McGeady v. Zumas

276 A.2d 333, 1 Pa. Commw. 492, 1971 Pa. Commw. LEXIS 545

• Court: Commonwealth Court of Pennsylvania
• Decided: April 13, 1971
• Docket: No. 20
• Status: Published

Opinion

Per Curiam

Opinion,

This is an appeal by the City of Bethlehem from an order of the Court of Common Pleas of Northampton County directing that a special exception be granted to appellee for the construction of 270 multiple dwelling units known as “Spring Garden Townhouses” in an “R-G” residential district in which multiple dwellings are permitted as special exceptions under the Zoning Ordinance of that city.

The matter came before the court below on an appeal by the owner-developer (appellee here) from a -.refusal by tbe Zoning Hearing Board to grant tbe requested special exception. A full bearing was beld by tbe court below after wbicb tbe bearing judge made findings of fact and conclusions of law in an opinion of -tbe court and directed tbe issuance of a special exception.

Under these circumstances tbe scope of our review is limited to a determination of whether tbe lower court abused its discretion or erred as a matter of law. Richman v. Zoning Board of Adjustment, 391 Pa. 254, 137 A. 2d 280 (1958).

With one exception, tbe opinion of tbe court below fully deals with and properly disposes of all arguments advanced by appellant in this appeal. Not specifically considered by tbe lower court in its opinion is a contention bj^ appellant that tbe lower court erred in directing a special exception be granted for a project, tbe detailed plans for wbicb bad not been submitted to either tbe Board or tbe Court.

Tbe opinion and order from which this appeal was taken was banded down October 6, 1970. Shortly thereafter, tbe Zoning Hearing Board filed a petition for rehearing averring that inasmuch as neither in prior X>roceedihgs before tbe Board nor in tbe proceedings before tbe court bad there been submitted a multiple dwelling plan for 270 units tbe record should be opened for. submission of such a plan and reconsideration by tbe court of its order in light of such a submission. A rule to show cause was issued, an answer to tbe rule was filed' and a bearing was beld on November 6, 1970, at wbicb a 27.0 unit plan was made a part of tbe record by stipulation of counsel and its import was. argued at some length. Tbe only witness at such bearing testified that tbe plan submitted met all requirements of tbe zoning ordinance as to set back, density limitations and like conditions. Tbe court thereupon directed tbe record as thus' enlarged to be closed and discharged the rule to show cause why a rehearing should not be held.

While it is not clear whether the court below treated the proceedings of November 6, 1970 as simply an argument on the rule to show cause or as an eviden-tiary hearing, it is clear that a plan for a 270 '/unit multiple dwelling was, by stipulation of counsel, made a part of the record and a witness was permitted to testify as to its meeting the mentioned zoning ordinance requirements. It is equally clear by its order that'the court saw no reason to modify or change its order of October G, 1970 directing a special exception to be granted.

While we do not propose to review in detail the long history of proceedings with respect to the erection of multiple dwelling units oh the site in question, it should be noted that as far back as December 1968, both the Planning Commission and the Zoning Hearing Board had approved a plan for 266 units on 26.7 acres of ground and as late as September 1969, the Planning Commission had approved a plan for 270 units on a site of 27.6 acres, the additional acreage having been acquired by the owner-developer in the interim. All of this was before the court on its original hearing on appeal from the Zoning Board. There can be no doubt that the court in handing down its opinion and order of October 6, 1970 did so with respect to such a 270 multiple dwelling unit plan notwithstanding that such a plan was not a part of the record as originally made before the court. It did not err in doing so.

Order affirmed.