Opinion
Argued March 3, 1983
May 18, 1983.
Zoning — Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805 — Scope of appellate review — Local Agency Law, 2 Pa. C. S. § 754(b).
1. Because Section 1010 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, does not apply to appeals of decisions by the City of Pittsburgh Zoning Board of Adjustment, a court of common pleas exceeds its scope of review when it makes factual findings in such a case. [362]
2. Under Section 754(b) of the Local Agency Law, 2 Pa. C. S. § 754(b), a common pleas court may not make its own findings of fact when it has not taken additional evidence in a zoning case; if the zoning board of adjustment has made inadequate factual findings, the matter should be remanded to obtain the essential factual determinations. [362]
Argued March 3, 1983, before President Judge CRUMLISH, JR. and Judges WILLIAMS, JR. and BARBIERI, sitting as a panel of three.
Appeal, No. 1535 C.D. 1982, from the Order of the Court of Common Pleas of Allegheny County in the case of Gary L. Frey and Victoria L. Frey, his wife, and Nancy Frey v. Zoning Board of Adjustment of the City of Pittsburgh, No. SA 213 of 1982.
Request for variance denied by the Zoning Board of Adjustment of the City of Pittsburgh. Property owners appealed to the Court of Common Pleas of Allegheny County. Appeal sustained. PAPADAKOS, A.J. City appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Kathryn E. Hanna Katsafanas, Assistant City Solicitor, with her D. R. Pellegrini, City Solicitor, for appellant.
Chris J. Balouris, Brennan, Robins Daley, for appellees.
The City of Pittsburgh appeals an Allegheny County Common Pleas Court order granting a variance. We reverse and remand.
Gary and Victoria Frey's application for a variance to maintain a parking pad on their residential property was denied for failure to meet certain setback requirements. Pittsburgh's Zoning Board of Adjustment (Board), in denying the variance, failed to make findings of fact in support of the denial. On appeal, the court below made its own factual findings based on the Board record, citing Section 1010 of the Municipalities Planning Code (MPC) as authority for doing so, and granted the variance.
Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 11010. Section 1010 provides, in pertinent part, as follows:
If the record does not include findings of fact, . . . the court may make its own findings of fact based on the record below. . . .
We agree with the City that the common pleas court erred. By making factual findings, the court exceeded its scope of review. Section 1010 of the MPC does not apply to appeals of decisions by the City of Pittsburgh Zoning Board of Adjustment. See North Point Breeze Coalition v. City of Pittsburgh, 60 Pa. Commw. 298, 303-04, 431 A.2d 398, 400-01 (1981); King Productions, Inc. v. Board of Adjustment of the City of Pittsburgh, 27 Pa. Commw. 256, 258 n. 1, 367 A.2d 322, 323 n. 1 (1976). Under Section 754(b) of the Local Agency Law, which applies here, a common pleas court may not make its own findings of fact when it has not taken additional evidence. See Ramondo v. Zoning Hearing Board of Haverford Township, 61 Pa. Commw. 242, 434 A.2d 204 (1981); Foley v. Civil Service Commission of the City of Philadelphia, 55 Pa. Commw. 594, 423 A.2d 1351 (1980). If a local agency, in this case the Board, has made inadequate factual findings, the reviewing court normally can and should remand the matter to the agency to obtain the essential factual determinations. See Tucker v. Zoning Board of Adjustment of the City of Pittsburgh, 62 Pa. Commw. 615, 437 A.2d 499 (1981).
Pittsburgh zoning appeals were formerly governed by Section 7 of the Act of March 31, 1927, P.L. 98, as amended, 53 P. S. § 25057. That section's provisions relating to zoning appeals were, however, repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1083], effective June 27, 1979. No statutory procedure specific to Pittsburgh zoning appeals presently exists. Thus, the Local Agency Law, enacted to provide the procedure for appeals of local agency adjudications where no procedure otherwise exists, Boehm v. Board of Education of School District of Pittsburgh, 30 Pa. Commw. 468, 373 A.2d 1372 (1977), must be deemed to apply. North Point Breeze Coalition v. City of Pittsburgh, 60 Pa. Commw. at 304, 431 A.2d at 400-01.
Only when a full and complete record of the proceedings before the City of Pittsburgh Zoning Board of Adjustment was not made may a common pleas court hold a hearing de novo and take additional evidence. 2 Pa. C. S. § 754(a), (b).
Reversed and remanded.
ORDER
The Allegheny County Common Pleas Court order in SA 213 of 1982, dated May 27, 1982, is hereby reversed and this matter is remanded with instructions to remand to the City of Pittsburgh Zoning Board of Adjustment for further proceedings not inconsistent with this Opinion.