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ROBERT I. MALAKOFF AND CAROLE E. MALAKOFF v. ZONING BOARD ADJUSTMENT CITY PITTSBURGH ET AL. (11/03/83)

decided: November 3, 1983.

ROBERT I. MALAKOFF AND CAROLE E. MALAKOFF, HIS WIFE, APPELLANTS
v.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Robert I. Malakoff and Carole E. Malakoff, his wife v. Zoning Board of Adjustment of the City of Pittsburgh, No. SA 492 of 1982.

COUNSEL

William R. Grove, Jr., Hollinshead and Mendelson, for appellants.

Kathryn E. H. Katsafanes, with her D. R. Pellegrini, City Solicitor, for appellees.

Mark I. Baseman, with him Jeffery B. Markel, Berkman, Ruslander, Pohl, Lieber & Engel, for intervenors, Association for Retarded Citizens, Allegheny Chapter.

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

Author: Craig

[ 78 Pa. Commw. Page 178]

This zoning appeal by objecting neighbors, Mr. and Mrs. Robert Malakoff, questions an order of the Court of Common Pleas of Allegheny County which affirmed a special exception allowed by the Pittsburgh Zoning Board of Adjustment under an ordinance section allowing

[ 78 Pa. Commw. Page 179]

    a change of use from one nonconforming use to another nonconforming use no more detrimental. By granting the special exception, the board approved the change-of-use aspect of a nonprofit corporation's proposal to replace office use in its building with occupancy for a photographic studio use.

The objectors ask us to reverse the decision on the ground that the approval actually entails a change from what was a conforming use, in the R-4 district here involved, to a nonconforming use acceptable only in a less restricted district. In addition to attacking the approval of the change of use, the objectors contend that the proposal also requires a separate special exception approval for rehabilitation of a nonconforming structure.

Under Pittsburgh's zoning ordinance, the R-4 district is primarily a residential district for single and multiple dwellings. With respect to that district, section 937.02 also lists "kindergarten" as a permitted use, and section 937.05(b) makes cross-reference to the special exception provisions in chapter 909 of the zoning ordinance.

Under special exception section 909.06, subsection (b)(5) expressly allows the board to grant a change of a nonconforming use in a nonconforming structure to another nonconforming use, determined by the board to be no more detrimental to the neighborhood. Subsection (b)(17) authorizes the board to grant a separate special exception as to the rehabilitation of a nonconforming structure, subject to explicit limitations. As might be expected, the ordinance's definition section, section 903.02(n), defines "nonconforming structure" as "a structure or portion thereof other than a sign . . . erected or altered for a use ...


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