Appeal from the Order of the Court of Common Pleas of Chester County in the case of Lenox Homes, Inc. v. Zoning Hearing Board of Willistown Township, No. 51 January Term, 1978.
Robert J. Shenkin, MacElree, Harvey, Gallagher & Kean, Ltd., for appellants.
Benjamin C. Zuckerman, with him Mark C. Schultz, Spencer, Sherr, Moses and Zuckerman, P.C., for appellees.
Judges Craig, MacPhail and Williams, Jr., sitting as a panel of three. President Judge Crumlish, Jr. and Judges Mencer, Rogers, Blatt, Williams, Jr., Craig and MacPhail. Opinion by Judge Craig. This decision was reached prior to the expiration of the term of office of Judge Palladino. Judges Mencer and Williams, Jr. dissent.
This zoning appeal seeks reversal of an order of the Common Pleas Court of Chester County directing the issuance of two building permits to the appellee landowner, Lenox Homes, Inc., allowing the erection of a dwelling on each of two lots in a 23-lot plan previously given subdivision approval by Willistown Township.
Although the township issued building permits for dwellings on the other 21 lots of the plan, it had refused permits for the two lots in question under Section 1413 of the township's zoning ordinance, providing:
Where a lot abuts a stream, lake or similar body of water, no dwelling or appurtenance thereto shall be constructed within one hundred
(100) feet of the high water mark of such body of water; and no dwelling or other building or structure shall be constructed in an area known to be subject to flooding.
The two lots abut a creek having a width of two or three feet and a normal depth of about two feet or less, and the building sites of those lots are within 100 feet of that creek.
After an earlier denial of the landowner's variance application for those two lots had been affirmed by the common pleas court, the landowner filed with the Willistown Township Zoning Hearing Board a challenge to the general validity of Section 1413.
The common pleas court, without taking additional evidence, concluded that the ordinance was "confiscatory" as to the two lots, without explicitly addressing the board's decision with respect to the general validity issue.
Where, as here, the court below has taken no additional evidence, our scope of review is limited to determining whether the board abused its discretion or committed an error of law. Harper v. Ridley Township Zoning Hearing Board, 21 Pa. Commonwealth Ct. 93, 343 A.2d 381 (1975).
We have therefore examined the board's decision in detail, noting particularly the board's findings of fact. One of those findings, the sixth, embodies the board's distillation, from the evidence presented, of the factors to be considered in regulating construction relative to streams or other bodies of water. In view of that finding, we perceive the question in this case to be:
Where the Willistown Township Zoning Hearing Board has adopted a definitive finding that:
6. Existence of alluvial soil, height, and distance are all factors to be considered in determining proper ...