Uptown Partners v. City of Pittsburgh ZBA
528 C.D. 2017
| Pa. Commw. Ct. | Dec 27, 2017Background
- Property: three-story brick dwelling at 53 Miltenberger St., in Pittsburgh R1A-H zoning district; structure built circa 1890–1905.
- Two-unit residential use is not permitted as-of-right in R1A-H, but legal nonconforming uses predating the zoning code (1958) may continue.
- Eckenrode bought the Property in 2005 and applied (2015) to the ZBA to continue use as a two-family dwelling, submitting meter counts, photos, testimony, and two longtime-resident affidavits dated 2013 that the house had multiple kitchens/baths since 1952.
- Uptown Partners (Objector) opposed, arguing hearsay, insufficient proof of historic two-unit use, and abandonment (Property vacant since ~2000).
- ZBA granted the application (finding substantial, corroborated evidence of pre-1958 multiunit use and no intent to abandon); trial court affirmed; Uptown appealed to this Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Property is a legal pre-existing nonconforming two-unit use | Objector: Evidence insufficient and based on hearsay; structure was single-family and vacant; use abandoned | Eckenrode/City: Meter counts, photos, longtime witnesses and affidavits corroborate historical multiunit use | Court: ZBA had substantial evidence to find a pre-1958 nonconforming two-unit use; affirmed |
| Whether Daugherty affidavits were inadmissible hearsay and could support ZBA findings | Objector: Affidavits are hearsay and not properly notarized; cannot form basis for finding | Eckenrode/City: Affidavits corroborated by Daniels’s live testimony and physical evidence (meters, kitchens) | Court: Even if hearsay, affidavits were corroborated by other evidence and thus properly considered |
| Whether nonconforming use was abandoned due to vacancy since ~2000 | Objector: Long period of non-use establishes abandonment under discontinuance provision | Eckenrode/City: Vacancy alone insufficient; no evidence of intent to abandon; owner bought to renovate and lease | Court: Abandonment requires intent plus discontinuance; Objector failed to prove intent to abandon; ZBA correctly found no abandonment |
| Standard of review / weight of evidence | Objector: ZBA erred in weighing hearsay and credibility | Eckenrode/City: ZBA is factfinder; credibility/resolution of conflicts is its role | Court: Appellate court will not reweigh; where substantial evidence exists, ZBA findings stand; affirmed |
Key Cases Cited
- Hunterstown Ruritan Club v. Straban Twp. Zoning Hearing Bd., 143 A.3d 538 (Pa. Cmwlth. 2016) (lawful nonconforming use defined and protects vested property rights)
- Pa. Nw. Distribs., Inc. v. Zoning Hearing Bd. of Moon Twp., 584 A.2d 1372 (Pa. 1991) (nonconforming use is a vested property right that may be lost by abandonment)
- Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Twp., 720 A.2d 127 (Pa. 1998) (ordinance discontinuance provision creates presumption of abandonment after prescribed time)
- Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Twp., 686 A.2d 888 (Pa. Cmwlth. 1996) (presumption of abandonment requires proof of both discontinuance and intent to abandon)
- Lake Adventure Cmty. Ass’n, Inc. v. Dingman Twp. Zoning Hearing Bd., 79 A.3d 708 (Pa. Cmwlth. 2013) (hearsay must be corroborated to support zoning findings)
- In re Thompson, 896 A.2d 659 (Pa. Cmwlth. 2006) (where substantial evidence exists, appellate court must defer to ZBA credibility determinations)
- Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118 A.3d 1 (Pa. Cmwlth. 2015) (appellate court views evidence in light most favorable to prevailing party and defers to ZBA credibility assessments)