Sylvester v. Pittsburgh Zoning Board of Adjustment

157 A.2d 174, 398 Pa. 216, 1959 Pa. LEXIS 417
CourtSupreme Court of Pennsylvania
DecidedNovember 24, 1959
DocketAppeal, No. 122
StatusPublished
Cited by11 cases

This text of 157 A.2d 174 (Sylvester v. Pittsburgh Zoning Board of Adjustment) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sylvester v. Pittsburgh Zoning Board of Adjustment, 157 A.2d 174, 398 Pa. 216, 1959 Pa. LEXIS 417 (Pa. 1959).

Opinion

Opinion by

Mr. Justice Benjamin R. Jones,

This appeal challenges the validity of the affirmance by the County Court of Allegheny County of the decision of the Pittsburgh Zoning Board of Adjustment (herein called Board) which denied variances to Sylvesters, the appellants, in connection with the use of property owned by them in the “Grafton Heights” area of Pittsburgh.

In 1949 Sylvesters paid $12,000 to the Pittsburgh School District for a two and one-half story, 45' x 90', abandoned school building located on a 2 acre tract of land. Under the then effective zoning ordinance,1 this [218]*218school property was located in a “B” Residential District wherein one and two-family dwellings were permitted and light industrial or commercial uses prohibited, the school being a permitted use. Sylvesters— then owners and operators of an art school — planned to remodel this building; to convert the first floor into two apartments2 and the second floor either for use by the art school or into several apartments. When it became impracticable to locate the art school in the building Sylvesters applied for a building permit to convert the second floor into several apartments; such permit was refused because of the two-family zoning regulation. Sylvesters then applied for a zone change but City Council did not grant their request. The result is that Sylvesters and their son each have an apartment on the first floor but the second floor of the building remains unused and unoccupied. One variance now requested is to use the second floor of this building as the office of a coin-vending machine corporation in which Sylvesters and their son own the majority stock.

In 1851 Sylvesters purchased a 1 acre tract of vacant land, adjoining the school property, for $3250, this tract being under the same zoning restrictions as the school property. After obtaining the required consents of adjoining property owners,3 the Sylvesters in 1957 obtained permission to construct on this tract of land a garage “to house 10 trucks” and this garage was completed prior to October 1957.4 On October 1, 1957 Sylvesters obtained further permission to erect in the garage a concrete block interior partition for the storage of “supplies”. Upon completion of the garage Sylvesters started to use the second floor of the one[219]*219time school building as the office and to use the garage as the base of operations of their large coin-vending machine business.5 After a week of such use, upon the order of the zoning authorities, who acted upon complaints from the neighbors, Sylvesters ceased such use. Sylvesters now request a variance “to enlarge permitted uses of existing major garage .... being uses for storage and servicing of coin machine trucks, to permit storage and servicing of coin machines, materials, supplies and merchandise as needed in the use of such trucks and with incidental office space and use”.

Sylvesters filed an application for a permit and variances on March 14, 1958; after hearing, the Board denied their requests. An appeal was then taken to the County Court of Allegheny County which, after a hearing de novo, on March 21, 1958 upheld the Board’s denial of the permit and variances. From that order this appeal followed.

Appellants’ contention is two-fold: (1) under the instant factual situation they were legally entitled to a grant of the requested variances; (2) that the zoning regulation is unreasonable and violates, in its application to them, their constitutional rights.

The extent and scope of our review is clear. Mr. Justice McBride, speaking for the Court in Upper St. Clair Twp. Grange Zoning Case, 397 Pa. 67, 70, 152 A. 2d 768, stated: “In reviewing the decision of a lower court on appeal to it from a decision of a zoning board of adjustment, the question on appellate review is whether the court below committed a manifest abuse of discretion or an error of law. Richman v. Zoning [220]*220Board of Adjustment, 391 Pa. 254, 137 A. 2d 280; Archbishop O’Hara’s Appeal, 389 Pa. 35, 131 A. 2d 587; Volpe Appeal, 384 Pa. 374, 121 A. 2d 97”.

In Upper St. Clair Zoning Case we further said: “It is therefore necessary for us to consider the principles of law applicable to the grant of a variance from a zoning ordinance in order to determine if the lower court has complied therewith. A variance may be granted only after the applicant clearly proves two factors: (1) that an unnecessary hardship, unique to the particular property, will result if the variance is not granted; and (2) that the proposed use will not be contrary to the public interest [citing cases]. The party seeking the variance has the burden of proving justification for its grant and he does not do so by proving a mere hardship but must prove an ‘unnecessary hardship’. [citing cases]” (Emphasis supplied).

When Sylvesters purchased both tracts of land, they were held to knowledge of the zoning regulations and restrictions applicable to such land. They knew, or should have known, that only one and two-family dwellings and no light industrial or commercial uses Avere permitted in that district. As Mr. Justice Cohen recently stated in Best v. Zoning Board of Adjustment 393 Pa. 106, 109, 141 A. 2d 606: “When appellant purchased the . . . house she knew or should have knoAvn of the provisions of the zoning ordinances restricting the property to use as a one-family dwelling and of the large expenditures required to maintain and keep up the property. Thus, appellant took the property with the conditions of economic hardship staring her in the face, and she cannot noAV be heard to complain, [citing cases] ”. The “innocence” of Sylvesters in the premises and alleged misleading representations made by certain members of the School Board, in connection with the sale and purchase of the school property, do not vary [221]*221the rule that Sylvesters should have been cognizant of the zoning requirements when they purchased this land.

Wherein lies any proof of an “unnecessary hardship, unique to the particular property”? The “hardship” which Sylvesters urge is an economic hardship; in the case of the school building, the second floor remains unoccupied and thus non-income producing and, in the case of the garage building, its availability for use only for the storage of the trucks and supplies attendant to the storage and repair of such trucks will result in a far less profitable and economical operation of the coin machine business. Such “hardship” is not recognized as a basis for a variance nor does it render the application of the zoning ordinance invalid: Upper St. Clair Twp. Grange Zoning Case, supra; Richman v. Zoning Board of Adjustment, 391 Pa. 254, 259, 260, 137 A. 2d 280; Smolow v. Zoning Board of Adjustment, 391 Pa. 71, 137 A. 2d 251; Pincus v. Power, 376 Pa. 175, 101 A. 2d 914. Sylvesters argue that the “uniqueness” of the hardship to their property is: “There is no other such abandoned school house in the area; no other building of comparable large size in the area; and no other building such as the major garage in the area. . . . More particularly, there is accordingly no other tract of three to four acres; similarly created with cliff, hill and knoll; somewhat isolated; and having on it two such unique buildings.

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Bluebook (online)
157 A.2d 174, 398 Pa. 216, 1959 Pa. LEXIS 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sylvester-v-pittsburgh-zoning-board-of-adjustment-pa-1959.