Opinion
May 2, 1962.
January 8, 1963.
Municipalities — Zoning — Application for special exception — Board of adjustment — Decision — Timeliness — Property owner — Vested right to build structure — Pending ordinance — Effect — Act of August 25, 1959, P. L. 760.
1. In this zoning case in which it appeared that the property owner, under the authorization of special exceptions and a variance, built a 12 story office building on approximately 3 acres of a 7 acre tract; and when this building was nearing completion, submitted an application for a building permit to construct another 12 story office building on the tract and requested similar special exceptions which were refused; that the board of adjustment held a public hearing on October 22, 1959 and immediately after this public hearing discussed the merits of the application, and probably discussed it again in executive session on November 24th; and thereafter on December 4th the board, through its secretary, issued a written opinion refusing the requested special exceptions and sustaining the action of the director of building regulations; and two weeks later, in its next regular public meeting, the board unanimously adopted a motion approving the order dated December 4, 1959 and recorded it in the minutes of the public meeting; and it further appeared that the property owner had applied for a permit to construct the proposed building on October 1, 1959, at which time such a structure was a permitted use if the property owner obtained two special exceptions, that on July 15, 1959 the township commissioners had fixed October 22, 1959 as the date for a public hearing on a proposed amendment to the zoning ordinance providing that in a "CO" district floor area would be limited to 50% of lot area, that on November 18, 1959 the township commissioners passed this amendment to the zoning ordinance which became effective on December 4, 1959; and the decision of the board of adjustment on the same date denying the application was on the basis that the zoning amendment prohibited the proposed structure, it was Held that (1) the opinion issued by the board of adjustment through its secretary on December 4, 1959 was a timely "decision" within the meaning of the Act of August 25, 1959, P. L. 760, § 1 (which provides that "The board of adjustment shall . . . decide the . . . [appeal] within 45 days after the hearing;" (2) the property owner had not acquired a vested right to build the second office building in violation of the amended zoning ordinance because of the issuance of the building permit to build the first building, and (3) the zoning board of adjustment had properly denied the application as being In violation of the amended ordinance even though the application for a building permit was filed prior to the amendment.
2. A vested right to build in the future a structure which violates a zoning ordinance can only be acquired by first securing a permit and thereafter expending substantial sums in reliance thereon.
3. An application for a building permit may be refused when the proposed building or use will violate a zoning ordinance which is pending in the board of commissioners, even though the ordinance is enacted after application for the permit.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.
Appeal, No. 251, Jan. T., 1962, from order of Court of Common Pleas of Montgomery County, Nov. T., 1959, No. 45, in case of Beverly Building Corporation v. Board of Adjustment of Lower Merion Township and The Neighborhood Club, Inc. Order affirmed.
Same case in court below: 28 Pa. D. C.2d 761.
Proceedings on appeal from decision of board of adjustment refusing to grant special exceptions.
Order entered affirming board's decision, opinion by HONEYMAN, J. Property owner appealed.
Robert L. Trescher, with him S. Jonathan Emerson, and Montgomery, McCracken, Walker Rhoads, for appellant. Lewis H. Van Dusen, Jr., with him Robert S. Ryan, and Drinker, Biddle Reath, for appellees.
Francis E. Shields, with him Albert W. Schiffrin, and Pepper, Hamilton Scheetz, for intervenor.
The order of the court below is affirmed on the opinion of Judge HONEYMAN of the Court of Common Pleas of Montgomery County, 28 Pa. D. C.2d 761.