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EAST ALLEGHENY COMMUNITY COUNCIL v. ZONING BOARD ADJUSTMENT CITY PITTSBURGH AND SCHELLHAAS & SONS (08/16/89)

decided: August 16, 1989.

EAST ALLEGHENY COMMUNITY COUNCIL, A PENNSYLVANIA NON-PROFIT CORPORATION AND NICHOLAS KYRIAZI AND MATTHEW PAVLICIC, APPELLANTS,
v.
THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH AND SCHELLHAAS & SONS, APPELLEES



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

COUNSEL

John R. Axtell, Pittsburgh, for appellants.

William P. Bresnahan, Thomas R. Solomich, Rothman, Gordon, Foreman & Groudine, P.C., Charles H. Starret, Jr., Pittsburgh, for appellees, Schellhaas & Sons.

Barry, and McGinley, JJ., and Narick, Senior Judge.

Author: Mcginley

[ 128 Pa. Commw. Page 393]

East Allegheny Community Council (East Allegheny), Nicholas Kyriazi (Kyriazi), and Matthew Pavlicic (Pavlicic) (collectively, Appellants) appeal an order of the Court of Common Pleas of Allegheny County (court of common pleas) which affirmed the decision of the Zoning Board of Adjustment of the City of Pittsburgh (Board) granting the requested side yard and rear yard variances of Schellhaas & Sons (Schellhaas), owners of a funeral home in the 23rd ward of the City of Pittsburgh (City). We reverse.

On May 14, 1985, Schellhaas applied to the City's Zoning Administrator for a permit to occupy property at 619-623 Foreland Street, located in an R-4 Residential District and situated diagonally from Schellhaas' funeral home, located in a C-3 commercial zone. Schellhaas proposed to raze two existing unoccupied structures on the property and install a hard surface parking lot covering the entire site. The former parking lot for the funeral home had been condemned under the Pennsylvania Eminent Domain Code for expansion of Interstate 279. The Zoning Administrator disapproved Schellhaas' application because of its non-compliance with Sections 937.04(4) and (5) of the City of Pittsburgh Zoning Code (Code), which mandate side yards of twenty-five feet and a rear yard of thirty feet.

[ 128 Pa. Commw. Page 394]

Schellhaas appealed to the Board seeking variances. After hearing on May 30, 1985, the Board granted the variances thereby authorizing the zero setbacks of the Schellhaas plan. Appellants appealed to the court of common pleas and Schellhaas intervened. Without receiving additional testimony, the court of common pleas affirmed the Board's decision finding that the literal enforcement of the Code would result in unnecessary hardship to Schellhaas, and that special conditions warrant the variances.*fn1 The court of common pleas found that Schellhaas established a unique or peculiar hardship specific to the property in question, as distinguished from a hardship arising from the impact of zoning regulations on an entire district under Valley View. (Opinion of the court of common pleas, August 18, 1988, at 3.) Appellants bring this appeal. The Board has filed a notice of non-participation.

Appellants argue that there is no unnecessary hardship to warrant the granting of the dimensional variances and that the Board had no authority to grant variances for a commercial parking lot under Section 937.05(c)(1) of the Code.*fn2 Appellants argue that Schellhaas' proper remedy was to seek a conditional use with the City Planning Commission

[ 128 Pa. Commw. Page 395]

(Commission) pursuant to Section 937.05(a)(9) of the Code.*fn3

Schellhaas argues that it has met its burden of proof for the granting of the dimensional variances; that Appellants have not preserved the issue of the Zoning Administrator's approval of the property as a community parking area and therefore Appellants cannot challenge the Board's grant of dimensional variances under Section 937.05(c)(1) of the Code or that the lot would be used for noncommercial purposes within that section.

Because no additional evidence was taken by the court of common pleas our scope of review is limited to determining whether the Board abused its discretion or committed an error of law. An appellate court can conclude that a zoning board abused its discretion only if its findings are not supported by substantial evidence. Zoning Board of Adjustment v. Pasha, 118 Pa. Commonwealth Ct. 190, 544 A.2d 1101 (1988).

Schellhaas sought dimensional variances from the side and rear yard setback requirements but did not seek a use variance. This is the crux of the Appellants' first argument: that the Board was without the authority to grant variances for a commercial parking lot in an R-4 Residential District under the Code. (See notes 2 and 3, herein.) Schellhaas argues that Appellants have not preserved the issue of the Board's lack of authority to grant variances for a commercial parking area in an R-4 residential zone because the only issues before the Board were the side yard and rear yard variances, and that Appellants did not file an appeal to the Board with regard to the decision by the Zoning Administrator to authorize a community

[ 128 Pa. Commw. Page 396]

    parking area in accordance with Section 937.05(c)(1) of the Code.*fn4 We disagree.

At hearing before the Board, Appellant Kyriazi testified that Appellants are trying to preserve the residential character of the neighborhood and that because the area is zoned R-4 residential, the parking lot should not be permitted because it will not be used for residential parking.*fn5 The following exchange took place between the Zoning Administrator, James P. Brown, the Chairman of the Board, Joseph Sabino Mistick, Esq., and R.D. Schellhaas:

CHAIRMAN MISTICK: Okay. Well, it's an unusual situation. [sic] Is the parking a permitted use for this -- is this a special exception, a funeral home?

MR. BROWN: Two individual zoning lots. Now, the funeral home is in a C3 zoning lot and the parking lot proposed is in an R4 residential zoning lot. So, as a principal use, it would have to come as a community parking area. The condition is that consents of 60 per cent of owners within 200 feet be supplied and I think that is included in your record. Another condition is that

[ 128 Pa. Commw. Page 397]

    the parking be used exclusively by residents of the neighborhood for parking of non-commercial automobiles.

CHAIRMAN MISTICK: I guess the argument is that this business caters to the neighborhood and generally the people using the parking ...


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