Opinion
No. 696 C.D. 2013
01-06-2014
Stephen Steranchak, Gary Ehrman, Jill Harrold, and Jeffery George, Appellants v. Zoning Board of Adjustment of the City of Pittsburgh and City of Pittsburgh
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Stephen Steranchak, Gary Ehrman, Jill Harrold and Jeffery George (Appellants) appeal from the Order of the Court of Common Pleas of Allegheny County (common pleas court) which affirmed the decision of the Zoning Board of Adjustment of the City of Pittsburgh (Zoning Board) to grant the dimensional variances requested by Richard Constanzo (Developer).
Developer owns a vacant 6,270 square foot lot located at 786 Greenfield Avenue in Pittsburgh's Greenfield neighborhood. Developer applied for multiple dimensional variances to construct 4 three-story, single family detached dwellings with one-car integral garages. Developer requested relief from the City of Pittsburgh's Zoning Code (Zoning Code) which required that the minimum lot size be 3,200 square feet, a minimum front setback of 25 feet; a minimum rear setback of 25 feet; minimum exterior side yard setback of 25 feet; and a minimum interior side yard setback of 10 feet.
For House #1, Developer requested a lot size of 1,863 square feet; a front setback variance of 5 feet 8 inches; a rear setback variance of 11 feet 5 inches; an exterior side yard setback variance of 5 feet; and an interior side yard setback variance of 5 feet. Similar variances were requested for Houses #2, #3, and #4.
Hearings were held. Developer's Architect, Robert Baumbach (Baumbach), testified that the Property had a unique topography because it was located on a grade and that the Property is situated in a "relatively high density" neighborhood. Hearing Transcript, April 26, 2012, (H.T.) at 8; Reproduced Record (R.R.) at 51a. He also testified that "the City owns a portion of the land between the proposed site and the sidewalk." H.T. at 9; R.R. at 52a. He explained that the City's easement created an "unusual situation" for the Developer. H.T. at 9; R.R. at 52a. Baumbach also testified that the design of the houses would be "sensitive to the neighborhood" and similar to existing neighborhood architecture. H.T. at 18; R.R. at 61a.
The Zoning Board approved all four requested variances finding that the Developer had met its burden of proving unnecessary hardship. The Zoning Board concluded that due to the Property's unique physical characteristics, it is unlikely that it could be developed in strict conformity with the Code. The Zoning Board also concluded that the proposed variances would not alter the essential character of the surrounding neighborhood because there are similar structures with similar setbacks. The Zoning Board concluded that the driveways and garages adequately addressed Appellants' traffic and parking concerns.
In a decision dated March 25, 2013, the common pleas court affirmed.
On appeal, Appellants argue that the common pleas court erred because (1) Developer failed to demonstrate unnecessary hardship; and (2) Developer's request to reduce the minimum lot size for each of the four single family detached dwellings was actually a request to rezone and not a proper subject of a variance request.
In reviewing this matter, where the common pleas court has taken no additional evidence, this Court's standard of review is identical to that of the common pleas court and is limited to determining whether the Zoning Board abused its discretion or committed an error of law in granting the variances. Collier Stone Company v. Township of Collier Board of Commissioners, 735 A.2d 768 (Pa. Cmwlth. 1999).
For purposes of clarity, this Court has rephrased and consolidated Appellants' issues and will address them out of order. The issues as stated in Appellants' Statement of Questions are: (1) whether the common pleas court erred when it found that due to the physical surroundings, shape and topography of Developer's land that enforcement of the Zoning Code would result in unnecessary hardship; (2) whether the common pleas court erred when it granted the zoning variance since the need for multiple variances is an unnecessary hardship which was created by Developer; (3) whether the common pleas court erred when it failed to address the minimum variance required to afford relief under Section 909.03.C.2 of the Zoning Code; (4) whether the common pleas court erred because the proposed development plan would have a substantial detrimental impact on the character of the neighborhood; and (5) whether the Zoning Board of Adjustment of the City of Pittsburgh had jurisdiction over this matter because Developer sought a spot rezoning of the Property?
