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FANTASTIC PLASTIC v. ZONING BOARD ADJUSTMENT CITY PITTSBURGH (02/21/75)

decided: February 21, 1975.

FANTASTIC PLASTIC, INC., APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH, APPELLEE, AND SUSAN NERNBERG, INTERVENING APPELLEE. FANTASTIC PLASTIC, INC., APPELLANT, V. JAMES P. BROWN, ZONING ADMINISTRATOR OF THE CITY OF PITTSBURGH, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Allegheny County in cases of Fantastic Plastic, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, No. SA 636 of 1973, and Fantastic Plastic, Inc. v. James P. Brown, Zoning Administrator of the City of Pittsburgh, No. 2241 July Term, 1974.

COUNSEL

John L. Laubach, Jr., with him Frank A. McFerran, Jr., and Kenney, Stevens, Clark & Semple, for appellant.

Eugene B. Strassburger, III, Executive Assistant City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellees.

Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 16 Pa. Commw. Page 456]

This case involves two appeals by Fantastic Plastic, Inc. (Fantastic) from two separate orders of the Court of Common Pleas of Allegheny County, one of which affirmed the denial of an occupancy permit by the Zoning

[ 16 Pa. Commw. Page 457]

Board of Adjustment (Board) while the other sustained preliminary objections made in the court below to Fantastic's complaint in mandamus directed against the Pittsburgh Zoning Administrator (Administrator). The two appeals have been consolidated before this Court. Fantastic leased a building and accompanying real estate located in a C-4 zoning district in Pittsburgh, and, in August of 1973, an application was made to the Administrator for an occupancy permit to use the premises as a restaurant-bardance hall, all of which are permitted uses in a C-4 district. The Administrator approved these proposed uses but the Board, after holding a hearing on the appeal filed by neighboring residents, reversed the Administrator and revoked the zoning approval. When an appeal was subsequently taken to the Court of Common Pleas, the case was remanded by the court in an order dated December 23, 1973 because the record was incomplete, and Fantastic was instructed to file an amended Occupancy Permit Application. This was done but the amended application was then rejected by the Administrator, and an appeal was again taken to the Board which affirmed the Administrator on January 11, 1974. There followed another appeal to the Court of Common Pleas which, in an opinion and order dated April 18, 1974, affirmed the Board. The appeal from this adjudication is the first of the appeals now brought to this Court.

Our scope of review here, in a case where the lower court has taken no additional testimony on an appeal from a zoning board is limited to a determination of whether or not the Board committed an abuse of discretior or an error of law. Clawson v. Harborcreek Zoning Hearing Board, 9 Pa. Commonwealth Ct. 124, 304 A.2d 184 (1973).

The dispute here centers around whether or not Fantastic's application has provided for sufficient parking spaces. Pittsburgh's zoning ordinance requires that

[ 16 Pa. Commw. Page 458]

Fantastic provide for 40 such spaces, a number determined by a formula based on the square footage of public area within the building. The premises leased by Fantastic here contain only 19 on-site parking spaces but Fantastic has contracted with Service Sales of Pittsburgh, Inc. to lease 38 additional spaces in a nearby parking lot between the hours of 7:00 P.M. to 6:00 A.M. every night except Sunday, when the lease extends for the entire day until 6:00 A.M. Monday morning. Service Sales itself uses the parking lot in connection with its own business whose hours do not coincide with those of the lease.

Section 2605 of the zoning ordinance, which is entitled "Parking Exceptions," provides in subsection 2(c): "Use of the same parking stalls at different times, in either a minor garage or minor parking area, community garage or community parking area or major garage or major parking area in order to meet the parking requirements of two (2) or more principal uses other than dwellings may be authorized in districts other than , , S-A, ', , RP,' , , CP , , or , , AP , , by the Administrator, as ...


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