Opinion
No. 765 C.D. 2014
03-13-2015
C.O. Revocable Family Trust, Appellant v. City of Pittsburgh Zoning Board of Adjustment, and City of Pittsburgh, Drew Elste, and Patricia Lemer
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This is an appeal from the April 7, 2014 order of the Court of Common Pleas of Allegheny County (trial court), which affirmed the August 8, 2013 decision of the Zoning Board of Adjustment of the City of Pittsburgh (Board). The trial court affirmed the Board's determination that an outdoor tent and catering functions are not a permissible accessory use to a bed & breakfast located at 5516 Maple Heights Road, Pittsburgh, Pennsylvania (B&B) and known as the "Mansion at Maple Heights." The property operated as the B&B is a large, single-family residence located in the Squirrel Hill/Shadyside area of Pittsburgh. The use of the property as a bed and breakfast is permitted as a conditional use in the R2 Zoning District pursuant to sections 911.02 and 911.04.A.9 of the City of Pittsburgh, Pennsylvania Code of Ordinances (Code). The property has a valid Certificate of Occupancy from August 27, 1996 for a 3-story bed and breakfast facility including one dwelling unit and not more than 10 guests rooms; the Certificate states that each guest room shall not provide lodging for more than 2 individuals unless children under 16 years old are accompanying the guest and that the number of guests shall not exceed 30 with 5,000 sq. ft. of outdoor parking area. (Reproduced Record (R.R.) Volume 1 at 20a.)
The Board made its determination following a remand hearing conducted pursuant to this Court's order of August 2, 2012, in which the Board was instructed to make additional findings of fact and conclusions of law. At the hearing, both parties presented testimony and evidence, and entered documentary evidence into the record.
See C.O. Revocable Family Trust v. City of Pittsburgh Zoning Board of Adjustment, City of Pittsburgh, Drew Elste and Patricia Lemer, (Pa. Cmwlth., No. 972 C.D. 2011, filed August 2, 2012), WL 8681689. (C.O. Revocable Family Trust I).
This zoning appeal originated with a protest appeal filed by Drew Elste and Patricia Lemer, two neighboring property owners, following the 2010 determination of the Zoning Administrator to issue an accessory tent permit to C.O. Revocable Family Trust (herein Appellant), as owner of the home and real property operated as a bed and breakfast. After a hearing, the Board approved the protest appeal, C.O. Revocable Family Trust appealed the Board's decision to the trial court, and the trial court reversed the Board. An appeal was filed in this Court on May 25, 2011, with the City of Pittsburgh and the Board joining in the neighbors' brief and, following argument in Pittsburgh on April 17, 2012, this Court issued its opinion. In C.O. Revocable Family Trust I, this Court (i) affirmed the trial court insofar as it reversed the Board's decision that denied C.O. Revocable Family Trust's use of the property as a bed and breakfast; (ii) reversed the trial court insofar as it determined that the protest appeal was not timely filed; and (iii) reversed the trial court insofar as it reversed the Board's determination that a 2010 Certificate of Occupancy for the tent was improperly issued, and remanded for "additional findings of fact and conclusions of law on the issue of whether the tent and catering functions are a permissible accessory use to the operation of the Bed and Breakfast." 2012 WL 8681689 at *7.
The June, 2010 Certificate of Occupancy for the tent lists as the Permitted Occupancy: "20 FT BY 110 FT, 2,200 SQ FT, 1-STORY TEMPORARY TENT IN REAR (NORTHERLY) SIDE OF 3-STORY BED & BREAKFAST FACILITY; ACCESSORY USE FOR EVENTS AS PERMITTED UNDER S.911.04.7(e)..." (R.R. at 21a.)
