Larsen v. Zoning Board of Adjustment

654 A.2d 256, 1995 Pa. Commw. LEXIS 62
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 31, 1995
StatusPublished
Cited by4 cases

This text of 654 A.2d 256 (Larsen v. 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
Larsen v. Zoning Board of Adjustment, 654 A.2d 256, 1995 Pa. Commw. LEXIS 62 (Pa. Ct. App. 1995).

Opinion

KELTON, Senior Judge.

Appellant Rolf Larsen (Larsen) appeals from the April 4, 1994 order of the Court of Common Pleas of Allegheny County (trial court) affirming the City of Pittsburgh Zoning Board of Adjustment’s (Board) grant of a dimensional variance to Michael and Theresa Nuzzo (the Nuzzos).

The Board had allowed a deviation of eighteen feet past the rear yard setback line to allow the construction of a twenty by twenty foot deck at the rear of the Nuzzos’ residence at 816 Grandview Avenue in the Mount Washington section of Pittsburgh. The back end of the new deck would also extend approximately eighteen feet past the rear of one neighbor’s building and another neighbor’s rear deck.1 Larsen, who resides in the adjacent building, had objected before the Board and the court.

The sole issue on appeal is whether the Nuzzos have shown that the steep slope circumstances which affect their land are unique and applicable to the Nuzzo land alone or whether they are conditions which apply generally in the neighborhood. We conclude that the circumstances are not unique to the Nuzzos’ property because they apply generally to the neighborhood. We therefore reverse.

In a July 23, 1993 decision, the Board made the following findings of fact:

1. The subject property is located in the 19th Ward of the City of Pittsburgh and is zoned ‘R4’ Multiple-Family Residence District.
2. The subject action is a remand from the Court of Common Pleas of Allegheny County for taking of additional testimony and rendering of a decision by the Board of Adjustment. The subject action in this [258]*258matter is an appeal to erect a 20' by 20' open deck at the rear of an existing two-story, one-family dwelling. Such requires the grant of a rear yard variance of 12' instead of 30'.
3. The subject matter was before the Board of Adjustment and, following a decision by the Board of Adjustment granting the aforementioned variance, was appealed to the Court of Common Pleas of Allegheny County. The Court granted the Motion for Taking of Additional Testimony and remanded the matter to the Board of Adjustment.
4. The Board took additional testimony in the above-captioned matter and following the taking of that testimony the Board' renders the following decision. The Board reaffirms original Finding of Fact No. 3 that the subject lot is long and narrow and that the existing main structure on the lot occupies approximately seventy-five percent (75%) of the lot. The Board would note that the lot is nonconforming for a single-family structure. The square footage of the lot is 4,375 sq. ft. The minimum lot area for a single-family structure is 5,000 sq. ft. The Board would further note that the structure as it is configured on the nonconforming lot is nonconforming as to side yards and that the current rear portion of the structure sits only 32' from the rear property line.
5. The Board would note therefore that any additional construction on this site would require a variance. The Board reaffirms Finding of Fact No. 4 that the open deck will provide an outside enjoyment area for use by the [Nuzzos] family. The Board further notes that due to the topography of the rear portion of the lot, the [Nuzzos] cannot build a deck which would be at grade and which would not require variances by the Board of Adjustment. The unique topographical problems faced by the [Nuzzos] deny [them] the opportunity to reasonably use [their] land for the placement of a deck that would be at grade. Those unique circumstances are exactly the issues and circumstances that are considered in Section 909.05 of the Pittsburgh Code of Ordinances and are circumstances upon which the Board bases its decision to grant the rear yard variance.

(Board’s Findings of Fact Nos. 1-5, R.R. 116-17.)

Having made those findings, the Board concluded that 1) the Nuzzos met the burden of proof necessary for the grant of the requested variance; 2) denial of the variance would result in unnecessary hardship thereby denying the Nuzzos reasonable use of their property; and 3) the Nuzzos’ proposed use would not be contrary to the public interest. (R.R. 117.) Accordingly, the Board granted the variance “for the erection of a 20' by 20' open deck at the rear of an existing two-story, one-family dwelling at 816 Grandview Avenue.” (R.R. 118.)

Without taking additional evidence, the trial court affirmed the Board’s order on April 4,1994. The trial court related the following facts which are not in dispute in this appeal:

Mr. and Mrs. Nuzzo bought their home on Mt. Washington in 1988. Like most properties on this side of Grandview Avenue their backyard ends in a precipitous slope down to the Ohio River. Shortly after moving in the Nuzzos built a large addition to the rear of their house, but as no setbacks were infringed, zoning board approval for the addition was not necessary.

(Trial court’s April 4, 1994 opinion at 2, emphasis added.)

In support of its decision affirming the grant of a variance, the trial court stated:

In addition to giving them more living space, the addition greatly improved their view of the City by bringing the rear of their house even with apartment buildings that had previously hemmed them in.... It is axiomatic that the 30 foot rear yard setback requirement which the Pittsburgh Zoning Ordinance applies to many residential zoning districts is primarily intended to provide a rear yard. A precipitous slope not being adaptable for use as a rear yard, the Nuzzos will be deprived of the reasonable use of their property unless they are afforded a means to create a level family space. Moreover, this hardship is not self created by the prior addition to the rear of [259]*259the Nuzzo’s house. Granted, if it were not for the addition, the deck could have been constructed on the buildable area of the lot without the need for a zoning variance. However, a less hilly lot would offer at least a thirty foot rear yard regardless of whether the buildable portion of the lot were occupied. Because it is a hardship to be deprived of a rear yard where the regulations of the zoning district contemplate a 30 foot setback, and because the lack of usable space results from the topography of the lot, the grant of a variance by the Board was proper.

(Trial Court’s April 4, 1994 Opinion at 2-4.)

Before our Court, Larsen raises again the issue of whether the Nuzzos met the criteria necessary for the granting of a variance. Where the trial court takes no additional evidence, our scope of review in an appeal from a decision of a zoning hearing board is limited to determining whether the Board committed an error of law or a manifest abuse of discretion. Searles v. Zoning Hearing Board, City of Easton, 118 Pa.Commonwealth Ct. 453, 545 A.2d 476 (1988).

Section 25057 of the Second Class Cities Code, 53 P.S. § 25057, and Section 909.05 of the City’s Zoning Ordinance contain the applicable variance criteria.2 We recently noted as follows:

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Bluebook (online)
654 A.2d 256, 1995 Pa. Commw. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larsen-v-zoning-board-of-adjustment-pacommwct-1995.