Opinion
Argued March 5, 1973
May 9, 1973.
Zoning — Appeal — Insufficient record — Ordinance — Stenographic record — Necessity for written findings — Remand.
1. When the record on appeal to the Commonwealth Court of Pennsylvania in a zoning case does not contain the zoning ordinance under attack, reflects that no stenographic record was made of testimony before the zoning board and reveals that no written findings were made, the matter cannot be decided on the merits and must be remanded. [538]
Argued March 5, 1973, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 643 C.D. 1972, from the Order of the Court of Common Pleas of Washington County in case of The Reverend Clare W. McClellan and Marian L. McClelland, his wife, v. The Zoning Hearing Board of Mount Pleasant Township, Washington County, Pennsylvania, 341 January Term, 1971.
Application for building permit. Application denied. Applicants appealed to The Zoning Hearing Board of Mount Pleasant Township, requesting variance. Application denied. Applicants appealed to the Court of Common Pleas of Washington County. Appeal denied. GLADDEN, J. Applicants appealed to the Commonwealth Court of Pennsylvania. Held: Remanded.
E. J. Julian, for appellants.
George B. Stegenga, for appellee.
This is an appeal from an order of the Court of Common Pleas of Washington County affirming a decision of the Zoning Hearing Board of Mount Pleasant Township, Washington County.
Under constitutional attack here, as below, is Article IV Section 3, of the Mount Pleasant Township Zoning Ordinance which prescribes minimum floor areas per family dwelling unit. Involved is the township's present zoning ordinance, before and after amendment, and the township "Building Permit Ordinance."
These ordinances are absent from the record, and we are mystified as to how we are to decide this appeal without them. Additionally the Zoning Hearing Board merely kept a summary of the proceedings before it and made no stenographic record. In Camera, Jr. v. Danna Homes, Inc., 6 Pa. Commw. 417, 296 A.2d 283 (1972), we remanded because the testimony was paraphrased by the Board's secretary rather than taken verbatim. See also Schelley v. Zoning Board of Adjustment, 8 Pa. Commw. 169, 302 A.2d 526 (1973); § 908(7) of the Pennsylvania Municipalities Planning Code (the MPC), Act of July 31, 1968, P. L. 805, as amended by the Act of June 1, 1972, P. L. ___, No. 93, 53 P. S. § 10908(7).
Finally, the lower court, having taken no additional evidence, did not make written findings of fact and conclusions of law. The Board, however, never made any findings of fact. We cannot judge the merits of an appeal without findings. BJM Urban Development Corp. v. Fayette County Zoning Hearing Board, 1 Pa. Commw. 534, 275 A.2d 714 (1971); see also §§ 908(9) 1010 of the MPC, 53 P. S. § 10908(9) 11010.
The record is remanded to the court below for further hearing before it or the Zoning Hearing Board of which a stenographic record and transcript of the proceedings shall be kept and findings and conclusions made.