Appeals from the Order of the Court of Common Pleas of Allegheny County, in case of Gazebo, Inc. and Vincent A. Crisanti v. Zoning Board of Adjustment of the City of Pittsburgh v. Alan Guttman, No. SA 884 of 1986.
Mark D. Shephard, Buchanan Ingersoll Professional Corporation, for appellant, Alan Guttman.
Kellen McClendon, Assistant City Solicitor, with him, D. R. Pellegrini, City Solicitor, for appellant, City of Pittsburgh.
William R. Grove, Jr., Hollinshead and Mendelson, for appellees, Gazebo, Inc., and Vincent A. Crisanti.
Judges Craig, Doyle and Barry, sitting as a panel of three. Opinion by Judge Craig.
[ 112 Pa. Commw. Page 38]
This zoning appeal involves consideration of the principles which govern the modification or removal of conditions incorporated in a zoning board's previous issuance of a special exception approval.
Specifically, where an unappealed zoning board decision has previously imposed limiting conditions upon its approval of a special exception request, expressly recognizing that actual experience for a season may be pertinent to subsequent review of the conditions, does
[ 112 Pa. Commw. Page 39]
the landowner applicant, to obtain modification of the conditions, have the burden of showing a subsequent substantial change of factual circumstances incident to the property, or do the objectors, to resist such modification, again have the burden of proving detriment to the health, safety or welfare, as was applicable to the original opposition of the special exception grant?
The applicant's burden, stated in the foregoing, is drawn from this court's decision in Amoco Oil Co. v. Zoning Hearing Board of Middletown Township, 76 Pa. Commonwealth Ct. 35, 463 A.2d 103 (1983), and the objector's burden is that expressed in Bray v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 523, 410 A.2d 909 (1980), and other cases.
The record pertinent to this case necessarily embraces two decisions of the Pittsburgh Zoning Board of Adjustment relating to the application of Gazebo, Inc. to operate a roof-deck serving area above the Gazebo's existing one-story restaurant and delicatessen on Walnut Street in the Shadyside district of Pittsburgh.
The board's decision of June 6, 1985, which approved the special exception application subject to conditions, sets forth the board's findings of facts as follows: "Findings of Fact: The subject case involves a request to continue the use of the first floor of 5440 Walnut Street as a restaurant. Additionally, the appellant is requesting permission to establish a roof-deck serving area above the existing restaurant.
The roof-deck serving area would be used on a seasonal basis, weather-permitting.
The proposed continued and new uses require no additional parking.
The subject site is zoned A-1, which is a mixed use commercial-residential zone.
[ 112 Pa. Commw. Page 40]
This site directly abuts a densely populated residential zone across the alley which runs along the rear of the restaurant.
A bakery which serves the Gazebo restaurant and which is located on a separate zoning lot to the west will be relocated to space within the Gazebo.
Refuse, which is now stored in a container that sits in the right of way behind the site, will be relocated to a recess in the Gazebo building. This will serve the subject property and an abutting property.
The Gazebo will continue to share a liquor license with the abutting establishment, which is know as Humphrey's. Humphrey's is serviced by the Gazebo kitchen.
Each property is on a separate zoning lot and has been issued a separate Certificate of Occupancy.
The roof-deck will be fully enclosed and planter boxes and shrubbery will be placed on the perimeter.
The refuse area is for dry refuse only and will have daily pick-up. A refuse disposal is being installed for food wastes.
A retractable awning and umbrella tables will be installed on the roof-deck.
Witnesses appeared in opposition and in favor of the subject application.
The opposition focused on possible congestion that would result from additional patrons being drawn to this location.
The opposition was also concerned about the noise and disturbance that could be caused by the roof-deck dining area in close proximity to the residential structures across the rear alley.
Testimony indicated that this outdoor dining area is consistent with the ambience of the up-scale retail district known as Walnut Street.
However, the Board shares the concerns of the residents regarding possible noise problems.
[ 112 Pa. Commw. Page 41]
The board's 1985 decision thus proceeded to approve the special exception application subject to ...