This post was authored by Georgia Reid of Touro Law Center
The Court of Common Pleas of Allegheny County (trial court) reversed the Zoning Board of Appeals (ZBA) decision that granted Drs. Lawrence S. Newman and Silvija Singh (owners) a special exception and variance. With the ZBA’s approval, the owners were allowed to move their psychological counseling practice to a site zoned for residential use.
The property was a two 1/2-story structure with four on-site parking spaces. The most recent certificate of occupancy, from 1989, permitted a “multiple family dwelling with three dwelling units and a two-car detached garage with two outdoor parking stalls.” The owners proposed to convert the first-floor apartment at the property into office space for their practice. They would maintain the current façade of the Subject Property, with the exception of an added access ramp for persons with disabilities. The ZBA granted the application for a special exception and variance on March 21, 2019.
The objectors to the ZBA’s decision were “6301 Forbes Avenue Partners” and Stephen Lange (objectors). The objectors asserted that the ZBA erred in granting the special exception and variance because the application was successive to an identical, previously unsuccessful, special exception application by the property owners. The trial court agreed.
On appeal, the owners argue the ZBA did not abuse its discretion or commit an error of law in granting the special exception and variance. The objectors also argued that they were denied due process before the ZBA due to a conflict of interest by an attorney appearing on behalf of the ZBA. This was the first time the objectors about the conflict of interest.
The Commonwealth Court of Pennsylvania (the Court) reversed the decision of the trial court. The Court declined to substitute its judgment for that of the ZBA, holding that the ZBA’s decision was based on credibility determinations. The Court found that ZBA did not abuse its discretion or commit an error of law in granting the owners’ application for a special exception. As to the objector’s new argument that there was a conflict of interest by an attorney on the ZBA, the Court dismissed this, stating “issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” (citing Pa. RAP 302 (a); and Meyer v. City of Pittsburgh Historic Review Comm’n, 201 A.3d 929, 940 (Pa. Cmwlth. 2019). Therefore, the Court found that the issue of due process had been waived, and the Court declined to address it within its discussion.
6301 Forbes Ave. Partners v. Zoning Bd. of Adjustment of the City of Pittsburgh, 241 A.3d 692 (Pa. Commw. Ct. 2020)
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