Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Elaine Ignelzi v. Zoning Board of Adjustment of the City of Pittsburgh, No. SA 626 of 1982.
Gretchen G. Donaldson, Assistant City Solicitor, with her, Kellen McClendon, Assistant City Solicitor, and D. R. Pellegrini, City Solicitor, for appellant.
Homer W. King, King, Bowman & Ruprecht, for appellee.
Judges Craig and MacPhail, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.
[ 90 Pa. Commw. Page 351]
In this zoning case, the Court of Common Pleas of Allegheny County reversed a decision of the Zoning Board of Adjustment of the City of Pittsburgh, which had denied Elaine Ignelzi's request for an occupancy permit allowing nine dwelling units in a building that
[ 90 Pa. Commw. Page 352]
she owns. The issues for our determination are (1) whether the trial court erred in concluding that Mrs. Ignelzi had acquired a vested right to operate her property as a multiple-unit dwelling and (2) whether the city's alleged discriminatory enforcement of the zoning ordinance violates equal protection principles and entitles Mrs. Ignelzi to a variance.
According to the facts not in dispute, the two-and-one-half-story brick dwelling was constructed in 1906; from 1923 through 1958 the dwelling was zoned B-Residence, and from 1958 to the present it has been zoned R-2, both of which classifications allowed two-family residential use. In 1941, the city issued an occupancy permit which allowed a single family and four roomers, and in 1945 it issued a second permit for use as a two-family dwelling and an office.
Dr. Louis Ignelzi, Mrs. Ignelzi's late husband, had purchased the property in 1942; after their marriage in 1949, the Ignelzis occupied the first floor of the building and leased the eight apartments on the upper two floors. Since her inheritance of the property in 1958, Mrs. Ignelzi has continued living in the building and renting out the apartments.
In 1981, Mrs. Ignelzi applied for an occupancy permit for a nine-unit dwelling. The board denied her request, and on appeal the trial court appointed a referee, who received additional evidence. The trial court adopted the referee's recommended adjudication, which concluded that Mrs. Ignelzi had acquired a vested right to operate her property as a multiple-unit dwelling.*fn1
[ 90 Pa. Commw. Page 353]
The city contends that Mrs. Ignelzi failed to prove her entitlement to a variance by estoppel or vested right, asserting that the factors necessary to establish a vested right were not present here and ...