely affected by the use of the permit. The Board and the trial court resolved this issue in favor of Mr. Wright. We agree. The Nowaks' only evidence on this issue was their own testimony that the garage obstructs the sun. However, they also testified that prior to the construction of the garage, they had planted a row of bushes along their rear property line which are ten feet tall. Accordingly, we cannot find that it was an error of

[ 111 Pa. Commw. Page 478]

    law for the Board and the trial court to conclude that the Nowaks' property rights were not adversely affected by Mr. Wright's garage.*fn9

Having examined the record and concluding that Mr. Wright has satisfied all of the requirements as set forth in Petrosky to establish his acquisition of a vested right in the building permit issued to him July 28, 1980, we affirm the trial court.*fn10

[ 111 Pa. Commw. Page 479]

Order

Now, December 4, 1987, the Order of the Court of Common Pleas of Allegheny County, entered July 28, 1986, at No. SA 1522 of 1985, is hereby affirmed.

Disposition

Affirmed.


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