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GAMESTOWN v. ZONING BOARD ADJUSTMENT CITY PITTSBURGH. CITY PITTSBURGH (11/16/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 16, 1982.

GAMESTOWN, INC.
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 the case of Gamestown, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, No. SA 607 of 1981.

COUNSEL

Kathryn E. Hanna Katsafanas, Assistant City Solicitor, with her, Mead J. Mulvihill, Jr., City Solicitor, for appellant.

Michael J. Healey, Healey & Deasy, for appellee.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 70 Pa. Commw. Page 60]

The City of Pittsburgh appeals an order of the Court of Common Pleas of Allegheny County reversing the decision of the city's Zoning Board of Adjustment which denied the application of Gamestown, Inc. for a variance and special exception to use an existing building as an amusement arcade.

The common pleas court did not take additional evidence. We must decide whether the board committed an error of law or abused its discretion by denying Gamestown's application. DiNardo v. City of Pittsburgh, 15 Pa. Commonwealth Ct. 279, 325 A.2d 654 (1974).

Under the City's zoning ordinance, the building is located in a C-3 district, which permits an "amusement arcade" only by special exception.*fn1 One standard for granting such a special exception is that one off-street parking space be provided for each fifty square feet of net floor area.*fn2 To comply, the parties agree that Gamestown would have to provide ninety-two parking spaces, indicating a total net floor area of about 4,600 square feet as a basis for that computation.

Gamestown contends that, except for the parking requirement, it has met all of the standards for a special exception, that it is entitled to a variance from the parking requirement and, therefore, that the board erred in not granting both the variance and the special exception.

To be entitled to a variance, Gamestown had the burden of proving unnecessary hardship, which exists when, because of unique physical conditions, the property cannot be used in conformity with the ordinance.

[ 70 Pa. Commw. Page 61]

    off-street parking variance minimal in the circumstances.

We decide that the board did not err in denying Gamestown a parking variance and therefore also hold that the board properly denied Gamestown's application for a special exception.

Accordingly, we reverse.

Order

Now, November 16, 1982, the order of the Court of Common Pleas of Allegheny County, at No. SA 607 of 1981, dated September 9, 1981, is hereby reversed.

Disposition

Reversed.


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