McClellan v. Zoning Hearing Board

Commonwealth Court of Pennsylvania

McClellan v. Zoning Hearing Board

304 A.2d 520, 8 Pa. Commw. 537, 1973 Pa. Commw. LEXIS 755

CourtCommonwealth Court of Pennsylvania

DecidedMay 9, 1973

DocketAppeal, No. 643 C.D. 1972

StatusPublished

Cited by4 cases

This text of 304 A.2d 520 (McClellan v. Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McClellan v. Zoning Hearing Board, 304 A.2d 520, 8 Pa. Commw. 537, 1973 Pa. Commw. LEXIS 755 (Pa. Ct. App. 1973).

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Opinion

Opinion by

Judge Mencer,

This is an appeal from an order of the Court of Common Pleas of Washington County affirming a deci[538]*538sion of the Zoning Hearing Board of Mount Pleasant Township, Washington County.

Under constitutional attack here, as below, is Article IY, Section 3, of the Mount Pleasant Township Zoning Ordinance which prescribes minimum floor areas per family dwelling unit. Involved is the township’s present zoning ordinance, before and after amendment, and the township “Building Permit Ordinance.”

These ordinances are absent from the record, and we are mystified as to how we are to decide this appeal without them. Additionally the Zoning Hearing Board merely kept a summary of the proceedings before it and made no stenographic record. In Camera, Jr. v. Danna Homes, Inc., 6 Pa. Commonwealth Ct. 417, 296 A. 2d 283 (1972), we remanded because the testimony was paraphrased by the Board’s secretary rather than taken verbatim. See also Schelley v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 169, 302 A. 2d 526 (1973); §908(7) of the Pennsylvania Municipalities Planning Code (the MPC), Act of July 31, 1968, P. L. 805, as amended by the Act of June 1, 1972, P. L. No. 93, 53 P.S. §10908(7).

Finally, the lower court, having taken no additional evidence, did not make written findings of fact and conclusions of law. The Board, however, never made any findings of fact. We cannot judge the merits of an appeal without findings. BJM Urban Development Corp. v. Fayette County Zoning Hearing Board, 1 Pa. Commonwealth Ct. 534, 275 A. 2d 714 (1971); see also §§908(9) & 1010 of the MPC, 53 P.S. §§10908(9) & 11010.

The record is remanded to the court below for further hearing before it or the Zoning Hearing Board of which a stenographic record and transcript of the proceedings shall be kept and findings and conclusions made.

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Opinion by

Judge Mencer,

This is an appeal from an order of the Court of Common Pleas of Washington County affirming a deci[538]*538sion of the Zoning Hearing Board of Mount Pleasant Township, Washington County.

Under constitutional attack here, as below, is Article IY, Section 3, of the Mount Pleasant Township Zoning Ordinance which prescribes minimum floor areas per family dwelling unit. Involved is the township’s present zoning ordinance, before and after amendment, and the township “Building Permit Ordinance.”

These ordinances are absent from the record, and we are mystified as to how we are to decide this appeal without them. Additionally the Zoning Hearing Board merely kept a summary of the proceedings before it and made no stenographic record. In Camera, Jr. v. Danna Homes, Inc., 6 Pa. Commonwealth Ct. 417, 296 A. 2d 283 (1972), we remanded because the testimony was paraphrased by the Board’s secretary rather than taken verbatim. See also Schelley v. Zoning Board of Adjustment, 8 Pa. Commonwealth Ct. 169, 302 A. 2d 526 (1973); §908(7) of the Pennsylvania Municipalities Planning Code (the MPC), Act of July 31, 1968, P. L. 805, as amended by the Act of June 1, 1972, P. L. No. 93, 53 P.S. §10908(7).

Finally, the lower court, having taken no additional evidence, did not make written findings of fact and conclusions of law. The Board, however, never made any findings of fact. We cannot judge the merits of an appeal without findings. BJM Urban Development Corp. v. Fayette County Zoning Hearing Board, 1 Pa. Commonwealth Ct. 534, 275 A. 2d 714 (1971); see also §§908(9) & 1010 of the MPC, 53 P.S. §§10908(9) & 11010.

The record is remanded to the court below for further hearing before it or the Zoning Hearing Board of which a stenographic record and transcript of the proceedings shall be kept and findings and conclusions made.

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304 A.2d 520, 8 Pa. Commw. 537, 1973 Pa. Commw. LEXIS 755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclellan-v-zoning-hearing-board-pacommwct-1973.

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