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GARY L. FREY AND VICTORIA L. FREY v. ZONING BOARD ADJUSTMENT CITY PITTSBURGH. CITY PITTSBURGH (05/18/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 18, 1983.

GARY L. FREY AND VICTORIA L. FREY, HIS WIFE, AND NANCY FREY
v.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH. CITY OF PITTSBURGH, APPELLANT

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Gary L. Frey and Victoria L. Frey, his wife, and Nancy Frey v. Zoning Board of Adjustment of the City of Pittsburgh, No. SA 213 of 1982.

COUNSEL

Kathryn E. Hanna Katsafanas, Assistant City Solicitor, with her D. R. Pellegrini, City Solicitor, for appellant.

Chris J. Balouris, Brennan, Robins & Daley, for appellees.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 74 Pa. Commw. Page 361]

The City of Pittsburgh appeals an Allegheny County Common Pleas Court order granting a variance. We reverse and remand.

Gary and Victoria Frey's application for a variance to maintain a parking pad on their residential property was denied for failure to meet certain setback requirements. Pittsburgh's Zoning Board of Adjustment (Board), in denying the variance, failed to make findings of fact in support of the denial. On appeal, the court below made its own factual findings based on the Board record, citing Section 1010 of the Municipalities Planning Code (MPC) as authority for doing so,*fn1 and granted the variance.

[ 74 Pa. Commw. Page 362]

We agree with the City that the common pleas court erred. By making factual findings, the court exceeded its scope of review. Section 1010 of the MPC does not apply to appeals of decisions by the City of Pittsburgh Zoning Board of Adjustment. See North Point Breeze Coalition v. City of Pittsburgh, 60 Pa. Commonwealth Ct. 298, 303-04, 431 A.2d 398, 400-01 (1981); King Productions, Inc. v. Board of Adjustment of the City of Pittsburgh, 27 Pa. Commonwealth Ct. 256, 258 n. 1, 367 A.2d 322, 323 n. 1 (1976). Under Section 754(b) of the Local Agency Law,*fn2 which applies here,*fn3 a common pleas court may not make its own findings of fact when it has not taken additional evidence.*fn4 See Ramondo v. Zoning Hearing Board of Haverford Township, 61 Pa. Commonwealth Ct. 242, 434 A.2d 204 (1981); Foley v. Civil Service Commission of the City of Philadelphia, 55 Pa. Commonwealth Ct. 594, 423 A.2d 1351 (1980). If a local agency, in this case the Board, has made inadequate factual findings, the reviewing court normally can and should remand the matter to the agency to obtain the essential factual determinations. See Tucker v. Zoning Board of Adjustment of the City of Page 363} Pittsburgh, 62 Pa. Commonwealth Ct. 615, 437 A.2d 499 (1981).

Reversed and remanded.

Order

The Allegheny County Common Pleas Court order in SA 213 of 1982, dated May 27, 1982, is hereby reversed and this matter is remanded with instructions to remand to the City of Pittsburgh Zoning Board of Adjustment for further proceedings not inconsistent with this Opinion.

Disposition

Reversed and remanded.


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