In its August 8, 2013 decision following the remand hearing, the Board made specific findings with regard to the revenues derived from catered events held in 2012, the number of employees devoted to B&B-related functions compared to those employed in the catering operations, and the actual number of B&B guests as compared to the maximum potential number of catered event guests between 2010 and 2012. (Board's Decision, Findings of Fact (F.F.) ¶¶ 5-6, 8, R.R. at 474a.) In its decision, the Board cited section 912.01 of the Code, which states, in pertinent part, that an "accessory use or structure must: (a) be subordinate to and serve the primary use or structure; (b) be subordinate in area, extent and purpose to the primary use or structure served; [and] (c) contribute to the comfort, convenience or necessity of occupants of the primary use or structure served." The Board concluded that (i) the catered events held in the outdoor tent have been the primary use of the subject property, with more guests attended and more revenue amassed than the B&B; (ii) the extent of the use of the outdoor tent for catered events is paramount to the B&B; and (iii) the B&B has been used for the comfort and convenience of the catered events guests. (Id., Conclusions of Law, ¶¶ 1-2.) The Board further concluded that "the manner in which the catered parties are operated with 150 attendees, over two dozen employees, utilizing amplified music - as a matter of law cannot be an accessory to a five bedroom bed and breakfast in the residential district in which it sits." (Id., Conclusions of Law ¶ 4.)
Appellees herein are the Board and the City of Pittsburgh, Drew Elste, and Patricia Lemer (Appellees). Before this Court, Appellant argues that the Board committed an error of law by concluding that the use of the tent in conjunction with catered events represents an accessory use. Appellant maintains that subsection (e) of Code section 911.04.A.7 expressly includes "limited social and business functions" as a primary use of a bed and breakfast facility, that the only accessory use or structure is the tent itself, not the social functions using the tent, and that the tent is a valid accessory structure to the events. Appellant contends that neither the bed and breakfast use or the limited social and business function use can be subordinate or accessory to the other because the Code has defined both as primary uses.
Our scope of review in a zoning case where the trial court has not taken additional evidence is limited to determining whether the local zoning board committed an error of law or an abuse of discretion. Segal v. Zoning Board of Buckingham Township, 771 A.2d 90, 94 n.6 (Pa. Cmwlth. 2001). A board abuses its discretion when its findings are not supported by substantial evidence. Id. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. See McClintock v. Zoning Hearing Board of Fairview Borough, 545 A.2d 470, 472 (Pa. Cmwlth. 1988).
Section 911.04.A.7 of the Code states:
Bed and Breakfast uses shall be subject to the following standards:
(a) The Bed and Breakfast use shall have a manager available on the premises on a twenty-four-hour-day basis while guests are on the premises;
(b) Food and beverage service shall be limited to breakfast for registered, paying overnight guests except in the case of limited social and business functions held on premises;
(c) Guests shall be limited to a maximum length of stay of fifteen (15) consecutive days in any thirty-day period;
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(e) Wherein limited social and business functions may occur provided that:
(Section 911.04.A.7.)(1) The hours are limited to no later than 6:00 p.m. daily for bed and breakfasts (Limited); and no later than 11:00 p.m. Monday through Saturday, and 6:00 p.m. on Sunday for bed and breakfasts (General). No bed and breakfast shall host more than two (2) scheduled social or business functions per week.
(2) Valet parking shall be provided having a minimum of one (1) parking stall for every four (4) occupants permitted under the occupancy placard issued by the Bureau of Building Inspection.
(3) Strict compliance with the local noise ordinance is maintained.
(4) Occupancy shall not exceed the number of persons listed on the occupancy placard by the Bureau of Building Inspection.
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Appellees argue that at no point before the Board did Appellant raise an objection to an accessory use analysis being applied to its social events, and that Appellant is therefore barred from now raising this new legal theory. In a reply brief, Appellant argues that the issue was indeed raised, and cites to a portion of the remand hearing during which the parties discussed the manner in which revenues from the operation of the B&B, as opposed to revenues from business and social events conducted at the B&B with or without the tent, were documented. (Notes of Testimony (N.T.), R.R. at 83a.) Appellant's counsel indicated to the Board that under the Code, the B&B was permitted to hold business and social events regardless of whether the tent was used. (Id.) On review, we find no evidence that Appellant previously raised the specific issue of whether a B&B can have two principal uses, or that it challenged the Board because it considered the business and social events using the tent to be part of the proposed accessory use. Nevertheless, because we reject the argument that the Code authorizes any other primary use for a bed and breakfast than that of an occupied dwelling unit providing temporary stays with breakfast included, we need not address the waiver argument here.
