Appeal from the February 8, 1985, Order of Commonwealth Court, at No. 1504 C.D. 1983, Reversing the May 11, 1983, Order of the Court of Common Pleas of Allegheny County, Civil Division at No. GD82-00230.
William J. Murray, Murray & Difenderfer, William H. Difenderfer, Pittsburgh, for appellants.
James C. Larrimer, Dougherty, Larrimer & Lee, Pittsburgh, for appellees.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., filed a concurring opinion in which Hutchinson, J., joins. Papadakos, J., did not participate in the consideration or decision of this case.
In this case we are called upon to decide whether Article IX of the Municipalities Planning Code, which governs the formation and operation of zoning hearing boards, also
applies to zoning-related decisions of a borough council where the borough has failed to create a zoning hearing board.
Appellants, Ronald and Frances Relosky, are the owners of a parcel of land, identified as lot 250, in the Borough of Ingram. Two buildings are situated on this lot. In July of 1980 appellants listed the rear building, consisting of a three-car garage on the first floor and an apartment on the second floor, for sale. In August of 1980 the Zoning Officer of Ingram, John A. Sacco, informed the Reloskys through their realtor that the rear unit could not be sold because the property was not approved for subdivision. Appellants then contacted the Ingram Solicitor, Clarence Biggs, and informed him of the Zoning Officer's ruling. Mr. Biggs advised appellants that if they wished to pursue the matter they should file for an occupancy permit with the Borough through the Zoning Officer's office.
On September 2, 1980, appellants filed an application to subdivide lot 250 by submitting a plot plan and letter addressed to the Ingram Planning Commission to Mr. Sacco. Mr. Sacco subsequently informed the appellants that the Ingram Borough Council would take action on the matter at the next council meeting, scheduled for October 13, 1980. No transcript was prepared of this meeting. Appellants contend that Mr. Relosky attended the meeting, but was not allowed to present any testimony regarding his application. Appellants further contend that Mr. Biggs announced at the October 13 meeting that a decision had been made one week before to deny appellants' application. Appellants finally contend that no written decision reflecting the denial of their application was ever rendered.
An appeal to the Court of Common Pleas of Allegheny County by appellants was filed. On November 30, 1980, appellees, John A. Sacco and the Borough of Ingram, filed an Answer and New Matter in which they claimed that the Borough of Ingram had never denied appellants' subdivision request; it had simply refused to act ...