Appeal from the Order of the Court of Common Pleas of Lehigh County in case of Giant Foods, Inc. v. Zoning Hearing Board of Whitehall Township and John W. Brosius, Zoning Officer, No. 83-C-1572.
Mark Malkames, with him, William G. Malkames, for appellant.
Jeffrey B. Matzkin, for appellees.
Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig. Senior Judge Kalish concurs in the result only.
[ 93 Pa. Commw. Page 437]
Where the two voting members of a zoning hearing board cast a divided one-to-one vote with respect to
[ 93 Pa. Commw. Page 438]
a request for a zoning use variance, has the board made a decision and, if so, does the decision constitute a denial of the requested variance?
In accordance with the settled principle that a tribunal's divided vote confirms the status quo, this court's conclusion is that a zoning hearing board's one-to-one vote has the legal effect of denying the variance request.
The landowner in this case, Giant Foods, Inc., applied to construct a food supermarket and a small shopping center on property in Whitehall Township, Lehigh County, zoned as an R-1 Residential District. Because the proposal was not a permitted use in that district, the zoning officer referred Giant to the Zoning Hearing Board of Whitehall Township. Giant applied to the board for a use variance, describing it as a validity variance to which the applicant was entitled because the surrounding commercial development left the property with only distress value for residential purposes; Giant's application alleged that the zoning ordinance was therefore confiscatory and invalid.
There is no doubt that the variance application to the board was a proper procedure in view of the claim made. Zoning Hearing Board of Willistown v. Lenox Homes, Inc., 64 Pa. Commonwealth Ct. 74, 439 A.2d 218 (1982); Robin Corp. v. Board of Supervisors, 17 Pa. Commonwealth Ct. 386, 332 A.2d 841 (1975).
The board held its hearing on the application on March 15, 1983. At its next meeting, the board -- with only two members in office at that time -- took no action. At a subsequent meeting, one of the then three members of the board properly declined to vote because he had appeared at the first hearing in the capacity of an objector to the request. According to the minutes, ...