Opinion
No. 1036 C.D. 2012
05-14-2013
Joe Palmo, Joanne Pompeo, Melissa McSwigan, Robert Raczka, Pam Golden, Daniel Dennehy, Elisabet Rodriguez Dennehy and Lisa Haabestad, Appellants v. Zoning Board of Adjustment of the City of Pittsburgh and City of Pittsburgh
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge (P.) HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Neighboring property owners (Objectors) appeal the order of the Allegheny County Court of Common Pleas (trial court) affirming the decision of the Zoning Board of Adjustment (Board) of the City of Pittsburgh (City) to grant variances from the minimum lot size and setback requirements of Section 903.03.C.2 of the Pittsburgh Zoning Code (Code) to Oakdale Development LLC (Applicant), the owner of the property at 620 Bellefonte Street in the City's Shadyside neighborhood. We reverse.
Joe Palmo, Joanne Pompeo, Melissa McSwigan, Robert Raczka, Pam Golden, Daniel Dennehy, Elizabet Rodriguez Dennehy and Lisa Haabestad own and occupy properties on Bellefonte Street.
Bellefonte Street is situated in the area between Fifth Avenue and Ellsworth Avenue, and between S. Aiken Street and Negley Avenue.
Applicant's property is a 2,500-square-foot lot, 25-feet wide by 100-feet deep, and is situated in an R2-M (Residential Two-Unit, Moderate Density) zoning district in Shadyside. Code Section 911.02 provides that uses permitted by right in the R2-M zoning district are Single-Unit Detached Residential, Single-Unit Attached Residential, and Two-Unit Residential uses. Code Section 903.03.C.2 requires front and rear setbacks of 30 feet; side-yard setbacks of 5 feet; a minimum lot size of 1,800 square-feet per unit; and a maximum height of 40 feet (not to exceed three stories). The two structures currently on the property are in violation of the minimum lot size and setback requirements. One is a two-unit building situated 2 feet from the front property line on Bellefonte Street, and the other is a single-unit structure located 1 foot from the rear property line on Telegraph Way. Both structures have a 5-foot setback on one side of the property line and abut the property line on the other side.
Applicant filed an application with the City's Department of Planning to demolish the two existing buildings and to replace them with a 21-foot by 80- foot structure. The new building would be 40 feet high and comprise two separate units, one facing Bellefonte Street and the other facing Telegraph Way, each with three stories above a basement with a two-car integral garage. As proposed, the building will have 10-foot setbacks in the front and rear of the property and interior side-yard setbacks of 4 feet and 0 feet. Applicant requested five variances from Code Section 903.03.C.2's minimum lot size, setback and height requirements.
While Code Section 921.01.A permits the maintenance, remodeling and repair of nonconforming structures, Code Section 921.03.C.3 addresses the razing of nonconforming structures, stating:
In the event of arson or other willful destruction, reconstruction of nonconforming structures shall be prohibited if such casualty is traceable to the owner or his/her agent. Such instances shall result in forfeiture of the nonconforming status, and must subsequently be brought within all the prevailing restrictions applied to the surrounding district.
Each unit will have three bedrooms, two-and-a-half baths and a double garage. In addition, each unit will have its own internal elevator and internal staircase. (Reproduced Record (R.R.) at 58a-59a.)
Regarding the grant of variances, Code Section 922.09.E states:
No variance in the strict application of any provisions of this Zoning Code shall be granted by the Zoning Board of Adjustment unless it finds that all of the following conditions exist:
1. That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to the conditions, and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located;
2. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;
3. That such unnecessary hardship has not been created by the appellant;
4. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
5. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
In granting any variance, the board may attach such reasonable conditions and safeguards as it may deem necessary to implement to purposes of this act and the zoning ordinance.
The applicant shall have the burden of demonstrating that the proposal satisfies the applicable review criteria.
On March 10, 2011, the Board held a hearing at which neighbors Anthony Marchionno (Marchionno), the owner of 622 Bellefonte Street, and Jeffrey Latcheran (Latcheran), the owner of 618 Bellefonte Street, testified in favor of granting the variances. Marchionno stated that the two current structures on the property are in disrepair and that new, aesthetically pleasing development will increase his property's value. Marchionno testified that he was not concerned about the construction because the developer put in a similar structure nearby with no problems and that the tree on the property needed to be taken out because of the damage it caused to his gutters and power lines. Latcheran testified that he agrees with Marchionno and that he believes that the requested variances are reasonable.
