Opinion
Argued October 8, 1981
December 24, 1981.
Zoning — Scope of appellate review — Abuse of discretion — Error of law — Inadequate findings — Remand.
1. In a zoning case where the lower court took no additional evidence, review by the Commonwealth Court of Pennsylvania is to determine whether the board rendering the initial decision abused its discretion or committed an error of law. [402]
2. A zoning case must be remanded by the Commonwealth Court of Pennsylvania when the Board of Supervisors hearing the matter made no findings of fact nor issued an opinion in support of its decision and when the reviewing court of common pleas failed to remand or fill the factual void. [402]
Argued October 8, 1981, before Judges MENCER, WILLIAMS, JR., and PALLADINO, sitting as a panel of three.
Appeal, No. 379 C.D. 1981, from the Order of the Court of Common Pleas of Allegheny County in case of Joseph Harsch and Joan Harsch, his wife, v. Board of Commissioners of the Township of Ross, No. SA 1189 of 1980 and in case of Commonwealth of Pennsylvania v. Joseph Harsch and Joan Harsch, his wife, No. SA1190 of 1980.
Petition to the Board of Commissioners of Ross Township for curative amendment to zoning ordinance. Petition refused. Petitioners convicted of zoning violation by district justice. Petitioners appealed to the Court of Common Pleas of Allegheny County. Appeals consolidated. Decisions reversed. Curative amendment ordered. PAPADAKOS, J. Commissioners appealed to the Commonwealth Court of Pennsylvania. Held: Order vacated. Case remanded.
William W. Milnes, Brandt, Milnes, Rea and Wagner, for appellant.
Joseph Harsch and Joan Harsch, appellees, for themselves.
Jason W. Manne, Assistant Counsel, for Amicus Curiae Department of Public Welfare.
This case comes before the Court on appeal by Ross Township of a common pleas court decision reversing the denial of a curative amendment proposal.
Appellees John and Joan Harsch operate a Group Day Care Home, a specific entity licensed by the Commonwealth of Pennsylvania, Department of Public Welfare (DPW) for the day care of more than six but less than twelve children, in the actual home of the adult care-giver(s). The township zoning ordinance conditionally permits family day care homes, providing care for no more than six children, in the R-1 residential district where the appellees reside, but the ordinance makes no provision whatsoever for the care of more than six children in a home-like environment.
The Harsches filed two applications for a curative amendment before the Township Board of Commissioners (Board), both of which were refused. Upon appeal of the second adverse decision, the Allegheny County Court of Common Pleas reversed the Board without taking any additional evidence.
Where the lower court neither expands nor recreates a record in a zoning appeal, thereby acting in an appellate capacity, our scope of review is limited to a determination of whether the Board abused its discretion or committed an error of law. Horst v. Derry Township Board of Supervisors, 21 Pa. Commw. 556, 347 A.2d 507 (1975). That review cannot be made in this instance, since the Board made no findings of fact, and did not issue an opinion to support its denial of the curative amendment. See Hess v. Upper Oxford Township, 17 Pa. Commw. 399, 332 A.2d 836 (1975). Compounding the problem for this Court is the neglect of the lower tribunal to either remand for such findings, or to exercise the discretion given it under Section 1010 of the Pennsylvania Municipalities Planning Code, 53 P. S. § 11010, to fill that factual void in its reversal of the Board. Snyder v. Railroad Borough, 59 Pa. Commw. 385, 430 A.2d 339 (1981). As we stated in Hess, supra,
The entire content of the letter of notification is:
This is to inform you that at their regular meeting of September 29, 1980, the Ross Township Board of Commissioners denied your proposed Curative Amendment providing for the establishment of group day care homes as a conditional use in residential districts.
Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 11010.
[t]his Court will not rummage through the record, speculating upon the credibility and weight of the evidence before a finder of fact. Nor will we, with one hat on, make our own findings, and then don our appellate hat to determine whether our decision can be sustained.
17 Pa. Commw. at 403, 332 A.2d at 838-39.
We therefore remand the case to the lower court with instructions to proceed further in a manner consistent with this opinion.
ORDER
AND NOW, this 24th day of December, 1981, the Order of the Court of Common Pleas of Allegheny County is vacated, and the case is hereby remanded to that court for further action or proceedings consistent with this opinion.