BJM Urban Development Corp. v. Fayette County Zoning Hearing Board

275 A.2d 714, 1 Pa. Commw. 534, 1971 Pa. Commw. LEXIS 551

• Court: Commonwealth Court of Pennsylvania
• Decided: March 29, 1971
• Docket: No. 303
• Status: Published

Opinion

Opinion by

Judge Wilkinson,

BJM Urban Development Corporation filed a petition on January 27, 1970, with the Fayette County Zoning Hearing Board to grant a variance from the minimum lot size. requirement for a lot designated as Lot No. 2 (block 31), of Fayette County zoning, district map K7-NE3, which tract is zoned as’ “R-l” residential. If the variance were granted, BJM planned to construct an eight-unit townhouse structure.

On February 19, 1970, a hearing was held. The record does not show whether testimony was offered and certainly there is no transcript. The record contains á letter from one of the appellants to the Board objecting to the petition, and also contains a petition asserting the objections of many signátors.

On March 9, 1970, by resolution without any findings of fact, the Board granted the variance with conditions. On March 25, 1970, an appeal was filed to the Common Pleas Court of Fayette County. A de novo hearing was held by the Common Pleas Court on June 5, 1970, at which 73 pages of typewritten testimony were offered. Thereafter, on September 2, 1970, the court filed its opinion which, after a short recitation of the history of the case, stated :

“A careful review of this testimony convinces us that the Board’s action in granting this variance was proper and amply justified. Accordingly, we enter, the following

Conclusions of Law

1. The action of the Fayette County Zoning Hearing Board in granting the aforementioned variance was valid and proper.

2. The decision of the Fayette County Zoning Hearing Board in granting the aforementioned variance should be affirmed.

Order

And now, September 2, 1970, after bearing and consideration, tbe decision of tbe Fayette County Zoning Hearing Board in tbe above-styled case is affirmed, and tbe appeal therefrom is hereby dismissed. Costs to be paid by appellants.

By tbe Court,

Munson,

J.”

Tbe Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P. L. , Art. IX, §912, 53 P.S. 10912, provides that prior to granting a variance, tbe Board must make appropriate findings. This was not done. Tbe lack of findings by tbe Board might have been cured by tbe court below after tbe de novo bearing. However, tbe court did not comply with tbe mandates of tbe Code wherein it is provided: “. . . Final decision of each zoning appeal shall be made by the court, or a judge thereof, considering tbe record and tbe findings of fact made by tbe board as supplemented and replaced by findings of fact made by judge or referee. . . ..” Act of July .31, 1968, P. L. , Art. X, §1009, 53 P.S. 11009.

From the above, it is quite clear that this Court is not in á position to pass on tbe merits of this appeal, since at no time in tbe proceedings have any findings of fact been made.

Tbe requirements of findings of fact by either tbe Board or by tbe court below is not only a requirement of tbe statutory law of Pennsylvania, but is a fundamental requirement of broad general application. See 2 Rathkopf, Tbe Law of Zoning and Planning 64-14 (1969); 3 American Law of Zoning 16.41 (1968).

Accordingly, tbe record is remanded to tbe court below to malee appropriate findings of fact and such conclusions of law as are warranted by the same.