The project's architect, Harry Levine (Levine), testified that the buildings at 628, 626, 624 and 622 Bellefonte Street each had zero-foot side-yard setbacks. Levine noted that Applicant had initially planned a 47-foot high structure and had requested a variance from the 40-foot height restriction, but later revised the proposed development to be under 40 feet high and no longer needed a variance from the height restriction so that the only remaining variances related to the lot size and the front, rear and side setbacks.
Additional testimony was elicited concerning the extent to which the garage floor would be below grade, with the developer of the property estimating that the floor of the garage would be one foot, four inches to two feet below grade. Objectors' counsel questioned whether the structure was actually four stories instead of three, because Code Section 925.07.B.2 counts a basement as a story if 60% of it is above grade, as measured from the front, and Objectors offered into evidence a diagram showing that the proposed garage is 85% above grade. The developer acknowledged that more than 60% of the first level fronting Bellefonte Street was above grade. However, one Board member emphasized that while Applicant was not requesting a variance from the ordinance's height requirements at that time, the Board would not be deciding whether one was needed. He added that this question would be considered when building plans are submitted.
Importantly, Applicant's developer, Jason Lardo, conceded that a single-unit residential structure could be built on the property in conformity with the Code requirements regarding lot size and setbacks, but that the other buildings on the street do not comply because they are two-unit and three-unit structures. (R.R. at 87a-88a.) The Board's Chairwoman specifically took note of the fact that Applicant could build a single-unit dwelling on the property, but that Applicant had not chosen to do so and did not submit an application for such a use. (Id. at 92a-93a.)
Pursuant to Code Section 925.01.C, Single-Unit Dwelling Exemptions, the minimum lot size standards of the Code do not prohibit the construction of a single-unit residential dwelling on any lot that was legally platted or recorded prior to the adoption of the Code, and a single dwelling may be approved as an administrator's exception on a lot with less area than is otherwise required.
Objector Joe Palmo owns property at 615 Bellefonte Street and complained that the scale of the building was outsized for its neighborhood and exceeds the contextual setbacks established by the neighboring properties. Palmo noted that on the 600 block of Bellefonte Street, there are twice as many single-unit properties as there are multi-unit properties, and that the median occupancy is one. Palmo also testified that a 17-foot by 35-foot single-family unit nearby at 718 Filbert Street sold for $355,000 in June 2010, and a 19-foot by 42-foot single-family home on a 2,125 square foot lot sold for $450,000 in 2008.
Code Section 925.06.B defines Contextual Front Setbacks as follows:
Regardless of the minimum front setback requirements imposed by the zoning district standards of this Code, applicants shall be allowed to use Contextual Front Setback. The Contextual Front Setback shall apply only to primary uses and structures. A Contextual Front Setback may fall at any point between the (zoning district) required front setback and the front setback that exists on a lot that is adjacent and oriented to the same street as the subject lot....
Objector Robert Raczka offered photographs and details of the surrounding properties, which he described as either single-family homes or houses that were built as single-family homes and later converted to apartments while maintaining the outward appearance of a single-family home. Objector Joanne Pompeo testified that the proposal was actually a four-story building that would cover much more of the lot than any surrounding properties. She stated that the average front setback on the 620 Bellefonte side of the street is 16.5 feet and that the average setback increases to 20 feet if the houses on the opposite side of the street are taken into account. Additional Objectors expressed concern that the proposed building would dwarf others in the neighborhood, block sunlight and airflow, and negatively impact the environment, citing the new construction and the removal of a large tree on the land. Objectors also believe that a previous rezoning of the neighborhood will be undermined by the approval of the numerous variance requests.
By decision dated July 14, 2011, the Board granted Applicant variances from Code Section 903.03.C.2's minimum lot size and setback requirements. Citing Hertzberg v. Zoning Board Adjustment of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998), the Board noted that a less strict standard is applied when considering a dimensional variance rather than a use variance and, further, that courts may consider factors such as the economic detriment to the applicant if the variance is denied, financial hardship involved in bringing the building into strict compliance, and the characteristics of the surrounding neighborhood.
The Board concluded that unnecessary hardship would result if the variances were denied because the lot is narrow and slanted, and the narrow and slanted character of the property would prevent Applicant from building a two-unit dwelling, which is a permitted use, in conformity with the Code, and, thus, would deny Applicant the reasonable use of its property. The Board also found that granting the variances and the reduction in dwelling units and setback improvements would reduce the nonconformity of the property and would not alter the essential character of the neighborhood because of the neighboring nonconforming properties.
