City of Pittsburgh v. Zoning Bd. of Adjustment of City of Pittsburgh

• Decision Date: 05 June 1989
• Citation: 522 Pa. 44,559 A.2d 896
• Parties: CITY OF PITTSBURGH, Appellee, v. ZONING BOARD OF ADJUSTMENT OF CITY OF PITTSBURGH, Dom Zullo and Irene Dale. Appeal of Dom ZULLO and Irene Dale. 62 W.D. 1988
• Court: Pennsylvania Supreme Court

Page 896

559 A.2d 896

522 Pa. 44

CITY OF PITTSBURGH, Appellee, v. ZONING BOARD OF ADJUSTMENT OF CITY OF PITTSBURGH, Dom Zullo and Irene Dale.

Appeal of Dom ZULLO and Irene Dale.

62 W.D. 1988

Supreme Court of Pennsylvania.

Argued March 6, 1989.

Decided June 5, 1989.

William R. Grove, Hollinshead & Mendelson, Leonard M. Mendelson, Pittsburgh, for appellants.

D.R. Pellegrini, City Solicitor, Kellen McClendon, Asst. City Solicitor, Dept. of Law, Pittsburgh, for appellee.

Before NIX, C.J., and FLAHERTY, McDERMOTT and ZAPPALA, JJ.

OPINION

McDERMOTT, Justice.

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. ¹ 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 area. Testimony from opponents also indicated that the appellant removed the sidewalk to create a parking area for himself, when he visits the property, and for his tenants. Opposition focused generally on congestion in the area.

The Board has determined that the proposed use is detrimental to the abutting and adjacent properties and to the community in general. The Board has also determined that the Appellant has not met the burden of demonstrating that he qualifies as a legal non-conforming use or that he qualifies for a variance at this location. In light of the testimony that was submitted, the Board hereby denies the appellant's request. The appellant is ordered to reduce to 7 units within 30 days of this decision. The appellant is also ordered to restore the sidewalk area to pedestrian use and to eliminate the parking spaces that have been created using the sidewalk area and portions of the street.

City of Pittsburgh Zoning Board of Adjustment, Case No. 244 of 1982 (July 22, 1982) (emphasis added).

Appellants then appealed the Board's decision to the Court of Common Pleas (Papadakos, J.) ² which denied their appeal after a conciliation hearing and filing of a certified record of the proceedings before the board. Court of Common Pleas of Allegheny County, S.A. 612 of 1982 (March 2, 1983).

Appellants then appealed to Commonwealth Court. Pennsylvania Commonwealth Court No. 2738 C.D.1982. On November 13, 1984 however, on praecipe filed by their counsel the appeal was, "withdrawn discontinued and ended." Id. Before the Commonwealth Court, the City had joined issue and argued in its brief in opposition that Zullo and Dale, contrary to their contentions, had acquired no vested right to a variance by virtue of occupancy and building permits obtained by fraud. ³ They contended also that even assuming that the permits at issue were not obtained fraudulently, appellants did not meet the burden of proof necessary to establish their entitlement to a variance in that they failed to prove "unnecessary hardship" or that the variance would not be contrary to the public interest. Brief in Opposition, Pa.Cmwlth. No. 2738 C.D.1982.

While the matters set forth above were still before the Commonwealth Court, appellants acquired an interest in a non-contiguous property nearby at 5831 Morrowfield Avenue. The back yard of the acquired property abutted an unopened city street, Sunapee Way, which intersected with Alderson Street. Appellants' property is located one property from that intersection. Appellants next re-applied for variances to use their structure as a fifteen-unit apartment house, proposing that they be allowed to use the backyard of the Morrowfield property as a parking lot to satisfy partially the code requirement for parking spaces for their building. Again they were refused by the Zoning Administrator and again they appealed to the Board requesting, "variances, review and administrative exception". They sought permission to use their structure as a fifteen-unit multiple-family dwelling with seven (7) out-door parking stalls located at 5831 Morrowfield Avenue. The Board noted in its disposition that the lot area was 5341 square feet rather than the required 15,000 and that "the legal existence of 15 dwelling units is not proven." City of Pittsburgh Zoning Board of Adjustment, Zone Case No. 645 of 1983 (June 14, 1984). The Board reviewed its earlier disposition and order that appellants reduce to seven units. It denied the variances sought and again ordered appellants to reduce to seven (7) units within thirty days of the date of mailing of its decision. Id. In its disposition it stated as follows:

Appellant claims that he contacted the Bureau of Building Inspection in 1979 when renovation work began. He stated that the Zoning Administrator approved an application in 1979, and that the Plans Examiner approved plans for 14 units. The work was inspected by the Bureau of Building Inspection and recommended for Certificate of Occupancy. It was testified that the Bureau of Building Inspection advised the appellant on December 28, 1981, to file for a hearing. Zone Case No. 244 of 1982 was heard and denied.

The Board has carefully considered all additional testimony in the instant case and is of the opinion that Appellant has for the second time not met the burden of demonstrating that he qualified as a legal nonconforming use or that he qualified for variances at this location. It is the decision of the Board that the decision rendered under Zone Case No. 244 of 1982 remains in effect, i.e., the variances are hereby denied. Appellant is ORDERED TO REDUCE TO 7 DWELLING UNITS WITHIN 30 DAYS OF DATE OF MAILING OF THIS DECISION.

Id. (emphasis added)

Appellants then appealed the decision and order to the Court...