Opinion
No. 2327 C.D. 2012
10-02-2013
Harry H. Fox, Jr., Appellant v. The Zoning Hearing Board of Carroll Township
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Harry H. Fox, Jr., appeals from an order of the Court of Common Pleas of York County, which affirmed the decision of the Zoning Hearing Board of Carroll Township (ZHB) to deny his 2011 application for a variance from Article 4, Section 407.E of Carroll Township's Zoning Ordinance (Ordinance) pertaining to driveway requirements. In this matter, the township solicitor transmitted only the ZHB's June 30, 2011 decision and May 23, 2011 hearing transcript to common pleas, omitting the attendant exhibits due to "size irregularities." Certified Record ("C.R."), Item No. 11. Without attempting to procure those exhibits or accepting additional evidence, common pleas proceeded to decide the appeal without the benefit of those exhibits. Having attempted without success to ascertain with the requisite accuracy even the background of this appeal, we find ourselves without the ability to exercise our appellate review. Accordingly, we vacate the order of the court of common pleas and remand this matter for further proceedings consistent with this opinion.
Where common pleas has taken no additional evidence, our review is limited to determining whether the board committed an error of law or abused its discretion. An abuse of discretion occurs where the board's findings are not supported by substantial evidence, which is evidence that a reasonable mind would find adequate to support a conclusion. Goldstein v. Zoning Hearing Bd. of the Twp. of Lower Merion, 19 A.3d 565, 566 n.3 (Pa. Cmwlth.), appeal denied, 613 Pa. 648, 32 A.3d 1279 (2011). Where common pleas has taken additional evidence, the test is not whether the board, but whether the court, made an error of law or abused its discretion.
In support of our decision, we briefly outline the respective responsibilities of the decision-making bodies. Section 908(7) of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 10908(7), requires that a municipality keep an official stenographic record. The language of Section 908(7) is mandatory. Colarossi v. Clarks Green Bd. of Zoning Appeals, 623 A.2d 424, 428 (Pa. Cmwlth. 1993). The municipal obligation to keep a stenographic record and to have the notes of testimony transcribed includes submission of the entire record in the event of an appeal. Appeal of Martin, 381 A.2d 1321, 1322 (Pa. Cmwlth. 1978). To that end, the prothonotary for the Court of Common Pleas of York County issued a writ of certiorari to the ZHB directing it to certify and send "the record and proceedings ... with the application and the hearing held thereon, the decision of the [ZHB], with all things touching the same, before the judges of the Court of Common Pleas of York County ... twenty days (20) from the issuance of said writ of certiorari, so full and entire as in your hands before you they remain ...." C.R., Item No. 17. Accordingly, even though exhibits before zoning hearing boards are generally cumbersome, their inherent nature does not excuse municipalities from submitting them to common pleas in the event of an appeal. We turn now to common pleas' role in Fox's appeal.
Act of July 31, 1968, P.L. 805, as amended by Section 84 of the Act of December 21, 1988, P.L. 1329.
The ZHB's May 23, 2011 transcript lists the following exhibits:
A. List of York/Cumberland County property owners;What appears to be ZHB 2011 Hearing Exhibit Nos. F and H are part of the reproduced record before this Court. Reproduced Record "R.R." at 146-156a. Common pleas, however, did not have those exhibits and we may not consider them on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1921 (composition of record on appeal).
B. Property location and description;
C. Present improvement and present use of properties;
D. Answer to Application Question No. 9 General Criteria; Variance and Applicant's Narrative and Memorandum of Law;
E. Plan;
F. ZHB Order Nos. 2004-005, 2004-006, 2004-007;
G. Proposed order;
H. March 15, 2005 Amended Maintenance Agreement and Modification of Agreement of Right-of-Way and Easement.
In the present case, there was no request to submit additional evidence. We find it somewhat perplexing, however, how common pleas could have conducted even adequate appellate review of Fox's zoning appeal without the attendant exhibits. When a court does not take additional evidence, it reviews the finding of the municipal governing body on the record made below to determine whether the board committed an error of law or abused its discretion. An abuse of discretion occurs where the board's findings are not supported by substantial evidence, which is evidence that a reasonable mind would find adequate to support a conclusion. Valley View Civic Ass'n v. Zoning Bd. of Adjustment, 501 Pa. 550, 555-56, 462 A.2d 637, 639-40 (1983).
With regard to additional evidence, Section 1005-A of the MPC, 53 P.S. § 11005-A, provides as follows:
If, upon motion, it is shown that proper consideration of the land use appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, may remand the case to the body, agency or officer whose decision or order has been brought up for review, or may refer the case to a referee to receive additional evidence, provided that appeals brought before the court pursuant to section 916.1 shall not be remanded for further hearings before any body, agency or officer of the municipality. If the record below includes findings of fact made by the governing body, board or agency whose decision or action is brought up for review and the court does not take additional evidence or appoint a referee to take additional evidence, the findings of the governing body, board or agency shall not be disturbed by the court if supported by substantial evidence. If the record does not include findings of fact or if additional evidence is taken by the court or by a referee, the court shall make its own findings of fact based on the record below as supplemented by the additional evidence, if any.Section 1005-A was added to the MPC by Section 101 of the Act of December 21, 1998, P.L. 1329. --------
Here, a number of the pertinent facts are murky at best, including, inter alia, the precise terms of a prior variance grant (which appear by the parties' arguments to be disputed) or even the specific contents of the plan which Fox presented to the ZHB for approval. Review of the hearing exhibits would have been important in order for common pleas to ascertain whether the record before the ZHB was adequate to conduct its appellate review function and to determine whether the ZHB's findings were supported by substantial evidence.
Accordingly, for the above reasons, we vacate the order of the court of common pleas and remand this matter for further proceedings consistent with this opinion.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 2nd day of October, 2013, the order of the Court of Common Pleas of York County is hereby VACATED. This matter is REMANDED to the court for further proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge