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ADELIO PAMPENA AND ROSALIA PAMPENA v. ZONING BOARD ADJUSTMENT (08/12/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 12, 1986.

ADELIO PAMPENA AND ROSALIA PAMPENA, HIS WIFE
v.
THE ZONING BOARD OF ADJUSTMENT, CITY OF PITTSBURGH. CITY OF PITTSBURGH, APPELLANT

Appeal from the order of the Court of Common Pleas of Allegheny County in the case of Adelio Pampena and Rosalia Pampena, his wife v. The Zoning Board of Adjustment of the City of Pittsburgh, No. S.A. 407 of 1984.

COUNSEL

Gretchen G. Donaldson, Associate City Solicitor, with her, D. R. Pellegrini, City Solicitor, for appellant.

Richard S. Ombres, DeMarco, Yourick & Ombres, for appellees.

Judges Rogers and MacPhail, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 99 Pa. Commw. Page 596]

The City of Pittsburgh (City) appeals the order of the Court of Common Pleas of Allegheny County which reversed the decision of the City's Zoning Board of Adjustment (Board). The Board had denied the request of Adelio and Rosalia Pampena (the Pampenas) for a variance and for an occupancy permit for their five-unit dwelling at 226 Stratford Avenue in Pittsburgh, an area zoned as a Multiple-Family Residence District.

On May 5, 1983, the Board, under Zone Case No. 204 of 1983, denied the Pampenas' variance request and their appeal from the City Zoning Administrator's (Administrator) denial of their request for an occupancy permit, ruling that the Pampenas had failed to demonstrate their need for a parking variance*fn1 and had also failed to justify the lot area shortage existing at 226 Stratford Avenue.*fn2 Accordingly, the Board affirmed the Administrator's order that the Pampenas must reduce the number of dwelling units in the building to three

[ 99 Pa. Commw. Page 597]

    and provide three parking stalls in the rear of the property within 30 days of the date of the Board's order. The Pampenas did not appeal this order.

Several months later, however, the Pampenas, without having complied with the May 5, 1983 order, initiated a new request to the Administrator for an occupancy permit at 226 Stratford Avenue, allowing for a five-unit dwelling with three parking stalls in the rear yard. They also proposed renting two additional parking stalls at another property, 325 Stratford Avenue, located approximately one block away. When the Administrator rejected this proposal, the Pampenas appealed again to the Board, which, at Zone Case No. 398 of 1983, affirmed the Administrator's decision and requested the Pampenas to secure the additional parking at a location in closer proximity to 226 Stratford Avenue. The Pampenas then secured two leases to provide for additional parking, each for a one-car garage: one at 336 Stratford Avenue and the other at 140 South Fairmount Avenue. The Board majority, however, expressly rejected these alternative parking sites as "too distant" and reaffirmed its prior order.*fn3

On another appeal to the common pleas court, on the record made before the Board*fn4 in this second case, the court reversed the Board's order and further ordered

[ 99 Pa. Commw. Page 598]

    that a five-unit occupancy permit be issued. It reasoned that the record failed to disclose substantial evidence to support the Board's findings as to parking and that, therefore, the Board had abused its discretion.

The City contends here that the Pampenas failed to demonstrate that they had satisfied the requirements for the requested variances and that the common pleas court's order should be reversed.*fn5 We agree.

In the unappealed decision in No. 204 of 1983, the Board considered the Pampenas' requests for variances for parking and lot area and denied both requests. In the proceedings from which this appeal arises, however, (No. 398 of 1983) the Pampenas raised only the parking issue. Their failure to appeal at No. 204 allowed the Board's decision as to lot size, therefore, to become final and, even if they could subsequently satisfy the parking requirements for a five-unit dwelling, they could not satisfy the lot size requirements. Furthermore, the Board did grant a three-unit occupancy permit for 226 Stratford Avenue, which undeniably demonstrates that the property has some value without the variances, and the requirements for granting variances to permit a five-unit dwelling cannot now be satisfied. Botula.*fn6

Accordingly, we will reverse the order of the common pleas court and will reinstate the order of the Board.

[ 99 Pa. Commw. Page 599]

Order

And Now, this 12th day of August, 1986, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is reversed and the order of the Zoning Board of Adjustment of the City of Pittsburgh, Zone Case No. 398 of 1983, is reinstated.

Disposition

Reversed.


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