Lead Opinion
OPINION OF THE COURT
In this appeal we review the Commonwealth Court’s reversal of an order of the Allegheny County Court of Common Pleas (trial court) upholding the decision of the Zoning Board of Adjustment of the City of Pittsburgh (Board) to grant a variance and special exception to appellant Miryam’s. At issue is whether the evidence presented to the Board demonstrated the existence of an unnecessary hardship entitling Miryam’s to a dimensional variance and special exception from the applicable zoning ordinances. We find that the Commonwealth Court erred for two reasons. First, the Commonwéalth Court applied the standard for a use variance when Miryam’s sought only a dimensional variance. Second, the standard employed by the Commonwealth Court is too restrictive and in contrast to this Court’s precedents concerning unnecessary hardship, irrespective of whether a use or dimensional variance was sought. Therefore, we reverse.
The facts relevant to this appeal are as follows: Miryam’s is a nonprofit social service agency which provides shelter and
Miryam’s applied for the zoning permit characterizing its intended use of the building as a “lodging house.”
Miryam’s appealed to the Board for a variance from the area and parking requirements.
Hertzberg appealed the decision of the Board to the trial court, which affirmed after denying Hertzberg’s motion to allow additional evidence.
This Court granted allocatur limited to the issue of whether the evidence presented to the Board demonstrated the existence of an unnecessary hardship entitling Miryam’s to a variance and a special exception.
Where neither the Court of Common Pleas nor the Commonwealth Court conducts a hearing or receives additional evidence that was not before the zoning board, the applicable standard of appellate review is whether the board committed an abuse of discretion or an error of law in granting the variance. Larsen v. Zoning Bd. of Adjustment of the City of Pittsburgh,
The Municipal Planning Code, addressing the standards for granting a variance, requires an applicant to show:
(1) That there are unique physical conditions peculiar to the property and that the unnecessary hardship is due to those conditions;
(2) That because of the physical conditions, there is no possibility that the property can be developed in strict conformity with the zoning ordinance and that a variance is needed to enable reasonable use of the property;
(3) That unnecessary hardship has not been created by the applicant;
*257 (4) That the variance is not detrimental to the public welfare; and
(5) That the variance is the minimum variance that will afford relief and is the least modification of the regulation at issue.
53 P.S. § 10910.2 (Supp.1995). A variance applicant must show that unnecessary hardship will result if a variance is denied and that the proposed use will not be contrary to the public interest. Allegheny West Civic Council, Inc. v. Zoning Bd. of Adjustment of the City of Pittsburgh,
The issue here involves a dimensional variance and not a use variance — an important distinction ignored by the Commonwealth Court. When seeking a dimensional variance within a permitted use, the owner is asking only for a reasonable adjustment of the zoning regulations in order to utilize the property in a manner consistent with the applicable regulations. Thus, the grant of a dimensional variance is of lesser moment than the grant of a use variance, since the latter involves a proposal to use the property in a manner that is wholly outside the zoning regulation.
In this instance, Miryam’s intended use of the property is permitted under the existing zoning regulations. The trial court properly noted that this was a dimensional variance case, and held that Miryam’s was not required to prove that the property was unmarketable without the desired variance, “but only that the zoning requirements work an unreasonable hardship in the owner’s pursuit of a permitted use.” Trial Ct.
We note that although this Court has not formally made a distinction between the standards that should apply when a variance from open area and space requirements is sought instead of a variance from a prohibited use, this Court has discussed the need for a distinction in the requirements to establish unnecessary hardship when a dimensional variance is sought as opposed to a use variance. In O’Neill v. Zoning Bd. of Adjustment,
In the instant matter, the Commonwealth Court based its decision, at least in part, on the basis that the Board made no finding of fact that the property had either no value or only distress value. This Court rejected the use of the “practically valueless” standard as a requirement for establishing unnecessary hardship in Allegheny West Civic Council, Inc. v. Zoning Bd. of Adjustment of the City of Pittsburgh,
The Commonwealth Court reversed on appeal, finding that the owner had failed to meet the burden of proving that the property was practically valueless as zoned because the owner had rejected an offer from the party opposing the variance to buy the property for less than half of what the owner had paid for it. Thus, under the Commonwealth Court’s reasoning, a variance applicant could not establish unnecessary hardship absent a showing that the property was practically valueless as zoned. This Court reversed the Commonwealth Court, and held that unnecessary hardship may be demonstrated by a showing that a property is valueless without a variance. However, this Court made clear that a variance applicant is not required to establish that the property is valueless without the variance in order to establish unnecessary hardship.
