Hertrick Appeal
137 A.2d 310
Pa.
1958
Check Treatment

*1 action is separate tlie two actions can instituted, then if trial the court joined own motion or so See on motion decides. Rule party 213(a) R. P.C. dismissed.

Appeal Appeal.

Hertrick October Argued Before J., Bell, 1957.. C. JOnés, JJ... Musmanno, Jones Chidsey, Arnold, Cohen, *2 him Edward A. Damrau with Brennan, T. Robert é Damrau for Mohan, appel- Brennan, Brennan, and lant. and II. Morgan him John H. with Echert,

William Rodewald & Echert, Ingersoll, Buchanan, Smith, appellee. 1958: January Mr. Justice

Opinion Cohen, Tree Green Borough On December following added the 419 which No. Ordinance enacted “Section regulations: borough zoning provision Service Gasoline District .Business In Local 14: pro- or enlarged erected established, Station for a application is filed with there vided in interest the owners consent written property1 of all of the majority of a number, structure proposed feet hundred one than one street forty more therefrom by not separated interpreted intelligible if provision as when becomes This number, of all in interest “A of the owners written thé'property . computing percentage

feet or more width. In required provision of consents under this so much property already as is used for Gasoline Service Sta- consenting. tions shall be counted as' applicant owned shall not be counted in deter- mining required.” the consents Company (referred

In 1955 the Standard Oil as Esso) option purchase obtained an Borough belonging Ramsey, Green Tree to one Amelia option portion Ramsey Esso exercised the aon February May took title on year borough’s on June 1 of that filed with the secre- application tary building permit. Attached to the were the written consents of three adjacent property Ramsey and owners, Meehan, Mc- *3 Clay, by to the erection of a service station Esso. Only properties their three were within one hundred building proposed feet of the main which Esso to erect. Subsequently, McClay revoked his consent. The build- ing inspector borough zoning chairman of the application, appealed committee refused the and Esso adjustment. board of the The board held that since complied provisions Esso had with all of the of the borough’s zoning ordinance, it was entitled to a build: permit. ing appealed borough From this decision the county Contending to the court the consent of owners in majority interest and number of a the. property proposed all within one hundred feet of the lacking. applicant, upon structure was Esso, petition duly joined party to intervene was as a re- spondent proceeding. in the appeal pending

While the county in the court, borough by on the November 28, 1956, Ordinance No. zoning require the

497, amended ordinance of 1953 to application building permit accompanied- for a to be by “eighty thé (80% )' written consént of the owners of per ten hundred cent of all the within one n (110) question.” feet of the deed line of the (Emphasis supplied). proceeded

The court nevertheless under the adjustment and concluded that the board of ordinance, permit. properly granted order (cid:127)had From the the directing inspector county building court the permit issue the Hertrick, Theodore Esso, Secretary Borough J. of Green W. Tree, Building Inspector Borough, have taken Dunbar, joint appeal. this

The issues before us are whether of law have errors been made the construction of the ordinance of apply 1953 and in the refusal of the court below to present proceedings. 1956 to the See Archbishop O’Hara’s (1957). question appellants

The first raised is wheth- support er the written consents filed Esso in gasoline to construct a service requirements station meet the of the 1953 ordi- regard nance with to number and interest adjoining land owners. provides

This ordinance that a “Gas Service Station may be established . . . . . with . . the . . consent owners interest and of a number, of all of within one hundred feet of the *4 proposed (Emphasis supplied). structure.” appellants proposed

The contend that “the struc- as in ture” used this section refers to the whole, inte- grated including service signs, station installation light pumps, gasoline standards, tanks and other fa- properties cilities. Since there are seven within a perimeter hundred of feet the of the area of the instal- appellants’ theory under the lation, Esso did not obtain requisite the consent of the number of owners. as “structure” ordinance itself defines zoning of which or erected, constructed the “[ajnything soil. . . .” Grant- location on the permanent demands all be and other facilities pumps might that ing tanks, ordi- in as that term is the “structures” defined what did the borough the remains question nance, phrase proposed its use of the “the council intend by of the ordinance? structure” section phrase A section indicates that the reading this service structure” refers to the “gasoline “the proposed A station in common service gasoline is, station.” and auto gasoline supplies from building which usage, the word “struc- Appellants’ position sold. that in section to denote the entire service was used ture” composed sepa- is itself which installation, station is neither the definition justified by rate “structures”, nor ordinance itself common word the given opinion having that the council We are usage. structure" —intended proposed the singular used —“the the main contemplated proposed only refer to and to is it from this “structure” and consequently, building measurement must be hundred feet made that owners from whom to determine order On this required. basis, only Meehan, is consent are the owners whose and Eamsey McClay required the Esso would consents of 1953. the ordinance Meehan raised validity is as question

