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09/10/97 REID J. CAVANAUGH AND JUNE E. CAVANAUGH v.

September 10, 1997

REID J. CAVANAUGH AND JUNE E. CAVANAUGH, HIS WIFE, APPELLANTS
v.
FAYETTE COUNTY ZONING HEARING BOARD, AND ROBERT M. STEWART AND LOIS J. STEWART, HIS WIFE



Appealed From No. 2073 of 1993, G.D., 1324 of 1994, G.D. and 900 of 1996, G.D. Common Pleas Court of the County of Fayette. Judge WARMAN.

Before: Honorable Joseph T. Doyle, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Doyle.

The opinion of the court was delivered by: Doyle

OPINION BY JUDGE DOYLE

FILED: September 10, 1997

Reid J. Cavanaugh and June E. Cavanaugh appeal an order of the Court of Common Pleas of Fayette County, which affirmed an order of the Fayette County Zoning Hearing Board determining that an ordinance enacted by the Fayette County Commissioners, rezoning part of the Cavanaugh's property, constituted spot zoning and was null and void.

The Cavanaughs own thirty-three acres of land (the property) located in Bullskin Township and Upper Tyrone Township, Fayette County, Pennsylvania. The property was zoned A-1 Agricultural-Rural, *fn1 and it is completely surrounded by other parcels zoned A-1 and R-2 Residential. *fn2 On April 21, 1992, the Cavanaughs petitioned the Commissioners to have a portion of the property rezoned to B-1 General Business. *fn3 The Commissioners conducted a hearing and then granted the Cavanaughs' request for rezoning. On January 13, 1993, the Commissioners adopted Ordinance 93-01, which amended Fayette County's zoning ordinance to rezone approximately twelve acres of the Cavanaughs' property from A-1 to B-1. After the Ordinance was enacted, the Cavanaughs' applied to the Fayette County Zoning Office for a zoning certificate to allow the Cavanaughs to use the property as a "truck shop." *fn4 The zoning certificate was granted on June 3, 1993.

The Cavanaughs immediately began to construct the truck shop on the property; however, on July, 1, 1993, Robert M. Stewart and Lois Stewart, neighboring property owners, joined by the Concerned Citizens of Pennsville, appealed from the issuance of the Cavanaugh's zoning certificate to the Fayette County Zoning Hearing Board (ZHB). After a hearing, the ZHB determined that the Commissioners' rezoning of the property constituted spot zoning, and held that Ordinance 93-01 and the zoning certificate were null and void. The Cavanaughs appealed to the Common Pleas Court, which remanded the case for additional testimony on the question of spot zoning. Additional hearings were conducted and the ZHB issued a second decision holding that Ordinance 93-01 constituted spot zoning. The second decision was appealed by the Cavanaughs to the Common Pleas Court, which affirmed the ZHB.

The Cavanaughs appealed the Common Pleas Court's decision to this Court. We determined that the ZHB had not made sufficient findings of fact on the question of whether the property was distinguishable from the surrounding land and had not resolved conflicts in the evidence or made credibility determinations. Accordingly, we vacated the order of the Common Pleas Court and remanded the case for additional proceedings. Cavanaugh v. Fayette County Zoning Hearing Board ( No. 3236 C.D. 1994, filed August 31, 1995) (Pa. Commw. 1995).

The Common Pleas Court remanded the case to the ZHB for further proceedings. However, the ZHB was now comprised of three new members, none of whom were involved in any of the prior hearings in this matter. The ZHB, using the existing record, made new findings of fact and credibility determinations, and issued a decision finding, as the ZHB had found before, that the rezoning of the property by Ordinance 93-01 was spot zoning.

The Cavanaughs again appealed the ZHB's decision to the Common Pleas Court, raising, inter alia, the issue of whether the ZHB, comprised of new members who had never heard the witnesses' testify, could make findings and credibility determinations based on the existing record only. The Common Pleas Court held that the ZHB could make credibility determinations on the existing record, even if none of the members of the ZHB actually observed the witnesses. The Court further held that the findings adopted by the ZHB properly resolved the merits of the case. This appeal followed.

On appeal, the Cavanaughs contend that (1) the ZHB committed a manifest abuse of discretion by not conducting new hearings to determine the credibility of witnesses and the weight of the evidence, since none of the members heard the testimony in this matter, and (2) the record does not support the ZHB's Conclusion that Ordinance 93-01 constituted spot zoning.

The Cavanaughs challenge the new ZHB's ability to make credibility determinations or make findings as to the weight of the evidence based solely on the cold record. They assert that members of the ZHB had to actually see and hear the witnesses testify in order to perform their fact-finding function.

While a fact finder's observation of the demeanor of a witness has traditionally been viewed as an important factor in determining credibility, *fn5 administrative adjudicators are permitted to determine the credibility of testimony from the reading of a transcript. Caldwell v. Clearfield County Children & Youth Services, 83 Pa. Commw. 49, 476 A.2d 996 (Pa. Commw. 1984). Administrative agencies often use a system of adjudication where a hearing examiner or presiding officer takes evidence and the ultimate fact finder is a board or commission, which has the power to make findings of fact based solely on a review of the record. See, e.g., Kramer v. Department of Insurance, 654 A.2d 203 (Pa. Commw. 1995) (presiding officer conducted an evidentiary hearing, but the adjudication was issued by the Insurance Commissioner); Pennsylvania State Police v. Pennsylvania Human Relations Commission, 127 Pa. Commw. 436, 561 A.2d 1320 (Pa. Commw. 1989) (hearing panel's decision was advisory only and the Commission is the ultimate fact finder with the power to substitute its findings for that of its hearing officers); William J. McIntire Coal Co. v. Department of Environmental Resources, 108 Pa. Commw. 443, 530 A.2d 140 (Pa. Commw. 1987) (where one Environmental Hearing Board member served as a hearing examiner, but the final adjudication was made by the Board as a whole based on its review of the record), petition for allowance of appeal denied, 518 Pa. 614, 540 A.2d 536 (1988). An adjudicative method where the ultimate decision in a case is made by an administrative fact finder who did not hear the testimony does not deny a litigant due process of law. Kramer ; McIntire.

In Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985), our Supreme Court held that the Unemployment Compensation Board of Review could reassess a referee's credibility determinations, even though it did not hear the witnesses' testimony. Most important, the Peak Court rejected the very argument raised by the Cavanaughs in this appeal--that ...


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