Appeal from the Order of the Court of Common Pleas of the 26th Judicial District, Columbia County Branch, in the case of Joseph Skopic, Wilmer Reichard and Henry Clugston v. The Zoning Hearing Board of Hemlock Township v. Cyrus Spencer, No. 1464 -- 1980.
Frank C. Baker, for appellant.
Jeffrey F. Dorko, with him John A. Mihalik, for appellees.
Judges Craig, Barry and Blatt, sitting as a panel of three. Opinion by Judge Barry.
This is an appeal from an order of the Court of Common Pleas of Columbia County, which reversed the grant of a variance on August 18, 1980 by the appellees, The Zoning Hearing Board of Hemlock Township (Board). Appellant, Cyrus Spencer (Spencer), intervenor before the trial court, had applied for a
variance in 1971, 1972 and 1973, seeking permission to operate a salvage yard in a portion of the Township zoned as agricultural. All three applications had been denied by the Board. In 1978 Spencer again applied for a variance for the same property. The Board took testimony on July 10, 1980 and, in August of 1980, issued a decision granting the variance to Spencer. Appellees herein, Joseph Skopic, Wilmer Reichard and Henry Clugston, owners of property located near appellant's tract in question, appealed from the grant of the variance. The Court of Common Pleas of Columbia County reversed, finding that the grant of the variance by the Board was violative of the Open Meeting Law, Act of July 19, 1974, P.L. 486, 65 P.S. §§ 261-69. The court also found that the Board acted without sufficient evidence of a substantial change in condition in the property and, as a result, the Board's action violated the principle of res judicata.
We agree that the action of the trial court in reversing the Board and denying the variance was proper, but not for the reasons stated. Our examination of the principle of res judicata as it applies to zoning law reveals that this principle is not absolute. Refusal of a variance by a zoning board does not preclude a subsequent grant of a variance for the same land if there has been a subsequent substantial change in conditions incident to the land itself. Filanowski v. Zoning Board of Adjustment, 439 Pa. 360, 363, 266 A.2d 670, 672 (1970) and cases cited therein. Our examination of the transcript of the 1980 hearing, however, reveals insufficient evidence to warrant the grant of a variance. The law governing the granting of a variance is clear and was summarized by this Court in Levin v. Zoning Hearing Board, 11 Pa. Commonwealth Ct. 452, 457-58, 314 A.2d 579, 582 (1974)
and reaffirmed in Ottaviano v. Zoning Board of Adjustment, 31 Pa. Commonwealth Ct. 366, 368-69, 376 A.2d 286, 288 (1977). It is clear that the Board found in 1971, 1972, and 1973 that the request for a variance should be denied because the criteria set forth in these and other cases had not been met.
Testimony at the 1980 hearing in the instant case does not establish with any certainty that the conditions under which Spencer is applying for the variance are any different from those in 1973, 1972 or 1971. The court of common pleas summarized its findings on this issue as follows:
Thus, in order for the Zoning Hearing Board to reverse its earlier decision, the Intervenor was required to show that substantial changes incident to the land itself have occurred since September 7, 1973. The Intervenor did introduce some evidence on this issue, but the testimony was too ...