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DANWELL CORPORATION ET AL. v. ZONING HEARING BOARD PLYMOUTH TOWNSHIP AND PLYMOUTH TOWNSHIP (04/04/88)

decided: April 4, 1988.

DANWELL CORPORATION ET AL., APPELLANTS
v.
ZONING HEARING BOARD OF PLYMOUTH TOWNSHIP AND PLYMOUTH TOWNSHIP, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Danwell Corporation, Valley Forge Industries, Inc. and Asphalt Paving and Supply Company v. Zoning Hearing Board of Plymouth Township and Plymouth Township, No. 85-11869.

COUNSEL

Edward J. Hughes, with him, John G. Kaufman, Kaufman & Hughes, for appellants.

Herbert F. Rubenstein, for appellee, Plymouth Township Zoning Hearing Board.

Thomas F. Oeste, with him, Arthur Lefkow, Wisler, Pearlstine, Talone, Craig and Garrity, for intervenor, Plymouth Township.

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

Author: Craig

[ 115 Pa. Commw. Page 176]

Danwell Corporation, Valley Forge Industries, Inc., and Asphalt Paving and Supply Company (Danwell) appeal an order of the Court of Common Pleas of Montgomery County affirming the denial of a special exception by the Zoning Hearing Board of Plymouth Township. We affirm the trial court's decision.

Danwell sought to construct a trash transfer station in a district zoned for light industrial use. Following a hearing on Danwell's application for a special exception, or alternatively, an interpretation of Plymouth Township Zoning Ordinance Section 1400 as allowing a trash transfer station as a permitted use, the four-member board split its decision, two members voting in favor and two against the application. The board issued a written decision, including findings of fact and conclusions of law, denying the application. Only the two members of the board who voted against the application signed the decision.

Danwell filed both a timely statutory appeal of the board's decision and a complaint in mandamus in the court of common pleas, asking the court to order the board to enter a deemed approval of its application, because of the board's failure to render a decision as required by section 908 of the Pennsylvania Municipalities Planning Code (MPC).*fn1

[ 115 Pa. Commw. Page 177]

Danwell argued that the evenly-divided vote of the board was not a decision within the meaning of section 908. This court affirmed the trial court's dismissal of Danwell's mandamus complaint, holding that a tie vote of a zoning hearing board, conveyed to the applicant within forty-five days of the hearing, is a valid denial decision under 53 P.S. § 10908. Danwell Corporation v. Zoning Hearing Board, 108 Pa. Commonwealth Ct. 531, 529 A.2d 1215 (1987).

Now, as to the statutory zoning appeal, Danwell raises the following issues: (1) whether the trial court abused its discretion by not allowing Danwell to present additional evidence on appeal; (2) whether the board's 2-to-2 vote was valid as a decision, in relation to the decisional time limit of MPC § 908, and with respect to giving effect to the findings; (3) whether the vote of one board member should have been invalidated because of prejudice and bias; (4) whether the board's findings were supported by substantial evidence; (5) whether the board erred as a matter of law in concluding that the trash transfer station was not a permitted use; and (6) whether the board erred as a matter of law in holding that the trash transfer station did not qualify as a special exception under the township zoning ordinance.

1. Petition to Present Additional Evidence

Danwell first argues that the trial judge abused his discretion by refusing to accept additional evidence at the appeal hearing. Danwell claims that some of this evidence was not available at the time of the hearing before the board, and that other evidence was improperly excluded by the board.

Section 1010 of the MPC, 53 P.S. § 11010, provides in pertinent part:

Section 1010. Hearing and Argument of Zoning Appeal. -- If upon motion it is shown that

[ 115 Pa. Commw. Page 178]

    proper consideration of the zoning appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence . . . . If the record below includes findings of fact made by the governing body, board or agency whose decision or action is brought up for review and the court does not take additional evidence or appoint a referee to take additional evidence, the findings of the governing body, board or agency shall not be disturbed by the court if supported by substantial evidence. If the record does not include findings of fact, or if additional evidence is taken by the court or by a referee, the court may make its own findings of fact based on the record below as supplemented by the additional evidence, if any.

In this case, the board's decision included 27 findings of fact. A court of common pleas faces compulsion to hear additional evidence in a zoning case only where the party seeking the hearing demonstrates that the record is incomplete because that party was denied the opportunity to be heard fully, or because relevant testimony was offered and excluded. Borough Council of Churchill Borough v. Pagal, Inc., 74 Pa. Commonwealth Ct. 601, 460 A.2d 1214 (1983). In his opinion, the trial judge found that Danwell was given every opportunity to present relevant evidence at the zoning hearing, and therefore refused to accept additional evidence on appeal.

We agree with the trial court's decision. Our review of the record indicates that Danwell had ample opportunity to present evidence to the board. Danwell claims that the board improperly excluded minutes of the Plymouth Township Council Meeting regarding a proposed resource recovery district, but Danwell never offered that evidence. The evidence which Danwell contends

[ 115 Pa. Commw. Page 179]

    was not available at the time of the hearing addresses issues which were either irrelevant to the board's decision (zoning officer's grant of a use and occupancy permit for a truck terminal on the premises), or represented an attempt to bolster the testimony of witnesses Danwell presented at the hearing (a traffic study dated June, 1986, done over a year after the board's hearing; new proposals for treating surface water runoff). Under these circumstances, the trial judge did not abuse his discretion by denying Danwell's petition to introduce additional evidence.

2. Effect of Board's 2-to-2 Vote on Danwell's Application

Danwell contends that the split decision of the board did not constitute a valid decision under section 908 of the MPC, and that the findings of fact issued by the board were not binding on either the parties or the trial court. Danwell concludes that the trial court erred in not giving its application de novo review.

First, as noted above, we specifically held in Danwell's mandamus action that the board's 2-2 vote constituted a decision to deny the application under the MPC. Danwell, 108 Pa. Commonwealth Ct. at 535, 529 A.2d at 1217.

Second, in response to Danwell's argument that findings of fact signed by only two members of a four-person board are not effective under section 908(9) of the MPC, we refer to our decision in Giant Food Stores, Inc. v. Zoning Hearing Board of Whitehall Township, 93 Pa. Commonwealth Ct. 437, 501 A.2d 353 (1985). In Giant Food, the zoning officer issued a letter to the applicant describing the board's split vote decision as a denial of the applicant's zoning request. On appeal to the court of common pleas, the trial court remanded the case to the board for findings of fact. In a concurrent

[ 115 Pa. Commw. Page 180]

    action in mandamus, the trial court held that a tie vote of a zoning hearing board constituted a negative decision. The procedures followed in Giant Food demonstrate that findings of fact signed by only one-half of a board's members are an effective basis for review on appeal.

We conclude that the denial decision rendered by the board, including its findings of facts and conclusions of law, constituted the decision required by section 908(9) of the MPC. The trial judge acted correctly in limiting his review of the board's decision to a determination ...


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