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DANIEL P. THOMPSON ET AL. v. CAROLYN WEAN (10/26/83)

decided: October 26, 1983.

DANIEL P. THOMPSON ET AL., APPELLANTS
v.
CAROLYN WEAN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Daniel P. Thompson, Richard Gaier and The Shadyside Action Coalition, a non-profit Pennsylvania Corporation v. Carolyn Wean, No. SA 268, 1982.

COUNSEL

Douglas W. Reed, Berger and Reed, for appellants.

John C. Carlin, Jr., Mercer, Mercer, Carlin & Scully, for appellee.

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

Author: Craig

[ 78 Pa. Commw. Page 109]

In this zoning case, petitioners Daniel Thompson, Richard Gaier and the Shadyside Action Coalition appeal from an Allegheny County Common Pleas Court order affirming a decision of the Pittsburgh Zoning Board of Adjustment which granted a variance to the respondent, Carolyn Wean.

[ 78 Pa. Commw. Page 110]

We must determine whether an earlier proceeding involving the subject property operates as res judicata to bar the present action, and if not, whether the zoning board abused its discretion or committed an error of law by granting the variance.*fn1

The property involved in this appeal is located at 921 South Aiken Avenue in the Shadyside area of Pittsburgh. It is in an R-2 zone which permits one and two-family dwellings and requires a minimum lot area of 6,000 square feet for a two-family dwelling, with a minimum of 3,000 square feet per unit. The lot at 921 South Aiken has a total area of 2,400 square feet.

In 1975, the zoning administrator issued a three-family occupancy permit to the owner, Alan Patterson, based on the determination that the property had been used as a three-family dwelling before enactment of the R-2 zoning ordinance, and therefore qualified as a legally nonconforming use. In 1978, the board of adjustment sustained an appeal filed by the Shadyside Action Coalition, finding no evidence to support the determination of nonconforming use. On appeal to common pleas court, the trial judge affirmed the board's decision and approved a consent decree directing Patterson to reduce the occupancy of the property to "no more than one dwelling unit."*fn2

Wean later entered into an agreement with Patterson for the purchase of 921 South Aiken Avenue.

[ 78 Pa. Commw. Page 111]

On February 4, 1982, the board of adjustment held a hearing concerning Wean's request for a variance to allow use as a two-family dwelling, with a lot area of 2,400 instead of 6,000 square feet, and sideyards of 0' and 0' instead of 10' and 10'. The board granted the requested variance over the objection of Shadyside Action Coalition and others, who then appealed to ...


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