Opinion
Argued October 4, 1979
January 9, 1980.
Zoning — Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805 — Appeals — Cross-appeals.
1. Where it is undisputed that a property owner's appeal from a zoning hearing board's order is procedurally correct, and where that appeal results in a remand under local court rule, and where the township appeals from the board's subsequent order under the same court term and number as the original appeal, the issue initially raised by the property owner is preserved for the Court's consideration even though no cross-appeal is filed. [395]
2. In zoning cases, courts will treat matters for what they are, notwithstanding the terminology used. [396]
3. Where a zoning hearing board errs in its conclusions, but its findings will support an alternative conclusion, the Court may reach the latter conclusion. [396]
Argued October 4, 1979, before Judges CRUMLISH, JR., DiSALLE and MacPHAIL, sitting as a panel of three.
Appeal, No. 2937 C.D. 1978, from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of Frederick J. Peruzzi from the Falls Township Zoning Hearing Board, No. 77-7285-05-5.
Application to the Falls Township Zoning Hearing Board for a use variance and for recognition of a non-conforming use. Applications denied. Property owner appealed to the Court of Common Pleas of Bucks County. Case remanded to Board for rehearing. GARB, J. Board denied recognition of non-conforming use and granted conditional variance. Township appealed to the Court of Common Pleas of Bucks County and property owner filed exceptions to Board decision. The Court reversed both Board decisions. GARB, J. for the court en banc. Township appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Mindy M. Brode, with her, David H. Moskowitz, Moskowitz Zamparelli, for appellant.
Richard P. McBride, with him, Power, Bowen Valimont, Leonard B. Sokolove, Sokolove, Pechter, Stief Waite, for appellee.
The Township of Falls (Township) appeals to this Court from an order of the Court of Common Pleas of Bucks County granting Frederick J. Peruzzi (Peruzzi) recognition of a non-conforming use. Although variously stated by the parties, the sole issue before us is whether Peruzzi had perfected an appeal concerning the non-conforming use to the Court of Common Pleas and, accordingly, whether that Court could enter the order at issue here. For the reasons which follow, we hold that Peruzzi had perfected his appeal and we affirm the Court's order.
The facts of this case are undisputed as they relate to this appeal. Peruzzi, upon being denied an occupancy permit for the purpose of using the property in question as a used car lot, requested a use variance from the Township's Zoning Hearing Board (Board). The application was later amended to include an application for recognition of a non-conforming use. Following two hearings, the Board denied the applications. Peruzzi appealed the denial of both the variance and the continuation of the non-conforming use to the Court of Common Pleas of Bucks County. Following a conference conducted pursuant to Bucks County Rule of Civil Procedure 27, the Court remanded the case to the Board. Upon rehearing the matter, the Board granted Peruzzi a conditional variance and affirmed the previous denial of the recognition of the non-conforming use. The Township appealed the grant of the variance to the Court of Common Pleas. Peruzzi filed "Exceptions to Decision and Order of the Zoning Hearing Board of December 8, 1977" challenging the denial of the continuation of the non-conforming use. The Township filed preliminary objections to Peruzzi's exceptions. The Court of Common Pleas, without taking additional testimony, entered an order reversing the Board's decision granting the variance. However, the Court's order recognized the continuation of the non-conforming use.
The Township's argument that the Court erred in recognizing the non-conforming use because that issue was not before the Court is two-pronged. The Township argues first that the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10101 et seq., establishes the exclusive method of appeal from an order of the Board. The Township contends that because the filing of exceptions is not one of the appellate procedures authorized by the MPC, Peruzzi's exceptions could not serve to preserve the non-conforming use issue for consideration by the Court. The Township's second argument is that Peruzzi's initial appeal on the non-conforming use issue was mooted when the Court remanded the proceedings to the Board and his failure to raise the issue by way of proper appeal after the Board's second decision prevents the Court from considering the question.
The Township's argument that the MPC provides the exclusive remedy for challenging a decision of the Board is correct. In Re: Appeal of Gilbert, 34 Pa. Commw. 299, 307-08, 383 A.2d 556, 559-60 (1978); Appeal of Cibula v. Bradford Township, 25 Pa. Commw. 333, 335, 360 A.2d 812, 813 (1976). Contrary to the Township's assertions, however, we find that Peruzzi did so perfect his appeal.
Following the Board's initial decision denying Peruzzi's application for both the variance and the continuation of a non-conforming use, he appealed the Board's order. It is undisputed that the appeal was procedurally correct. Following a conference conducted pursuant to a local rule of Court, the matter was remanded to the Board. After taking further testimony, the Board reconsidered its prior decision and entered a subsequent order granting the variance and denying the continuation of the non-conforming use. The Township appealed from the subsequent order to the Court of Common Pleas under the same court term and number as the original appeal filed by Peruzzi. Even though Peruzzi did not then file a cross appeal on the issue of the non-conforming use, we are satisfied that that issue had been preserved for the Court's consideration. Nothing in the record indicates that Peruzzi had abandoned his original grounds of appeal. To hold that Peruzzi's failure to cross appeal following the Board's second decision when the issues raised by his first appeal were still viable would exalt form over substance. We refuse to do so. The Common Pleas Court did not err in considering the non-conforming use issue or in basing its decision on that ground.
Since we have held that the issues raised in Peruzzi's original appeal were still properly before the Court after the Board's second decision, we need not decide whether his raising the non-conforming use issue in exceptions to the Board's decision also brought that issue within the Court's jurisdiction.
Even if we were to hold that Peruzzi had not preserved the non-conforming use issue for the Court's consideration, we would affirm the order. Again, we must refrain from putting form over substance. In zoning cases, "[c]ourts will treat the matter for what it really is, notwithstanding the terminology used." Root v. Erie Zoning Board of Appeals, 180 Pa. Super. 38, 41, 118 A.2d 297, 299 (1955). As the Court said in Hartenstine v. Pottstown Zoning Board of Adjustment, 88 Montg. 149, 151 (1967),
It is the substance of a zoning board's order rather than the terms in which the order is couched that determines the nature of the grant: Root v. Erie Zoning Board of Appeals, 180 Pa. Super. 38 (1955). The erroneous usage of the term 'special exception' will not invalidate an order where the right to a variance has been established, and, therefore, we must decide whether or not the board of adjustment was warranted in granting a variance to Coventry under the facts introduced.
Where, as here, the Board errs in its conclusion but its findings will support an alternative conclusion, the Court itself may reach the latter conclusion. See Ridley Township v. Pronesti, 431 Pa. 34, 37, 244 A.2d 719, 721 (1968).
It is uncontested on appeal that Peruzzi established his right to a continuation of a non-conforming use. The fact that the Board incorrectly granted him a variance does not diminish his right to the continuation of the non-conforming use if such a conclusion was warranted. The Court of Common Pleas held that it was. The order is affirmed.
The Township does not challenge the Court's decision on the merits. It apparently concedes that if the non-conforming use issue was properly before the Court, the Court's decision is correct.
ORDER
AND NOW, this 9th day of January, 1980, the order of the Court of Common Pleas of Bucks County, Civil Action — Law, No. 77-7285-05-5, dated November 28, 1978, is affirmed.
This decision was reached prior to the expiration of the term of office of Judge DiSALLE.