McClellan v. Zoning Hearing Board

Opinion by Judge Mencer, This is an appeal from an order of the Court of Common Pleas of Washington County affirming a deci [538] sion of the Zoning Hearing Board of Mount Pleasant Township, Washington County. Under constitutional attack here, as below, is Article IY, 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. Commonwealth Ct. 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. Commonwealth Ct. 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. Commonwealth Ct. 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.