Opinion
Argued May 5, 1982
December 22, 1982.
Zoning — Scope of appellate review — Abuse of discretion — Error of law — Necessity for 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 zoning board abused its discretion or committed an error of law. [480]
2. A zoning case must be remanded when no findings of fact were made on the issue of the acquisition of vested rights by a property owner when such issue was crucial to the determination. [481]
Judge WILLIAMS, JR. concurred in the result only.
Argued May 5, 1982, before President Judge CRUMLISH, JR. and Judges WILLIAMS, JR. and MacPHAIL, sitting as a panel of three.
Appeal, No. 1605 C.D. 1981, from the Order of the Court of Common Pleas of Allegheny County in case of Wallace Reimer v. The Zoning Board of Adjustment of the City of Pittsburgh, No. SA 512 of 1981.
Denial of occupancy permit appealed to the Zoning Board of Adjustment of the City of Pittsburgh. Appeal denied. Applicant appealed to the Court of Common Pleas of Allegheny County. Decision reversed. Permit ordered issued. PAPADAKOS, A.J. City appealed to the Commonwealth Court of Pennsylvania. Held: Order vacated. Case remanded.
D. R. Pellegrini, Deputy City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellant.
Joseph W. Huber, for appellee.
The Allegheny County Common Pleas Court reversed a Pittsburgh Zoning Board of Adjustment denial of an occupancy permit to Wallace Reimer. The City of Pittsburgh appeals. We vacate and remand.
Reimer, the owner of a three-unit multiple family dwelling located within an R-2 (two-family residential) zoning district, was cited in 1981 for failure to have an occupancy permit. He then applied for a three-family use permit which was denied. On appeal, the common pleas court, concluding that Reimer's right to a three-family use had vested, reversed without taking additional evidence. This appeal followed.
Where the lower court does not take additional evidence, our scope of review is limited to a determination of whether the Board abused its discretion or committed an error of law. Kernick v. Zoning Hearing Board of the Municipality of Penn Hills, 56 Pa. Commw. 512, 425 A.2d 1176 (1981). Here, we are unable to exercise our review function due to the Board's failure to make findings of fact as to the vested rights issue. See Board of Commissioners of Ross Township, 63 Pa. Commw. 400, 437 A.2d 1338 (1981). As this Court stated in Hess v. Upper Oxford Township, 17 Pa. Commw. 399, 332 A.2d 836 (1975),
[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.
Id. at 403, 332 A.2d at 838-39.
We therefore remand this case to the lower court with instructions to proceed further in a manner not inconsistent with this Opinion.
ORDER
The Allegheny County Common Pleas Court order, No. SA 512 of 1981, dated June 11, 1981, is vacated, and the case is hereby remanded for proceedings not inconsistent with this Opinion.
Judge WILLIAMS, JR., concurs in the result only.