367 Pa. 626 | Pa. | 1951
Lead Opinion
Opinion by
Perry A. Garrett, appellant, petitioned for declaratory judgment under the provisions of the Uniform Declaratory Judgments Act of June 18, 1923, P.L. 840, 12 PS §§831-846, as amended, asking that the erection of a public gasoline service station on the northeast corner of Beaver and Third Streets in the Borough of Beaver be declared a valid and lawful use of the premises. The lower court dismissed the petition and directed the Borough Council not to issue a building permit for the structure. Appeal is taken from the decree of the court below en banc, dismissing appellant’s exceptions and affirming the decree nisi.
Appellant acquired the property in question on February 26, 1947, and has since used it for display and
The property is located on the northeast corner of Third and Beaver Streets. Third Street, the principal thoroughfare of the Borough, runs east and west, and intersects Beaver Street which runs north and south. East of Beaver Street, Third Street is residential, while west of Beaver Street, it is the principal business street and attains a width of about 100 feet. The district east of Beaver is residential, with an occasional doctor’s office or dentist’s office in some of the buildings. The Borough is the county seat, has a population of about 7,000, with practically no manufacturing within its limits. There, is no zoniñg ordinance in the Borough.
Appellant contends that he should be entitled to the declaration for which he petitioned inasmuch as his property is in close proximity to the principal business district and that three of the four corners at the intersection are used for commercial purposes.
Burke v. Hollinger, 296 Pa. 510, 146 A. 115, defined an exclusively residential district as one with one-family dwellings, churches, libraries, with an occasional grocery store, and doctors’ and lawyers’ offices in homes. One not so exclusive would contain double houses, schools, public or private gardens with accessory uses. Both would be entitled to protection from the erection of a public gasoline service station. In the instant case the business district lay west of Beaver Street. There are no strictly business properties in the immediate area east of Beaver Street. It appears to be a desirable residential area and will so continue as long as the
After acquiring the property on the northeast corner of Beaver and Third Streets, appellant immediately utilized it for the display of used cars for sale. Since there is no zoning ordinance in Beaver Borough, the neighboring property owners could not have had such use of the premises enjoined unless it proved to be a nuisance in fact. The use of the property as a used car lot cannot be deemed to be sufficient to open up an exclusively residential area to uses already established by decisions of this Court as nuisances per se.
This Court has not held a public gasoline service station a nuisance per se except in residential districts as defined in Burke v. Hollinger, supra; Slingluff v. Tyson, 280 Pa. 206, 124 A. 420; Long v. Firestone Tire & Rubber Co., 303 Pa. 208, 154 A. 364; Pennell v. Kennedy, 338 Pa. 285, 12 A. 2d 54; Perrin’s Appeal, 305 Pa. 42, 156 A. 305. In a commercial district a service station must be shown to be a nuisance in fact to be enjoined. Sprout v. Levinson, 298 Pa. 400, 148 A. 511; Pennsylvania Co. v. Sun Co., 290 Pa. 404, 138 A. 909; Ladner v. Siegel, 296 Pa. 579, 146 A. 710.
Determination of whether a locality is commercial or residential in character is a matter which lies within the sound discretion of the court below. Its findings when supported by evidence .will not be interfered with
Bortz v. Troth, 359 Pa. 326, 59 A. 2d 93, appears to be controlling in the instant case. There, as here, the residential district was edged by a commercial district and was not in transition from residential to commercial. The use of property in a particular neighborhood is not the sole and decisive test of the right to operate a given business therein: White v. Country Club, 322 Pa. 147, 185 A. 316. Because the other three corners of the intersection of Third and Beaver Streets were used for commercial purposes does not mean that such use can enter a residential area lying immediately east of the business district. The nature, type, and proximity of dwellings, effect on property values, increase of hazards to life and limb, and any other circumstances which tend to establish the type of neighborhood into which a business is sought to be introduced, must all be considered. The mere fact that
The order of the court below is affirmed.
Dissenting Opinion
Dissenting Opinion by
My dissent in this case relates exclusively to procedure. Plaintiff, appellant, desires to erect a gas station upon his premises. He applied to the Borough Council for a permit and it was refused. Appellant then filed a petition under the Uniform Declaratory Judgments Act of June 18, 1923 P. L. 840 sec. 1, 12 PS 831 — 846, seeking to have determined whether or not a gas station in that area was a nuisance per se. The court decided that it was, being in a residential neighborhood, and enjoined Council from ever thereafter issuing a permit therefor. There has been no change in the conditions in the neighborhood between the time of the refusal of the permit and the filing of the present petition for declaratory judgment. The Council acted adversely to the appellant when it refused a permit for the erection of the gas station. The appellant could then have proceeded with a mandamus to seek to oblige the Council to grant the permit. Instead of doing this appellant filed the present petition for declaratory judgment. I think the procedure is unavailable and, therefore, would reverse and dismiss the proceeding.