Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: Appeal of Raymond Konyk, No. 3982 of 1971.
George Koudelis, with him Joseph P. Mylotte and McEwen & McEwen, for appellant.
Max W. Gibbs, with him Sand, Gibbs & Smilk, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.
A special exception was sought for a gasoline service station in a "Business" zoning district of Upper Darby Township (Delaware County). After taking testimony, the Township Zoning Hearing Board denied the application. The Court of Common Pleas of Delaware County, without hearing additional evidence, reversed the Board. Hence this appeal. We affirm the court's decision.
Our scope of review in zoning appeals, as we have so often said, is limited.
"Where, as in this case, the court below took no additional testimony, our review is restricted to one narrow issue. Has the Board in the Findings of Fact and Conclusions of Law committed 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. 238 (May 26, 1971)." Rees v. Zoning Board of Indiana Township, 2 Pa. Commonwealth Ct. 551, 554, 279 A.2d 354, 355 (1971). See, Mill-Bridge Realty, Inc. v. Zoning Board of Adjustment, 4 Pa. Commonwealth Ct. 157, 160-61, 286 A.2d 483 (1972).
The Board heard from two witnesses for the applicant and from four protesting neighbors. In addition, it received a petition signed by two hundred and fifteen residents of the neighborhood recording its opposition to the use of the property as a gasoline station. Thereafter the Board denied the application for the special exception and in its order submitted the following reasons for its Findings and Conclusion: "(1) The reasons given by the applicant are not substantial, serious and compelling. (2) The granting of said Special Exception would not be in keeping with the character of the neighborhood. (3) The public health, safety and general welfare of the neighborhood would be adversely affected by the granting of this request in that, (A) A traffic hazard would be created resulting in a dangerous condition when automobiles entered or exited from the proposed use because of the heavy automobile traffic on State Road. (B) There would be danger to the safety of children because of the large number of them passing the subject property going to and from school." The Board did not, however, make findings of fact and conclusions of law in support of its order as required by the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. , Act No. 247, Article IX, § 908(9), 53 P.S. § 10908(9).
Section 908(9) requires that Zoning Hearing Boards' decisions should set forth ...