decided: June 5, 1984.
EDWARD J. ANGLE AND CATHERINE M. ANGLE
THE ZONING HEARING BOARD OF THE BOROUGH OF DORMONT ET AL. THE BOROUGH OF DORMONT, APPELLANT
Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Edward J. Angle and Catherine M. Angle v. The Zoning Hearing Board of the Borough of Dormont, Allegheny County, Pennsylvania v. The Borough of Dormont, No. SA 718 of 1982.
Phillip D. Paull, for appellant.
John C. Mohan, for appellee.
Judges Williams, Jr., Craig and Colins, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Judge Colins.
[ 83 Pa. Commw. Page 53]
The Borough of Dormont appeals an order of the Court of Common Pleas of Allegheny County which reversed a decision of the Dormont Zoning Hearing Board denying a permit to enclose the front porch of the dwelling owned by Edward and Catherine Angle.
The owners' lot, measuring thirty feet by one-hundred-ten feet, is located in an R 1-A Residential Zone. Since 1927*fn1 the property has been subject to a twenty-foot building setback line. In conformity with the ordinance, the edge of the dwelling itself is set back twenty feet from the street line, although a roofed porch extends six feet, seven and one-half inches (6'7 1/2") by twelve feet five inches (12'5") into the front yard.*fn2 The porch extension into the front
[ 83 Pa. Commw. Page 54]
yard, however, is permissible because the porch was built in the period before 1968, during which roofed porches were permitted to extend into front yard areas without any limitation.
The owners applied for a variance to allow them to enclose the porch to create a larger living room. The board, which reached no finding nor conclusion concerning any legal nonconformity status, denied the variance. The borough here challenges the action of the trial court which, on appeal to it, rejected the concept of nonconforming use expansion but nevertheless ordered that a variance be granted to enclose the porch.
In zoning cases, where, as here, the trial court has received no additional evidence, our scope of review is limited to determining whether the Board abused its discretion or committed an error of law. Somerton Civic Association v. Zoning Board of Adjustment, 80 Pa. Commonwealth Ct. 173, 471 A.2d 578 (1984).
The owners now contend primarily that they should be permitted to enclose their porch on the basis that it would be a logical, reasonable and natural extension of a nonconforming use, relying upon Yocum Zoning Case, 393 Pa. 148, 141 A.2d 601 (1958). That case involved a two-story frame single family dwelling, later converted into a two-family dwelling, with an apartment on each floor, whose westerly front half, an extension of the first floor living room, was approximately seventeen feet from the street line and whose easterly front half was approximately twenty-five feet from the street line, although a porch extended from that point approximately eight feet, so that the front edge of the porch was approximately seventeen feet (17') from the street line. A subsequent zoning ordinance required a front-yard building line of not less than twenty feet. Those owners then sought a permit to extend and enclose the second story
[ 83 Pa. Commw. Page 55]
of their building frontward, so that the front edge of the second floor would coincide with the front edge of the first floor. The Pennsylvania Supreme Court held that such a permit should be granted, not on a variance basis, but because the structural change of the building did not increase "any nonconformity of its use."
However, the Supreme Court later decided Kline Zoning Case, 395 Pa. 122, 148 A.2d 915 (1959). There, as here, a porch, which was roofed but otherwise unenclosed, extended lawfully into the front yard area in which the zoning ordinance prohibited buildings. The Supreme Court held that there was no basis for allowing a variance to permit the porch to be enclosed and thus transformed into an extension of the dwelling itself within the front yard area. Kline was a variance case, in which the Supreme Court found that purely personal needs -- respiratory ailments suffered by the owner's wife and son -- did not constitute a hardship sufficient in legal nature to warrant a variance.
The physical configurations in Kline and in this case are virtually identical. Yocum's physical facts were somewhat different; there an enclosed living-room section of the dwelling already extended into the front yard area alongside the unenclosed porch.
Like Kline, this present case has involved a variance request from the start. The owner's appeal to the board was solely on the basis of a variance, the zoning hearing board properly dealt with the variance question, the trial court correctly found no legal nonconforming use basis for extending a living-room as distinguished from a porch, and the trial court's order reversed the board by granting the variance, essentially upon a theory which Kline rejected, that personal family needs could constitute a sufficient hardship basis for a variance.
[ 83 Pa. Commw. Page 56]
some relatively unobstrusive structural element already exists within the yard area sought to be preserved by the setback. Here the existence of a roof over an open porch would become the vehicle for extending the building; by the same reasoning, structural elements such as carports, courtyards, patios or swimming pools -- which commonly lie over setback lines -- would become automatic bases for the construction of enclosed garages or building extensions within areas sought to be preserved as relatively open spaces.
Kline clearly holds that, when the porch roof is a permitted intrusion in the front yard, a variance to enclose it as a building is not warranted by that circumstance coupled with family convenience. Nor can Yocum be applied here to allow the building extension simply because the extending porch roof, formerly permitted like that in Kline, is now nonconforming dimensionally. A dimensionally- non conforming structure should not have a greater right of expansion than a dimensionally- conforming structure.
The trial court's rejection of nonconformity expansion concepts was therefore well founded, but Kline provides an all-fours precedent requiring reversal of the variance grant.
And Now, June 5, 1984, the order of the Court of Common Pleas of Allegheny County, dated January 20, 1983, is reversed.
Dissenting Opinion by Judge Colins:
I respectfully dissent.
This Court has recently stated that the granting of a variance should be decided by the unique facts in each case and, thus, can only be done on a case-by-case
[ 83 Pa. Commw. Page 58]
basis. Claude deBotton Appeal, 81 Pa. Commonwealth Ct. 513, A.2d (1984). The expansion of a nonconforming use or structure should also be allowed to develop on such a basis.
The majority opinion, however, instead of allowing the law to develop on a case-by-case basis, attempts to set forth a general statement of law. I cannot agree with this.
Furthermore, I take issue with the majority's reliance on the Kline Zoning Case, 395 Pa. 122, 148 A.2d 915 (1959). In Kline, unlike the instant case, the Court did not state whether the porch sought to be enclosed was a nonconforming structure. The Supreme Court in Kline, after finding no unnecessary hardship unique to the property, stated that "the record is even barren of competent medical testimony that the enclosed porch would contribute to the improvement of the physical condition of appellee's son and wife." Id. at 125, 148 A.2d at 916. Therefore, should we infer that if such testimony had been presented, then the Court would have affirmed the lower court and granted the variance?
This Court should decide the instant case by following the Yocum Zoning Case, 393 Pa. 148, 141 A.2d 601 (1958), since it involves the same factual scenario.
In Yocum*fn1 when the appellees purchased the property the area was not zoned, nor was the use restricted by the terms of any municipal ordinance. Therefore, the porch sought to be enclosed in Yocum was a nonconforming structure.
The Pennsylvania Supreme Court held that the permit should be granted and stated that:
[ 83 Pa. Commw. Page 59]
[t]he allowance of this building permit is neither the grant of a "variance" nor an "exception" nor an extension of use of these premises. It is rather the grant of a logical, reasonable and natural structural change in the building which neither increases any nonconformity of its use nor violates any provision of the zoning ordinance and in nowise affects the general welfare of the neighborhood or of the adjoining property owners.
Id. at 155, 141 A.2d at 605-6.
In this case, the enclosure of appellees' porch would not extend, enlarge or increase the nonconforming use of their dwelling. In addition, the grant of such a permit would not be detrimental to the public welfare, safety and health.
For the above reasons, I feel the decision of the Board in refusing to grant appellees' request for a permit should be reversed.