3 Pa. Commw. 71 | Pa. Commw. Ct. | 1971
Opinion by
This is an appeal from an Opinion and Order of the Court of Common Pleas of Montgomery County, sitting en banc, in which the lower court vacated the granting of a special exception by the Zoning Hearing Board of Upper Gwynedd Township (Board) to Alvin H. Clemens, et al. (appellants). The court also ordered a new hearing on the merits before the Board.
The appellants own a tract of land at the intersection of Allentown and Valley Forge Roads in Upper Gwynedd Township. For that portion which is zoned Commercial, they made application for a special exception permit to remove two existing dilapidated residences and to construct and operate a restaurant business. A restaurant is a permitted use, when allowed as a special exception, in a Commercial district under the Zoning Ordinance of the Township. In May of 1969, the appellants made this application for a special exception to permit the operation of a restaurant under a franchise to be issued by the Burger King Corporation. The Board granted the special exception on July 25, 1969, and Frederick C. J. Schnabel, et al. (appellees) appealed to the Court of Common Pleas of Montgomery County, which on February 9, 1970, remanded the matter to the Board. The Burger King Corporation
Appellants argue on appeal that the appellees’ appeal to the lower court was not timely and that the lower court committed reversible error in not sustaining the action of the Board. The Pennsylvania Municipalities Planning Code (Planning Code), Act of July 31, 1968, P. L. , No. 247, §1004, 53 P.S. 11004, provides: “Time limitation upon appeal — All zoning appeals shall be filed not later than thirty days after issuance of notice of the decision or report of the board.” The record reveals that the appellees’ appeal to the court below was filed fifty-two days after the decision of the Board, but there is nothing in the record to indicate whether or not notice of the decision of the Board was ever issued. Appellants further argue that under Section 908(9) of the Planning Code, 53 P.S. 10908(9), the Board is required to render a written decision within forty-five days, and if the Board fails to render such a decision, then a decision is deemed to have been rendered in favor of the applicant. The appellants argue that the appellees should have made inquiry within thirty days from the end of the forty-five day period, or August 11, 1970. Appellants argue that since the appeal was not filed until sixteen days thereafter, or August 27, 1970, the appellees’ appeal should be dismissed.
The only other matter that is discussed in the opinion of the court below is the fact that, although the appellants and the appellees had requested a current copy of the zoning code from the Board, they were given a copy of the Board’s code which did not include an amendment placing the burden of proof, in special exception cases, upon the applicant to show that the granting of the exception would not be contrary to the health, morals, safety or welfare of the citizens of the township. The interesting thing about this particular matter in this case is that the applicant (appellants
We recognize that, as a general principle, where the court below takes no additional testimony, judicial review is limited to a determination of whether or not the Board is guilty of a manifest abuse of discretion or has committed an error of law. See Wynnewood Civic Association v. Lower Merion Township Board of Adjustment, 406 Pa. 413, 179 A. 2d 649 (1962). In view of this well-settled principle of law, we very carefully reviewed the record in this case in an attempt to determine whether or not the Board had abused its discretion or committed an error of law. It appears to us that the testimony is adequate to support the burden of proof required by the zoning ordinance.
The only remaining question, which was presented to this Court in the briefs of both parties, is whether the zoning ordinance which had designated a part of appellants’ property as Commercial was invalid as spot zoning. From the record before us (which, incidentally did not include any of the maps, photographs, or other evidence mentioned in the transcript of the proceedings) spot zoning is not mentioned, nor can it be inferred, as an item in the protestants’ Zoning Appeal Notice filed with the court below. It is significant that the court below also made no mention of it in its opinion. Although spot zoning 'may hhve been intended as an issue by the appellees in this case, no. proper appeal
We hold that there is sufficient evidence in the record of the proceedings before the Board to decide that the Board was not guilty of a manifest abuse of discretion or error of law in determining that the appellants have met their burden in support of their application for a special exception.
It is now more than two years since the appellants first attempted to obtain the special exception which has been granted twice by the Board, and in view of our ruling that the record supports the statutory burden placed upon the appellants, there is no need for a remand as suggested by the appellees and the court below. Therefore, the order of the court below is reversed.