Appeal from Common Pleas Court, Cumberland County, Honorable Edgar B. Bayley, Judge.
Thomas M. Place, Carlisle, and John A. Alzamora, Thomas and Thomas, Harrisburg, for appellants.
William F. Martson, Stephen L. Bloom, Martson, Deardorff, Williams & Otto, Carlisle, for ABF Freight Systems, Inc.
Marcus A. McKnight, Irwin Irwin & McKnight, Carlisle, for Carlisle Zoning Hearing Bd.
J. Wesley Oler, Jr., Carlisle, for Boro. of Carlisle.
Doyle and Smith (p), JJ., and Kalish, Senior Judge.
[ 127 Pa. Commw. Page 642]
Citizens for Responsible Development*fn1 and twelve individual property owners (Appellants) seek review of the decision of the Court of Common Pleas of Cumberland County awarding the Carlisle Zoning Hearing Board, the Borough of Carlisle, and ABF Freight Systems, Inc. (Appellees) counsel fees in the amount of $337.50, $157.50, and $500.00, respectively. The trial court's decision is reversed.
On January 29, 1986, Carlisle Zoning Hearing Board (Board) granted ABF Freight Systems, Inc. (ABF) a paving variance which gave ABF the right to pave more than 50% of its property. ABF intended to develop this property as a truck terminal. In accordance with Section 333 of Carlisle's Zoning Ordinance 1233 (Ordinance), the Board emphasized that ABF's failure to obtain a zoning and building permit within six months from the date of the January 29, 1986 decision would render the variance null and void.
On April 28, 1987, ABF requested its first extension of the six month time period pursuant to Section 333 of the Ordinance.*fn2 The zoning officer granted an extension until October 29, 1987. Appellants did not appeal this decision. On September 10, 1987, the Borough granted ABF final approval of its Land Development Plan.*fn3 On October 15,
[ 127 Pa. Commw. Page 6431987]
, ABF again requested an extension, stating in its letter to the zoning officer that: "In light of the procedural posture of the ABF Plan and the passage of time since the granting of the above variance, we would ask that the time for obtaining a zoning permit in order to validate this variance be extended for an additional period of six months." The zoning officer granted the second extension which expired April 29, 1988. Appellants appealed this extension to the Board pursuant to Section 1007 of the Municipalities Planning Code, 53 P.S. § 11007, contending that the extension was violative of Section 333 of the Ordinance. The Board affirmed the zoning officer's decision concluding that he exercised his reasonable administrative powers in granting the extension and that ABF was not required to assume the risk of obtaining a building permit and commencing construction of its terminal if it elected to seek extensions until litigation involving the facility was resolved. Board's Findings of Fact, Nos. 10, 11.
Appellants subsequently filed an appeal with the trial court challenging the propriety of the Board's findings stated above as well as the Board's interpretation of Section 333 of the Ordinance. The trial court upheld the Board's decision and further indicated in its opinion that "the procedural issue raised in the present appeal is frivolous. It would entitle appellees to an award of counsel fees pursuant to the Judicial Code at 42 Pa. C.S. § 2503(7). . . . 'We hesitate, however, in ...