David v. City of Pittsburgh Zoning Board of Adjustment

640 A.2d 498, 163 Pa. Commw. 193, 1994 Pa. Commw. LEXIS 158
CourtCommonwealth Court of Pennsylvania
DecidedApril 5, 1994
StatusPublished
Cited by6 cases

This text of 640 A.2d 498 (David v. City of Pittsburgh Zoning Board of Adjustment) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David v. City of Pittsburgh Zoning Board of Adjustment, 640 A.2d 498, 163 Pa. Commw. 193, 1994 Pa. Commw. LEXIS 158 (Pa. Ct. App. 1994).

Opinion

KELLEY, Judge.

David and Diane Blancett-Maddock (objectors) appeal from an order of the Court of Common Pleas of Allegheny County (trial court) which affirmed the decision of the Pittsburgh Zoning Board of Adjustment (Board) granting a special exception for the use of a portion of the subject property as a laundromat. We affirm.

The facts as recited by the trial court are restated as follows. The subject property is located at 1529 Brownsville Road in the City of Pittsburgh, in an R-4 Multiple Family Zoning District. A one-story nonconforming building is situated on the property. The building has housed a succession of nonconforming uses since at least 1936.

In 1987, the Board approved a special exception for the property to be converted from a furniture store (a nonconforming use) to an office for a general contractor (another nonconforming use). In 1991, the Board approved the front of the building as a beauty and tanning salon, but specifically denied occupancy of the rear of the building which previously included parking and storage areas.

The present petition was brought before the Board to allow a laundromat (a nonconforming use) to operate in the vacant rear portion of the property. A hearing was held before the Board on February 6,1992. Prior to rendering a decision, the Board granted the owner of the property, Mr. Jan Hall, a continuance in order to downsize the proposed plan. A hearing on the modified plan was held on June 18, 1992, at which time several residents of the neighborhood appeared to object. The Board approved a special exception for the laundromat on August 21, 1992.

[500]*500The Blancett-Maddocks, neighboring property owners who objected to the plans at both Board hearings, appealed the Board’s final decision to the trial court. During the pendency of the appeal, the Board issued an amended decision specifying that the laundromat hours of operation were to be from 9:00 a.m. to 6:00 p.m., Monday through Saturday, and from 10:00 a.m. to 6:00 p.m. on Sunday.

The trial court rejected the arguments raised on appeal and affirmed the Board. The objectors now appeal to this court.1

On appeal, the objectors present the following questions for our review: (1) whether the Board erred as a matter of law in granting a change from one nonconforming use to another nonconforming use while retaining the prior nonconforming use; and (2) whether the decision of the Board was an abuse of discretion and not supported by substantial evidence.

Because no additional evidence was presented to the trial court in their review of the Board’s findings, our scope of review is limited to a determination of whether the Board committed a manifest abuse of discretion or an error of law. Searles v. Zoning Hearing Board, City of Easton, 118 Pa.Commonwealth Ct. 453, 545 A.2d 476 (1988). A zoning hearing board abuses its discretion only if its findings of fact are not supported by substantial evidence. Bilotta v. Haverford Township Zoning Board of Adjustment, 440 Pa. 105, 270 A.2d 619 (1970).

The City of Pittsburgh Zoning Ordinance provides for the right to change from one nonconforming use to another within the R-4 zoning district by application of the exception set forth by section 937.05(b)(3), which provides:

USE EXCEPTIONS
(b) Uses which are permitted only as special exceptions by the Board in conformity with the provisions of Chapter 909. (3) Extension of a nonconforming use within a nonconforming structure, or the change of such use within a nonconforming structure to a conforming use or to another nonconforming use that is determined by the Board to be no more detrimental to the neighborhood.

(Emphasis added.) {See Section 909.-06(b)(5).) City of Pittsburgh Zoning Ordinance, § 937.05(b)(3). Cross-reference to section 909.06(b)(5) provides:

SPECIAL EXCEPTIONS
(a) Generally. Upon application, in accordance with the provisions of this Zoning Ordinance and the rules of procedure of the Board, the Board shall determine the reasonableness and propriety in particular eases of any one of the following special exceptions to the district regulations of this Zoning Ordinance....
(5) Extension of a nonconforming use within a nonconforming structure, or for the change of such use within a nonconforming structure to a conforming use or to another nonconforming use that is determined by the Board to be no more detrimental to the neighborhood....

City of Pittsburgh Zoning Ordinance, § 909.-06.

The terms of the ordinance govern the change from one nonconforming use to another and provide the parameters under which it must be considered. Drucker v. Zoning Hearing Board, Borough of Wilkinsburg, 124 Pa.Commonwealth Ct. 616, 556 A.2d 955 (1989). Under Pennsylvania law, an ordinance, including that which is at issue here, which permits a change from one nonconforming use to another which is “no more detrimental” to the neighborhood than the prior use in effect permits a change in the use, by special exception. Martire v. Zoning Board of Adjustment, City of Pittsburgh, 74 Pa.Commonwealth Ct. 255, 459 A.2d 1324 (1983).

A special exception is not an exception to the zoning ordinance, but rather a use to which the applicant is entitled unless the zoning board determines, according to the standards set forth in the ordinance, that the [501]*501proposed use would adversely affect the community. East Manchester Township v. Dallmeyer, 147 Pa.Commonwealth Ct. 671, 609 A.2d 604 (1992). Once an applicant for a special exception has established compliance with the specific objective requirements of that exception as set forth in the ordinance, the objectors to the proposed special exception have the burden of persuasion and the duty to go forward with evidence that the general, non-specific requirements have not been fulfilled. Bray v. Zoning Board of Adjustment, 48 Pa.Commonwealth Ct. 523, 410 A.2d 909 (1980).

Here, the Board permitted a special exception change from a nonconforming contractor’s business office, parking and storage to a beauty and tanning salon with one outdoor parking stall. The same landowner was later granted a special exception change for occupancy of the rear portion of the property in order to add a laundromat while retaining the beauty and tanning salon.

Before the trial court, the objectors argued that the plain language of the Ordinance mandates that the “detriment” to the neighborhood is to be determined by a comparison of the existing nonconforming use against that of the nonconforming use being substituted.

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Bluebook (online)
640 A.2d 498, 163 Pa. Commw. 193, 1994 Pa. Commw. LEXIS 158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-v-city-of-pittsburgh-zoning-board-of-adjustment-pacommwct-1994.