Posted by: Patricia Salkin | May 26, 2014

PA Appeals Court Affirms that Applicant Did Not Have a Nonconforming Use and that Board’s Granting of Variances was in Error

Appellant, Leah I Holdings, LP (Leah) sough reversal of the trial court’s conclusion vacating the City of Pittsburgh Zoning Board of Adjustment’s (ZBA) findings of three dimensional variances and a special exemption for the operation of a new 24 hour service station. Leah purchased the property located at 700 East Carson Street, Pittsburgh Pennsylvania (Property) from Rennekamp. Rennekamp originally used the land, which is located in the General Industrial zoning district (GI district), to manufacture and process cement and to store gasoline. However, the Property did not conform with the standards set forth under the Pittsburgh Zoning Code (Code) for the operation of a service station because of its close proximity to the residential areas. Nevertheless, Rennekamp did not violate the Code because it had already been grandfathered into the pre-dated regulations.

When Leah purchased the Property it wanted the new station to include 47 new parking spaces, a convenience store, and a fast food restaurant. At the ZBA hearing, Leah requested three dimensional variances in order to comply with the Code’s requirements. The ZBA granted Leah’s request for all three variances. The ZBA found that the Property’s physical characteristics constituted a substantial hardship to Leah. The board further reasoned that the triangular shape of the Property made it impossible for Leah to abide by the Code and that the proposed changes to the land would not impact the character of the neighborhood. Finally, for similar reasons, the ZBA waived the 150 feet setback requirement from the residential district.

Leah also sought a special exemption to change the Property from one nonconforming use to another. The ZBA granted the special exemption, reasoning that the activities under the new service station would be less meticulous than those under Rennekamp. Further, Leah would have fewer employees, a smaller building, and virtually no effect on traffic congestion. However, St. John The Baptist Ukrainian Greek Catholic Church (Church) opposed the service station. The Church, which is neighboring the Property, was concerned that an increase in traffic would deter elderly parishioners from attending the Church, even though the ZBA concluded that the station would have no effect on traffic. The Church also expressed disdain about the capacity to park, because the parishioners normally parked on each side of the street. After the ZBA found in favor of Leah, the Church appealed to the Trial court.

The Trial court held that the ZBA “mischaracterized” one of the requested variances, granting a dimensional variance instead of a use variance. In addition, the court concluded that Leah did not meet the requirements set out for a use variance. The court reasoned that Leah failed to show that: “1) the physical characteristics of the Property constitute an undue hardship, 2) the Property cannot be utilized without the requested variances, 3) the Property cannot be used in strict conformity with the Code, and 4) the variance will not alter the essential character of the neighborhood or harm the public welfare.” The court further held that the service station was wrongfully permitted to be within 40 feet of the residential district, when it should have been at least 150 feet away. Finally, the ZBA mistakenly granted Leah a special exemption, because Leah had demolished the previous cement plant and abandoned the nonconforming use.

Leah appealed arguing that a special exemption does apply under the Code. However, the Appellate court affirmed the Trial court’s conclusion and reasoned that the ZBA had been misguided when it characterized Rennekamp’s use as nonconforming. “‘The right to maintain a nonconforming use is only available for uses that were lawful when they came into existence and which existed when the ordinance took effect.’” Additionally, the court stated that a right to continue a nonconforming use could be sustained so long as the owner does not abandon or demolish the structure. Because Leah demolished the original plant for the purposes of a service station and the Property was located in an area that permits uses by right, the Trial court correctly reversed the ZBA’s finding of a special exemption.

Next, Leah contends that the trial court erred when it denied a dimensional use for the 150-foot setback. The Code requires a use variance when a requestor seeks relief from the requirement that a service station be more than 150 feet away from any residential zoning district. Therefore, since the Code requires a use variance and the setback was less than 150 feet from the residential zoning district, the trial court did not err when reversing the ZBA. Additionally, Leah failed to prove an unnecessary hardship when trying to seek a variance. An unnecessary hardship is established when: “1) the physical features of the property are such that it cannot be used for a permitted purpose; or 2) that the property can be conformed for a permitted use only at a prohibitive expense; or 3) that the property has no value for any purpose permitted by the zoning ordinance.” Leah failed to establish any of these essential elements and, therefore, the Trial court did not err when rejecting the use variance.

Finally, Leah argued that the trial court abused its discretion when reversing the ZBA’s ruling of the dimensional variances for the rear-yard setback and the setback for the parking spaces. Leah sought a zero-foot setback for both the rear-yard and parking spaces. However, the Code requires at least a 20-foot setback from the GI district and a 5-foot setback from the rear lot. Additionally, Leah could not build a service station at the location set forth, so there was no need for a setback. Therefore, the trial court correctly overturned the ZBA and denied the dimensional variances.

St. John The Baptist Ukrainian Greek Catholic Church v. City of Pittsburgh Zoning Bd. of Adjustment, 88 A.3d 1046 (1/24/2014).

The opinion can be accessed at:

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