Lench v. Zoning Board of Adjustment of the City of Pittsburgh
13 A.3d 576
| Pa. Commw. Ct. | 2011Background
- DiLucente sought a de minimis variance to increase the height of his four-story house by four inches in the R1A-VH district.
- The house sits on a steep slope; ground level at the rear is twelve feet higher than at the front, making the front wall of the first level above ground.
- Lench opposed the variance; his objection was that the roof change would turn the three-and-one-half story house into four stories, not the four-inch height increase itself.
- The Board treated the variance as de minimis and found the first level to be a basement, not a story, and that the top roof change would not affect light, air, or views.
- The trial court affirmed, and Lench appeals contending (i) the first level is not a basement, (ii) the variance standards were not met, and (iii) the variance is not de minimis because it increases nonconformity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the first level of DiLucente's house a basement under the Zoning Code? | Lench contends the first level is a full story because its front wall is above ground. | DiLucente argues the first level is a basement since the rear is underground and the space will be used as a garage. | Yes; the first level is a basement under the Code. |
| Did DiLucente prove the required variance criteria or justify a de minimis variance? | Lench argues the standard five-factor variance test applies and was not satisfied. | DiLucente argues the variance is de minimis and thus the strict standards need not apply. | De minimis variance applied; standards not required to be fully met. |
| Does the four-inch increase create an expanded nonconformity from three-and-one-half to four stories? | Lench asserts the roof change makes the building four stories, increasing nonconformity. | DiLucente argues the top story is already a full story and the change does not alter the number of stories. | No; the structure remains four stories, so nonconformity is not expanded. |
| Was the Board's de minimis treatment proper given measurement rules for height in stories? | Lench suggests the Board did not follow Section 925.07.B. | DiLucente contends the de minimis approach is appropriate under precedent for minor variances. | Yes; Board's treatment as de minimis was proper. |
Key Cases Cited
- Pyzdrowski v. Board of Adjustment of the City of Pittsburgh, 437 Pa. 481 (1970) (basement definitions and story calculations in height determinations)
- Nettleton v. Zoning Board of Adjustment of the City of Pittsburgh, 574 Pa. 45 (2003) (de minimis variance doctrine applies to both conforming and nonconforming structures)
- Segal v. Zoning Hearing Board of Buckingham Township, 771 A.2d 90 (Pa.Cmwlth.2001) (de minimis variance is discretionary with the board; burden is light)
- Bailey v. Zoning Board of Adjustment of the City of Philadelphia, 569 Pa. 147 (2002) (lesser burden for de minimis variance than a full variance)
- King v. Zoning Hearing Board of the Borough of Nazareth, 463 A.2d 505 (Pa.Cmwlth. 1983) (measuring height for a de minimis variance analysis)
- Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249 (1998) (dimensional variances require a lesser quantum of proof)