The Commonwealth Court also reasoned in the instant matter that Miryam’s failed to establish unnecessary hardship for the desired dimensional variance because the record was devoid of evidence that the property could not be used in a way and for a purpose consistent with the zoning ordinance. This Court rejected similar reasoning in Halberstadt v. Borough of Nazareth,
Further, the Commonwealth Court’s reasoning in the case sub judice is at odds with its holding in Wagner v. City of Erie Zoning Hearing Bd.,
The Commonwealth Court held that the vacancy of the building and the difficulty with which it was sold evidenced an unnecessary hardship sufficient to warrant the granting of variances. The court stated:
Although unnecessary hardship usually relates to the physical characteristics of the land, at times, the unnecessary hardship can relate to the building itself. Where the use of property for any purpose is possible only through extensive reconstruction or demolition of the building, it has been held sufficient to establish an unnecessary hardship.
Id. at 799.
Recently, the Commonwealth Court clarified the holding of Wagner in Vitti v. Zoning Bd. of Adjustment of the City of Pittsburgh,
Our holding in Wagner was partly based upon the recognition that, where blighted or dilapidated conditions exist in urban areas, and where the applicant for a variance has undertaken efforts to remediate or renovate those areas for a salutary, productive purpose, a slight relaxation, or less stringent application of the variance criteria may be the only way the subject property will be put to any beneficial use.
Id. at 658 (emphasis added). In Vitti, a non-profit organization devoted to aiding the homeless in the city of Pittsburgh sought to expand its operations by relocating to a larger facility. It purchased a three-story vacant property located in a C-4 commercial zone which had formerly been used as a retail sporting goods store. The Board granted the owners dimensional and parking-space variances from the exact zoning ordinances at issue in the instant matter. In upholding the grant of the variances, the Commonwealth Court noted that the building was dilapidated and had sat dormant as valueless real estate for over seven years. Although the area of the city where the building was located had experienced a recent revitalization, the court noted that the area was “gener
The court agreed with the Board that a variance was the only way for the subject property to be used for virtually any permissible productive use. Id. The fact that the cost of the demolition and reconstruction work necessary for strict compliance with the zoning ordinance would have been “astronomical and commercially impracticable” was further evidence of unnecessary hardship. Id. The court specifically rejected the argument asserted by the neighbor opposing the variances that there were “literally dozens of permitted uses” to which the property could be put and that a variance should not have been granted in the absence of a showing that the property may not be used for any permitted purpose. Id. The court found that the neighbor’s assertion that the vacancy of the property had no bearing on the decision process was “simply incorrect”. Id. Thus, Wagner and Vitti, beside being contradictory to the Commonwealth Court’s holding in the instant matter, are persuasive for the proposition that numerous factors should be considered when evaluating whether an applicant for dimensional variances has established unnecessary hardship.
In the instant matter, the unnecessary hardship standard employed by the Commonwealth Court, which requires an applicant to demonstrate that the building cannot be used for any other permitted purpose, is the same standard that the court specifically rejected in Vitti. Additionally, the standard used by the Commonwealth Court in the matter sub judice is far more rigid than that found in the Municipal Planning Code, 53 P.S. § 10910.2, supra, and in this Court’s holdings in Allegheny West Civic Council, Inc. and Halberstadt. Thus, even if Miryam’s had been seeking a use variance, the Commonwealth Court applied the incorrect standard for determining whether unnecessary hardship had been established.
In addition, we now hold that in determining whether unnecessary hardship has been established, courts should
Using these criteria, we turn now to the question of whether Miryam’s established unnecessary hardship. The record demonstrates that the building had been vacant for many years prior to Miryam’s purchase of it, and that Miryam’s intended use as a lodging house is a permitted use under the ordinance. An architect testified before the Board that although the building had been “gutted” and was a “shell,” it had a very substantial building structure. Miryam’s also established that the total renovation cost, assuming the grant of the required variances, would be between $850,000 and $1,000,000. However, the record is devoid of any information concerning the condition of the neighborhood, the cost of compliance with the zoning restrictions, or the economic hardship Miryam’s would incur should the variances be denied.
Notes
. Miryam’s services are transitional, aimed at helping women obtain their own housing and achieve the skills necessary to live independently. Miryam's has outgrown its current base of operations in Pittsburgh's uptown neighborhood and wishes to move to a larger facility at 1410 Fifth Avenue.
. The City of Pittsburgh zoning ordinance defines a lodging house as: A building or portion thereof, containing lodging rooms which accommodate persons who are not members of the keeper’s family. Lodging or meals or both are provided for compensation on a weekly or monthly basis. A lodging house shall not include dormitories, fraternity houses, sorority houses or any residence that provides personal services associated with a personal care residence as defined in subsection (p) thereof.
. Specifically, section 957.04(2)(A) of the City of Pittsburgh zoning ordinance provides:
With sleeping rooms not in excess of 600: 5000 square feet plus 300 square feet for each sleeping room in excess of three, but not in excess of 200, plus 515 square feet for each sleeping room in excess of 200.
