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FRANKLIN J. TRANGUCH AND TERRY L. YODER v. ZONING HEARING BOARD BOROUGH EMMAUS (03/04/86)

decided: March 4, 1986.

FRANKLIN J. TRANGUCH AND TERRY L. YODER, T/A TRANGUCH & YODER, APPELLANTS
v.
ZONING HEARING BOARD OF THE BOROUGH OF EMMAUS, LEHIGH COUNTY, PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of Franklin J. Tranguch and Terry L. Yoder, t/a Tranguch and Yoder v. Zoning Hearing Board of the Borough of Emmaus, Lehigh County, Pennsylvania, No. 84-C01632.

COUNSEL

Joseph A. Fitzpatrick, Jr., with him, Judith A. Dexter, for appellants.

John W. Ashley, with him, Charles J. Fonzone, for appellee.

Judges Rogers and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 95 Pa. Commw. Page 370]

Franklin J. Tranguch and Terry L. Yoder (appellants), trading as Tranguch & Yoder, have appealed from an order of the Court of Common Pleas of Lehigh County affirming the decision of the Zoning Hearing Board of the Borough of Emmaus (board) that denied the appellants' application for a variance to construct apartment buildings in an R-L Low Density Residential District.

The appellants are the equitable owners of a 7.6 acre tract by an agreement of sale with the present owner. They want to construct seven low-rise apartment buildings containing 108 units in an R-L Low Density Residential District. Low-rise apartment buildings are not a permitted use in this district in which the following are permitted uses: single family detached dwellings; two-family dwellings; planned residential developments (containing a minimum of ten acres); public parks and playgrounds; and the growing of fruits, vegetables, flowers, trees, and shrubs not for sale. Section 501 of the Emmaus Zoning Ordinance (ordinance).

Pursuant to Article 1300 of the ordinance, the appellants submitted a site plan to the Emmaus Planning Commission, which found the appellants' proposal

[ 95 Pa. Commw. Page 371]

    acceptable subject to the board granting a use variance and a density variance.*fn1

The board held a hearing at which testimony was presented on behalf of the appellants. Neighboring property owners testified that they opposed the appellants' application. Upon the completion of testimony, the board unanimously rejected the appellants' request for a use variance.

Where the court of common pleas received no additional evidence, our scope of review is that of whether the board committed a manifest abuse of discretion or an error of law. Rees v. Zoning Hearing Board of Indiana Township, 2 Pa. Commonwealth Ct. 551, 279 A.2d 354 (1971). The board, however, made no findings of fact but issued a written decision in a letter dated September 5, 1984. The letter reads as follows:

At the meeting of the Zoning Hearing Board held August 28, 1984, your appeal of Application No. 8771 to construct low-rise apartment ...


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