Summary
In Printzas, the court pointed out that the Code, as amended in 1972, no longer permits sound recording as an acceptable, exclusive method of reporting.
Summary of this case from Colarossi v. Clarks GreenOpinion
Argued October 2, 1973
November 5, 1973.
Zoning — Pennsylvania Municipalities Planning Code, Act 1968, July 31, P. L. 805 — Hearing — Record — Transcript — Timely objection — Waiver of objection — Equitable ownership — Standing — Special exception — Zoning ordinance — Vagueness — Parking garage — Scope of appellate review — Abuse of discretion — Error of law — Delay of appeal — Challenge to bond requirement.
1. A zoning hearing, reported through use of stenographic note taking, constituting a verbatim transcript in part and supplemented and verified by sound recording, meets standards of the Pennsylvania Municipalities Planning Code, Act 1968, July 31, P. L. 805. [484-5]
2. Objections to the stenographic procedures employed in reporting a zoning hearing not made until two months after the transcript was lodged in the reviewing court are not timely, and the right to object has been waived. [485]
3. One who has contracted to obtain a fee simple title to real estate by agreement of sale has sufficient equitable ownership to apply for a special exception from a zoning ordinance for the use of such real estate. [485]
4. A zoning ordinance permitting a special exception for parking lots in the interest of the public to provide for safe movement of traffic and safe parking is not impermissively vague, and a special exception for a parking garage may be granted thereunder. [485-6]
5. The decision of a zoning board granting a special exception will not be disturbed on appeal unless the Board committed an abuse of discretion or an error of law. [486]
6. A hearing of an appeal on the merits will not be delayed at the request of one challenging an order requiring that such party file an appeal bond. [487]
Judge MENCER concurred in the result only.
Argued October 2, 1973, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 49 C.D. 1973, from the Order of the Court of Common Pleas of Montgomery County in case of Terpsi Printzas, D. D. DeRado and Lale DeRado, his wife, Harry W. Haley and Edna Haley, his wife, Joseph A. Bruni and Josephine Bruni, his wife, v. The Zoning Hearing Board of the Borough of Norristown, No. 72-13098.
Petition to Zoning Hearing Board of the Borough of Norristown for special exception from zoning ordinance. Petition granted. Protestants appealed to the Court of Common Pleas of Montgomery County. Appeal dismissed. CIRILLO, J. Protestants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
E. William Heuser, with him Leonard J. D. Myers, for appellants.
Paul C. Vangrossi, with him Vangrossi Recchuiti, for appellee.
The appellants have used what might be loosely characterized as a shotgun technique in raising legal objections to challenge the decision of the Zoning Hearing Board which granted appellee a special exception to build a public parking garage in an area zoned to permit parking lots by special exception.
The decision of the Board is first challenged on the ground that the record does not affirmatively show that the witnesses were sworn, and that the record of the Board hearing is not a stenographic verbatim account. It would appear that the secretary of the Board kept extensive notes as the testimony was given, as well as using a sound recording device. Although actually participating in the hearing, appellants made no objections to these procedures until two months after the transcript of the proceedings was filed in the court below. The transcript of the testimony in this case on all matters of substance, and especially on matters in contention, appears to be a verbatim transcription. In the other areas, notes taken by the secretary, when not verbatim, were certainly extensive. While the Code, as amended in 1972, no longer permits sound recording as an acceptable, exclusive method of reporting, certainly stenographic notes, supplemented and verified by sound recording, are not only not prohibited, indeed this procedure would seem to deserve commendation. See Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P. L. 805, Article IX, Section 908, as amended, 53 P. S. § 10908.
Appellee's brief asserts that the secretary took the notes in shorthand.
Here, the record of testimony covers 35 typewritten pages of questions and answers. Answers that ran more than one line are single spaced. The situation here is a far cry from that in Camera, Jr. v. Danna Homes, Inc., 6 Pa. Commw. 417, 296 A.2d 283 (1972), where, as Judge ROGERS emphasized, the transcript of the testimony on important points in critical areas was not sufficiently detailed for the court to intelligently arrive at a conclusion. On the contrary, in the instant case, in these areas of testimony, the transcript appears to be verbatim. Further, as indicated above and as noted by the court below, appellants did not object to this procedure until two months after the transcript had been lodged in the court below. Appellants thereby waived their right to object to the record. Cf. Kreitz v. Zoning Board of Adjustment, 4 Pa. Commw. 602, 287 A.2d 884 (1972).
The right of the appellee to apply for a special exception is challenged by appellants because they allege that it did not have ownership of the entire tract. The testimony shows that appellee has agreements of sale executed by the owners of that part of the site that is in question on this point. The remainder of the site was acquired by appellee by condemnation or by deed. Appellants acknowledge that appellee is in a position to obtain fee simple title by virtue of these agreements of sale. Certainly this constitutes equitable ownership sufficient to apply for a special exception.
Getting closer to the substance of the matter, appellants assert that the provisions of the zoning ordinance here involved are impermissively vague in supplying criteria to be used by the Board for granting special exceptions. The discretion the Board exercised here was to determine that a parking garage was sufficiently similar to a parking lot to come within that category, and that a parking garage did not need the setbacks required of other buildings. The testimony shows that the purpose of the setbacks was to provide off-street parking and off-street loading and unloading. Article I, Section 101 of the ordinance, provides:
"Section 101. Declaration of Legislative Intent.
"This Ordinance, enacted for the purpose of promoting the health, safety, morals, and the general welfare of the borough, is in accordance with the Comprehensive Plan of Norristown, and is designed to lessen congestion in the streets and highways, to secure safety from fire, panic and other danger, to provide adequate light and air, to prevent the overcrowding of land, to avoid undue congestion of population, to facilitate schools, parks, and other public requirements, to conserve the value of buildings and to encourage the most appropriate use of land throughout the borough." Measured against these standards, we think the Board had proper criteria in the ordinance on which to base its decision.
The heart of the appellants' case is that the Zoning Hearing Board committed an abuse of discretion and an error of law in granting the special exception. Without here setting forth the evidence in detail, suffice it to say that a careful review of the record amply supports the Board's decision. The cases relied upon by appellants, such as Appeal of Valley Forge Industries, Inc., 406 Pa. 387, 177 A.2d 450 (1962), were cases where the court sustained the finding that a special exception would not be granted. There may have been sufficient evidence offered by appellants to have justified a finding that they carried their burden of showing a threat to health, safety and welfare, but certainly it was clearly insufficient to be considered so compelling as to require that result.
Finally, appellants challenge the lower court's jurisdiction to hear the case on the merits, since an appeal was then on file in this Court questioning the lower court's order requiring appellants to file a bond before proceeding with the appeal. See opinion filed this date in No. 49 Commonwealth Docket 1973. Inasmuch as appellants were objecting to the requirement that they file a bond in order that their appeal proceed, it would be incongruous if not ludicrous to permit them to object that the lower court, at appellee's request, was proceeding without the bond being filed.
This appeal is dismissed and the order of the lower court is affirmed.
Judge MENCER concurs in result only.