Objectors appealed to the trial court, arguing that a single-unit residence is a reasonable use of the property as evidenced by the surrounding single-family properties in the neighborhood and, therefore, that Applicant did not establish unnecessary hardship. Objectors also argued that the proposed structure does not meet the height requirements for the district under Code Section 925.07.B so that a variance from those restrictions also is required.
Code Section 925.07.B states, in pertinent part:
In measuring the height of a building in stories the following measurement rules shall apply:
1. A basement, half-story, or penthouse, when designed for dwellings or primary occupancy shall be counted as a full story;
2. A basement shall be counted as a full story when sixty (60) percent or more of the exterior surface of any street wall thereof, extends above the ground directly abutting such exterior street wall....
The trial court held that an additional variance from the three-story maximum in Code Section 903.03.C.2 was not needed in this case because a basement is only considered a "story" under Code Section 925.07.B if it is designed for dwelling or primary occupancy and Applicant's proposed basement is not intended for dwelling purposes. The trial court also held that under Hertzberg, Applicant does not have to prove that the building cannot be used for any other permitted purpose and, thus, should not be limited to building a single-unit dwelling when a two-unit dwelling is permitted as of right in the R2-M zoning district. Objectors then filed the instant appeal.
Where, as here, the trial court takes no additional evidence, this Court's review is limited to determining whether the Board abused its discretion or committed an error of law. Hertzberg, 554 Pa. at 256, 721 A.2d at 46. An abuse of discretion occurs where the Board's findings of fact are not supported by substantial evidence. Id. Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id.
In this appeal, Objectors claim that the Board erred in granting the variances from Code Section 903.03.C.2's minimum lot size and setback requirements because Applicant failed to show the requisite unnecessary hardship that prevents the reasonable use of its property in conformity with the Code; and in failing to determine that the proposed structure was four stories thereby requiring an additional variance.
We consolidated Objectors' claims in the interest of clarity.
Unnecessary hardship exists where physical or topographical characteristics of the property are such that the property could not be used for the permitted purpose or could only be conformed to such purpose at a prohibitive expense or where the characteristics of the area are such that the lot has either no value or only a distress value for any permitted purpose. Allegheny West Civic Council, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 547 Pa. 163, 167-68, 689 A.2d 225, 227-28 (1997). The test for entitlement to a variance is not whether the proposed use is more desirable to the owner than the permitted use, but, rather, whether the property may be used in a reasonable manner within the restrictive provisions of the zoning ordinance. Washington Township v. Washington Township Zoning Hearing Board, 365 A.2d 691, 692 (Pa. Cmwlth. 1976). Where an owner seeks only a dimensional variance, a relaxed standard for establishing unnecessary hardship applies because the owner is asking only for a reasonable adjustment of the zoning regulations in order to utilize property in a manner consistent with applicable regulations. Hertzberg, 554 Pa. at 257, 721 A.2d at 47.
With respect to the foregoing required element of "unnecessary hardship", this Court has explained:
[W]hile Hertzberg eased the requirements for granting a variance for dimensional requirements, it did not make dimensional requirements ... "free-fire zones" for which variances could be granted when the party seeking the variance merely articulated a reason that it would be financially "hurt" if it could not do what it wanted to do with the property, even if the property was already being occupied by another use. If that were the case, dimensional requirements would be meaningless—at best, rules of thumb—and the planning efforts that local governments go through in setting them to have light, area (side yards) and density (area) buffers would be a waste of time. Moreover, adjoining property owners could never depend on the implicit mutual covenants that placing dimensional restrictions on all property would only be varied when there were compelling reasons that not to do so would create a severe unnecessary hardship.Society Created to Reduce Urban Blight v. Zoning Hearing Bd. of Adjustment of the City of Philadelphia, 771 A.2d 874, 877-78 (Pa. Cmwlth.), appeal denied, 567 Pa. 733, 786 A.2d 992 (2001).
See also Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001) ("Ever since our Supreme Court decided Hertzberg we have seen a pattern of cases arguing that a variance must be granted from a dimensional requirement that prevents or financially burdens a property owner's ability to employ his property exactly as he wishes, so long as the use itself is permitted. Hertzberg stands for nothing of the kind. Hertzberg articulated the principle that unreasonable economic burden may be considered in determining the presence of unnecessary hardship. It may also have somewhat relaxed the degree of hardship that will justify a dimensional variance. However, it did not alter the principle that a substantial burden must attend all dimensionally compliant uses of the property, not just the particular use the owner chooses....") (emphasis in original and citation omitted).
