The opinion of the court was delivered by: Senior Judge Flaherty
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Tod Keebler, Eve Trbovich, Ann Czachor and Julie Czachor (Objectors) appeal from an order of the Court of Common Pleas of Allegheny County which affirmed the decision of the Zoning Board of Adjustment of the City of Pittsburgh (Board) granting Landmark Property Development, LLC (Landmark) a use variance to construct condominiums on property owned by it (Property). We vacate and remand.
The Property consists of a "T" shaped lot that is approximately 7,708 square feet. The Property fronts three streets, Sarah Street, 13th Street and Uxor Way in the South Side area of the City of Pittsburgh. The Property is zoned R1A-VH, Single-Unit Attached Residential-Very High Density.
In January, 2008, Landmark filed an application with the Board seeking a special exception pursuant to Section 921.02.A.4 of the Zoning Code (Code), to change a previously recognized nonconforming commercial use into a proposed nonconforming use of fifteen residential dwellings with sixteen integral garage spaces. Prior to any testimony being taken, the Board suggested to Landmark that it meet with various citizen groups in the South Side to discuss its proposed development. The Board hearing was then continued and Landmark subsequently participated in approximately four meetings with residents of the South Side.
On March 27, 2008, the Board conducted a hearing at which time Landmark amended its application to reduce the proposed number of condominiums from fifteen to nine and to reduce the number of parking spaces from sixteen to twelve. The proposed structure would be forty feet high and have three stories and a basement.
At the hearing, it was shown that under the 1923 zoning ordinance, the Property was zoned Light Industrial. Under the 1958 zoning ordinance, the Property was zoned Residential. The last existing use of the Property on record with the zoning administrator is that of a police station jail.
Prior ownership and use of the Property revealed that in March of 2001, the Property was purchased by Kimbrough & Associates LLC (Kimbrough). Kimbrough had applied to the Board and was granted a nonconforming commercial office use. However, no occupancy permit was ever issued and conversion of the Property into an office structure was never completed. In June of 2006, Kimbrough sold the Property to Jail House Lofts, LLC. In June of 2007, Jail House Lofts sold the Property to Landmark. At the time Landmark purchased the Property, it contained an unsound and unsafe building which was incapable of being rehabilitated. Landmark razed the building but the foundation remained.
In its decision, the Board observed that Landmark was requesting that it be granted a special exception to change from one nonconforming use to another. The Board noted, however, that prior to being razed, the Property was a nonconforming use and that upon razing of the building, the Property abandoned its status as a nonconforming use under § 921.02.B.2 of the Code. The Board further stated that given the unique physical conditions of the Property, it cannot be used for a single family dwelling. Under Appeal of Booz, 533 A.2d 1096 (Pa. Cmwlth. 1987), the Board reasoned that it could permit the grant of the proposed use on a different legal theory than that which was initially requested by Landmark. Thus, although the special exception requested by Landmark "cannot be granted under a theory of a change in a nonconforming use" the Board concluded that Landmark was entitled to a use variance. (Board's Conclusion of Law No. 6. ) As such, the Board granted Landmark a use variance.
Objectors appealed to the trial court and Landmark intervened in the appeal. The trial court affirmed the decision of the Board and this appeal followed.*fn1
Objectors initially argue that the Board erred in not providing them with an opportunity to address the issue of whether Landmark was entitled to a use variance. We agree.
Before the Board, Landmark maintained that it was seeking a special exception and that it was not seeking any variances. In fact, Landmark's application was never amended to reflect a request for a use variance. It was only during its deliberations that the Board determined that Landmark was entitled to a use variance. Although the Board may render the appropriate zoning relief other than that requested in the application, Objectors correctly claim that the Board must provide them an opportunity to be heard with respect to the variance.
In Booz, the applicant applied to the board for a variance to permit the expansion of its tractor repair service to include sales and leasing of new tractors and trailers. Applicant also sought to erect two signs advertising its dealership. At the hearing, opponents appeared and presented testimony in opposition to the variance. The board thereafter granted a variance for erection of the signs. As ...