Robin Corp., Aplnt. v. Bd. of Spvrs., Lpt

332 A.2d 841, 17 Pa. Commw. 386, 1975 Pa. Commw. LEXIS 805
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 11, 1975
DocketAppeal, 255 C.D. 1974
StatusPublished
Cited by41 cases

This text of 332 A.2d 841 (Robin Corp., Aplnt. v. Bd. of Spvrs., Lpt) 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.

Bluebook
Robin Corp., Aplnt. v. Bd. of Spvrs., Lpt, 332 A.2d 841, 17 Pa. Commw. 386, 1975 Pa. Commw. LEXIS 805 (Pa. Ct. App. 1975).

Opinions

Opinion by

Judge Kramer,

This is an appeal filed by Robin Corporation (Robin) from an order of the Court of Common Pleas of Dauphin County, dated February 10, 1974, denying an appeal of Robin from the refusal of the Lower Paxton Township Board of Supervisors (Township) to amend its zoning ordinance under the provisions of Sections 609.1 and 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10609.1 and 11004.

In 1966, a predecessor corporation, owned and operated by the same people who own and operate Robin, entered into an, agreement to purchase approximately 10 acres of land located in the Township, of which approximately three acres were zoned R-2, permitting apartment house usage, and the balance of which was [389]*389zoned R-l,1 which did not permit such usage. Apartment houses were constructed on that portion zoned R-2. In 1970,2 the title to the land was transferred to Robin. The record firmly establishes that at the time this property was acquired by Robin and its predecessor, they fully recognized that the seven acres in question in this case were zoned R-l and that apartment house usage was not permitted. The record further reveals that the owners of the subject land were aware of the fact that the Township’s Planning Commission, and others, had recommended that the subject land be rezoned for R-2 usage, and that the Township’s Board of Supervisors had refused to so rezone.

On December 12, 1972, Robin sent a letter to the Township challenging the constitutionality of the Township’s zoning ordinance as it applied to the seven acres

[390]*390of Robin zoned R-l, as being confiscatory, requested a curative amendment to rezone the premises R-2, and suggested that, in the event the land was rezoned as suggested, Robin would develop the property into apartment house usage in conformity with the R-2 zoning requirements. It should be noted here that the letter was not accompanied by any “plans or other materials” as required by section 1004 of the MPC, 53 P.S. §11004.3 It should also be noted that, at the same time, counsel for Robin also submitted a challenge on behalf of John T. Bonitz, the owner of 21.25 acres adjoining the Robin tract. The two cases were consolidated for hearing. Bonitz, however, did not take an appeal from the adverse ruling of the Court, and, therefore, the issues there involved are not before us.

Hearings were held before the Board of Supervisors of the Township, after which the Board issued its adjudication containing detailed findings of fact, discussion and a conclusion of law that Robin had “failed to sustain its burden of showing the necessity of a rezoning of its land.” Both Robin and Bonitz took an appeal to the lower court, which received no additional testimony or evidence. The court below dismissed the appeal of Robin for the reasons that Robin was fully aware of the zoning of the subject tract at the time it acquired title, that the record submitted to the court substantiated the findings of the Board that the property could be used for some of the purposes permitted by the R-l zoning classification, and that Robin had failed to prove that the existing R-l classification bears no substantial relation to the public welfare.

On appeal to this Court, Robin contends that the [391]*391Board committed an abuse of discretion in refusing to make the requested rezoning of its land. Recently this Court had occasion to pass upon its scope of review on appeals arising out of section 1004 of the MPC. See Ellick v. Board of Supervisors of Worcester Township, — Pa. Commonwealth Ct. —, 333 A. 2d 239 (1975). We there noted that where the court of common pleas makes its own findings of fact and conclusions of law, our scope of review is to determine whether the court abused its discretion or committed an error of law. We noted in Ellick, however, that the court below, by virtue of section 1010 of the MPC, 53 P.S. §11010, need not necessarily make its own findings of fact; and where the governing body of the municipality has made its own findings of fact, it is the task of this Court to determine whether the governing body abused its discretion or committed an error of law. In the instant case, the governing body did make its own findings of fact, and the court received no additional testimony or evidence and passed upon the governing body’s adjudication. Therefore, we look to the adjudication of the Board of Supervisors. See Clawson v. Harborcreek Zoning Hearing Board, 9 Pa. Commonwealth Ct. 124, 304 A 2d 184 (1973). A further refinement of our scope of review is found in section 1010 of the MPC, 53 P.S. §11010, which states in pertinent part: “If the record below includes findings of fact made by the governing body, board or agency whose decision or action is brought up for review and the court does not take additional evidence or appoint a referee to take additional evidence, the findings of the governing body, board or agency shall not be disturbed by the court if supported by substantial evidence.”

Substantial evidence is that evidence which a reasonable man acting reasonably might have utilized in reaching the decision made. See A. P. Weaver and Sons v. Sanitary Water Board, 3 Pa. Commonwealth Ct. 499, 284 A. 2d 515 (1971).

[392]*392In their briefs the parties evidence a fundamental disagreement over whether this case should be treated as a “variance case” is disguised form, and we must admit that a difficult problem of statutory interpretation is presented by the instant procedural facts. The problem is created by the extremely broad language of section 1001 of the MPC, 53 P.S. §11001, which reads: “The proceedings set forth in this article [Article 10] shall constitute the exclusive mode for securing review of any ordinance, decision, determination or order of the governing body ... its agencies, or officers.” (Emphasis added.)

Our problem is the determination of the precise effect this section (enacted in 1972) has on the traditional method of challenging land use restrictions through a request for a variance. Nowhere in Article 10 of the MPC, 53 P.S. §11001 et seq., are variances mentioned.

Robin argues that it cannot conform to the mandated R-l uses because of the peculiar topography of its land, and the R-l limitations are thus “unreasonable”, rendering its activities on its land unprofitable, and the restriction thus “confiscatory.” The heart of a confiscation argument in a zoning case is that a land use restriction is “unreasonable” in that it deprives the landowner of any reasonable use of his land, without compensation. Robin reasons that this is tantamount to a “taking” without due process of law. See Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962); Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 415 (1922); Reibel v. City of Birmingham, 23 Mich. App. 732, 179 N.W. 2d 243 (1970); City of El Paso v. Donohue, 344 S.W. 2d 185 (Court of Civil Appeals of Texas, 1961).

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Bluebook (online)
332 A.2d 841, 17 Pa. Commw. 386, 1975 Pa. Commw. LEXIS 805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robin-corp-aplnt-v-bd-of-spvrs-lpt-pacommwct-1975.