concluding that, in determining whether one has acquired vested rights as a result of a permit issued by the government, the court should consider the landowner’s “diligence in attempting to comply with the law”; “good faith throughout the proceedings”; “expenditure of substantial unrecoverable funds”; “the expiration without appeal of the period during which an appeal could have been taken from the issuance of a permit” and “the insufficiency of the evidence to prove that individual *20 property rights or the public health, safety or welfare would be adversely affected by the use of the permit”
How later courts described this case
- concluding that, in determining whether one has acquired vested rights as a result of a permit issued by the government, the court should consider the landowner’s “diligence in attempting to comply with the law”; “good faith throughout the proceedings”; “expenditure of substantial unrecoverable funds”; “the expiration without appeal of the period during which an appeal could have been taken from the issuance of a permit” and “the insufficiency of the evidence to prove that individual *20 property rights or the public health, safety or welfare would be adversely affected by the use of the permit”
- rejecting “the notion that a citizen who does attempt to check the zoning statutes by making inquiry of the proper officials, who certainly should be expected to have knowledge about zoning, has not exercised due diligence”
- property owners acquired a vested right to maintain a structure that violated zoning setback requirements because, inter alia, the structure complied with the permits granted by the township
- articulating “vested-rights” doctrine for Pennsylvania courts
Written by the judges who cited it.
Distinguished
Distinguished by Rudolph v. Zoning Hearing Board of Cambria Township, 2003 Pa. Commw. LEXIS 932 (2003)
The Rudolphs contend, however, that Petrosky is distinguishable, and that the ZHB erred in applying the vested rights doctrine.
The opinion
LARSEN, Justice,
dissenting.
I dissent. Since no additional testimony was taken by the lower courts, our scope of review is to determine whether the Board committed a manifest abuse of discretion or an error of law. Brennan v. Zoning Board of Adjustment, 409 Pa. 376, 379 , 187 A.2d 180, 182 (1963). The hearing held by the Board established that appellants had constructed a 40 feet by 40 feet masonry garage upon a triangular lot in Upper Chichester Township. The garage is situated 7.5 feet from the proposed curb of an adjacent street instead of the required 50 feet, and 11 feet from the adjoining property line of a neighbor instead of the required 25 feet. Although the garage is located in a district zoned for light industrial use and the garage is a permitted use, the Board found that the building had a degrading and depreciable effect on the character of the neighborhood because-it is built too close to the residential boundary line and to homes in the residential district. Additionally, the Board found a safety hazard to the residents (especially children) was created by the ingress and egress of the trucks on the premises.
The appellants urge two legal theories in support of their contention that they are entitled to be granted said variance.
First, appellants argue that they acquired a vested right to the building permits even though the permits were issued in violation of the zoning regulations. Heidorn Appeal, 412 Pa. 570 , 195 A.2d 349 (1963); Moyerman v. Glanzberg, 391 Pa. 387 , 138 A.2d 681 (1958). I agree with the majority’s adoption of the Commonwealth Court’s criteria, as set forth *513 in Department of Environmental Resources v. Flynn, 21 Pa.Cmwlth. 264 , 344 A.2d 720 (1975), for determining if such a vesting has occurred.
However, I would find appellants’ contention without merit since he failed to demonstrate an exercise of due diligence in attempting to comply with the law and, in support thereof, I incorporate by reference the reasoning as set forth in the Commonwealth Court’s opinion in this case at 26 Pa.Cmwlth. 614, 615-621 , 365 A.2d 184, 185-187 (1976).
Second, appellants argue that there is such a hardship in this case that they are entitled to the variance as a matter of law. See, Haas v. Zoning Board of Adjustment of Philadelphia, 403 Pa. 155 , 169 A.2d 287 (1961); Altemose Construction Company v. Zoning Hearing Board, 3 Pa.Cmwlth. 328 , 281 A.2d 781 (1971). Appellants’ second contention is without merit. Assuming arguendo that the hardship exists, the law is clear that when one self-inflicts the hardship, no relief will be granted. Volpe Appeal, 384 Pa. 374 , 121 A.2d 97 (1956). Appellants’ hardship was self-inflicted when they created the lot size by agreement, beginning with their negotiations with the seller and culminating in their exercising of the option.
I, therefore, would affirm the Commonwealth Court’s order.