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

• Citation: 543 Pa. 415,672 A.2d 286
• Parties: Rolf LARSEN, Appellee, v. The ZONING BOARD OF ADJUSTMENT OF the CITY OF PITTSBURGH, Allegheny County, Pennsylvania, v. Michael and Theresa NUZZO, Appellants.
• Decision Date: 26 April 1996
• Court: United States State Supreme Court of Pennsylvania

Page 286

672 A.2d 286

543 Pa. 415

Rolf LARSEN, Appellee, v. The ZONING BOARD OF ADJUSTMENT OF the CITY OF PITTSBURGH, Allegheny County, Pennsylvania, v. Michael and Theresa NUZZO, Appellants.

Supreme Court of Pennsylvania.

Submitted Aug. 15, 1995.

Decided Feb. 21, 1996.

Reargument Denied April 26, 1996.

Martin W. Sheerer, Pittsburgh, for Appellant Nuzzo.

Robert A. Felkay, Pittsburgh, for Appellee Larsen.

Gretchen Donaldson, Pittsburgh, George R. Spector, Jacqueline R. Morrow, Pittsburgh, for Appellee Zoning Bd.

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

OPINION

CASTILLE, Justice.

Appellants raise two related issues in this appeal. First, appellants contend that the Commonwealth Court exceeded its scope of review in reversing the trial court's grant of appellees' variance request which would have allowed them to build a 400 square foot deck in the rear of their residence to provide a play area for their child. Second, appellants contend that the zoning board did not commit a manifest abuse of discretion or an error of law which would merit the Commonwealth Court's reversal of the trial court's affirmance of the variance grant. For the reasons discussed below, we find that the Commonwealth Court properly found that appellants' need for a larger play area for their child did not warrant a variance and that the trial court abused its discretion in affirming the Zoning Board's grant of the variance.

The underlying history giving rise to the instant dispute is that in 1988, appellants purchased a residential property located at 816 Grandview Avenue in the City of Pittsburgh. The original residence was thirty-six feet deep. Shortly thereafter, appellants built a three story addition with a basement to the rear of the existing two-and-a-half story residence. The addition was forty-four feet deep with an additional concrete pad which was six feet deep by twenty feet wide, the same width as the residence. ¹ Beyond the concrete pad, like those of their neighbors all along Grandview Avenue, appellants' property dropped off steeply to the Ohio River, making much of the rear portion of their property unusable.

At all times pertinent to this action, the zoning restrictions in the area required that there be a thirty foot setback from the rear property line. This first addition to the property had a thirty-two foot setback to the rear of the building and, therefore, complied with the setback requirement. ²

In 1989, appellants sought a building permit for the construction of a second addition. Specifically, appellants wanted to add to their property a twenty-by-twenty foot deck off the rear of the house in order to provide their two-year-old child with an outside play area. Because the deck would have resulted in a setback of only twelve feet and could not be built at grade due to the steep slope of the lot, a variance was required to build such a structure.

Following a hearing before the zoning board, the board granted the variance request finding that appellants had established: (1) that a denial of the variance would have resulted in an unnecessary hardship depriving appellants of the reasonable use of their property, and (2) that the proposed use would not be contrary to public interest. Appellee, who resides in a multi-unit condominium located directly next door to appellants' residence appealed the grant of the variance to the Court of Common Pleas of Allegheny County. ³ The Court remanded the matter to the zoning board for further testimony in order to clarify the board's findings of fact and to address the issues of the effect of the variance on appellee's property and the existence and nature of the claimed hardship. After additional testimony was taken, the Zoning Board reaffirmed its ruling and the Court of Common Pleas affirmed the Zoning Board's grant of the variance. On appeal to the Commonwealth Court, appellee argued that appellants had failed to satisfy the criteria needed to support the grant of a variance. The Commonwealth Court agreed and reversed the trial court's affirmance of the Zoning Board's grant of the variance. Appellants now appeal to this Court from the Commonwealth Court's order.

It is well established that 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 of the zoning board's determination is whether the zoning board committed a manifest abuse of discretion or an error of law in granting the variance. Sweeney v. Zoning Hearing Board of Lower Merion Twp., 534 Pa. 197, 202, 626 A.2d 1147 (1993); Valley View Civic Assoc. v. Zoning Board of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983). An abuse of discretion will only be found where the zoning board's findings are not supported by substantial evidence. Id.

