Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

MCCLELLAN v. ZONING HEARING BOARD (05/09/73)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 9, 1973.

MCCLELLAN, ET UX.
v.
ZONING HEARING BOARD

Appeal from the Order of the Court of Common Pleas of Washington County in case of The Reverend Clare W. McClellan and Marian L. McClelland, his wife, v. The Zoning Hearing Board of Mount Pleasant Township, Washington County, Pennsylvania, 341 January Term, 1971.

COUNSEL

E. J. Julian, for appellants.

George B. Stegenga, for appellee.

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

Author: Mencer

[ 8 Pa. Commw. Page 537]

This is an appeal from an order of the Court of Common Pleas of Washington County affirming a decision

[ 8 Pa. Commw. Page 538]

    of the Zoning Hearing Board of Mount Pleasant Township, Washington County.

Under constitutional attack here, as below, is Article IV, Section 3, of the Mount Pleasant Township Zoning Ordinance which prescribes minimum floor areas per family dwelling unit. Involved is the township's present zoning ordinance, before and after amendment, and the township "Building Permit Ordinance."

These ordinances are absent from the record, and we are mystified as to how we are to decide this appeal without them. Additionally the Zoning Hearing Board merely kept a summary of the proceedings before it and made no stenographic record. In Camera, Jr. v. Danna Homes, Inc., 6 Pa. Commonwealth Ct. 417, 296 A.2d 283 (1972), we remanded because the testimony was paraphrased by the Board's secretary rather than taken verbatim. See also Schelley v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 169, 302 A.2d 526 (1973); § 908(7) of the Pennsylvania Municipalities Planning Code (the MPC), Act of July 31, 1968, P.L. 805, as amended by the Act of June 1, 1972, P.L. , No. 93, 53 P.S. § 10908(7).

Finally, the lower court, having taken no additional evidence, did not make written findings of fact and conclusions of law. The Board, however, never made any findings of fact. We cannot judge the merits of an appeal without findings. BJM Urban Development Corp. v. Fayette County Zoning Hearing Board, 1 Pa. Commonwealth Ct. 534, 275 A.2d 714 (1971); see also §§ 908(9) & 1010 of the MPC, 53 P.S. §§ 10908(9) & 11010.

The record is remanded to the court below for further hearing before it or the Zoning Hearing Board of which a stenographic record and transcript of the proceedings shall be kept and findings and conclusions made.

Disposition

Remanded.

19730509

© 1998 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.