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John Musgrave Iv and Regis Donovan v. the City of Pittsburgh Department of Planning

September 12, 2011

JOHN MUSGRAVE IV AND REGIS DONOVAN,
v.
THE CITY OF PITTSBURGH DEPARTMENT OF PLANNING, AND SOUTH HIGHLAND MAD MEX, LLC, AND THE CITY OF PITTSBURGH APPEAL OF: JOHN MUSGRAVE IV



The opinion of the court was delivered by: Robert Simpson, Judge

Submitted: June 10, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION

NOT REPORTED MEMORANDUM OPINION

BY JUDGE SIMPSON

In this zoning appeal, John Musgrave IV (Objector)*fn1 asks whether the City of Pittsburgh Zoning Board of Adjustment (ZBA) erred in granting South Highland Mad Mex, LLC's (Applicant) requests for two special exceptions sought in connection with its proposed restaurant. Because the ZBA's decision contains no findings regarding whether Applicant satisfied the general criteria for the grant of the special exceptions set forth in the Zoning Code of the City of Pittsburgh, Pennsylvania (Zoning Code), we vacate and remand for the ZBA to make these necessary findings.

The property at issue is located at 220 South Highland Avenue in the City of Pittsburgh, which lies in a Local Neighborhood Commercial (LNC) zoning district (subject property). The subject property was previously used as a 5,000-square foot retail upholstery shop. Applicant, an entity which owns several restaurants in the area, proposes to use the subject property for a 5,000 square foot restaurant.

Applicant applied for two special exceptions from the Zoning Code in connection with its proposed restaurant. Specifically, it sought a special exception for its proposed 5,000-square foot restaurant as well as a special exception for off-site parking. A brief hearing ensued before the ZBA.

At the hearing, several witnesses appeared on Applicant's behalf. Objector and Regis Donovan appeared in opposition to Applicant's requests.

After the hearing, the ZBA issued a decision in which it granted Applicant's special exception requests subject to attached conditions. In its decision, the ZBA made the following findings.

Applicant's proposed restaurant will include nine on-site parking stalls at the rear of the subject property and twelve off-site parking stalls at 201 South Highland Avenue. Applicant also proposes to construct a seasonal rooftop deck, which would be approximately 2,200 square feet in an area near the front of the building.

Applicant owns four nearby properties, which contain a total of 53 excess, on-site parking stalls that are available for use. Applicant's representative testified the 12 designated off-site parking stalls will be located less than a block from the subject property, at 201 South Highland Avenue. In addition to meeting the minimum parking requirement, Applicant's representative testified he is working with the owners of a nearby parking structure to obtain additional evening parking. Applicant expects most of the demand for parking to occur during its weekend operations.

Applicant's representative testified the restaurant would operate from 11:00 a.m. until midnight on weekdays, and 11:00 a.m. until 2:00 a.m. on weekends. The kitchen will close at 11:00 p.m. daily. Applicant's representative testified the proposed 2,200-square foot rooftop deck will be fenced with soundproofing material. Applicant's plans indicate that it proposes a bar as part of its rooftop deck, and that the deck will be staffed at all times during the operating season. Applicant's representative also testified no music will be played on the patio, and there will be no live entertainment in the restaurant.

Objector owns residential property at 224 South Highland Avenue, which is adjacent to the subject property, as well as various other properties in the vicinity of the subject property. Objector testified that patrons of Applicant's proposed restaurant will place an additional strain on existing on-street parking. Objector also testified the noise and potential garbage from the rooftop deck will hinder his ...


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