Hertzberg v. Zoning Bd. Of Pittsburgh

Citation721 A.2d 43,554 Pa. 249
PartiesAlan HERTZBERG, Appellee, v. ZONING BOARD OF ADJUSTMENT OF the CITY OF PITTSBURGH, Appellee, v. MIRYAM'S, Appellant.
Decision Date03 December 1998
CourtUnited States State Supreme Court of Pennsylvania

Michael A. Donadee, James W. Tinnemeyer, Jr. Pittsburgh, for Miryam's, appellant.

George Specter, Pittsburgh, for City of Pittsburgh, appellee.

Glenn R. Bartifay, Pittsburgh, for Alan Hertzberg, appellee.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION OF THE COURT

CASTILLE, Justice.

In this appeal we review the Commonwealth Court's reversal of an order of the Allegheny County Court of Common Pleas (trial court) upholding the decision of the Zoning Board of Adjustment of the City of Pittsburgh (Board) to grant a variance and special exception to appellant Miryam's. At issue is whether the evidence presented to the Board demonstrated the existence of an unnecessary hardship entitling Miryam's to a dimensional variance and special exception from the applicable zoning ordinances. We find that the Commonwealth Court erred for two reasons. First, the Commonwealth Court applied the standard for a use variance when Miryam's sought only a dimensional variance. Second, the standard employed by the Commonwealth Court is too restrictive and in contrast to this Court's precedents concerning unnecessary hardship, irrespective of whether a use or dimensional variance was sought. Therefore, we reverse.

The facts relevant to this appeal are as follows: Miryam's is a nonprofit social service agency which provides shelter and services to homeless women.1 Miryam's sought zoning approval from the zoning officer of the City of Pittsburgh to convert a vacant four-story building into office space, counseling rooms and a reception area on the first floor, a living room, dining room and kitchen on the second floor and ten bedrooms with two beds in each on the top two floors to house twenty women. The building was formerly occupied by a bank and twelve apartment units, but has stood vacant for many years. It is located in a C-4 commercial zoning district which permits lodging houses but not group care facilities or institutional facilities.

Miryam's applied for the zoning permit characterizing its intended use of the building as a "lodging house."2 The City of Pittsburgh zoning ordinance requires that a lodging house contain 5,000 square feet, plus an additional 300 square feet for each sleeping room in excess of three. Section 989.01 of the ordinance requires a lodging house to provide one parking stall for each of the first 20 sleeping rooms, and one parking stall for every two sleeping rooms in excess of 20 rooms. Thus, under these requirements, Miryam's was required to have 7,100 square feet of space and ten parking stalls in order to be approved as a lodging house.3 The zoning officer denied the zoning permit on the grounds that the property contains only 3,409 square feet and contains no parking stalls.

Miryam's appealed to the Board for a variance from the area and parking requirements.4 Appellee, Alan Hertzberg, who owned the adjoining building which housed his law office and several apartment units, opposed the request, contending that Miryam's did not establish the necessity for a variance. The Board granted Miryam's request for a variance and special exception and found that the proposed use was within the definition of a "lodging house." The Board further found that the ten proposed sleeping rooms were necessary to utilize the structure to the most efficient degree, that the building had been vacant for many years, and that the building was uniquely suited for the proposed use. The special exception for parking was granted on the basis that Miryam's clients would not be driving or parking motor vehicles, the clients and some of the employees would either be using public transportation or walking, public parking lots were located nearby and a neighbor had offered to lease parking spaces to the employees.

Hertzberg appealed the decision of the Board to the trial court, which affirmed after denying Hertzberg's motion to allow additional evidence.5 Hertzberg then appealed to the Commonwealth Court. In a memorandum opinion and order, the Commonwealth Court reversed the trial court, finding that Miryam's had failed to prove that, without the variance or special exception, the property could not be used for any one of the sixty-five different uses permitted by the zoning ordinance. Therefore, the Commonwealth Court concluded that Miryam's had failed to demonstrate that it would suffer the "unnecessary hardship" required for the grant of a variance. In addition, the court noted that the Board made no findings of fact that the property could not be used for any permitted purpose, that the property could be arranged for the purpose only at a prohibitive expense, or that the property had either no value or only distress value. The court further reasoned that: "Absent a showing that the property cannot be used in a way and for a purpose consistent with the zoning ordinance, there is not the unnecessary hardship required for the grant of a variance." Commw. Ct. Slip Op. at 8.

