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BOROUGH GLENFIELD v. C. & E. MOTORS (12/02/75)

decided: December 2, 1975.

BOROUGH OF GLENFIELD, APPELLANT
v.
C. & E. MOTORS, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of C. & E. Motors, Inc. v. Zoning Hearing Board of Adjustment, Borough of Glenfield, No. SA 648 of 1973.

COUNSEL

Albert G. Feczko, with him Feczko and Seymour, for appellant.

Samuel N. Goldman, with him Richard Alan Weinstein, for appellee.

President Judge Bowman and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 22 Pa. Commw. Page 116]

The Borough of Glenfield has appealed from an order of the Court of Common Pleas of Allegheny County sustaining the appeal of C. & E. Motors, Inc. from the action of the Borough's Zoning Hearing Board refusing a variance.

C. & E. Motors operates a marina on a tract of land on the banks of the Ohio river in the Borough of Glenfield. Its use of this land conforms to the Borough's zoning regulations. Anticipating interference with its business as the result of the proposed construction of a highway bridge, C. & E. Motors leased from the Penn Central Transportation Company a tract of land on the river bank at which it intends to establish additional docking facilities and on which it proposes to construct a customers' parking lot and a small playground. The leased premises is located in the Borough's A Residential zoning district in which the proposed parking lot, at least, is not a permitted use. Although it is not clear on the most unsatisfactory record certified to us what kind or form of application, if any, C. & E. Motors made to the Borough zoning authorities, the matter came before the Zoning Hearing Board as an application for a variance from the use regulations of the Borough zoning ordinance. A hearing was conducted by the Board. The notes of testimony,

[ 22 Pa. Commw. Page 117]

    which were recorded on tape and later transcribed, demonstrate that the hearing consisted only of a general discussion of the parking lot and playground proposal by the persons present, much of which was irrelevant to any issue before the Board. A principal of C. & E. Motors and its counsel urged the merits of the application and Borough residents made declarations in opposition. Although some of the persons in attendance were sworn in at some considerable time after the hearing started, no witnesses were called and formally examined and there was no division of the proceedings between the applicants' and protestants' cases. We gather, however, from a statement of C. & E. Motors' counsel made early in the proceedings that he, at least, recognized that a principal issue was that of whether or not the leased ground could feasibly be developed for residential use.

The Zoning Hearing Board denied the requested variance without findings or conclusions. C. & E. Motors appealed this decision to the Common Pleas Court, a judge of which properly remanded the matter to the Board for findings and conclusions.*fn1 The Board responded by a writing containing nine findings of fact, none of which relate to the feasibility of placing dwellings on the leased tract, and three so-called conclusions of law, one of which includes factual determinations, as follows:

"There are no unique physical circumstances including irregularity narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that unnecessary hardship is not due to such conditions generally created by the provisions of the

[ 22 Pa. Commw. Page 118]

    zoning ordinance in the neighborhood or district in which the ...


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