Appeal from the Order of the Court of Common Pleas of Bucks County in case of Joseph W. Pae and Irene Pae, his wife, v. Hilltown Township Zoning Hearing Board, No. 75-11246-09-5.
John A. VanLuvanee, with him William H. Eastburn, III, and Eastburn and Gray, for appellants.
Charles S. Wilson, with him Larry B. Maier, and Charles S. Wilson & Associates, for appellees.
Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
[ 35 Pa. Commw. Page 230]
The appellants, Joseph Pae and Irene Pae, his wife, have appealed an order of the Court of Common Pleas of Bucks County affirming a decision of the Hilltown Township Zoning Hearing Board denying the appellants' application for a variance. The appellants contend that the Township Zoning Hearing Board's procedures were so defective that we should hold that the variance must be deemed to have been granted and, alternatively, that the variance on the merits should have been granted. None of their contentions in our view have merit and we will affirm.
The appellants own a three acre tract of land located in the Township's R-50 Residential and Agricultural District. Commercial uses are not permitted in the R-50 District.
The appellants bought their three acre parcel from one Herbert Shackleton. It was a part of a 17 acre tract which Shackleton had bought from one Paul Schmidt. In 1969 Schmidt applied for and obtained a variance from the Township Zoning Hearing Board permitting him to construct fishing ponds on the 17 acre tract and to use the ponds for public on-site fishing for a fee. In addition to the ponds Schmidt erected a luncheonette. In 1973, Shackleton applied for
[ 35 Pa. Commw. Page 231]
and received Township approval to divide the three acre tract from the 17 acres. Shackleton then entered into an agreement to sell the three acre parcel to the appellants, who wanted to construct an auto repair shop. On August 14, 1973 Hilltown Township issued Shackleton a building permit. The permit does not state the type of building authorized and the application for permit, if any was executed, is not in the record. The Paes commenced construction of a garage building in late August, 1973. The Paes settled for the land with Shackleton in late September, 1973. Joseph Pae used the garage building as an auto body repair shop on a part-time basis beginning in September 1973. In December 1973, the appellants applied to the Township for, but were denied, permission to use the garage building as an auto body shop. The reason given for the refusal was that such use was not permitted in the R-50 zoning district. The appellants nevertheless continued to use the garage on a part-time basis until the summer of 1974 when they began full-time operations. On or about May 2, 1975, the Township ordered the Paes to cease and desist their auto body repair business.
On May 28, 1975, appellants filed an application for a variance. The Zoning Hearing Board held a hearing on September 15, 1975 and denied the application. On appeal, the Court of Common Pleas admitted into the record a stipulation of counsel that the Zoning Hearing Board's final written decision was dated October 29, 1975 and that a copy thereof was mailed to appellants on November 6, 1975. The court also admitted depositions of the three members of the Hilltown Township Zoning Hearing Board. The purpose of the depositions was to demonstrate the manner in which the Board had reached and communicated its decision in test of whether the procedure violated the so-called "Sunshine Law," Act of July 19,
[ 35 Pa. Commw. Page 2321974]
, P.L. 486, as amended, 65 P.S. § 261 et seq. They revealed that the members of the Zoning Hearing Board at the termination of the Board hearing invited the appellants to remain and hear the Board's decision. Later, the members of the Board, still in public session, orally conducted a poll and unanimously voted to deny the appellants' application. Written findings of fact and conclusions of law were prepared by the Board's solicitor and circulated among the members. Each member of the Board went to the ...