Borough of Middletown v. Agway Petroleum Co.

Dissenting Opinion by

Judge Mencer:

I respectfully dissent. I am persuaded by the following reasoning of Judge Dowling as set forth in his dissenting opinion in the court below.

A valid building permit is a prerequisite to the vesting of rights in the person to whom the permit has been issued. Here, a valid permit had not been issued. The plain language of the Borough’s Planned Residential Development Ordinance prohibits the proposed structure. Its pertinent provision states: “No commercial enterprise shall be permitted to operate except in the area designated for commercial uses.” The area in…