Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Melvin Tuckfelt and Freda Tuckfelt, husband and wife v. Zoning Board of Adjustment of the City of Pittsburgh, No. SA 1274 of 1979.
Howard M. Lauck, with him Samuel P. Kamin, Goldberg & Kamin, for appellants.
D. R. Pellegrini, Deputy City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellee.
President Judge Crumlish, Jr. and Judges Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
[ 80 Pa. Commw. Page 497]
Melvin and Freda Tuckfelt (Appellants) appeal here from an order of the Court of Common Pleas of Allegheny County affirming a denial by the Zoning Board of Adjustment of the City of Pittsburgh (Board) of their request for either a special exception or an occupancy permit to allow two roomers to lawfully occupy the third floor of a building Appellants own in Pittsburgh. We affirm.
The building in question, which the Appellants purchased in 1964, is located in an area of Pittsburgh zoned R-1A and has two complete dwelling units on the first and second floors, and two rooms with separate
[ 80 Pa. Commw. Page 498]
bath facilities and entrances on the third. Although residential buildings located in R-1A districts are limited to a single "family dwelling[,]" Appellants obtained occupancy permits in 1964 and 1968 authorizing two single family dwelling units for their building since that use predated the adoption of the applicable zoning restriction.
After the purchase of their property, Appellants rented both the dwelling units and the third floor rooms in their building*fn1 and on April 20, 1979, applied for an occupancy permit authorizing the rental of their third floor rooms which the zoning administrator subsequently denied. Appellants then filed both an appeal notice and a request for a special exception with the Board requesting in each document an occupancy permit authorizing the rental of the rooms on the third floor of their building. The Board, in a decision dated October 26, 1979, dismissed both the appeal and the request for a special exception concluding simply that "[t]he Board is of the opinion that the proposed occupancy of third floor of a 2 1/2 story, 2 family dwelling, located in an R-1A zoning district, for two lodgers, would have a further detrimental and deleterious effect on this single family residential area." Appellants then filed an appeal to the court of common pleas where the matter was assigned to a referee for a hearing de novo.*fn2 Before the referee Appellants alleged (1) that the Board's decision was invalid since almost five months elapsed from the date of the Board's hearing until it issued its decision, (2) that the Board
[ 80 Pa. Commw. Page 499]
improperly denied their special exception request, (3) that the Pittsburgh Code's (Code) definition of "family" was unconstitutional since it denied them equal protection under the law, (4) that the Code was unconstitutionally exclusionary, and (5) that they were entitled to an occupancy permit by estoppel. The referee subsequently issued a proposed adjudication finding no merit in any of these contentions, exceptions were filed and denied, and the proposed adjudication was adopted by the court. The present appeal followed.
Before this Court Appellants initially renew their contention that they are entitled to a deemed approval of their request for a special exception since five months elapsed between the date of the Board's hearing on May 25, 1979, and ...