Chapter 911 of the Code is entitled "Primary Uses" and lists Bed and Breakfasts as a use type in the Use Table set forth in section 911.02. Bed and Breakfasts are described as "occupied dwelling unit[s] in which rooms are let on an overnight basis as the temporary abiding place of persons who have residences elsewhere." Section 911.04.A sets forth "Standards That Apply to Uses Listed in the Use Table." This section indicates that "[t]he following standards apply to uses listed in the Use Table, to the extent stated." Section 911.04.A.7 is entitled "Bed and Breakfast" and it subjects bed and breakfasts to various operating standards, including subsection 911.04.A.7(b), which directs that "food and beverage service shall be limited to breakfast for registered, paying overnight guests except in the case of limited social and business functions held on premises." Subsection 911.04.A.7(e) provides further minimum requirements under which these limited social and business functions may occur, limiting the number of events per week, establishing valet parking requirements, noise and maximum occupancy limitations as well as the hours by which the events must end. In Section 926 of the Code, the term "primary use" is defined as "the principal or predominant use of any lot or parcel." We find here that the limited social and business functions permitted under the Code cannot constitute a primary use of a bed and breakfast and the use of a tent in conjunction with catering and event purposes necessarily represents an accessory use and was correctly analyzed as such by the Board.
Indeed, Appellant testified that the facility hosted approximately 31 or 32 events in the course of a year, and that it was not that they didn't want to have more events, but rather that "[i]t's just our main business is the bed and breakfast. On more days than not, we're just running a hotel operation." (R.R., April 25, 2013 Remand Hearing, Notes of Testimony (N.T. at 91a.) The B&B owner further testified that "[t]he bed and breakfast is our main business. That is what we do more days than not." (Id., N.T. at 93a.)
Appellant argues that the tent, if properly evaluated under Code section 912.01, qualifies as an accessory use to the B&B because it is subordinate to the Mansion at Maple Heights and serves the primary uses (both bed & breakfast and limited business and social events). Appellant avers that the tent is used far fewer times a year, is subordinate in size, that no part of it is used exclusively for social events, and that it contributes to the comfort of both B&B guests and event guests, providing shade and weather protection.
At the remand hearing, the Board properly followed this Court's direction to make additional findings of fact and conclusions of law on the issue of whether the tent and catering functions are a permissible accessory use to the operation of the B&B. The voluminous documentary evidence presented makes clear the manner in which the tent is used and the extent of its use; the size and scope of the weddings and other social events that occur with the tent in place far exceed the size and scope of the limited business and social events permissible under section 911.04.A.7(b). The limited social and business functions permissible inside the Mansion at Maple Heights are subject to the further limitation that the number of guests at a function may not exceed the number on the occupancy placard (at the Mansion at Maple Heights, the maximum occupancy is 99 persons). However, the floor plans presented demonstrate that inside the tent, up to 150 persons are seated at tables, surrounding a dance floor. (R.R. at 541a-554a.) When a plated dinner is not served by the caterer, the first floor of the B&B serves as the buffet serving area for the guests seated in the tent, with food stations, bars, casual seating and room for place cards, dessert displays, and gifts. (Id.) Significantly more guests are accommodated because of the tent, and the number of staff persons associated with the social events far exceeds the staff required to operate the B&B. Further, the Board found that contracts executed for catered events include the required rental of the entire B&B, including all five of its available bedrooms, and that during the weekends of catered events, the entire first floor of the B&B, tent area, and lawn of the property are used solely for catered event guests. (Id., F.F. ¶¶ 7, 9, R.R. at 474a.)
