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

• Decision Date: 05 March 2021
• Docket Number: No. 779 C.D. 2020,779 C.D. 2020
• Citation: 247 A.3d 465
• Parties: LAWRENCEVILLE STAKEHOLDERS, Mary Coleman, Jill Joyce, Bill Joyce and Victor Capone v. The CITY OF PITTSBURGH ZONING BOARD OF ADJUSTMENT v. City of Pittsburgh Appeal of: Duncan Ventures, LLC
• Court: Pennsylvania Commonwealth Court

247 A.3d 465

LAWRENCEVILLE STAKEHOLDERS, Mary Coleman, Jill Joyce, Bill Joyce and Victor Capone

v.The CITY OF PITTSBURGH ZONING BOARD OF ADJUSTMENT

v.City of Pittsburgh

Appeal of: Duncan Ventures, LLC

No. 779 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued February 9, 2021

Decided March 5, 2021

Alex M. Lacey, Pittsburgh, for Appellant.

David F. Toal, Pittsburgh, for Appellees Lawrenceville Stakeholders, Mary Coleman, Jill Joyce, Bill Joyce and Victor Capone.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge (P.), HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE FIZZANO CANNON

Appellant, Duncan Ventures, LLC (Duncan) appeals from the July 13, 2020, Order of the Court of Common Pleas of Allegheny County (trial court) reversing the October 30, 2019, decision of the Pittsburgh Zoning Board of Adjustment (Board). Over the opposition of Appellees (Lawrenceville Stakeholders and Neighbors),¹ the Board granted Duncan four dimensional variances from the Pittsburgh Zoning Code (Code) for a Lawrenceville property (the Property) currently zoned for single attached dwellings. Duncan planned to develop the Property by demolishing an existing detached single residence on the Property, subdividing the parcel, and building five new four-story attached single-family dwellings with garages, rear decks, and rooftop decks. Upon review, we affirm the trial court's order.

I. Factual & Procedural Background

In June 2019, Duncan applied to the City of Pittsburgh's Division of Zoning and Development Review for dimensional variances necessary to develop the Property. Reproduced Record (R.R.) at 29a-31a. The Property, an irregularly shaped 7500-square-foot parcel of land with a two-story detached single-family residence built in the 19th century, is in the R1A-VH (Residential Single-Unit Attached, Very High-Density)² zoning district in the Central Lawrenceville neighborhood.³ Id . at 29a-31a.

The Property, located at 186 Home Street, is located one block north of Butler Street and bordered by Home Street, Antwerp Way, Eden Way, and by the neighboring lot on 184 Home Street. The shape of the parcel is an irregular quadrilateral. Appellant's Br. at 3.

Duncan agreed to purchase the Property conditioned upon zoning approval and was therefore its equitable owner for purposes of seeking the variances. Id . at 146a. Duncan's proposal required four dimensional variances from the Code. First, Duncan requested a variance from Section 903.03.E.2, which generally imposes minimum five-foot interior side setbacks for primary and exterior structures. See Board Decision, R.R. at 11a. Duncan requested a variance completely eliminating the setbacks. Id . at 8a. Second, and relatedly, Duncan applied for a variance from Section 925.06.C, which reduces Section 903.03.E.2's general 5-foot side setback minimum to a specific "contextual" 3-foot minimum if the lot in question is narrower than 37 feet wide.⁴ Id . at 11a. Duncan again requested a variance completely eliminating the setbacks. Id . at 8a. Third, Duncan applied for a variance from Section 926.129, which requires new lots to front on streets at least 25 feet wide. See Trial Ct. Op., R.R. at 300a. Four of the five lots Duncan proposed as its subdivision of the Property would front on Antwerp Way and Eden Way, both of which are only 20 feet wide. Board Decision, R.R. at 9a. Fourth, Duncan requested a variance from Section 903.03.E.2's provision limiting the maximum height of new construction to 40 feet and 3 stories. Id . at 11a. Duncan asserted that its proposed townhouses would be within 40 feet tall, but requested a variance to build the structures 4 stories each to account for garages on the ground floor. Id . at 9a-10a.

Duncan's application was opposed by Neighbors and various local individuals and entities. A joint letter was submitted to the Board by Lawrenceville Corporation and Lawrenceville United, which work together to "improve and protect the quality of life for all Lawrenceville residents" and to encourage "responsible growth and reinvestment in the Lawrenceville community." Id . at 46a. The letter stated that those organizations held an open public community meeting on Duncan's proposal at which "impacted residents" voiced concerns relating to the siting and impact of the proposed townhouses and garages. Id . The letter maintained that Duncan's project "does not present any hardship for why the zoning relief is necessary, and consequently we are opposed." Id . Another organization, Lawrenceville Stakeholders, which described itself and its members as "advocates for the preservation of historic Lawrenceville," issued a statement opposing the project for the same reasons. Id . at 47a. The statement cited density and congestion concerns with Duncan's proposal and alleged it would have an adverse impact on the neighborhood, expressed a belief in the feasibility of developing the Property without variances, and averred that Duncan failed to show an evidentiary basis for the requested variances. Id . at 47a.

