D. Demko and S. Pascal v. City of Pittsburgh Zoning Board of Adjustment, and Trek Development Group, Inc. v. The Urban Redevelopment Authority of Pittsburgh, and City of Pittsburgh
155 A.3d 1163
| Pa. Commw. Ct. | 2017Background
- URA owns a deteriorated, multi-parcel site in Pittsburgh’s Local Neighborhood Commercial (LNC) district that includes three historic façades on West North Avenue and several brick buildings on Federal Street. URA issued RFPs that required preservation/rehabilitation of the existing buildings and selected Trek’s proposal in 2014.
- Trek proposed an 8‑story, 97‑foot mixed‑use building (retail + up to 72 residential units) that incorporates and preserves the existing façades. The proposal required variances (FAR from 2:1 to 4.8:1; height from 45 ft/3 stories to 97 ft/8 stories) and a special exception for offsite parking.
- The City Zoning Board of Adjustment granted Trek the dimensional variances and the special exception after a hearing where Trek introduced testimony about the poor structural condition and high cost of rehabilitating the existing buildings and the economic necessity of additional units. Community members testified both for and against the project.
- Neighbors Demko and Pascal appealed to the Allegheny County Court of Common Pleas; the trial court reversed the Board’s grants (no additional evidence taken). Trek, URA and the City appealed to the Commonwealth Court.
- The Commonwealth Court affirmed the trial court, holding Trek failed to meet the burden for dimensional variances because the asserted hardship derived from URA’s preservation requirement (a self‑imposed obligation), not from the Zoning Code or other unique physical constraints; the variances were large enough that rezoning — not variance relief — was the appropriate remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to dimensional variances (unique physical circumstances / unnecessary hardship) | Trek/URA: Existing buildings are unique historic conditions; preservation requirement makes compliance infeasible and creates hardship justifying variances. | Pascal: Trek failed to prove unique, zoning‑created hardship; hardship is self‑imposed (URA requirement) and largely financial. | Held: Denied — hardship stems from a property‑owner/URA preservation condition, not from the Zoning Code; Trek did not meet its burden. |
| Whether preservation requirement is a non‑self‑imposed legal mandate | Trek/URA: URA’s enabling statute and policy required preservation; thus hardship isn’t self‑imposed. | Pascal: No evidence URA had statutory duty to preserve these buildings; preservation is policy, not a legal compulsion. | Held: Denied — URA witness did not tie preservation to any statutory duty; applicant bore burden to prove legal compulsion and did not do so. |
| Whether substantial deviations from zoning should be treated as rezoning (minimum variance / least modification) | Trek: Larger building needed for economic viability while preserving façades; variance is the least relief to allow project. | Pascal: Proposed FAR and height are large deviations amounting to de facto rezoning; variance is not minimal relief. | Held: Denied — deviations were significant (roughly 2x+ height and ~2.4x FAR); precedent indicates rezoning is the appropriate remedy. |
| Deference to Board findings and evidence of benefits outweighing harm | Trek/URA: Board’s expertise and findings (historic character, anticipated benefits) merit deference; redevelopment benefits outweigh impacts. | Pascal: Board’s findings lack specific evidentiary support for benefits and understates detrimental impacts. | Held: Pascal — Court will not rubber‑stamp speculative Board conclusions; Board made no specific findings of concrete benefits and abused discretion in granting variances. |
Key Cases Cited
- Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 721 A.2d 43 (Pa. 1998) (dimensional variance hardship may consider economic detriment and building characteristics)
- Marshall v. City of Philadelphia, 97 A.3d 323 (Pa. 2014) (financial burden to conforming reuse can support hardship where evidence shows cost to meet zoning)
- Tidd v. Lower Saucon Township Zoning Hearing Board, 118 A.3d 1 (Pa. Cmwlth. 2015) (board findings on unnecessary hardship owed deference; unique conditions may include existing property features)
- O'Neill v. Zoning Board of Adjustment of Philadelphia County, 254 A.2d 12 (Pa. 1969) (large deviations in floor area/height suggest rezoning, not variance)
- One Meridian Partners, LLP v. Zoning Board of Adjustment of City of Philadelphia, 867 A.2d 706 (Pa. Cmwlth. 2005) (significant multiple‑times deviation in floor area supports conclusion that rezoning is proper remedy)
- Singer v. Philadelphia Zoning Board of Adjustment, 29 A.3d 144 (Pa. Cmwlth. 2011) (applicant bears heavy burden; reasons for variance must be substantial and compelling)
- Wagner v. City of Erie Zoning Hearing Board, 675 A.2d 791 (Pa. Cmwlth. 1996) (hardship can relate to building’s physical condition)
- Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637 (Pa. 1983) (zoning board decisions upheld unless error of law or manifest abuse of discretion)
- Lipari v. Zoning Hearing Board of City of Easton, 516 A.2d 110 (Pa. Cmwlth. 1986) (policy decisions on land use belong to legislative body, not zoning board)