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RONALD CASSIDY AND MARLENE CASSIDY v. ZONING BOARD ADJUSTMENT CITY PITTSBURGH. APPEAL CITY PITTSBURGH (06/08/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 8, 1989.

RONALD CASSIDY AND MARLENE CASSIDY, HIS WIFE,
v.
THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH. APPEAL OF CITY OF PITTSBURGH, APPELLANT

Appeal from Common Pleas Court, Allegheny County; Honorable Ralph J. Cappy, Judge.

COUNSEL

D.R. Pellegrini, City Sol., Gretchen G. Donaldson, Assoc. Sol., Pittsburgh, for appellant.

Melvin P. Gold, Welch & Gold, Pittsburgh, for appellee.

Crumlish, Jr., President Judge, Colins, J., and Barbieri, Senior Judge.

Author: Crumlish

[ 126 Pa. Commw. Page 303]

OPINION

The City of Pittsburgh's Zoning Board of Adjustment (Board) denied Ronald and Marlene Cassidy's (Cassidys) special exception request. The Allegheny County Common Pleas Court reversed. We reverse the trial court.

The Cassidys -- owners of a detached, two-story home in a residentially zoned, single-family neighborhood -- sought a special exception to convert their basement into a beauty shop.

The Board considered testimony from neighbors who supported the Cassidys' request, and from the adjacent owners, who testified that the beauty shop would disrupt the neighborhood. The common pleas court reversed the Board's denial of the Cassidys' special exception request, concluding that the abutting neighbors' testimony was premised on their inconvenience and not that of the entire neighborhood. The court granted the Cassidys a special exception.

The City contends that the trial court erred because a beauty shop is not a valid home occupation, and because the Board's denial was supported by substantial evidence.

The City of Pittsburgh's zoning ordinance permits special exceptions in residentially zoned districts subject to enumerated conditions. Section 929.05(b) of the Pittsburgh Code permits a "home occupation, carried on in a dwelling unit by the resident thereof as a customary and accessory use." Section 909.06(b)(8) of the Code restricts the use of a residence as a home occupation:

[ 126 Pa. Commw. Page 304]

(8) Home occupation, in R [Residential] other than R1-A [One family Residential], A1 [Commercial/Residential] and AP [Planned Commercial/Residential Unit Development] Districts carried on in a dwelling unit by the resident thereof as a customary and accessory use, provided:

A. In connection therewith there is no person employed, no display, no sign other than such identification sign as is permitted for the dwelling unit, no mechanical equipment used other than normal domestic or household equipment and no selling of a commodity or nonprofessional service on the premises;

B. The use does not require internal or external alterations or involve construction features not customary in dwellings; and

C. Reasonable safeguards are established against possible detriment to neighboring properties through emission of smoke, fumes, odors, dust noise [sic] vibration or glaring light.

The trial court, in granting the special exception, relied on this Court's decision in Lower Allen Township v. Zoning Hearing Board of Lower Allen Township, 71 Pa. Commonwealth Ct. 302, 454 A.2d 685 (1983), which affirmed the grant of a special exception for a home beauty shop. Although that case would appear to be on point, on close scrutiny, we find it to be inapposite.

First, in Lower Allen Township, we affirmed the Board's decision granting a special exception; here the Board denied a special exception. Under our limited scope of review, we must defer to the Board's findings where the trial court has not taken additional evidence. Therefore, in this case, where the Board has denied a special exception, our review is limited to determining whether substantial evidence supports the Board's denial or whether the trial court erred as a matter of law.*fn1

[ 126 Pa. Commw. Page 305]

Additionally, in Lower Allen Township, the common pleas court noted that that ordinance enumerated certain home occupations and expressly provided that the enumeration was not exhaustive. It concluded that a small beauty shop was similar to occupations listed among permitted home uses.*fn2 That court properly relied on the illustrative list of home occupations for guidance in granting a special exception because a detailed ordinance may permit uses not otherwise allowed by a more general ordinance. Page v. Zoning Hearing Board of Walker Township, 80 Pa. Commonwealth Ct. 589, 471 A.2d 1348 (1984). The Lower Allen Township court correctly distinguished our Supreme Court's decision in Boreth v. Philadelphia Zoning Board of Adjustment, 396 Pa. 82, 151 A.2d 474 (1959), because an illustrative list was not present in the ordinance construed there.

Here, however, Boreth controls. The Pittsburgh ordinance definition of "home occupation" is nearly identical to the Philadelphia Code definition construed in Boreth. That definition, which generally limited occupations to those normally conducted in a dwelling, is narrower and lacks any enumeration of permissible home occupations. Our Supreme Court's holding*fn3 that a beauty shop was not a home occupation under a general definition applies here.

[ 126 Pa. Commw. Page 306]

Because a beauty shop cannot constitute a home occupation under the Pittsburgh zoning ordinance, the special exception request should have been denied as a matter of law. Accordingly, we reverse the trial court.

Order

The order of the Allegheny County Common Pleas Court, S.A. No. 1942-1985, dated July 21, 1988, is reversed.


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