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REES v. ZONING HEARING BOARD INDIANA TOWNSHIP (07/08/71)

decided: July 8, 1971.

REES
v.
ZONING HEARING BOARD OF INDIANA TOWNSHIP



Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County, at Statutory Appeal Docket No. S.A. 1 of 1969, in the case of In Re: Appeal of Lauretta B. Jahn, et vir, and George Roncevich et ux. v. Decision of Zoning Hearing Board of Indiana Township.

COUNSEL

Ruth F. Cooper, for appellant.

Clifford A. Weisel, with him Albert C. Odermatt, Jr., and Weisel, Xides & Conn, for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 2 Pa. Commw. Page 553]

This appeal from the decision of the Court of Common Pleas of Allegheny County is advanced by Jack Rees, Intervenor in the initial proceedings before the Zoning Hearing Board of Indiana Township. He contends the Board failed to render "findings of fact and conclusions based thereon" as required by the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. No. 247, Art. 1, Sec. 908, 53 P.S. § 10908. His position is sound.

In December 1968, the Indiana Township Board of Adjustment (now Zoning Hearing Board) denied the application of George Roncevich, Jr., who sought to erect an equipment storage building. The Board's decision consisted of a summary of the testimony at the hearing; seven findings of fact relating to the identities of the parties, the land and the procedural steps leading to the hearing; and from there formulated the conclusion that the conditions requisite for a variance had fallen short.

On appeal to the Court of Common Pleas of Allegheny County, the record was remanded to the Board "for further hearing . . . with a directive to the said Board to reconsider the testimony as supplemented and to return the entire record, including any additional findings of fact and conclusions of law and decision as said Board may render. . . ." In compliance, the Board heard the matter de novo, transcribed all testimony, but without making any additional findings of fact and without making any legal conclusions, granted the variance.

Again it went up to the Allegheny Common Pleas Court which reviewed the transcript of testimony, heard no additional evidence, and made its findings of fact and conclusions of law purporting to sustain the Board. In addition to appellant's contention previously referred to, he raises three substantive issues. However,

[ 2 Pa. Commw. Page 554]

    the nature of the procedural infirmity obviates the necessity to consider the substantive issues.

Where, as in this case, the court below took no additional testimony, our review is limited to one narrow issue. Did the Board commit a manifest abuse of discretion or an error of law? Village 2 of New Hope, Inc. Appeals, 429 Pa. 626, 241 A.2d 81 (1968); Di Santo v. Zoning Board of Adjustment, 410 Pa. 331, 189 A.2d 135 (1963); Burgoon v. Zoning Hearing Bd., 2 Pa. Commonwealth Ct. (May 26, 1971).

Section 908(9) of the Pennsylvania Municipalities Planning Code 53 P.S. § 10908(9), reads in part: "The Board . . . shall render a written decision. . . . Each decision shall be accompanied by findings of fact and conclusions based thereon together with the reasons therefor." Although the Board may have rendered sufficient findings and reasons to support its initial decision denying the variance to Roncevich, it is clear that no legal ...


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