An applicant seeking a variance must prove that unnecessary hardship will result if the variance is denied and that the proposed use is not contrary to the public interest. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). When an applicant seeks a variance for a property located in the City of Pittsburgh, the Board must also consider the factors set forth in the Ordinance.
To grant a variance, a developer must meet all the standards set forth in Section 922.09.E of the Zoning Code:
1. That there are unique circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to the conditions, and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located;Pittsburgh Zoning Code, §922.09.E.
2. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;
3. That such unnecessary hardship has not been created by applicant;
4. That the variance, if authorized will not alter the essential character of the neighborhood or district in which the property is located, or substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare, and
5. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
When an applicant seeks a dimensional variance it is merely seeking a reasonable adjustment of the zoning regulations and, therefore, the quantum of proof necessary to establish unnecessary hardship for a dimensional variance is less than that needed to obtain a use variance. Hertzberg v. Zoning Board of Adjustment, 554 Pa. 249, 721 A.2d 43 (1998). In determining if a party has met its burden to demonstrate unnecessary hardship for a dimensional variance, the courts may consider multiple factors, including the economic detriment to the applicant, whether the cost to conform the property to the zoning ordinance is prohibitive, and the characteristics of the surrounding neighborhood. Id. Although a lesser quantum of proof is required to establish unnecessary hardship for a dimensional variance, this Court has interpreted the holding in Hertzberg as follows:
Ever since our Supreme Court decided Hertzberg, we have seen a pattern of cases arguing that a variance must be granted from a dimensional requirement that prevents or financially burdens a property owner's ability to employ his property exactly as he wishes, so long as the use itself is permitted. Hertzberg stands for nothing of the kind. Hertzberg articulated the principle that unreasonable economic burden may be considered in determining the presence of unnecessary hardship. It may also have somewhat relaxed the degree of hardship that will justify a dimensional variance. However, it did not alter the principle that a substantial burden must attend all dimensionally compliant uses of the property, not just the particular use the owner chooses. This well-established principle, unchanged by Hertzberg, bears emphasizing[.]Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001) (emphasis in original).
In accord, this Court has consistently held that an applicant is not entitled to a dimensional variance under the relaxed standard set forth in Hertzberg where no hardship is shown or where the hardship alleged amounts to an applicant's mere desire to increase profitability. Singer v. Philadelphia Zoning Bd. of Adjustment, 29 A.3d 144 (Pa. Cmwlth. 2011).
Here, Baumbach testified that the physical circumstances and the conditions of the Property created an unnecessary hardship because the Property was located on a grade. Baumbach also testified that the Property was situated in a "relatively high density neighborhood" and that "the City owns a portion of the land between the proposed site and the sidewalk." According to Baumbach, this created an unusual situation for the Developer.
This Court agrees with Appellants that Baumbach's testimony did not constitute substantial evidence to support the Board's finding of unnecessary hardship. First, Baumbach never testified that the topography or grade made it impossible to develop the land in strict compliance with the Pittsburgh Zoning Code. Baumbach testified that "[i]t is not an unusually steep grade and that in his opinion, it would "add interest to the design and siting of the buildings, but it won't challenge the way we drive into the garage." H.T. at 50-51; R.R. at 93a-94a. Baumbach did not relate the grade or lot configuration to an inability to develop in strict conformity with the Zoning Code. He also failed to relate the density of the neighborhood to the need for a variance due to hardship. He incorrectly testified that the Property was located in a "relatively high density" neighborhood when, in fact, the neighborhood is zoned RM-M or moderate density, not high density. Finally, with regard to the City's "easement" which created an "unusual situation" for Developer, Baumbach failed to explain or demonstrate how the City's easement limited Developer's ability to develop the Property in compliance with the Zoning Code.
