Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Township of Reserve v. Zoning Hearing Board of Reserve Township v. Robert W. Schomaker, No. SA 1001 of 1980.
Deborah S. Miskovich, Hess & Humphreys, for appellant.
Russell J. Ober, with him, Kim D. Eaton, Rose, Schmidt, Dixon & Hasley, for appellee, Zoning Hearing Board of Reserve Township.
Samuel P. Kamin, with him Howard M. Louik, Goldberg & Kamin, for appellee, Residents and Taxpayers of Township of Reserve.
President Judge Crumlish, Jr. and Judges MacPhail and Doyle sitting as a panel of three. Opinion by Judge Doyle.
[ 78 Pa. Commw. Page 498]
Before this Court is an appeal by Robert W. Schomaker (Appellant) from a decision and order of the Court of Common Pleas of Allegheny County affirming the Zoning Hearing Board of Reserve Township's (Board) denial of a proposed planned residential development. We must reverse.
The application for the planned residential development (PRD) at issue in this case was filed by Appellant with the Board of Commissioners of Reserve Township (Commissioners) in February, 1980. Hearings were held, and on August 25, 1980 the PRD was approved subject to Appellant satisfying thirty-one separate conditions. The conditions were imposed in the absence of a PRD ordinance which, as of the time of the instant appeal, had as yet not been enacted.
On September 9, 1980, two separate appeals of the Commissioners' action were filed in the Court of Common Pleas of Allegheny County by residents of the Township. The first appeal, as of No. SA 1000 of 1980, was captioned: "In the Court of Common Pleas of Allegheny County, Pennsylvania" and the second, docketed as of No. SA 1001 of 1980, was captioned: "Before the Zoning Hearing Board of Reserve Township." Pursuant to motions filed by the Township, the first of these appeals was quashed on the basis that the Court was without jurisdiction to entertain the appeal. The Court, properly decided that the appeal was governed by Section 1007 of the Pennsylvania Municipalities Planning Code (Code),*fn1 53 P.S. § 11007 which dictated that such an appeal should be filed with the township zoning hearing board. The second appeal, however, was transferred to the Board by the Court
[ 78 Pa. Commw. Page 499]
"for full disposition." The Board subsequently dismissed this appeal not on grounds that it lacked merit or was otherwise defective, but rather on the basis of what it deemed to be the invalidity of the Commissioners' approval of the PRD in the absence of a PRD ordinance, which in effect rendered the Commissioners' action a nullity and unappealable. This decision was appealed by the Township to the common pleas court which affirmed the Board. The appeal to this Court followed.
This Court's scope of review in zoning appeals is to determine whether there has been an abuse of discretion or an error of law. See Nardozza Zoning Case, 45 Pa. Commonwealth Ct. 482, 405 A.2d 1020 (1979); Children's Aid Society v. Zoning Board of Adjustment, 44 Pa. Commonwealth Ct. 123, 402 A.2d 1162 (1979). See generally R. Ryan, Pennsylvania Zoning Law and Practice § 9.5.10 (1981).
Appellant*fn2 initially asserts that the common pleas court erred, as a matter of law, in its transfer of the appeal of the residents to the Board for disposition and that there was no timely appeal to the Board such that would permit it to properly ...