The Board found that between 2010 and 2012, the B&B has hosted 2,372 guest nights, and there have been 78 catered events. (F.F. ¶ 8, R.R. at 474a.) Further, the Board found that each catered event can hold up to 150 persons, making a total of up to 11,700 possible guests at the catered events. (Id.)
The Board found that on non-event days, 4 employees are devoted to the B&B, and on event days, 31 employees are dedicated to catered events. (F.F. ¶ 6, R.R. at 474a.)
The Board found that catered events held at the property amassed 74% of the revenue in 2012, not including the fees paid by caterers, DJs, flower services, etc. for exclusive status at the property. (F.F. ¶ 5, R.R. at 474a.) Before this Court, Appellant argues that the Board's findings were unsupported by record evidence. However, the record includes the caterer's bills to event clients as well as promotional materials disseminated by the Mansion at Maple Heights that offer insight into the magnitude of the catering operations. For example, the caterer's bill to a client for an event in October, 2012 totals $14,924.38 (this amount includes food and bar supplies for 144 persons, 18 staff persons, equipment rental and 15% gratuity). (R.R. at 299a.) In addition to the amount charged to event clients by the caterer, the Mansion at Maple Heights offers event clients a reception package price starting at $6,495 that includes property and tent rental, chairs, tables, plates, flatware, barware, valet parking and security, plus overnight rental of the entire B&B; upgrades to this package are available for a ceremony (at a cost of $1,500), Friday night B&B rental of all five available rooms (at a cost of $1,100) and a rehearsal dinner for up to 60 guests (at a cost of $2,200). (R.R. at 539a.)
Section 912.02 of the Code permits accessory structures in residential districts, including patios, cabanas, porches, gazebos and, under subsection 912.02(15), "other necessary and customary uses determined by the Zoning Administrator to be appropriate, incidental and subordinate to the primary use on the lot." Our courts have made clear that the determination of whether a proposed use is subordinate to the principal use is not determined solely by the size of an accessory structure, Tennyson v. Zoning Hearing Board of West Bradford Township, 952 A.2d 739, 745 (Pa. Cmwlth. 2008), or by the manner in which the establishment derives its income, Southco, Inc. v. Concord Township, 713 A.2d 607, 610 (Pa. 1998).
In Southco, our Supreme Court considered whether the wagering component of a proposed "Turf Club" constituted an accessory use to a restaurant use by right under the zoning ordinance; there, the evidence demonstrated that 75% of the building and the majority of the employees would be utilized solely for the restaurant. As well, the Court found significant that the relevant statute permitted such wagering only at facilities containing a restaurant, thus demonstrating that the wagering aspect was dependent on, and subordinate to the restaurant. 713 A.2d at 611. Here, the Board found that the tent for catered events was not "dependent upon" the B&B use, was not customarily incidental to the B&B, and was erected to serve the purpose of catering events and not the guests of the B&B. (Board Conclusion of Law ¶ 3a, R.R. at 475a.) In Risker v. Smith Township Zoning Hearing Board, 886 A.2d 727, 732 (Pa. Cmwlth. 2005), we found that the impact of the proposed accessory use, a landing strip, on the property, a single-family residence, and the surrounding neighbors would not be of minor consequence and thus was not "clearly incidental" to the principal use of the land. As in Risker, the tent here cannot be considered incidental to the principal use as a bed and breakfast.
A zoning hearing board's interpretation of its own zoning ordinance is entitled to great weight and deference. Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55, 57 (Pa. Cmwlth.), appeal denied, 747 A.2d 904 (Pa. 1999). We find that the Board did not abuse its discretion or commit an error of law in its determination that an outdoor event tent of this magnitude is not a proper accessory use to the B&B. Substantial record evidence of the significantly larger number of event guests accommodated at tent events compared to the number of B&B guests, significantly larger numbers of staff persons required to service tent events compared to the four employees who staff the B&B, and the significantly larger revenues being derived from the rental of the facility and the sale of food and beverages and equipment rental for tent events, all support the conclusion of the Board that the events held at the outdoor tent have been the primary use of the business. A use cannot be considered accessory when it is in actuality the principal use of the building. Appeal of Hasley, 30 A.2d 187, 189 (Pa. Super. 1943).