. Miryam’s later amended the request for a parking variance to a request for a special exception because the ordinance allows a parking deficiency only by special exception.
. Hertzberg tried to argue on appeal that the proposed use was not a "lodging house,” but instead was equivalent to a "group care facility” or "institutional facility,” neither of which was a permitted use under the ordinance. However, the trial court found this issue had been waived because Hertzberg did not argue it before the Board or raise the issue in his notice of appeal. Hertzberg again attempted to raise this waived issue before the Commonwealth Court, asserting that the Board erred in finding that the proposed use was a lodging house because the definitions of "institutional facility” and "group care facility” more closely fit the proposed use. The Commonwealth Court correctly determined that Hertzberg had not preserved the issue and thus, the Commonwealth Court properly refused to address it.
Hertzberg made no attempt to raise this issue in his brief before this Court. The dissent proposes that this Court premise its decision on an issue not before it. This we cannot do. See Pa.R.A.P. 302 (issues not raised in the lower court are waived and cannot be raised for the first
. Since the date of the Commonwealth Court's decision and the date of Miiyam's submission of its Petition for Allowance of Appeal to this Court, Hertzberg has sold the adjoining building and relocated his law practice elsewhere. Miryam’s now owns the adjoining building. Neither party has raised the issue of Hertzberg’s standing. Because the question of standing is not an issue of subject matter jurisdiction, we cannot raise it sua sponte. Jones Memorial Baptist Church v. Brackeen,
. In O’Neill, this Court refused to uphold the grant of variances to an applicant who wished to construct a twenty-six story apartment building consisting of 225,809 square feet of floor space and an open area of only 5%. The property was located in a C-3 commercial district which permitted the construction of apartment buildings but limited the allowable floor space to 84,646 square feet and required an open area of 20%. This Court found that O’Neill was not the appropriate case to apply a less strict standard for the grant of a dimensional variance because the "apartment building would be more than a mere technical and superficial deviation from the space requirements. The building would contain approximately two and one half times as much floor space as is now permitted under the zoning regulation. In such a situation, petitioner’s remedy would appear to be a rezoning and not a variance.” O’Neill,
The present case is different from O'Neill in that Miryam’s is not attempting to add more space than permitted by the zoning ordinance, but rather seeks to make do with the size of the building as is, which is smaller than the zoning requirements. Thus, the case sub judice is one in which "a mere technical and superficial deviation from space requirements” is sought.
. Specifically, the Commonwealth Court found that the building could have been used as-is for a parking garage or an apartment building.
. This Court also found that the fact that the owner's neighbors also had rock and slopes on their properties did not preclude a finding that the owner suffered from a hardship due to the unique conditions of his property.
. Miryam's asserts in its brief that the building is of little use to any commercial” buyer because it would be too expensive to renovate and is located in a lower-scale neighborhood. However, these allegations are not established as facts of record because Miryam's failed to present any evidence to support these claims to the Board.
Dissenting Opinion
dissenting.
The Court granted allowance of appeal limited to the issue of whether the evidence presented to the Zoning Board of Adjustment demonstrated unnecessary hardship entitling Appellant to a variance and a special exception. In finding that the record contained no evidence of unnecessary hardship, the Commonwealth Court correctly employed the same rule of law used by this Court in Allegheny West Civic Council, Inc. v. Zoning Bd. of Adjustment of the City of Pittsburgh,
As stated by the majority, Appellant applied for a zoning permit to use a building as a lodging house and provide social services to indigent women. The zoning officer denied the permit because the lot did not meet the area requirements of the zoning ordinance. The proposed use of the property, which would lodge 20 clients, required 7,100 square feet under the ordinance. The lot, however, contains only 3,409 square feet, or less than half of the required area. The zoning officer also denied the permit because the proposed use requires ten parking spaces and the property has none.
Appellant appealed to the Zoning Hearing Board and requested a variance from the area requirement and a special exception from the parking requirement. In granting the variance and special exception, the Board made twenty-three findings of fact. It found that the building abuts a parking lot on one side and a three-story structure on the other. The Board found that the building had been used as a bank but has been vacant for many years. It also found that the area variance is necessary to use the structure most efficiently. The remaining findings of fact relate to Appellant’s proposed use of the property. The Board concluded that since the building has been vacant for many years, denying the area variance would be an undue hardship, and the lot is uniquely suited for the proposed use.
On appeal to the Commonwealth Court, Appellee again argued that Appellant faded to establish unnecessary hardship justifying the grant of a variance. In agreeing that Appellant failed to make this showing, the Commonwealth Court properly set forth the applicable rule of law as fodows:
In order to demonstrate unnecessary hardship, the applicant must show that the physical characteristics of the property are such that either (1) it could not in any case be used for any permitted purpose, or (2) it can be arranged for that purpose only at prohibitive expense or (3) it has either no value or only distress value for any purpose permitted by the ordinance.
