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HIGHLAND PARK COMMUNITY CLUB PITTSBURGH v. ZONING BOARD ADJUSTMENT ET AL. DONALD ZAPPA ET AL. (12/08/82)

decided: December 8, 1982.

THE HIGHLAND PARK COMMUNITY CLUB OF PITTSBURGH
v.
THE ZONING BOARD OF ADJUSTMENT ET AL. DONALD ZAPPA ET AL., APPELLANTS



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of In Re: Appeal of Donald Zappa from the Decision of the Zoning Board of Adjustment of the City of Pittsburgh. No. SA 168 of 1980.

COUNSEL

John L. Elash, Elash, Miller & DePasquale, for appellants, Donald Zappa and Concetta Imbarlina.

B. Blair Crawford, with him Kathryn E. H. Katsafanas, for appellee.

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

Author: Rogers

[ 70 Pa. Commw. Page 290]

Donald Zappa and Concetta Imbarlina, owners of an improved property in the Highland Park area of Pittsburgh, appeal from an Order of the Court of Common Pleas of Allegheny County reversing the Pittsburgh Zoning Board of Adjustment's grant of their application to convert a two family residential structure on the property to five residential apartments.

It is clear and undisputed that the R-2 zoning district in which the property is located does not permit the multi-family use approved by the board of adjustment. Very little else about the theory of this litigation can be stated with any degree of certainty.

The appellant's application to the zoning officer and, on appeal from an initial denial, to the board of

[ 70 Pa. Commw. Page 291]

    adjustment is styled an application for a variance and for a special exception. A review of the applicable provision of the Pittsburgh Zoning Code, Chapter 931.05, reveals that multi-family apartment uses are not among those permitted either by special exception or, we add, as conditional uses. As to the request for a variance, no evidence was offered at the hearing before the board of adjustment which would support a variance claim; that is, that physical characteristics of the property or incompatible neighboring uses make it physically impossible or economically infeasible to develop the property in conformance with the zoning regulations. Appeal of American Medical Centers, Inc., 54 Pa. Commonwealth Ct. 573, 577, 422 A.2d 1192, 1194 (1980). To the contrary, no evidence concerning physical characteristics peculiar to the property was adduced and the property not only can be developed as zoned but is now so developed. Cf. Appeal of Theresa McGinnis, 68 Pa. Commonwealth Ct. 57, 448 A.2d 108 (1982). We note that on two previous occasions, in 1976 and 1979, the board of adjustment denied variance applications substantially similar to that made in this case.

Nevertheless, the board granted the relief requested on the basis of the following reasoning and factual findings:

FINDINGS OF FACT. Testimony at the hearing indicated that this structure was occupied at one time as a private parochial school. There is a certificate of occupancy on file dated December 27, ...


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