Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Stephen R. Sisko and Melva B. Sisko, his wife, Gladys M. Gavin, unmarried, and Walter G. Piatt, unmarried v. The Zoning Board of Adjustment of Pittsburgh, No. SA260-1976.
Lawrence W. Kaplan, with him Jon Hogue, and Kaufman & Harris, for appellants.
D. R. Pellegrini, Assistant City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellee.
Judges Mencer, Rogers and DiSalle, sitting as a panel of three. Opinion by Judge Mencer.
[ 36 Pa. Commw. Page 557]
Rocco Magrino and Rocco Magrino, Jr. (applicants) initiated this case by filing an application with the zoning administrator of the City of Pittsburgh for a building permit to construct a two-story, two-family dwelling with a two-car garage in the basement on a 2739-square-foot tract of land which they proposed to purchase.*fn1 The application was refused on the ground that the proposed building would not be in compliance with the setback and area requirements of the Pittsburgh Zoning Ordinance. Applicants then filed an appeal with the zoning hearing board seeking, inter alia, the grant of a variance permitting them to construct a two-story, two-family dwelling.*fn2 The board granted
[ 36 Pa. Commw. Page 558]
the requested variances. A timely appeal to the Court of Common Pleas of Allegheny County was then filed by Stephen R. Sisko, Melva B. Sisko, Gladys M. Gavin, and Walter G. Piatt (appellants), who are property owners of land located next to or nearby the property in question here. After additional testimony, the court below affirmed the board and this appeal followed.
Section 912 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended (MPC), 53 P.S. § 10912, enumerates the findings necessary for the grant of a variance:
The board shall hear requests for variances where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant. Subject to the provisions of section 801 [53 P.S. 10801], the board may by rule prescribe the form of application and may require preliminary application to the zoning officer. The board may grant a variance provided the following findings are made where relevant in a given case:
(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 such 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 ...