Appeal from the Order of the Court of Common Pleas of Montgomery County, No. 70-08371, in case of Carl F. Morgan et ux. v. Zoning Hearing Board of Lower Salford Township.
J. Edmund Mullin, with him Thomas M. Garrity and Wisler, Pearlstine, Talone, Craig & Garrity, for appellant.
C. Stephens Vondercrone, Jr., with him John E. Landis and Landis & Williams, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Wilkinson.
Appellees petitioned appellant Zoning Hearing Board for a variance to permit the conversion of a building on their property for use as a kennel for breeding and boarding dogs and for storing and selling pet foods and supplies. In addition, they sought a variance to maintain a small sign near the road. After a hearing held on April 24, 1970, the Zoning Hearing Board denied the petition by order as follows: "And Now, this 2nd day of June, 1970, the application of Carl F. Morgan and Gail Morgan, husband and wife, to commit the subject premises to use in accordance with the testimony and evidence submitted to the Board is hereby denied."
Appellees secured a Writ of Certiorari from the Court of Common Pleas of Montgomery County. After argument, the Court reversed the decision of the Zoning Hearing Board and directed the Board to approve the variance. We must reverse the Court below and remand the record to the Court below to be returned by it to the Zoning Hearing Board to make appropriate findings of fact and conclusions based thereon with the reasons therefor in support of its decision.
The error of the Court below was in determining that without findings of fact and conclusions there had been no decision within forty-five days as required by Section 908(9) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. , No. 247, Art. IX, Section 908, 53 P.S. § 10908(9). This section provides: "The board or the hearing officer, as the case may be, shall render a written decision or, when no decision is called for, make written findings on the application within forty-five days. Each decision shall be accompanied by findings of fact and conclusions
based thereon together with the reasons therefor. Conclusions based on any provisions of this act or of any ordinance, rule or regulation shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in the light of the facts found. If the hearing is conducted by a hearing officer, and there has been no stipulation that his decision or findings are final, the board shall make his report and recommendations available to the parties and the parties shall be entitled to make written representations thereon to the board prior to final decision or entry of findings. Where the board has power to render a decision and the board or the hearing officer, as the case may be, fails to render the same within the period required by this clause, the decision shall be deemed to have been rendered in favor of the applicant." There is no doubt that the Code requires that the Board make findings, reach conclusions, and give reasons, but it does not mandate a decision in favor of the petitioners in the event the timely decision of the Board is not "accompanied" by the findings, conclusions, and reasons.
In fairness to the able judges of the Court below it must be pointed out that they did not have the benefit of this Court's decisions in Limekiln Golf Course, Inc. v. Zoning Board of Adjustment of Horsham Township, 1 Pa. Commonwealth Ct. 499, 275 A.2d 896 (1971) and BJM Urban Development Corporation v. Fayette County Zoning Hearing Board, 1 Pa. Commonwealth Ct. 534, 275 A.2d 714 (1971). In Limekiln, dealing with Section 910 of the Pennsylvania Municipalities Planning Code, supra, 53 P.S. § 10910, this Court held that failure to deliver or mail a copy of the final decision to the applicant within five days of the final decision did not result in the law requiring that the decision be deemed to have been rendered in favor of the applicant. In BJM a decision of the Zoning Hearing Board was filed without any findings of fact.
On appeal to the common pleas court, a de novo hearing was held and the decision of the Board was affirmed without the court making findings. ...