In this case, there is no evidence and no Board finding which shows that Applicant would suffer any unnecessary hardship, economic or otherwise, if it was required to develop the property in accordance with the Code provisions. The fact that a two-unit residential structure is a permitted use in the zoning district and that such a structure cannot be built on the property in conformity with the Code requirements is not enough, standing alone, to grant a variance from the minimum lot size and setback requirements. It is conceded that the property can be developed as a one-unit residential structure use in conformity with these Code requirements and that Applicant has merely chosen not to seek approval for such a use. This is not enough to support the grant of a variance under the relaxed Hertzberg standard and the Board erred in granting the instant variances.
See Society Hill Civic Association v. Philadelphia Zoning Board of Adjustment, 42 A.3d 1178, 1187 (Pa. Cmwlth. 2012) ("[T]his Court consistently rejects requests for dimensional variances where proof of hardship is lacking. Where no hardship is shown, or where the asserted hardship amounts to a landowner's desire to increase profitability or maximize development potential, the unnecessary hardship criterion required to obtain a variance is not satisfied even under the relaxed standard set forth in Hertzberg. See, e.g., Singer v. Zoning Bd. of Adjustment of City of Phila., 29 A.3d 144 (Pa. Cmwlth. 2011) (rejecting applicant's request for dimensional variances from Zoning Code's parking, floor area ratio and loading dock requirements where asserted hardship amounted to applicant's desire to maximize development potential of property); Lamar Advantage GP Co. v. Zoning Hearing Bd. of Adjustment of City of Pittsburgh, 997 A.2d 423 (Pa. Cmwlth. 2010) (rejecting applicant's request for dimensional variance for proposed sign where only asserted hardship involved alleged benefit to community and increase in income); Twp. of Northampton v. Zoning Hearing Bd. of Northampton Twp., 969 A.2d 24 (Pa. Cmwlth. 2009) (rejecting applicant's request for variance from ordinance's off-street parking requirements where no evidence of hardship presented even under relaxed Hertzberg standard and evidence revealed applicant could use property in a manner consistent with ordinance requirements); In re Boyer, 960 A.2d 179 (Pa. Cmwlth. 2008) (rejecting applicant's requests for dimensional variances from ordinance's steep slope and setback requirements in order to construct in-ground pool where no evidence of hardship presented even under relaxed Hertzberg standard); One Meridian Partners, LLP v. Zoning Bd. of Adjustment of City of Phila., 867 A.2d 706 (Pa. Cmwlth. 2005) (rejecting request for dimensional variance from floor area ratio and height requirements where asserted hardship was essentially financial in nature); [Yeager] (rejecting applicant's request for dimensional variances from ordinance's setback and clear sight triangle requirements where only hardship amounted to applicant's desire to construct a building for its new car dealership that complied with specifications required by vehicle manufacturer).").
Accordingly, the trial court's order is reversed.
Based on our disposition of Objectors' first claim, we will not address the remaining issue raised in this appeal. --------
/s/_________
DAN PELLEGRINI, President Judge Judge McCullough did not participate in this decision of this case. ORDER
AND NOW, this 14th day of May, 2013, the order of the Allegheny County Court of Common Pleas dated April 30, 2012, at No. SA 11-000783, is reversed.
/s/_________
DAN PELLEGRINI, President Judge
Code Section 925.06.C defines Contextual Side Setbacks as follows:
Regardless of the minimum side setback requirements imposed by the zoning district standards of this Code, applicants shall be allowed to use a Contextual Side Setback. The Contextual Side Setback shall apply only to primary uses and structures. A Contextual Side Setback may fall at any point between the required side setback and the side setback that exists on a lot that is adjacent and oriented to the same street as the subject lot, but shall be a minimum of three (3) feet....Code Section 925.06.C provides that regardless of the setbacks of adjacent structures, the side yards may be reduced to three feet for any single-unit house on a lot with a width below 37 feet. Additionally, with respect to a reduced setback on both sides, Code Section 925.06.C.1 provides that "[t]he applicant may reduce the side setback to three (3) feet on both sides only if adjacent properties have setbacks of three (3) feet or less on the sides abutting the applicant's property." With respect to a zero setback on one side, Code Section 925.06.C.2 states that "[t]he applicant may reduce the side setback to zero when the side of the abutting property has a zero side setback when both building walls abut each other."
Finally, Code Section 925.06.I defines Contextual Rear Setbacks as follows:
Regardless of the minimum rear setback requirements imposed by the zoning district standards of this Code, applicants shall be allowed to use a Contextual Rear Setback. The Contextual Rear Setback shall apply only to primary uses and structures. A Contextual Rear Setback may fall at any point between the required rear setback and the rear setback that exists on a lot that is adjacent to the subject lot and oriented to the same street as the subject lot....