At the August 2019 hearing before the Board, Matt Stookey (Stookey), Duncan's principal, testified as a fact witness. R.R. at 145a. He stated that he had over 10 years of real estate experience, beginning with "flipping houses" in Detroit, Michigan and later in Pittsburgh. Id . at 164a. He stated that he has done "about a dozen" renovations in the Lawrenceville area since 2012 and produced new construction since 2015-16. Id . at 164a-65a. He acknowledged, however, that he has neither an appraiser's certification nor a real estate license. Id . at 165a.

Stookey acknowledged that the agreement to purchase the Property was contingent upon zoning approval. R.R. at 146a-48a. He submitted into evidence a two-page financial analysis of the project, drafted by him, which cited a purchase price of $415,000 for the Property with the then-existing detached single residence still intact on it and proposed sale prices of $663,000 per new townhouse. Id . at 139a-40a. Stookey stated that Duncan had considered a project of only four townhouses, but that building fewer than five townhouses would have resulted in a significant net loss for the overall project. Id . at 161a-62a. Except for the analysis drafted by Stookey, Duncan did not produce the actual agreement of sale or any estimates, reports, or appraisals of the fair market value of the Property with the then-existing detached single residence, as a vacant lot, or with any number of townhouses upon it.

Stookey averred that the proposed five attached townhouses, designed to face Eden Way with both front doors and garages opening onto Eden Way, would all be on lots of at least the minimum acceptable size set by the Code and would not exceed the Code's 40-foot height limitations. R.R. at 52a, 147a, 153a & 156a; see also Board Decision, 10/30/19, R.R. at 10a (describing the proposed project). Stookey stated that in order to minimize street parking on Home Street, the proposed townhouses were sited with integrated off-street parking garages, which necessitated the townhouses (except for one) being fronted on Eden Way. Id . at 52a & 155a. According to Stookey, the parking garages on the ground floor of the proposed townhouses made a fourth story necessary for each residence. Id . at 156a-57a.

Stookey explained that the orientation of the Property along Eden Way, which is angled between the parallels of Home Street and Antwerp Way, rendered the parcel irregularly shaped. Id . at 52a & 153a-55a. This made it necessary for the townhouses to be staggered in such a way that for several feet at the front and back of each townhouse, the structures were unattached from each other. Id . In those specific aspects of the proposal, according to Stookey, instead of the Code's provisions for minimum setbacks of five or three feet as required by Sections 903.03.E.2 and 925.06.C of the Code, the requested variances from those provisions would enable all five proposed townhouses to fit on the site. Id .

In opposition, Neighbors testified at the hearing. Jill Joyce, a registered architect and resident of Lawrenceville, lives near the Property. R.R. at 169a-70a. She asserted that the proposed five-townhouse project would break up the aesthetic continuity of Home Street. Id . at 174a. She recommended a project limited to three townhouses that would not need variances and would lessen the impact on the neighboring area, and she presented a rendering of her proposed alternative. Id . at 49a & 171a-72a. She acknowledged that she had not conducted a financial feasibility analysis of her proposal, but believed that Duncan's cited purchase price of $415,000 for the Property, which was part of Duncan's calculations of its expected losses if it could not do the project as proposed with the requested variances, was "really high." Id . at 177a.

Mary Coleman, a nearby resident and member of Lawrenceville Stakeholders, also testified for Neighbors. She asserted that Eden Way, on which the proposed five townhouses would front, is a narrow commercial alley parallel to and behind Butler Street, which is the main commercial road in Lawrenceville. R.R. at 186a-87a. It is lined with dumpsters and has daily truck traffic of deliveries and trash pickup for Butler Street's businesses and apartment buildings. Id . at 187a. Counsel for Neighbors explained the Code's requirement that houses must front onto a street and that Eden Way is not a street but a commercial alley, such that having five residences fronting on it as Duncan proposes would be a safety hazard. Id . at 188a-91a. Ms. Coleman explained that there are already concerns with traffic and congestion in the immediate area that would be worsened by Duncan's project. Id. at 192a-93a & 196a.

A further witness for Neighbors was Polly Biswas, who lives at 154 Home Street, about a block away from the Property. R.R. at 199a. She was opposed to Duncan's proposal and averred that to "cram five houses into that...