There are essentially four factors that appellants must prove to be entitled to a variance under the applicable statute and ordinance. The factors are:

(1) that an unnecessary hardship exists which is not created by the party seeking the variance and which is caused by unique physical circumstances of the property for which the variance is sought;

(2) that a variance is needed to enable the party's reasonable use of the property;

(3) that the variance will not alter the essential character of the district or neighborhood, or substantially or permanently impair the use or development of the adjacent property such that it is detrimental to the public's welfare; and

(4) that the variance will afford the least intrusive solution.

53 P.S. § 10910.2; ⁴ § 909.05 of the Pittsburgh Code of Ordinance ("PCO"). ⁵ Accord Valley View, supra at 554-56, 462 A.2d at 640. The failure of a zoning board to consider each requirement of a zoning ordinance prior to granting a variance is an error of law. Sweeney, supra, 534 Pa. at 208, 626 A.2d at 1153. Here, the zoning board failed to consider each of these requirements. Furthermore, the record reveals that appellants failed to provide evidence that would satisfy even the first criteria. Accordingly, appellants' claim must fail.

1. Hardship Caused by Unique Physical Characteristics

(a) Unnecessary Hardship

In order to satisfy the first prong under both the statute and PCO, appellants must prove: (1) that the variance is needed to avoid an "unnecessary hardship;" (2) that the "unnecessary hardship" was not created by them; and (3) that the "unnecessary hardship" was caused by unique physical circumstances of the property for which the variance is sought. With respect to the first factor, in determining whether the denial of the variance would cause the level of hardship needed to warrant a variance, this Court held in Richman v. Zoning Board of Adjustment, 391 Pa. 254, 259-260, 137 A.2d 280, 283 (1958), that the hardship must truly be an "unnecessary" one, and not simply a " 'mere' hardship." Furthermore, the "unnecessary" hardship must be one that is "unique or peculiar" to the property. Id.

Here, the Board found that appellants would suffer an "unnecessary hardship" from a denial of the variance because they would be denied the reasonable use of their land if they could not provide a play area for their child. ⁶ (Decision of the Zoning Board of Adjustment, 8/24/90 at 2; Decision of the Zoning Board of Adjustment, 7/23/93 at 2). However, the mere desire to provide more room for a family member's enjoyment fails to constitute the type of "unnecessary hardship" required by the law of this Commonwealth.

In the matter of In Re Kline Zoning Case, 395 Pa. 122, 124, 148 A.2d 915, 916 (1959), a property owner sought a variance from a thirty-foot setback requirement in order to enclose his front porch. The basis for his variance request was that his wife suffered from asthma and hay fever, and that his son suffered from a severe respiratory ailment as well as hay fever. The enclosure of the porch would have allowed his family to have additional room in which to habitate. ⁷ This Court, applying the test set forth by Richman, supra, upheld the zoning board's denial of the variance finding that the owner's need for additional room for his family failed to establish an unnecessary hardship justifying the variance.

The circumstances of In re Kline Zoning Case are analogous to the circumstances at hand. In both cases, the property owners sought variances to modify their homes to add a greater area for their family members to play in or to use. Thus, under In re Kline Zoning Case, we find that the Zoning Board erred as a matter of law in granting the variance based simply upon appellant's need to provide a greater play area for their child. Variances are meant to avoid "unnecessary" hardships; the granting of relief cannot be done simply to accommodate the changing needs of a growing family. ⁸

(b) Creation of Hardship

Notwithstanding appellants' failure to establish an unnecessary hardship, appellants further failed to establish that the physical circumstances allegedly causing the unnecessary hardship were not created by them. Valley View, supra; 53 P.S. § 10910.2(a)(1), (3); PCO § 909.05(a)(1)(A). Section 909.05(a)(1)(A) of the Pittsburgh Code of Ordinances expressly provides that parties are not entitled to a variance for circumstances which are the result of "any act of the appellant or his predecessors in title subsequent to the adoption of this Zoning Ordinance, whether in violation of the provisions hereof or not." See also, 53 P.S. § 10910.2(a)(3). To the extent that the hardship found by the zoning board was the result of the fact that appellants' first addition to their residence covered 75% of the property, thereby precluding any additional building absent a variance, appellants themselves created the complained of hardship. When appellants purchased the property, the house had a seventy-six foot setback from the rear property line. (Larsen Exhibit 1). It...