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JOHN J. BOYD v. ZONING HEARING BOARD CHURCHILL BOROUGH AND LAURA DISKIN (06/07/84)

decided: June 7, 1984.

JOHN J. BOYD, APPELLANT
v.
ZONING HEARING BOARD OF CHURCHILL BOROUGH AND LAURA DISKIN, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of John J. Boyd v. Zoning Hearing Board of Churchill Borough and Laura Diskin, No. SA 842 of 1982.

COUNSEL

Richard L. Rosenzweig, Rosenzweig & Burton, for appellant.

David A. Lovejoy, for appellees.

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

Author: Doyle

[ 83 Pa. Commw. Page 111]

This is an appeal from the order of the Allegheny County Court of Common Pleas affirming the decision of the Churchill Borough Hearing Board (Board) which held that a patio was exempt from the side yard requirements of the Borough's Zoning Ordinance (Ordinance).

In August of 1982, Laura Diskin, Intervenor-Appellee, constructed a wooden deck in the side yard of her single family home. The deck extended to within four feet, three inches of the side yard boundary, in violation of the Borough's Zoning Ordinance, which required a side yard setback of a minimum of ten feet. Diskin's next-door neighbor, John Boyd (Appellant), objected to the construction of the deck and contacted Borough officials, who directed Diskin to apply for a building permit to legalize her construction. The permit

[ 83 Pa. Commw. Page 112]

    was denied, whereupon Diskin applied for a variance from the Ordinance's side yard requirement.

After two hearings on September 27 and October 25, 1982, the Board held that a variance was not required for the construction of the deck, concluding that the deck was a "patio", which was excluded from the Ordinance's definition of a "structure", and thus not subject to the Ordinance's minimum side yard requirement. Appellant appealed to the Allegheny County Court of Common Pleas, which affirmed the Board's decision on March 11, 1983.

Before this Court, Appellant argues that the Board erred in determining that the wooden deck in question was a patio.*fn1 Appellant contends that since the deck was elevated twelve inches from the ground, it was a platform and thus subject to the minimum side yard requirement under Section 205.2 of the Ordinance, which states:

All structures, whether attached to the principal structure or not, and whether open or enclosed, including porches, carports, balconies, or platforms above normal grade level, shall not project into any minimum front, side or rear yard. (Emphasis added.)

In determining that the deck was a patio, the Board specifically found that the deck was not above grade level. The Board concluded that, despite its elevation, the deck remained at grade level because there was no useful space beneath the deck. In view of the evidence that the ground beneath the ...


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