Appeal from Cambria County Common Pleas Court, Honorable F. Joseph Leahey, Judge.
James R. DiFrancesco, Johnstown, for appellant.
William Gleason Barbin, Gleason, DiFrancesco, Shahade Barbin & Markovitz, Johnstown, for appellees.
Colins and McGinley, JJ., and Barbieri, Senior Judge.
[ 128 Pa. Commw. Page 26]
The Township of East Taylor (Township) appeals from an order of the Court of Common Pleas of Cambria County dated November 30, 1988 which dismissed the Township's complaint and denied the Township's motion for judgment on the pleadings and granted Robert F. and Mary Ann Spanko's (Spankos) motion for judgment on the pleadings.
The Spankos applied for a building permit on May 25, 1986 to install a swimming pool on their property located at 1595 William Penn Avenue in the Township, Cambria County, Pennsylvania. The zoning officer approved their application and the Spankos were issued a permit to construct the pool. Upon completion of the pool, the Spankos began construction of a fence to enclose the pool. They were notified by the Township Solicitor that the fence height violated the Township Zoning Code (Zoning Code) maximum of five feet and were ordered to cease and desist from further construction in May of 1987. Subsequently, the Spankos sent a letter to the Township Board of Supervisors (Supervisors) dated May 28, 1987 in which they requested a variance. The letter did not specifically request a hearing, but stated that the Spankos intended to "address all issues at the meeting with the [Zoning] Board and [their] Attorney."
By letter to the Spankos dated August 12, 1987, the Township Secretary stated that he was directed by the Supervisors at their July 16, 1987 meeting to inform the Spankos that because of some resignations of Zoning Board members, there were not enough members to form a quorum and, therefore, the Zoning Board was unable to schedule a hearing to consider their variance request.*fn1 Consequently,
[ 128 Pa. Commw. Page 27]
a hearing was ultimately scheduled and held before the Supervisors, sitting as a de facto zoning board, on November 5, 1987.*fn2 Notice of the hearing was advertised in a newspaper of general circulation and notices were sent to all persons living within the neighborhood of the Spankos' residence. Testimony was heard from the Spankos and their next door neighbors, Mr. and Mrs. Robert Kushner, the only neighbors who appeared.
The variance was denied on the basis that it did not meet the requirements of Section 912 of the Pennsylvania Municipalities Planning Code (Code)*fn3 and the Township's Zoning Code. The Spankos neither appealed this decision nor ceased construction of the fence.
The Township filed a complaint in equity requesting an injunction against the Spankos to reduce all fencing on their property to the required maximum height of five feet. The Spankos answered, asserting that the Township failed to hold a variance hearing within sixty days of their written request, as prescribed by Section 908(9) of the Code, 53 P.S. § 10908(9).*fn4 Both parties filed motions for judgment on the pleadings. The trial judge granted leave to the Spankos ...