Accordingly, the order of the trial court is hereby affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge Judge McCullough did not participate in the decision of this case. ORDER
AND NOW, this 13th day of March, 2015, the ORDER of the Court of Common Pleas of Allegheny County is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE BROBSON
Respectfully, I must dissent. This case was only ever about whether the Zoning Administrator for the City of Pittsburgh (ZA) properly approved the application of C.O. Revocable Family Trust (Trust) to erect a tent on its property in the R2 Zoning District as an accessory use/structure under Section 912.02(15) of the City of Pittsburgh Zoning Code (Code). Our focus, then, should be on whether the ZA erred in concluding that the proposed tent was "appropriate, incidental and subordinate" to the Trust's bed and breakfast (B&B) operation on the property.
Section 912.02 of the Code authorizes a laundry list of permitted accessory uses by right in a residential zoning district. Included in that list is a final category: "Other necessary and customary uses determined by the Zoning Administrator to be appropriate, incidental and subordinate to the primary use on the lot." Code § 912.02(15).
"Whether a proposed use, as factually described in an application or in testimony, falls within a given category specified in a zoning ordinance is a question of law" subject to plenary review. Tennyson v. Zoning Hearing Bd. of West Bradford Twp., 952 A.2d 739, 744 (Pa. Cmwlth. 2008). My view of this matter is further influenced by the command that we must construe zoning ordinances expansively, "affording the landowner the broadest possible use and enjoyment of his land." Tink-Wig Mountain Lake Forest Prop. Owners Ass'n v. Lackawaxen Twp. Zoning Hearing Bd., 986 A.2d 935, 941 (Pa. Cmwlth. 2009).
The property is located in the R2 Zoning District. The Code addresses primary uses in Chapter 911 and accessory uses in Chapter 912. Section 911.02 (table) of the Code defines a B&B as "an occupied dwelling unit in which rooms are let on an overnight basis as the temporary abiding place of persons who have residences elsewhere." A B&B is a primary use under Chapter 911. It is permitted as a primary use in the R2 Zoning District by the conditional use approval process. Code §§ 911.02 (table), 911.04.A.9. The Code provides standards for B&Bs. These standards expressly authorize, as part of a B&B,
limited social and business functions . . . provided that:
(1) The hours are limited to no later than 6:00 p.m. daily for bed and breakfasts (Limited); and no later than 11:00 p.m. Monday through Saturday, and 6:00 p.m. on Sunday for bed and breakfasts (General). No bed and breakfast shall host more than two (2) scheduled social or business functions per week.
(2) Valet parking shall be provided having a minimum of one (1) parking stall for every four (4) occupants permitted under the occupancy placard issued by the Bureau of Building Inspection.
(3) Strict compliance with the local noise ordinance is maintained.
Code § 911.04.A.7(e).(4) Occupancy shall not exceed the number of persons listed on the occupancy placard by the Bureau of Building Inspection.
The City of Pittsburgh Zoning Board of Adjustment (ZBA) determined that the Trust was compliant with the standards governing social and business functions at its B&B. Nonetheless, it concluded that the ZA erred in approving the Trust's application for the tent, because the tent was not accessory to the primary use of a B&B, but to use of the property as an outdoor event facility. In this Court's opinion before remand, upon examination of the record and the Board's findings, the Court concluded, as the ZBA did, that the Trust was "compliant with all of the requirements set forth in Section 911.04.A.7(e)," dealing with its social and business events. Nonetheless, the panel in C.O. Trust I embraced the possibility that the B&B use could become accessory to the Trust's outdoor event business if revenue from "normal" room rental is de minimis when compared to overnight stays connected to the outdoor events. C.O. Trust I, slip op. at 11-13. The Court remanded for further factfinding. Specifically, the Court directed the trial court to remand the matter to the Board to further consider such things as "revenues derived from tent events relative to those derived from the operation of the B&B" and "the percentage of public areas in the B&B used primarily for event purposes." Id. at 12-13.
