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JOSEPH LEBOVITZ AND FAY LEBOVITZ v. ZONING BOARD ADJUSTMENT CITY PITTSBURGH. CITY PITTSBURGH (01/25/85)

decided: January 25, 1985.

JOSEPH LEBOVITZ AND FAY LEBOVITZ, HIS WIFE
v.
THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH. THE CITY OF PITTSBURGH, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Joseph Lebovitz and Fay Lebovitz, his wife v. The Zoning Board of Adjustment of the City of Pittsburgh, No. SA 89 of 1983.

COUNSEL

Kellen McClendon, Assistant City Solicitor, with her, D. R. Pellegrini, City Solicitor, for appellant.

Bernard S. Rubb, for appellees.

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

Author: Williams

[ 87 Pa. Commw. Page 201]

The City of Pittsburgh (City) has appealed from an order of the Court of Common Pleas of Allegheny County that granted to Joseph and Fay Lebovitz (Lebovitzes) the right to use a certain residential structure as a four-unit, multiple-family dwelling. By its order, the trial court reversed a decision of the City's Zoning Board of Adjustment (Board) denying the Lebovitzes an occupancy permit for such use.

The property here in question is a two and one-half story dwelling situated at 5849 Bartlett Street, in the City's 14th Ward. The zoning district in which the property is located has been subject, by provision

[ 87 Pa. Commw. Page 202]

    of the City's zoning ordinance of 1923 and the successor ordinance of 1958, to a regulation that restricts multiple-family dwellings to two units. The record in this case does not reveal when the building at 5849 Bartlett Street was constructed, or for how many families it was originally intended. The record does show, however, that in 1952 the City issued a building permit which indicated that the structure was a two-family dwelling.

In 1954, the property was sold to the Lebovitzes. Thereafter, in 1957, 1958 and 1961, the Lebovitzes applied for and obtained building permits which stated that the structure was to be used for two-family occupancy. In 1976, they obtained from the City a certificate of occupancy which also stated that the property was permitted to have two-family occupancy. The occupancy statements in the Lebovitzes' three building permits, and on their 1976 certificate, were all based on representations the Lebovitzes had made in applying to the City for those documents. Thus, on four occasions between 1957 and 1976, the Lebovitzes formally represented to the City that their property at 5849 Bartlett Street would have no more than two dwelling units -- the maximum allowed by the zoning ordinance.

In December of 1982, the Lebovitzes applied to the City's Zoning Administrator for a new permit. In that application they stated that 5849 Bartlett Street had four existing dwelling units, and requested a permit to continue such use or occupancy. The Zoning Administrator denied the application on the ground that it violated the zoning ordinance. In that regard, the decision stated that the "legal existence" of the four dwelling units had not been proved. From the Administrator's decision, which was dated December 20, 1982, the Lebovitzes appealed to the Board.

[ 87 Pa. Commw. Page 203]

In the proceedings before the Board, one of the witnesses for the Lebovitzes was a person who testified that he had done some remodeling work on the subject property soon after the applicants purchased it in 1954. This witness further testified that, when he viewed the house in 1954, it already had five separate units -- each with its own living room, bedroom, bathroom and kitchen. However, a witness from the Office of the Zoning Administrator said his agency had on file a 1976 ...


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