Appeal from Common Pleas Court, Monroe County; Honorable Peter J. O'Brien, Judge.
Robert M. Maskrey, Jr., Robinson, Hoffner & Billick, Stroudsburg, for appellant.
Elizabeth Bensinger-Weekes, Bensinger, Flynn & Weekes, P.A., Stroudsburg, for appellee.
Crumlish, Jr., President Judge, and Craig (p.) and Colins, JJ.*fn*
[ 129 Pa. Commw. Page 146]
Richard C. Hammond appeals from an order of Judge Peter J. O'Brien of the Court of Common Pleas of Monroe County that affirmed the order of the Zoning Hearing Board of the Borough of Stroudsburg denying Hammond's application for a special exception to change from one nonconforming use to another.
The issues as framed by Hammond are (1) procedurally, whether the application should be deemed approved under the provisions of section 908(9) of the Pennsylvania Municipalities Planning Code (MPC),*fn1 where the board issued a written decision containing findings of fact and conclusions of law outside a period of forty-five days from the public hearing on the application, but the board sent Hammond written notice of its decision well within that period, and (2) substantively, whether substantial evidence supported the board's findings that Hammond had failed to show (a) that the change in use would not increase vehicular or pedestrian
[ 129 Pa. Commw. Page 147]
traffic and (b) that the property could not reasonably be changed to a conforming use.
Hammond owns property in Stroudsburg that was formerly known as the "Old Glass Factory" and that he had used for many years as a warehouse in connection with his plumbing and heating supply business located several hundred feet away. The warehouse was a valid nonconforming use in an R-2 district where single- or two-family houses are the permitted uses. On July 3, 1987, a fire caused by arson destroyed a significant portion of the building, and Hammond later had the rest of it torn down, leaving only the stone foundation of the structure, with a paved parking area behind it. Hammond filed an application with the borough for a special exception to change the nonconforming warehouse to six nonconforming townhouse units and for an accompanying variance from side yard setback requirements.
The board held a public hearing on the application on November 18, 1987, at which Hammond presented evidence in support of his application, and various nearby residents testified in opposition. On December 16, at its next regular meeting, the board voted to deny the application. Hammond's counsel was present at that meeting. The board's counsel sent Hammond a letter dated December 18, 1987, informing him of the board's decision and stating that a formal opinion would be issued shortly. The board's formal opinion and order, containing findings of fact and conclusions of law, were sent to Hammond under cover of a letter dated January 6, 1988, forty-nine days after the public hearing.
Hammond appealed the board's decision to the court of common pleas, which affirmed. The court concluded that Hammond's deemed decision argument was without merit and that substantial evidence supported the board's conclusion that Hammond reasonably, and without the need for a special exception or variance, could convert the property to a permitted residential use. This appeal followed.
[ 129 Pa. Commw. Page 148]
Where the court of common pleas has taken no additional evidence in a zoning appeal, this court's scope of review is to determine whether the zoning hearing board abused its discretion or committed error of law. Friedlander v. Zoning Hearing Board of Sayre Borough, 119 Pa. Commonwealth Ct. 164, 546 A.2d 755 (1988).
Section 908(9) Deemed Decision
Section 908(9) of the MPC ...