Appeal from the Order of the Commonwealth Court of Pennsylvania entered December 30, 1987, at No. 3354 C.D. 1986, reversing the order of the Court of Common Pleas of Allegheny County, Civil Division, entered October 10, 1986, at No. SA 1505 of 1984.
Nix, C.j., and Flaherty, McDermott and Zappala, JJ. Larsen and Papadakos, JJ., did not participate in the consideration or decision of this case. Stout, Former Justice, did not participate in the decision of this case. Nix, C.j., concurs in the result.
This is the appeal of Dom Zullo and Irene Dale, owners of a building in Pittsburgh, from an order of the Commonwealth Court which reversed an order of the Court of Common Pleas of Allegheny County. The latter order dismissed the City of Pittsburgh's (hereinafter City) appeal and affirmed the grant of a variance which would have allowed the appellants to use their building as a fifteen-unit apartment house. The facts of the case and the events which led it here are set forth below.
In 1979, appellants acquired the property at issue, 5838 Alderson Street.*fn1 The building is located in an R-4 zoning district in which multiple-family dwellings are a permitted
use. At the time appellants purchased it, it was being used as a seven-unit apartment house. The Zoning Code sets forth the following requirements for such a building:
1. A lot area of 1,000 square feet for each unit.
2. A front yard of 25 feet in depth.
3. A side yard of 25 feet in depth.
4. One off-street parking stall for each dwelling unit.
City of Pittsburgh Zoning Code Sections 937.04, 989.01 (hereinafter Code).
Appellants' lot area is 5341 square feet. The front yard is three (3) feet deep and there is no side yard nor were there off-street parking stalls at the time of the purchase. However, use of the structure as an apartment house, though nonconforming to the physical requirements of the code, was permitted because it existed prior to the enactment of that ordinance.
Following the purchase of the building, appellants subdivided the existing seven (7) units and altered the interior to produce fourteen (14) one-bedroom apartments and a caretaker's unit. They contend that in September 1979, the Zoning Administrator and the Chief Plan Examiner of the Bureau of Building Inspection approved their applications to effect the changes.
On October 16, 1980, a city building inspector certified that the alterations were in compliance with the building code and with the prior application for approval of the work, ostensibly granted by the Plan Examiner's Office on September 19, 1979.
Subsequently, the Assistant Superintendent of the Bureau of Building Inspection issued a Certificate of Temporary Occupancy for eight (8) dwelling units at 5838 1/2, and six (6) dwelling units at 5838 Alderson Street. The certificate was issued on November 6, 1980. The units were leased to tenants and the certificate expired on May 6, 1981.
In December of 1981, the Bureau of Building Inspection notified appellants that their building use was illegal and that a Final Certificate of Occupancy would not be issued.
Appellants applied to the Office of Zoning Administration for an occupancy permit and on April 19, 1982, the Zoning Administrator denied their application as not in compliance with the lot area or parking requirements of the Zoning Code. Their application stated the address of the property as: "5838 & 5838 1/2 Alderson Street". In the space designated DESCRIPTION OF CURRENT OR FORMER USE of the application was stated: "two apartment bldgs. with connection between both thirteen dwelling units and one caretaker dwelling unit" (sic).
Appellants then appealed the denial to the Zoning Board of Adjustment as an appeal for a variance and special exception on area requirements of the Zoning Code. The Board denied their appeal and ordered them to reduce the number of units to seven (7) within thirty days. The Board found the following facts:
Testimony at the hearing indicated that there is a Certificate of Occupancy for the subject structure dated February 25, 1970, for 7 units at this location. A building permit dated May 23, 1968, indicates there were 7 units at this location. Testimony further indicated that the appellant purchased this property on January 15, 1979, and that there were 7 units within this structure at that time. Testimony indicated that the appellant hired a contractor to put the additional units in the property subsequent to the date of purchase. The lot area is slightly more than one-third of that which would be required for the appellant's proposal. Additionally, zero parking stalls are being provided, instead of 15. The appellant originally testified that there were 7 parking stalls provided at this location but further testimony and inquiry indicated that those 7 spaces occupy a portion of the street and sidewalk area. The appellant was informed that those spaces must be removed and measures must be taken that would provide for pedestrian movement in these areas.
Neighbors from the area appeared in opposition to the proposal. The opposition focused upon a severe parking problem in the ...