No seek the appellants disqualifica- However, consent. Mrs. for the given by Ramsey consent tion of the the record owner of the she was tract reason ob- the applicant’s property from which land circumstance is irrelevant This patently tained. Ramsey Mrs. owner our consideration. a hundred feet of the proposed situated erty is not the applicant Esso. She main

153 permit to construct a gasoline Hence, service station. her consent is valid under the must and thus ordinance, be included in whether determining applicant, has Esso, complied with the ordinance. ' Because the consents Meehan Ramsey owners are valid, Esso has obtained required written consents from the of the owners both in interest and in number of the adjacent relevant and would erty, therefore be entitled to the issuance of a building permit. we are not re- Consequently, quired to determine the effect of withdrawal McClay’s of his consent after the filing application. Esso’s

The second contention of the appellants requires us to determine the relevancy present proceedings of the 1956 ordinance requiring consent of the owners of eighty percent of one hundred ten feet of deed line of the land upon which the service station is to be built.

We have held that a permit re- may be fused if at the time of application there pending amendment to a zoning ordinance which would prohibit the use of the land for which the permit is sought. v. Shender Board Zoning 388 Adjustment, Pa. 265, 131 A. 2d 90 A. J. (1957) ; Inc. Aberman, v. New Ken- 105 A. sington, 2d 586 ; Gold v. Committee Building Warren 334 Borough, Pa. 10, 5 A. 2d 367 (1939) ; cf. But Kline v. 362 Harrisburg, Pa. 68 A. 2d 182 (1949). Even when an applicant is issued a he permit, unless proceeds good faith to incur substantial obligations reliance thereon, be vacated or revoked because of subse- quently adopted amendments the which prohibit the proposed use of the land. A. N. “Ab” Co. Young 360 Zoning Case, Herskovits v. (1948); Irwin, Pa. 155, 149 Atl. (1930). rule established these cases was become would the creation of what prevent

designed *6 aof effective date the non-conforming a after policy no such However, ordinance. pending zoning in the case before us. is involved ordi- Tree zoning the Green 1956 amendment to use to which land or change affect the does not nance a the change it introduces put. Instead, permit by a building to obtain necessary procedure land required from number of consents the increasing not an the amendment was area. Thus in the owners land upgrading community by the improve effort the which increased an but rather use, enactment land owners over neighboring domination power An a application for of land.2 piece particular an amenda- not be affected should permit the was filed application enacted after ordinance- tory land use. We not con- upgrade does the ordinance when was properly Esso’s that clude at the time its appli- law in effect under the considered filed. cation

Order affirmed. the Benjamin B. Jones concurs in Justice

Mr. result. prop neighboring requiring Zoning the consent ordinances specified

erty raise serious constitu uses owners for Appeal, questions. 305 Pa. 156 Atl. 305 See Perrin’s tional prohibiting (Zoning for the use of ordinance station, gasoline obtained from owners unless written consents property fronting on number of a all in interest site, Fourteenth feet of held not to block within 80 violate the same equitable non-consenting owner could seek because Amendment nuisance). Annotation, enjoin a threatened But see relief to However, constitutionality (1952). the the 2nd 551 A.I/.R. by counsel, challenged was not and since we Tree ordinance Green permit sought, appellant is entitled to the deter hold validity present unnecessary mination of disposition of this ease. our Concurring Opinion Mr. Justice Bell: I concur the affirmance of the but order, of different reason. owner entirely Every is still entitled to certain inherent erty Pennsylvania and indefeasible them rights among right ac- — possess protect quire, ordained —which the Fifth in and and Fourteenth Amend- guaranteed by ments to the Constitution United States and Article Article I, §1, §10, XYI, Consti- §8 tution of Pennsylvania. A.

