Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Westinghouse Broadcasting Company v. Robinson Township, No. SA 878 of 1980.
Samuel P. Kamin, for appellant.
Bruce E. Dice, Zimmer & Dice, for appellee.
Judges Mencer, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.
[ 63 Pa. Commw. Page 511]
Robinson Township (Appellant) appeals from an order of the Court of Common Pleas of Allegheny County which reversed a decision of the Board of Commissioners of Robinson Township (Board) and ordered that Westinghouse Broadcasting Company (Appellee) be granted a special exception to construct a 190-foot tower for the relay of television programs. We affirm.
[ 63 Pa. Commw. Page 512]
Appellee is the lessee of a large tract of land located in the Park West Industrial Park in Robinson Township.*fn1 The land is zoned I-1A Industrial Park. While height restrictions in that zoning district limit buildings to three stories, or forty feet,*fn2 the Township's ordinance permits radio or television towers in the I-1A district by special use exception with a maximum height "as required by Planning Commission." Accordingly, on or about February 4, 1980, the Appellee submitted a request to the Planning Commission for a special use exception to erect a 190-foot television tower on property it leases. On February 11, 1980, the Planning Commission recommended approval of the special use exception application for the height requested. The Board subsequently held a hearing on the application on July 14, 1980 and denied the requested special use exception. The Appellee appealed the denial to the court of common pleas and at the same time petitioned the Board to reconsider its denial. The Board granted the petition and a second hearing was held on August 21, 1980, after which the Board again denied the application. Appellee again appealed to the court of common pleas whereupon the court consolidated the two appeals. The court below reversed the action of the Board and the instant appeal was taken.
We note preliminarily that no written decision accompanied by findings of fact and conclusions based thereon has been rendered by the Board in this case.
[ 63 Pa. Commw. Page 513]
We will not further delay these proceedings, however, by remanding for a proper decision, since the parties have apparently waived any right they had to a written adjudication, and in our judgment proper review of the Board's action is possible without a remand.*fn3
We also must comment on the fact that throughout these proceedings the requested use applied for by Appellee has been referred to as a "special use exception" or simply a "special exception." In fact, the Township's ordinance employs these same terms. It is clear, however, that this is not a special exception case, for special exceptions must be administered by the zoning hearing board and not the governing body. Section 603 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10603. Rather, the procedures followed in the instant case are applicable to a request for a conditional use. Section 603 of the MPC provides that a zoning ordinance may include "[p]rovisions for conditional uses to be allowed or denied by the governing body after recommendations by the planning agency, pursuant to express standards and criteria set forth in the ordinances. . . ." While this case, therefore, actually involves a conditional use application, the law regarding conditional uses and special exceptions is virtually identical. Susquehanna Township Board of Commissioners v. Hardee's Food Systems, Inc., 59 Pa. ...