Baumbach's testimony, even if found credible by the Zoning Board, did not establish that there was no possibility that the Property could be developed in strict conformity with the Zoning Code. Developer presented no other evidence or testimony that the allegedly unique physical characteristics of the property limited his ability to develop the Property in conformity with the Pittsburgh Zoning Code. Rather, Developer proposed that the Property cannot be developed under the Zoning Code in a manner that will maximize its developmental potential without the dimensional variances. However, it is well-settled that in order to establish unnecessary hardship for a dimensional variance an applicant must demonstrate something more than a mere desire to develop a property as the builder wishes or that the builder will be financially burdened if the variance is not granted. Yeager.
Further, Developer sought a "variance" for permission, among other things, to decrease the minimum required lot size per dwelling so that he may fit more dwellings on the Property. Specifically, Developer proposed that the lot size of House #1 would be 1,863 square feet. The lot size of House #2 would be 1,677 square feet. The lot size of House #3 would be 1,671 square feet and the lot size of House #4 would be 1,386 square feet.
Developer indicated to the Zoning Board that he planned to subdivide his Property into four lots to accommodate four proposed single-family detached dwellings. H.T. at 42; R.R. at 85a.
Again, the Property is a 6,270 square foot lot. The Pittsburgh Zoning Code requires a minimum of a 3,200 square feet lot per single-family detached dwelling in the RM-M zoning district. Pittsburgh Zoning Code, §903.03.C.2 (Site Development Standards). Developer's request was more than a mere technical or superficial deviation from the terms of the Pittsburgh Zoning Code. It was, in essence, a request to triple the minimum density requirements of a property located in the RM-M (Moderate Density) zoning district. In the RM-H (High Density) zoning district, the minimum lot size for a single-family detached dwelling is 1,800 square feet. If the Property was located in the RM-H (High Density) zoning district it could accommodate three single-family detached dwellings. As it stands now, it may legally accommodate one.
For multi-unit developments, the Zoning Code requires a minimum lot size of 1,800 square feet per unit. --------
Developer's appropriate remedy was a rezoning of the property. See O'Neill v. Zoning Board of Adjustment of Philadelphia, 434 Pa. 331, 254 A.2d 12 (1969) (holding that a dimensional variance for two and one half times the floor space permitted by the Ordinance was not a mere superficial and technical deviation from the terms of the Ordinance and, therefore, that the applicant's appropriate remedy was a rezoning of the property); see also One Meridian Partners, LLP v. Zoning Board of Adjustment of City of Philadelphia, 867 A.2d 706 (Pa. Cmwlth. 2005) (holding that a dimensional variance for three times the floor space permitted by the Ordinance was not a mere superficial and technical deviation from the terms of the Ordinance and, therefore, that the applicant's appropriate remedy was a rezoning of the property).
A zoning board may not grant rezoning under the guise of a variance; to remedy improper zoning one must file a request for a curative amendment or a request for rezoning, fundamentally different procedures from a request for a variance. Sposato v. Board of Adjustment of Radnor Township, 440 Pa. 107, 270 A.2d 616 (1970).
In sum, this Court agrees with three of Appellants' assertions on appeal: (1) Developer failed to demonstrate that enforcement of the Zoning Code would result in unnecessary hardship; (2) any alleged unnecessary hardship was created by Developer; and (3) Developer's request was actually a request to rezone the Property. This Court need not reach Appellants' remaining assertions that: (1) the common pleas court erred when it failed to address the minimum variance required to afford relief; and (2) the proposed development plan would have a substantial detrimental impact on the character of the neighborhood.
Accordingly, this Court concludes that the Zoning Board abused its discretion in granting these dimensional variances. Marple Township Appeal, 430 Pa. 113, 243 A.2d 357 (1968).
The order of the common pleas court which affirmed the Zoning Board is reversed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 6th day of January, 2014, the Order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby REVERSED.
/s/_________
BERNARD L. McGINLEY, Judge