77 Pa. Commw. 158 | Pa. Commw. Ct. | 1983
Opinion by
Riverside Associates (Riverside) appeals here from an order of the Court of Common Pleas of York County which denied its appeal from a decision of the Zoning Hearing Board of Springettsbury Township (Board).
Riverside appealed to the court of common pleas contending that res judicata was improperly invoked. Riverside also sent a letter to the Board requesting that a deemed decision be entered due to the Board’s failure to render a written decision within 45 days of the August 4, 1981 hearing, pursuant to Section 908(9) of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10908(9). The Board refused to enter the requested “deemed decision,” and Riverside did not seek relief as it might
Riverside also argues here that the trial court erred in finding that the doctrine of res judicata applied to their variance requests. It contends that surrounding circumstances had substantially changed after the first set of variance requests was filed, but before the filing of the second set, because the Board had granted similar variances during that period for identically zoned land opposite Riverside’s property. See DiBello v. Zoning Board of Adjustment, 4 Pa. Commonwealth Ct. 546, 287 A.2d 856 (1972).
Inasmuch as Riverside’s contention that there was a change in circumstances is crucial to the resolution of this matter, and because the Board did not allow Riverside a meaningful opportunity to present argument or a brief on this issue,
Order in 1173 C.D. 1982
And Now, this 14th day of September, 1983, the order of the Court of Common Pleas of York County in the above-captioned matter is hereby vacated and the matter remanded to that court with directions to remand in turn to the Zoning Hearing Board of Springettsbury Township for proceedings consistent with this opinion. Jurisdiction relinquished.
Order in 1174 C.D. 1982
And Now, this 14th day of September, 1983, the order of the Court of Common Pleas of York County in the above-captioned matter is hereby affirmed.
In this consolidated appeal, Riverside appeals from the orders of the court of common pleas in two companion cases which were both decided on April 14, 1982. In 1173 C.D. 1982, Riverside appeals from the order of the trial court which denied its appeal from the Board. In 1174 C.D. 1982, Riverside appeals from the order of the trial court which dismissed without prejudice the appeal of the Intervenor, Associated Wholesaler’s, Inc., from the decision of the Board, “since the facts, issues and remedies sought are identical to the companion case” (1173 C.D. 1982).
Therefore, in 1974 C.D. 1982, we will affirm the order of the trial court dismissing the appeal.
The first request was for a variance to permit a commercial use in an industrial zone. The second request was for a set-back variance to reduce the front yard requirements from the mandatory thirty feet to ten feet.
Riverside bad no notice that the intervener would make a motion that the Board dismiss the applications for variances on the grounds of res judicata and would further submit an “extensive” brief in support of this motion. Moreover, when Riverside asked to be afforded an opportunity to respond to this motion and the brief, the request was denied.
When there is a change of circumstances incident to the land, which occurs between the filing of the first application for a variance and the second, this change, if substantial, may render the doctrine of res judicata inapplicable. See Filanowski v. Zoning Board of Adjustment, 439 Pa. 360, 266 A.2d 670 (1970).