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MELWOOD CORPORATION v. ZONING BOARD ADJUSTMENT CITY PITTSBURGH. CITY PITTSBURGH (07/06/87)

decided: July 6, 1987.

MELWOOD CORPORATION
v.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH. CITY OF PITTSBURGH, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County, in case of Melwood Corporation v. Zoning Board of Adjustment of the City of Pittsburgh, No. SA 792 of 1983.

COUNSEL

Kellen McClendon, Assistant City Solicitor, with him, D. R. Pellegrini, City Solicitor, for appellant.

Robert T. Vogler, with him, Mark S. Frank, Aderson, Frank & Steiner, for appellee.

Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 107 Pa. Commw. Page 247]

The City of Pittsburgh (City) appeals from an order of the Allegheny County Court of Common Pleas which sustained the appeal of a decision of the City's Zoning Board of Adjustment (Board) by Melwood Corporation (Melwood) and granted a special exception. We reverse the order of the Common Pleas Court.

Before we reach the merits of this case, we must address a preliminary issue involving our scope of review in this case.

Melwood's attorney asked the Board at its hearing to grant Melwood a special exception on the basis of natural

[ 107 Pa. Commw. Page 248]

    expansion of a nonconforming use. The Board was of the opinion, however, that the case "should more appropriately be heard on the basis of variances." Finding that occupancy of the structure as a six-unit multiple family dwelling would be detrimental to adjacent and abutting properties and to the neighborhood in general and that no undue hardship would be placed upon Melwood by the Board's action, the Board's decision was, "Variances Denied." The Common Pleas Court disagreed with the Board and determined that Melwood was entitled to a special exception to expand a nonconforming use. The problem arises in that the Board made no findings of fact concerning the special exception -- nonconforming use issue.*fn1 The Common Pleas Court, even though it took no further evidence, did make findings of fact concerning this issue.

In Frey v. Zoning Board of Adjustment, City of Pittsburgh, 74 Pa. Commonwealth Ct. 360, 459 A.2d 917 (1983), this Court stated:

By making factual findings, the [common pleas] court exceeded its scope of review. Section 1010 of the . . . [Pennsylvania Municipalities Planning Code (MPC)*fn2] does not apply to appeals of decisions by the City of Pittsburgh Zoning Board of Adjustment. . . . Under Section 754(b) of the Local Agency Law,*fn3 which applies here, a common pleas court may not make its own findings of fact when it has not taken additional evidence. . . . If a local agency, in this case the Board, has

[ 107 Pa. Commw. Page 249]

    made inadequate factual findings, the reviewing court normally can and should remand the matter to the agency to obtain ...


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