In O’Hara’s 389 Pa. Archbishop Appeal, “In 2d said : Lord (page 57-58) Court from lead- 533, quoting *7 White’s 287 134 A. Appeal, 409, case of Pa. ing 259, quite . . There is one matter is it was said: to thus power regulate clearly certain, [when to or morals preserve health, safety necessary does not extend to an unnecessary arbitrary, the people] with the owner- intermeddling private or unreasonable even such acts be labeled for property, though ship and welfare health, safety general the preservation such not regulations may . While take physically . . so regulate do its use as they deprive to property, substantial therein right of a without the owner com- acquire . . “The and right . own prop- pensation. it and use it as the and to deal with owner erty, chooses, harms the use nobody, as natural long right. so to constitutions. origin not owe It It does existed It is a of the citizen’s part them. natural before liberty, of his freedom, guaranteed in- expression —an as — bill of rights”: Spann American every violate v. ” 235 S.W. 513.’ 111 Tex. 350, Dallas, and own and use real acquire The right fundamental unalien- liberty man’s of a part was —an before the several centuries established right able 156 Constitution

Constitution of United States or the Penn citizen of adopted. Pennsylvania Every these unalienable constitutional possesses sylvania cannot be de and he rights liberty property, local Govern prived of them the Federal or State or or or but ments, by Courts, only by by Legislatures, These unalienable “include a People. rights right his own home he property] any way [and he does not violate desires, provided (1) provision any of the Federal or State Constitutions; (2) or create (3) or violate nuisance; any restriction or covenant, or or or easement; police violate laws any zoning are regulations which constitutional. It is now well settled that acts under passed ordinances them valid and are constitutional as or structural general legislation whenever they for the necessary preservation of public health, morals or safety, general welfare, not unjustly or arbi discriminatory, or trary, unreasonable, confiscatory or their appli cation to a particular specific piece or of property; White’s 287 Appeal, Pa. 134 A. 259, 409; Taylor v. 303 Pa. Moore, A. 469, 799; Kline v. Harrisburg, 182; Jennings’ Appeal, Pa. 198 A. 621; Ward’s Pa. 137 A. 630; v. Bryan City Chester, 61 A. 894; *8 v. Taylor Haverford 299 Township, 149 A. 402, 639; Perrin’s 305 Pa. Appeal, 156 42, A. 48, 305; of Village Euclid v. Ambler 272 Realty S. Co., U. 47 S. 365, Ct. 114; Penna. Coal Co. v. 260 U. Mahon, S. 43 S. 393, 158; Ct. St. Louis Poster Advertising Co. v. St. 249 Louis, U.S. 39 S. 269, Ct. Eubank 274; v. 226 U.S. Richmond, 137, S. 76.”: Lord Ct. Appeal, 368 Pa. 121, A. 2d 125-126, 533.

These rights and principles have been reaffirmed and reiterated in recent decisions of this Court: Volpe 384 Pa. Appeal, 121 A. 2d 97; Medinger-Appeal, 377 Pa. Green Club 118; Rolling Golf 97 A. 2d 523. Case, An ordinance which does not author- determine but neighbors izes a number of to determine or whether or other not a station structure can gas by erected land his has no an owner of on own clear relationship public to the of preservation necessary or and is on its face and safety morals, health, of or delegation power terms an unlawful legislative Such delegation power a of police power. clearly unconstitutional! obviously In said Perrin’s the Court Pa., supra, : 49) “When (page zoning ordinances sustained, police it is on the theory power exercised State has been properly municipal was delegated. to which it Police power authorities exercised or by any group cannot be of individuals body possess legislative power; do not a who municipality, does through council, usually possess legis- the authority conferred. Adminis- power lative or a citizens do not trative group cannot officers When poioer. municipal such possess the police the exertion power commits the option whether to determine individuals purpose a purely erty health, safety, lawful offends violates the such ordinance or welfare, fundamental . . .” power. police principles of Appellant. v. DeMarco, Cerceo