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NATHAN S. NASSIF ET AL. v. BOARD ADJUSTMENT CITY PITTSBURGH. CITY PITTSBURGH (01/07/82)

decided: January 7, 1982.

NATHAN S. NASSIF ET AL.
v.
BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH. CITY OF PITTSBURGH, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Nathan S. Nassif and S. Joseph Nassif and Kountz & Rider, Inc. v. Board of Adjustment of the City of Pittsburgh, No. SA 15 of 1978.

COUNSEL

D. R. Pellegrini, Deputy City Solicitor, with him, Mead J. Mulvihill, Jr., City Solicitor, for appellant.

Frank J. Lucchino, Grogan, Graffam, McGinley, Solomon & Lucchino, for appellee.

Judges Williams, Jr., MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge MacPhail concurs in the result only. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Williams

[ 64 Pa. Commw. Page 16]

The City of Pittsburgh has appealed from an order of the Court of Common Pleas of Allegheny County directing the Pittsburgh Board of Adjustment to issue an occupancy permit to Kountz & Rider, Inc. (K&R) and the other appellees herein. The permit related to a 14 space parking lot in which K & R had obtained, by lease, parking rights to be used in conjunction with K & R's nearby clothing store.

The parking lot in question is the rear part of a parcel of land owned by Nathan and Joseph Nassif (Nassifs), the other appellees in this case. Also on that same parcel is a 14 unit apartment building, which is abutted by the parking lot. The Nassifs acquired the property, apartment building and adjoining parking lot, in 1975. That same year, the Nassifs obtained an up-dated occupancy permit, which stated that the

[ 64 Pa. Commw. Page 17]

    property was to be used for 14 apartment units and 14 parking spaces.

Under the operative zoning regulations, the City of Pittsburgh Zoning Ordinance of 1958, there had to be a parking space for each unit in the Nassif apartment building. Also, under the same Ordinance, the parcel of land containing the apartment building and the parking lot is in a district zoned "R-4 Residential"; and, in such a district, an off-street commercial parking lot is not a permitted use of property.

Immediately across an alley from the Nassif parking lot, but in a different zoning district, is the business establishment of K & R. Desiring to use the parking lot for its customers and employees during business hours, K & R, in November 1974, entered into a lease agreement with the Nassifs' predecessor in title to use the parking lot for that very purpose.

It appears from the record that K & R used the parking lot for its commercial purposes from late 1974 until 1977. As a result, the parking lot was subject to a mixed use during that period: it was used for parking by the residents of the apartment building; and by the customers and employees of K & R.

In February 1977, the City Zoning Administrator sent a letter to the Nassifs directing them to discontinue the commercial use of their parking lot by K & R. The Code Administrator took the position that such use was ...


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