Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Lloyd F. Laird, Jr., an individual v. City of McKeesport, a Municipal Corporation and Irwin-Packer Action Group, an Unincorporated Association, No. SA 198 of 1983.
John F. Cambest, Conway, Meyer & Cambest, for appellant.
Carl Max Janavitz, for appellee.
Judges MacPhail, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr., did not participate in the decision in this case.
[ 88 Pa. Commw. Page 148]
The City of McKeesport (City) appeals from a decision of the Court of Common Pleas of Allegheny
[ 88 Pa. Commw. Page 149]
County (trial court) which reversed an action by the City's Zoning Hearing Board (Board) denying an application for a certificate of occupancy filed by Lloyd Laird (Appellee). For the reasons set forth below, we affirm the order of the trial court, and direct the issuance of the certificate of occupancy.
As the trial court took no additional evidence, we must determine whether the findings of the Board are supported by substantial evidence, and whether the Board abused its discretion or committed an error of law in denying the certificate of occupancy. Allegheny West Civic Council, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 80 Pa. Commonwealth Ct. 79, 471 A.2d 128 (1984).
The facts, as found by the Board, are as follows. The property in question is located in an area classified by the McKeesport Zoning Ordinance (Ordinance) as a "Local Business" ("LB") district; is owned by Sean Salvo, and leased to Appellee. The property had previously been used as a two-bay service station, a permitted use in the "LB" district. Appellee applied for a certificate of occupancy for a pizza shop and gameroom, but, although the area was zoned "LB", the Zoning Administrative Officer refused to issue the certificate, because "his boss had ordered him not to."*fn1
Appellee appealed to the Board, which held two hearings on the matter. At the conclusion of the second hearing, on March 21, 1983, the Board voted on the issuance of the certificate, but came to a deadlocked vote, thus letting stand the denial of the certificate by the Zoning Administrative Officer.*fn2
[ 88 Pa. Commw. Page 150]
On appeal, the trial court reversed, holding that although no findings accompanied the Board's action, a remand was not required because the record from the Board was "totally devoid of evidence upon which the Board could base findings necessary to deny the special exception request." The trial court concluded that "the proposed use complies with the objective requirements of the Ordinance and that the use is permitted as a special exception." The trial court also held that the objectors failed to prove to a high degree of ...