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 question is indisputably not so designated.
The plaintiff in the instant case could have determined that the issuance of the permit was unlawful by simply checking, local ordinances. I believe we should adhere to the principle that invalidly issued building permits are void ab initio and their issuance confers no vested rights even where substantial sums are expended in justifiable reliance upon a permit obtained in good faith.
We have held previously that a permit issued illegally or in violation of law or under a mistake of fact confers no vested right or privilege upon the person to whom it is issued, even though the person may have made expenditures in reliance upon said permit. Appeal of Donofrio, 31 Pa. Commonwealth Ct. 579, 377 A.2d 1017 (1977); Zoning Hearing Board v. Petrosky, 26 Pa. Commonwealth Ct. 614, 365 A.2d 184 (1976); Klavon v. Zoning Hearing Board, 20 Pa. Commonwealth Ct. 22, 340 A.2d 631 (1975); Flood v. Zon*442ing Hearing Board, 19 Pa. Commonwealth. Ct. 427, 338 A.2d 789 (1975); Pittsburgh v. Oakhouse Associates, 8 Pa. Commonwealth Ct. 349, 301 A.2d 387 (1973). See Vogt v. Port Vue Borough, 170 Pa. Superior Ct. 526, 85 A.2d 688 (1952).
I would apply the holding of these cited cases to the instant case and reverse the order of the Court of Common Pleas of Dauphin County which directs the Borough of Middletown to reissue a building permit to Agway Petroleum Company and awards damages to Agway Petroleum Company.