5542 Penn LP v. Zoning Bd of Adjustment of the City of Pittsburgh
2227 C.D. 2015
| Pa. Commw. Ct. | Dec 20, 2016Background
- Property at 5542 (and adjacent parcels) Penn Ave., Pittsburgh in an LNC zoning district comprised of four parcels; existing buildings/parking have zero-foot setbacks on several parcels.
- Applicant (5542 Penn LP) proposed demolishing most existing structures (leaving one or two walls), regrading the site (raising grade ~8 feet at Negley), building a 6,787 sq ft AutoZone with a 16-space parking lot occupying ~92% of the building footprint and parking fronting Penn Avenue and Hugus Place.
- ZBA hearing record included testimony on ADA constraints, alternative building configurations, and traffic impacts; neighbors testified about access, deliveries, parking, and residential impacts.
- ZBA denied Applicant’s requests for special exceptions (waiver of Residential Compatibility Standards) and variances (setbacks, accessory-parking limits, site-plan standards), concluding demolition/major alteration abandoned nonconforming status and that proposed design would create detrimental visual/transportation/operational impacts.
- Trial court reversed solely on the setback/nonconformity issue (viewing partial retention of walls as preserving nonconforming status); Commonwealth Court reversed the trial court and reinstated the ZBA, holding demolition/reconfiguration extinguished nonconforming protections and that ZBA’s denial was supported by substantial evidence.
Issues
| Issue | Applicant's Argument | Appellants' Argument | Held |
|---|---|---|---|
| Whether demolition/partial retention of walls abandoned the property’s legal nonconforming setback/status | Partial retention of existing wall(s) preserved right to reconstruct; Section 921.03 maintenance/remodeling permits rebuilding without variance | Razing/substantial demolition (and regrading) extinguishes nonconforming status; Code and precedent treat demolition/physical change as abandonment | ZBA correctly found abandonment; Commonwealth Court held demolition/reconfiguration (and willful destruction) extinguished nonconforming protections |
| Which Code provision governs (maintenance vs. enlargement vs. destruction) | Section 921.03.A.1 (maintenance/remodeling) applies to permit work without variance | Sections 921.03.C.3 and/or D.1 apply; willful destruction or major change requires compliance with Code | Court held A.1 inapplicable; C.3 (for willful destruction) and D.1 (enlargement/expansion) govern, thus nonconforming status extinguished or relief limited by Code |
| Entitlement to variances/special exceptions (including ADA-related claims) | Applicant: ADA and site topography necessitate proposed layout; argued necessity to meet ADA access and that alternatives were infeasible | Appellants: Applicant failed to show unnecessary hardship or that proposal was the only feasible configuration; traffic/parking and LNC design standards not addressed | ZBA’s denial of variances/special exceptions was supported by record; Applicant failed to meet burden to show hardship or satisfy special-exception criteria |
| Whether proposed development would create detrimental traffic/operational/visual impacts warranting denial of relief | Applicant’s traffic expert minimized trips and said ADA needs drove design; argued impacts not substantial | Neighbors and Appellants presented testimony that routing, deliveries, and parking would materially harm residential access and compatibility | ZBA credibly found detrimental transportation, operational, and visual impacts; court deferred to ZBA credibility and reinstated denial |
Key Cases Cited
- Keebler v. Zoning Bd. of Adjustment of City of Pittsburgh, 998 A.2d 670 (Pa. Cmwlth. 2010) (demolition of a nonconforming structure can constitute abandonment of the nonconforming use)
- Money v. Zoning Hearing Board of Haverford Township, 755 A.2d 732 (Pa. Cmwlth. 2000) (distinguishes replacement of similar nonconforming structures from abandonment; burden to prove abandonment rests on proponent)
- Korngold v. Zoning Bd. of Adjustment of the City of Philadelphia, 606 A.2d 1276 (Pa. Cmwlth. 1992) (right to reconstruct destroyed structure can be extinguished by operation of law)
- Zeiders v. Zoning Hearing Bd. of West Hanover Twp., 397 A.2d 20 (Pa. Cmwlth. 1979) (absent ordinance restriction, demolition and rebuilding to continue a nonconforming use may be permitted)
- Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 721 A.2d 43 (Pa. Cmwlth. 1998) (variance standards and the burden to prove unnecessary hardship; courts weigh economic detriment, property characteristics, and public interest)