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ALLEGHENY WEST CIVIC COUNCIL v. ZONING BOARD ADJUSTMENT CITY PITTSBURGH ET AL. (02/01/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 1, 1984.

ALLEGHENY WEST CIVIC COUNCIL, INC., APPELLANT
v.
THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH ET AL., APPELLEES

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Allegheny West Civic Council, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh v. Community College of Allegheny County, No. S.A. 605 of 1981.

COUNSEL

Frederick R. Nene, for appellant.

William P. Bresnahan, with him Kellen McClendon and Denise L. Wilsher, for appellees.

Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge Barry.

Author: Macphail

[ 80 Pa. Commw. Page 81]

Allegheny West Civic Council, Inc. (Appellant) has appealed from an order of the Court of Common Pleas of Allegheny County entered following our prior ruling and remand in Allegheny West Civic Council, Inc. v. Zoning Board of Adjustment (Allegheny West I), 67 Pa. Commonwealth Ct. 54, 446 A.2d 334 (1982).

The underlying zoning dispute involves an application for a special exception filed by the Community College of Allegheny County (CCAC) to enable it to use an existing building for administrative offices. The Zoning Board of Adjustment of the City of Pittsburgh (Board) originally granted the application and the common pleas court affirmed. On appeal, we determined in Allegheny West I that a remand was necessary for further fact findings and resolution of the issue of whether the proposed administrative offices constitute an "educational institution" use as that term is defined by Pittsburgh's Zoning Ordinance (Ordinance). The importance of this issue results from the fact that if the use falls within the category of an "educational institution", then CCAC must seek approval by way of a conditional use application, which must ultimately be acted on by City Council rather than the Board. If, on the other hand, the offices are not a part of the educational institution, they would be entitled to approval as a continuation of the existing office use. Allegheny West I, 67 Pa. Commonwealth Ct. at 59 n. 2, 446 A.2d at 336 n. 2.

An "educational institution" is defined in Section 903.02(e) of the Ordinance as follows:

Educational institution means a college or university giving general academic instruction,

[ 80 Pa. Commw. Page 82]

    as prescribed by the Commonwealth. Included within this term are areas or structures used for administration, housing of students or faculty, dining halls, or social or athletic activities, when located on the institution's land that is not detached from that portion of the campus where classroom facilities are maintained, by more than street and/or other property owned by the institution. (Emphasis added.)

In Allegheny West I, 67 Pa. Commonwealth Ct. at 57, 446 A.2d at 335, we interpreted this provision to require that streets and other property owned by an educational institution be disregarded in determining whether an administration building is so detached from the institution's classroom facilities as to be treated separately from the college for land use planning purposes. Since neither the Board nor the common pleas court had made findings regarding the contiguity of the proposed offices to campus classrooms, we remanded.

The court of common pleas on remand declined to conduct an evidentiary hearing itself and, instead, referred the matter to the Board for proceedings consistent with our decision in Allegheny West I. The Board subsequently conducted a hearing at which certain pertinent amendments were made to CCAC's application. First, CCAC altered its application to specify that the proposed administrative offices would be central offices for the entire CCAC system, rather than for the Allegheny Campus alone.*fn1 It was also

[ 80 Pa. Commw. Page 83]

    revealed during the hearing that seminar classroom facilities are not to be included in the administration building, as had previously been contemplated.*fn2 Finally, two additional properties which are relevant to the contiguity issue have been purchased by CCAC since its original application was filed: 1) a parking lot located directly across North Lincoln Avenue from the subject site and 2) a property located at 915 Ridge Avenue. Since CCAC was permited to amend its application at the Board's remand hearing, we think it was also proper for the Board to consider CCAC's recent property acquisitions in resolving whether the site at issue is detached from or contiguous to campus classrooms under the Ordinance definition.

Based on the evidence adduced at the remand hearing, the Board issued a decision in which it found that "the proposed administration building is located on college land not detached from that portion of the college campus where classroom facilities are maintained, by other than streets and other college property". The Board, accordingly, reversed its prior decision granting CCAC's special exception application and concluded that conditional use approval should instead be sought by CCAC.*fn3

CCAC appealed the Board's decision to the court of common pleas which determined that the Board's decision on remand was recommendatory only and that since the Board's findings were not supported by

[ 80 Pa. Commw. Page 84]

    substantial evidence, the court could not adopt them as its own. The court, therefore, substituted its own fact findings for those of the Board and ruled that the proposed site is not adjacent to campus classroom facilities and, thus, is not within the "educational institution" use category. We conclude that the common pleas court erred in substituting its own fact findings for those of the Board and that the Board's findings are clearly supported by substantial evidence.

We first observe that the common pleas court did not err in remanding to the Board for an evidentiary hearing following our remand in Allegheny West I. Once the court decided to refer the matter back to the Board, however, we believe that the Board's subsequent decision was entitled to the same consideration as any other decision of that agency. The parties have not cited, and our research has not disclosed, any authority to support the proposition that the common pleas court can regard a Board decision as a mere recommendation. We, accordingly, conclude that the court erred in failing to regard the Board's decision as a final order subject to appeal under the Local Agency Law, 2 Pa. C.S. ยงยง 551-55, 751-54. We further conclude that the court erred in making its own fact findings without taking additional evidence. See Frey v. Zoning Board of Adjustment, City of Pittsburgh, 74 Pa. Commonwealth Ct. 360, 459 A.2d 917 (1983).

Our scope of review in the instant appeal, then, is the usual standard which is applied when the common pleas court fails to take additional evidence in a zoning matter. We must review the Board's decision for abuse of discretion or legal error. Reimer v. Zoning Board of Adjustment, City of Pittsburgh, 70 Pa. Commonwealth Ct. 479, 453 A.2d 696 (1982). An abuse of discretion exists if the Board's fact findings are not supported by substantial competent evidence.

[ 80 Pa. Commw. Page 85]

We, accordingly, will reverse the order of the court of common pleas and reinstate the Board's decision, dated February 17, 1983.

Order

The order of the Court of Common Pleas of Allegheny County, dated June 13, 1983, is reversed. The decision of the Zoning Board of Adjustment of the City of Pittsburgh, dated February 17, 1983, is reinstated.

Disposition

Order reversed. Zoning board decision reinstated.

Dissenting Opinion by Judge Barry:

I dissent. I believe the subject property was not contiguous to other property of the Community College of Allegheny County at the time the application was made, which date controls.


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