C.O. Revocable Family Trust v. City of Pittsburgh Zoning Bd. of Adjustment, (Pa. Cmwlth., No. 972 C.D. 2011, filed Aug. 2, 2012), slip op. at 11 (C.O. Trust I).
Notwithstanding the examination of these areas on remand, it is undisputed that the Trust proposes to use the tent in furtherance of the social and business events that it is authorized to conduct on the property under Section 911.04.A.7(e) as part of the B&B use. I must respectfully disagree with the construct, fostered by this Court's decision in C.O. Trust I and now adopted by the majority, that the social and business events authorization in Section 911.04.A.7(e) of the Code is somehow a separate principal use for the property or is an accessory use to the B&B use. Neither reading comports with the express language of the Code or its structure, which separates principal uses and accessory uses into separate chapters. The Code expressly provides that social and business events, as limited by the four conditions in the Code, are part and parcel of the B&B use, not a separate use and certainly not a use accessory to the B&B use.
I also disagree with the position, embraced by the majority, that social and business events are only permitted on the site of a B&B so long as the revenue from those events is de minimis or, at least, less than the revenue derived from "normal" B&B operations. Similarly, I cannot adopt the view that social and business events on the property must be limited in some fashion to a certain footprint (square footage) on the premises. There is simply no Code support for these limitations. This is not a sham B&B. No one is contending that the Trust is not operating a B&B on the property. So long as the Trust is offering rooms "on an overnight basis as the temporary abiding place of persons who have residences elsewhere," Section 911.02 (table) of the Code (definition of B&B), the Trust is operating a B&B as the principal use of the property. Part of that principal use allows the Trust to hold social and business events on the premises subject only to the express limitations set forth in the Code. The Code does not limit the amount of revenue derived from or the square footage that may be used for these events.
There is no dispute that the proposed tent meets the definition of "accessory use" as applied to the social and business events held at the property. Because those events are part and parcel of the B&B use, and not a separate principal use or accessory use on the property, the ZA did not err in approving the application. If there comes a time that the Trust holds social or business events in violation of the limits set forth in the Code, that will be a matter of enforcement, which is a question separate and apart from the tent application. For these reasons, I would reverse the trial court's order.
At page 7 of its opinion, the majority concludes that because the tent can hold up to 150 people, the Trust would be violating the occupancy limit for social and business events set forth in 911.04.A.7(e)(4) of the Code. This Code section limits "occupancy" at any particular event, it does not limit "capacity." The certificate of occupancy for the tent expressly provides that the tent may be used "for events as permitted under S. 911.04.A.7(e)," which includes all of the conditions set forth in the Code for social and business events at a B&B, including the occupancy limit. (R.R. 21.) If the Trust exceeds the occupancy limits for social and business events at its B&B, that would be a matter of Code enforcement.
I am sensitive to the fact that the Court's decision in C.O. Trust I remanded the matter to the trial court and then to the Board to consider the matters that I believe, for reasons set forth above, are irrelevant for purposes of deciding whether the ZA erred. Nonetheless, because we did not decide the legal question of the validity of the accessory use approval in C.O. Trust I, I do not believe that the law of the case doctrine precludes my proposed resolution of this matter. See Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (noting law of the case doctrine includes rule that "upon a second appeal, an appellate court may not alter the resolution of a legal question previously decided by the same appellate court"). Nonetheless, even if the doctrine applied, departure from the principle is permitted "where the prior holding was clearly erroneous and would create a manifest injustice if followed." Id. at 1332. Given our charge to construe zoning ordinances in a way that affords landowners the broadest possible use and enjoyment of their property, I believe the exception applies here. --------
/s/_________
P. KEVIN BROBSON, Judge