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JON C. BOTULA v. ZONING BOARD ADJUSTMENT CITY PITTSBURGH. CITY PITTSBURGH (09/23/82)

decided: September 23, 1982.

JON C. BOTULA
v.
ZONING 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 Jon C. Botula v. Zoning Board of Adjustment of the City of Pittsburgh, No. SA 270 of 1978.

COUNSEL

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

Marc Rosenwasser, for appellee.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 69 Pa. Commw. Page 165]

This is an appeal by the City of Pittsburgh (City) from a decision of the Court of Common Pleas of Allegheny County granting Jon C. Botula (Appellee) a zoning variance so as to permit a two and one-half story building owned by Appellee to continue to be operated as a six unit multiple family dwelling. We reverse.

[ 69 Pa. Commw. Page 166]

The structure in question herein is located at 5216 Fifth Avenue in the Squirrel Hill section of Pittsburgh and was purchased by Appellee in 1972 from Fort Pitt Federal Savings and Loan. At the time of the purchase the building was being used as a six unit apartment house. Appellee was informed by the solicitor for the seller that this use predated 1958 amendments to the zoning law with which it was not in compliance and that it was therefore legally permitted as a pre-existing non-conforming use. Appellee, however, did not receive a certificate of zoning compliance as required by Section 3 of the Act of July 27, 1955, P.L. 288, as Page 166} amended, 21 P.S. ยง 613(a).*fn1 In 1977, Appellee, because he desired to sell the building, applied for the occupancy permit necessary to legally utilize the building as a six unit multiple family dwelling.*fn2 This application was denied by the Zoning Administrator on the grounds that, while the building is located in an R-4 Multiple Family district,*fn3 variances were needed from the area (4,187 square feet instead of 6,000 square feet), side yard (0 and 1 foot instead of 10 and 10 feet) and parking stall (0 instead of 6) requirements of Pittsburgh's Zoning Code.*fn4 Appellee then took the matter to the Board of Adjustment which, after a hearing, refused to grant the necessary variances. On appeal to the common pleas court, an additional hearing was held before a zoning referee who recommended that the variances be granted. The common pleas court adopted the referee's recommendation and the appeal to this Court, in which the City asserts that the grant

[ 69 Pa. Commw. Page 167]

    of the variances was predicated solely on economic hardship and was therefore in error, followed.

This Court's scope of review in zoning appeals where, as here, the common pleas court has considered additional evidence is limited to a determination of whether that court has committed an error of law or abused its discretion. Immordino v. Zoning Hearing Board of Morrisville Borough, 65 Pa. Commonwealth Ct. 79, 441 A.2d 818 (1982).

"Variances should be granted only sparingly and only under exceptional circumstances. . . ." Schaefer v. Zoning Board of Adjustment of the City of Pittsburgh, 62 Pa. Commonwealth Ct. 104, 108, 435 A.2d 289, 291 (1981). The applicant for the variance has the burden of proving that the variance will not be contrary to the public interest and that unnecessary hardship will result if it is denied. Sisko v. Zoning Board of Adjustment of Pittsburgh, 36 Pa. Commonwealth Ct. 556, 389 A.2d 231 (1978).

Initially in the case at bar, we note that Appellee was unable to present evidence sufficient to establish that the building's use as a six unit apartment building predated the 1958 amendments to the Zoning Code. In addition, Appellee's reliance on the verbal assurance of the seller in 1972 that the six apartment units constituted a valid prior non-conforming use with respect to the 1958 ...


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