Posted by: Patricia Salkin | January 4, 2017

PA Appeals Court Upholds ZBA’s Denial of an Application for a Special Exception and Variances Finding Nonconforming Status was Extinguished

Bloomfield-Garfield Corporation, Joanne Tzortzis, The Friendship Community Group, Doug Cruze and the Highland Park Community Council (collectively, Applicants) owned property comprised of four separate adjacent parcels. Applicants proposed to construct a one-story, 6,787 square foot structure containing an AutoZone retail auto parts store, which would require the demolition of several buildings. Additionally, since a level pad would be required to be constructed for the Property, Applicant’s site plan proposed to level the grade, which would result in the Proposed Building being approximately 8 feet higher than the current grade at Negley Avenue between Penn Avenue and Hugus Place. The ZMA denied the application, finding that razing or demolishing a nonconforming use or structure constituted abandonment of the nonconformity. In this case, Applicants appealed from the Allegheny County Common Pleas Court’s (trial court) order reversing the City of Pittsburgh Zoning Board of Adjustment’s decision denying 5542 Penn LP’s application for a special exception and variances. In reaching its decision, the trial court applied Section 921.03.A.1 of the Code, which set forth: “Maintenance, remodeling and repair of a nonconforming structure shall be permitted without a variance and without special exception approval, provided that such maintenance, remodeling or repair does not increase the degree of nonconformity.” On appeal, the court found that the trial court applied the wrong section, finding the applicable section was actually Section 921.03.C.3 of the Code, which stated “in the event of arson or other willful destruction, reconstruction of nonconforming structures shall be prohibited if such casualty is traceable to the owner or his/her agent. Such instances shall result in forfeiture of the nonconforming status…”
The court further determined that even if the nonconforming structures were deemed to be “enlarged or expanded,” rather than destroyed, Appellants presented substantial and credible evidence that the proposed use would have detrimental effects on traffic and parking. The record also reflected that the proposed parking lot, an accessory use under the Code, would use approximately 92% of the gross floor area of the primary use, more than three times the 25% requirement of Code Section 904.02.B.2. Furthermore, the full rear wall of the proposed structure would face the adjacent Avenue, in violation of Section 922.04.E.3.c of the Code, which required “all primary structures shall provide a prominent and highly-visible street level doorway or entrance on all facades of the building which front on a street.” impacts. Accordingly, the court reversed the trial court’s order, and the ZBA’s decision was reinstated.
5542 Penn LP v. Zoning Board of Adjustment of the City of Pittsburgh, 2016 WL 7369097 (PA Cmwlth 12/20/2016)

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