COX et al. v. TWP. of ANTIS, 112 Pa. Commw. 330 (1988)

535 A.2d 299

Commonwealth Court of Pennsylvania.
January 6, 1988.

Municipalities — Junkyard — Denial of license — Scope of appellate review — Error of law — Findings of fact — Substantial evidence — Compliance with ordinance requirements — Opinion of Board chairman.

1. Review by the Commonwealth Court of Pennsylvania of a decision of a lower court affirming the denial of a license to operate a junkyard, where the lower court took no additional evidence, is to determine whether the Board of Supervisors denying the license committed an error of law or rendered findings of fact which are unsupported by substantial evidence which is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. [332]

2. When the only evidence presented to a Board of Supervisors indicates that all ordinance requirements for the issuance of a license to operate a junkyard have been met, it is error to deny the license based upon an opinion expressed by the Board chairman as to the detrimental effect of a junkyard on neighboring property values, as such statement cannot be considered to be testimony and a part of the record. [333]

Submitted on briefs September 30, 1987, to President Judge CRUMLISH, JR., Judge DOYLE, and Senior Judge KALISH, sitting as a panel of three.

Appeal, No. 1729 C.D. 1984, from the Order of the Court of Common Pleas of Blair County, in case of Thomas H. Cox, Sr., William H. Crawford, t/d/b/a CC Auto Salvage v. Township of Antis, No. 533 C.P. 1984.

Application for license to operate junkyard filed with Board of Supervisors of Antis Township. Application denied. Applicants appealed to the Court of Common Pleas of Blair County. Appeal dismissed. CHERRY, SR., J.

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Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Case remanded to lower court to remand to Board for issuance of license.

Paul V. Ressler, Ressler Ressler, for appellants.

No appearance for appellee.

OPINION BY PRESIDENT JUDGE CRUMLISH, JR., January 6, 1988:

The Antis Township Board of Supervisors (Board) denied Thomas Cox and William Crawford a license to operate a junkyard pursuant to Section 5 of Township Ordinance No. 66-1.[1] The Blair County Common Pleas Court affirmed. Cox and Crawford appeal;[2] we reverse and remand.

Cox and Crawford have operated an auto salvage yard in the township since 1977. In 1981 they purchased an adjacent parcel of land which separated their business from the Township Municipal Building. Prior to the purchase, the parcel had been used to store

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heavy construction equipment and scrap. Cox and Crawford applied for a permit to add this new property to their business license, but the Board denied the application. At a hearing held pursuant to the Local Agency Act,[3] a qualified real estate appraiser testified that the land in question met all the license requirements under the Junkyard Control Ordinance: (1) it was suitable for use as a salvage yard; (2) it would have no adverse impact upon the neighboring properties; (3) it would have a beneficial economic impact upon the community; and (4) it would not have a negative effect from an aesthetic point of view since its use as a junkyard was in character with the area.[4]

Although the Board found that the highest and best use of the land would be a junkyard, it denied the expansion because the adjoining properties would be devalued and it would interfere with the health, safety and welfare of the neighborhood.[5]

The common pleas court took the case on the agency record and on arguments of counsel. Where the common pleas court takes no additional evidence, our scope of review is limited to determining whether the Board committed an error of law and whether its necessary findings are supported by substantial evidence. Ramondo v. Zoning Hearing Board of Haverford Township, 61 Pa. Commw. 242, 434 A.2d 204 (1981). By “substantial evidence” we mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).

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Cox and Crawford contend, inter alia,[6] that the Board’s findings of fact are not supported by substantial evidence. We agree.

Our review of the record discloses that Cox and Crawford’s application was unopposed; the only evidence presented was that of the real estate appraiser and Crawford himself. The Board chairman offered his opinion that the extension of the salvage yard would be detrimental to area property values. His statement cannot be considered part of the record, however, since it was not testimony. The chairman cannot be an adverse witness and a voting board member in the same proceeding See Department of Education v. Oxford Area School District, 24 Pa. Commw. 421, 356 A.2d 857 (1976).

Thus, we hold that the common pleas court finding that the Board’s adjudication is supported by substantial evidence is in error. Accordingly, the common pleas court order is reversed, and the matter is remanded to the Board for it to grant the license to Cox and Crawford.

ORDER
The Blair County Common Pleas Court order, No. 533 C.P. 1984 dated May 18, 1984, is reversed. This case is remanded to the Common Pleas Court for it to remand the matter to the Antis Township Board of Supervisors in order to grant the license to Thomas Cox and William Crawford.

Jurisdiction relinquished.

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