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EDWARD BENOFF v. ZONING BOARD ADJUSTMENT (07/22/87)

decided: July 22, 1987.

EDWARD BENOFF, APPELLANT
v.
ZONING BOARD OF ADJUSTMENT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Edward Benoff v. Zoning Board of Adjustment, No. 4784 September Term, 1980.

COUNSEL

Michael S. Chuhinka, for appellant.

Marjorie Stern Jacobs, Divisional Deputy City Solicitor, for appellee.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 107 Pa. Commw. Page 579]

Edward Benoff (Appellant) appeals an order of the Court of Common Pleas of Philadelphia (trial court) denying his petition to vacate the decision of the Zoning Board of Adjustment (ZBA), hold the ZBA in contempt, and hold a de novo hearing for failure of the ZBA to comply with the trial court's order. We dismiss this appeal as moot.

In 1980 Appellant was informed that because he was parking a boat in his driveway and the boat extended closer than 15 feet from the street he was in violation of the Philadelphia Zoning Code use and set back requirements. Appellant applied for and the ZBA denied him a variance; the trial court affirmed. Appellant appealed to this court. In Benoff v. Zoning Board of Adjustment, 84 Pa. Commonwealth Ct. 309, 479 A.2d 68 (1984), this court held that the denial of a variance was proper, but that the ZBA erred in not making findings on the issue of the existence of a non-conforming use. On August 6, 1984 the matter was remanded to the trial court "for findings of fact and conclusions of law, limited to the issue of whether the parking area in question is a non-conforming use." Id. at 313, 479 A.2d at 70.

The trial court, on February 21, 1985, remanded to the ZBA "for findings of fact and conclusions of law limited

[ 107 Pa. Commw. Page 580]

    to the issue of whether the parking area in question is a non-conforming area pursuant to the Opinion of the Superior [sic] Court of August 6, 1984."*fn1 Following an evidentiary hearing, the ZBA issued a notice of decision, dated August 7, 1985, which refused Appellant a variance and informed him that any further court action would require a new notice of appeal. No findings of fact or conclusions of law accompanied the decision. On September 6, 1985, Appellant filed with the trial court a petition to vacate this decision, to hold the ZBA in contempt, and to hold a de novo hearing to comply with this court's August 6, 1984 order (petition). The ZBA issued a second notice of decision dated October 3, 1985 which refused non-conforming use status. This decision also indicated that any further court action would require a new notice of appeal, and again no findings of fact or conclusions of law were issued.

The trial court dismissed Appellant's petition on October 29, 1985, holding that the ZBA had not violated the trial court's February 21, 1985 order. The trial court opinion indicated that if Appellant had followed the usual procedure of appealing a ZBA decision, the record made before the ZBA, including findings of fact and conclusions of law, would be before the trial court,*fn2 and that there was no reason why the usual procedure should not be followed.

[ 107 Pa. Commw. Page 581]

Appellant, on October 31, 1985 appealed the trial court's dismissal of his petition to this court. On November 1, 1985, Appellant appealed the October 3, 1985 ZBA decision to the trial court. The ZBA forwarded the record, which included findings of fact ...


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