87 Pa. Commw. 123 | Pa. Commw. Ct. | 1985
Opinion by
The Zoning Hearing Board of Mahoning Township (ZHB) and the Mahoning Township Board of Supervisors (Supervisors) appeal the orders of the Court of Common Pleas of Carbon County.
On February 3, 1981, Waiter J. Zlomsowiteh and Carol K. Zlomsowiteh (Appellees) applied for a permit to build a stable on their property in Mahoning Township. The permit was issued that same day, but on April 15, 1981, the Supervisors notified Appellees that their permit had been issued in error and was to be revoked. The permit was revoked on June 2,1981.
Appellees appealed to the ZHB and filed a request for a variance. A public hearing was held on August 4, 1981, at which time testimony was taken on. both the appeal and the variance. By decision
Appellee appealed the ZHB decision to the Oonrt of Common Pleas of Carbon County which sustained the appeal.
Our scope of review in a zoning case where, as here, the court below did not receive additional evidence is to determine Avhether the ZHB abused its discretion, committed an error of law, or made findings of fact which were not supported by substantial evidence. Ramsey v. Zoning Hearing Board of the Borough of Dormont, 77 Pa. Commonwealth Ct. 456, 466 A.2d 267 (1983).
The lot in question is located in an B-2 low density residential zone and is therefore governed by Article VII of the Mahoning Township Ordinance (Ordinance ). Section 602 permits:
Agricultural and horticultural uses as defined in Article V provided that all area, density and lot width regulations are also in conformance Avith Article V.
Article V defines an agricultural use as one that is “related to the tilling of land, the raising of farm products, the raising and keeping of horses, cattle and other livestock, and the raising of poultry and poultry products.” Section 502(a) of the Ordinance (emphasis added). The area, density and lot Avidth regulations of Article V, Section 505, provide in full that:
*126 a. Buildings devoted to farm use shall be exempt from area regulations.
b. The lot areas, densities, and lot widths for single-family detached dwellings, including individual mobile homes and seasonal residences, shall not be less than the following:
Forty thousand (40,000) square feet, exclusive of rights-of-way.
i. Maximum net density — .92 dwelling units per acre.
ii. Minimum lot width at the setback line —two hundred (200) feet, minimum width at the right-of-way line one hundred fifty (150) feet.
iii. Minimum lot depth — two hundred (200) feet.
Because the proposed structure, a stable,
Order.
The orders of the Court of Common Pleas of Carbon County, Pennsylvania, No. 81-S-484, dated September 16, 1983 and October 7, 1983 are affirmed.
Although the issue has not been raised, we note that ZHB has no standing to appeal to this Court. Lansdowne Borough Board of Adjustment Appeal, 813 Pa. 523, 170 A. 867 (1934). Inasmuch as leave was granted to the Supervisors to intervene after the appeal was taken to this Court, such action by the trial court may have been inappropriate in light of the provisions of Pa. R.A.P. 1701(a). See Gilbert v. Montgomery Township Zoning Hearing Board, 58 Pa. Commonwealth Ct. 296, 427 A.2d 776 (1981).
The court of common pleas ordered a remand to the ZHB so thát a permit could be issued. Although an order of remand is generally interlocutory so that no appeal will lie, the lower court’s order is final in effect. Cf. Department of Transportation v. Rollins Outdoor Advertising Co., Inc., 76 Pa. Commonwealth Ct. 554, 464 A.2d 653 (1983) (an order is final and appealable if it precludes a party from presenting the merits of his claim). In the instant case, the remand requires the ZHB to issue the permit. Under these facts, an appeal will lie. • -
The ZHB did not rule on Appellee’s request for a variance.
The Common Pleas Court filed its opinion September 16, 1983. On October 7, 1983, the Court filed an amended opinion correcting the first paragraph of the September 16 opinion.
The ordinance defines both a private stable and a public stable. Appellees contemplate building a private stable.
Section 602(c) refers only to the area, density and lot width regulations of Article V, which are found at Section 505. Section 602(c) does not incorporate the setback requirements found at Sec
Farm is defined by the ordinance:
Any parcel of land containing ten (10) or more acres which is used for gain in the raising of agricultural products, livestock, poultry, and dairy products. It includes necessary farm structures within the prescribed limits and the storage of equipment used.
Use is defined by the ordinance as:
The specific purpose for which land or a building is designed, arranged, intended, or for which it is or may be occupied or maintained. The term “permitted use” or its equivalent shall not be deemed to include any nonoonforming use.