This Court granted allocatur limited to the issue of whether the evidence presented to the Board demonstrated the existence of an unnecessary hardship entitling Miryam's to a variance and a special exception.6 Miryam's asserts that the Commonwealth Court erred in holding that an applicant seeking a dimensional variance and special exception must demonstrate unnecessary hardship by showing that the building cannot be used for any other permitted purpose. We agree.

Where neither the Court of Common Pleas nor the Commonwealth Court conducts a hearing or receives additional evidence that was not before the zoning board, the applicable standard of appellate review is whether the board committed an abuse of discretion or an error of law in granting the variance. Larsen v. Zoning Bd. of Adjustment of the City of Pittsburgh, 543 Pa. 415, 419, 672 A.2d 286, 288 (1996). An abuse of discretion will be found only where the zoning board's findings are not supported by substantial evidence. Id. 543 Pa. at 421, 672 A.2d at 289. By "substantial evidence" we mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Ass'n v. Zoning Bd. of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983) (citations omitted).

The Municipal Planning Code, addressing the standards for granting a variance, requires an applicant to show:

(1) That there are unique physical conditions peculiar to the property and that the unnecessary hardship is due to those conditions;

(2) That because of the physical conditions, there is no possibility that the property can be developed in strict conformity with the zoning ordinance and that a variance is needed to enable reasonable use of the property;

(3) That unnecessary hardship has not been created by the applicant;

(4) That the variance is not detrimental to the public welfare; and (5) That the variance is the minimum variance that will afford relief and is the least modification of the regulation at issue.

53 P.S. § 10910.2 (Supp.1995). A variance applicant must show that unnecessary hardship will result if a variance is denied and that the proposed use will not be contrary to the public interest. Allegheny West Civic Council, Inc. v. Zoning Bd. of Adjustment of the City of Pittsburgh, 547 Pa. 163, 167, 689 A.2d 225, 227 (1997). The issue in this appeal arises from the application of the first part of the test regarding whether or not unnecessary hardship will result from the denial of the variance. This Court has previously held in the context of use variances that unnecessary hardship is established by evidence that: (1) the physical features of the property are such that it cannot be used for a permitted purpose; or (2) that the property can be conformed for a permitted use only at a prohibitive expense; or (3) that the property has no value for any purpose permitted by the zoning ordinance. Id. at 168, 689 A.2d at 227.

The issue here involves a dimensional variance and not a use variance—an important distinction ignored by the Commonwealth Court. When seeking a dimensional variance within a permitted use, the owner is asking only for a reasonable adjustment of the zoning regulations in order to utilize the property in a manner consistent with the applicable regulations. Thus, the grant of a dimensional variance is of lesser moment than the grant of a use variance, since the latter involves a proposal to use the property in a manner that is wholly outside the zoning regulation.

In this instance, Miryam's intended use of the property is permitted under the existing zoning regulations. The trial court properly noted that this was a dimensional variance case, and held that Miryam's was not required to prove that the property was unmarketable without the desired variance, "but only that the zoning requirements work an unreasonable hardship in the owner's pursuit of a permitted use." Trial Ct. Slip Op. at 9 (emphasis added). The Commonwealth Court rejected this standard without discussing the difference between a dimensional and use variance and applied the very strict standard which has been developed for use variances—that the property owner must demonstrate unnecessary hardship by showing that the property is valueless without the variance and cannot be used for any other permitted purpose. Commw. Ct. Slip Op. at 8.

We note that although this Court has not formally made a distinction between the standards that should apply when a variance from open area and space requirements is sought instead of a variance from a prohibited use, this Court has discussed the need for a distinction in the requirements to establish unnecessary hardship when a dimensional variance is sought as opposed to a use variance. In ...

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