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CITY PITTSBURGH v. HERMAN (01/03/73)

decided: January 3, 1973.

CITY OF PITTSBURGH
v.
HERMAN, ET AL.



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Appeal of Rose Herman, Owner, and Evan Pocci, Lessee and Equitable Owner, from the Board of Adjustment of the City of Pittsburgh, No. S.A. 825 of 1971.

COUNSEL

John R. Valaw, Assistant City Solicitor, with him Ralph Lynch, Jr., City Solicitor, for appellant.

George H. Ross, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 7 Pa. Commw. Page 244]

This is an appeal by the City of Pittsburgh from a decision of the Court of Common Pleas of Allegheny County which reversed the decision of the Pittsburgh Board of Adjustment and directed that an application for a special exception filed by appellee Pocci be issued.

Pocci is the lessee of certain premises located at 729 Mellon Street, Pittsburgh. In September of 1971 he filed an application for an occupancy permit for the premises which requested a special exception to occupy the premises as a restaurant and lounge on the first floor and an apartment on the second floor. At the time of the application, the premises had been occupied as a bakery on the first floor, a nonconforming use under the applicable zoning ordinance. This application was denied by the Board of Adjustment.

On appeal to the Court of Common Pleas of Allegheny County, Judge Lencher took additional testimony and reversed the decision of the Board. The appeal now lies here.

The subject property has at all times been located in an "R-3" Multiple Family Residential District and as we have noted previously the bakery has operated there as a nonconforming use. The Pittsburgh zoning ordinance allows the change of one nonconforming use

[ 7 Pa. Commw. Page 245]

    into another by special exception if it is found by the Board to be not more detrimental to the neighborhood.*fn1

Appellant here contends (1) that the lower court erred in concluding that the proposed use was not more detrimental to the neighborhood than was the former bakery; and (2) that the lower court erred in concluding that the city had failed to meet its burden of producing credible evidence that the requested use ...


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