5 Pa. Commw. 97 | Pa. Commw. Ct. | 1972
Opinion by
This is an appeal by the Borough of Monroeville from a final order of the Court of Common Pleas of Allegheny County nullifying the revocation by the Borough of a use permit and enjoining it from interfering with the appellees’ performance of excavation work on lands owned by them. Our consideration of this matter has been rendered unusually arduous by the fact that the appellant has filed a monumental brief, 17 pages of which are taken up with a history of the case detailing activities, negotiations, correspondence, conversations
The essential facts follow:
The appellees own land in the Borough of Monroe-ville on which is located an embankment which appellees desire to excavate for the asserted purposes of enlarging the parking lot of a restaurant located on the tract and of obtaining fill for use at another building project. The Borough zoning ordinance required that a conditional use permit should be obtained from Borough Council for major excavation. The appellees, apparently after performing some excavation without a permit, did on the insistence of the Borough apply for a conditional use permit. After some delay on the part of Borough Council, the permit was ordered to be issued, subject, however, to a number of conditions. Two of these conditions became of later importance: one, that the slope be at a grade of two feet lateral to one foot of height, and the other, that appellees post an indemnity bond with corporate surety in the amount of $50,000. The appellees filed a zoning appeal pursuant to Section 712 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P. L. , 53 P.S. §10712, averring chiefly that the requirement of indemnity bond in the amount of $50,000 was arbitrary and capricious and contrary to law. Extensive pleadings were filed but the matter was settled before hearing by stipulation of the parties. The principal effect of the stipulation was the requirement of liability insurance in lieu of the $50,000 indemnity bond. The hearing judge ordered the case settled and discontinued “in accordance with the above stipulation.” The appellees then proceeded with the excavation. The Borough engineer inspected the works and found that the slope of the embankment being created was steeper than that specified in the original conditions and included by
The appellant’s contention that it properly revoked the permit because it later ascertained that one of the purposes of the excavation was to provide the location for a use of the property not conforming to zoning regulations is likewise untenable. Not only was there no proof that this was the appellees’ intention, said intention if proved would provide no reason for prohibition of the otherwise lawful activity of excavating the lot. As the trial judge pointed out at the hearing, the Borough was not required to grant relief from its zoning restrictions simply because the lot would physically accommodate a proscribed use.
The court below had the power to enforce the agreement made in this litigation. Woodbridge v. Hall, 366 Pa. 46, 76 A. 2d 205 (1950). Our examination of the record against the court’s order, however, persuades us that the finding therein that the Borough had pursued a general policy of harassment of the appellant, and those portions of the order limiting Borough inspection
The order of the court below is modified so as to delete therefrom the finding of harassment by the Borough and those portions thereof limiting inspection by the Borough to once a week with an attending report to the Court and enjoining it from taking action relative to performance under the permit without prior approval of the court; as so modified, it is affirmed.