The opinion
*466 Dissenting Opinion by
Mr. Justice Roberts:
I fully agree with the opinion by Justice O’Brien that a zoning ordinance cannot be considered “pending” until there is a “public declaration by the municipality that it intended to rezone the area.” Lhormer v. Bowen, 410 Pa. 508, 511 , 188 A. 2d 747, 748 (1963). I also agree that the “public declaration” did not occur until the Hatboro Borough Council advertised that a public meeting would be held to consider adopting the zoning amendment. Hence I must agree with Justice O’Brien that the new ordinance was not “pending” when appellant applied for his building permit.
In Lhormer, supra, we held that a building permit could not be denied on the basis of a zoning ordinance not pending when the application was filed. See 410 Pa. at 510 , 188 A. 2d at 748 . Accordingly, appellant should have had his request evaluated under the old ordinance, since he filed his request for a permit nine days before the new ordinance was pending. Justice O’Brien’s opinion concludes, however, that the borough could nevertheless evaluate his application under the future ordinance. I cannot agree.
I believe that Lhormer controls the instant case, and I find the distinction between Lhormer and the instant case unpersuasive. It is claimed that the applicant in Lhormer had an “immediate” right to a permit when he applied for one, whereas appellant did not. But I do not believe that our decision in Lhormer in any way turned on the question of whether the applicant was entitled to a permit the instant he applied for one. Although we did discuss the applicant’s right to a permit, we discussed it simply in the context of the propriety of granting mandamus. Since we found that the right to the permit was clear, there was no discretion to deny the permit and mandamus was therefore proper. Similarly, if we find in the instant case that the *467 municipality erred in refusing the permit—as it did in Lhormer—mandamus will likewise be a proper remedy.
Nor do I think that the reliance on Penn Township v. Yecko Bros., 420 Pa. 386 , 217 A. 2d 171 (1966), in the opinion by Justice O’Brien, is warranted. That case involved the propriety of revoking a permit already issued and does not control the instant case, which concerns the initial issuance of a permit. It is my view that under Lhormer the issuing authority simply looks to the law in effect, or pending, on the date the permit is applied for, and not to a future ordinance. This is easy to administer, and does not require indulgence in the difficult question of when one is “entitled” to a permit. Whether the authority will be able to revoke the permit after later zoning changes is another matter, one dealt with under the standards set forth in Penn Township, supra.
Since in my view appellant was entitled to a building permit under the old ordinance, I find it unnecessary to reach the question of whether the later adopted ordinance is constitutional. I must note, however, that I do not believe that appellant’s failure to request a variance precludes his constitutional attack on the ordinance. Indeed in National Land & Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504 , 215 A. 2d 597 (1965), relied upon in the opinion by Justice O’Beien, the applicants “did not wait for their request for a variance to be denied” by the board of adjustment, but pressed only their constitutional attack before the board. See id. at 512 , 215 A. 2d at 602 . We did not require the applicants to press their variance claim in National Land before we would consider their constitutional attack. Likewise, we should not require the applicant in the instant case to first press a variance claim.
Accordingly, I dissent.