Commonwealth Ct. Opinion at 7 (quoting Hill Distr. Project Area Committee, Inc. v. Zoning Bd. of Adjustment, 162 Pa.Commw. 323, 328,
In applying this rule of law, the Commonwealth Court correctly stated that the Zoning Hearing Board “made no
Notwithstanding the lack of factual findings related to the requirements for unnecessary hardship, the Commonwealth Court reviewed the record. The court found it “completely devoid” of evidence that the property cannot be used in a way consistent with the zoning ordinance. Id. at 8. It rejected the Board’s factual finding of vacancy supported that the property cannot be used for a permitted purpose. Id. The court concluded that without a showing that the property cannot be used in a way consistent with the zoning ordinance, there is not the unnecessary hardship required for a variance. Id.
The majority apparently believes that the lower court required Appellant to establish that the property cannot be used for any permitted purpose or that it has no value as zoned, and precluded Appellant from establishing that it could only do so at a prohibitive expense. However, I read the Commonwealth Court’s statement that Appellant failed to show that the property cannot be used in a way consistent with the zoning ordinance, as including that Appellant did not establish that it could only do so at a prohibitive expense. To the extent the Commonwealth Court’s opinion is unclear, the record in this case includes no evidence related to the requirements for unnecessary hardship. Appellant submitted no evidence as to why it could not use the property in compliance with the zoning ordinance. Rather, all of Appellant’s evidence relates to how it wishes to use the property. See N.T., 8/31/95 at 7-22. Thus, even if the majority believes the Common
The majority then appears to change the unnecessary hardship standard set forth above to allow courts to consider “multiple factors including the economic detriment to the applicant if the variance was denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood.” Majority Opinion at 50.
In sum, the Commonwealth Court employed the proper rule of law in determining if Appellant established unnecessary hardship. Since the record contains no evidence supporting that Appellant established unnecessary hardship, I would affirm the lower court’s decision. Furthermore, I join Mr. Justice Saylor’s dissenting opinion as I agree that this case went askew from its inception by proceeding as a dimensional variance case.
. While Allegheny West is a use variance case, as recognized by the majority, this Court has stated that the same standard applies in area variance cases, although perhaps with a lesser quantum of proof requirement where the variance is sought for a technical or superficial deviation. See O’Neill v. Zoning Bd. of Adjustment,
. While the majority relies upon Allegheny West, Halberstadt v. Borough of Nazareth,
. The Court has rejected the first example — the economic detriment to the applicant if the variance is denied — as providing a basis to grant a variance. See, e.g., Valley View Civic Ass’n v. Zoning Bd.,
Dissenting Opinion
dissenting.
I join Mr. Justice Nigro’s dissenting opinion, which concludes that the Commonwealth Court appropriately applied the traditional standard for unnecessary hardship to the circumstances of this case and properly concluded that the record does not support the request for a variance. I write only to state my view that the difficulty in this case stems from the fact that the zoning hearing board erred at the outset in allowing the applicant to proceed as if seeking a dimensional variance when, in actuality, the variance sought was for a use that is not permitted in the zoning district.
Appellant, Miryam’s, filed an application with the zoning officer seeking permission to use the premises at issue to provide up to twenty resident women suffering from emotional disabilities with basic needs, counseling and life skills training in an environment which is continuously supervised and includes twenty-four hour crisis intervention services. This, it would -seem to me, would constitute use as an “institutional facility,” the definition of which includes establishments which provide room and board to individuals who are residents by virtue of receiving supervised specialized services provided by a non-profit social service. See Pittsburgh, Pa., Code of Ordinances §903.02(i). Use of property as an institutional facility, however, is prohibited in a C-4 commercial district. Indeed, the Code permits variances only for “a use permitted in the district where the lot is located.” Id. at §909.05. Thus, a variance would not be available under the provisions of the Code to permit Miryam’s to operate as an institutional facility.
Perhaps realizing this, Miryam’s characterized its intended use of the property as a “lodging house,” a permitted use in the district. Such use, however, requires that lodging or meals be provided for compensation on a weekly or monthly basis. Pittsburgh, Pa., Code of Ordinances §903.02(l). There was no evidence presented at hearing that any compensation received by Miryam’s from its residents is other than incidental. Indeed, the evidence that was presented established that Miryam’s operates as a non-profit organization, obtaining its funding from public agencies, private foundations and contrib
In other words, under the guise of seeking a variance from lot size restrictions, Miryam’s, in reality, sought to employ the property for a use not permitted by the zoning ordinance. Although Hertzberg sought to raise this “use” issue in his appellate brief, he failed to include it among the issues identified in his notice of appeal to the trial court and thus waived the issue as an available ground for relief. Consequently, the case proceeded as if it were a true dimensional variance case.
A disguised use variance case seems to me an inappropriate vehicle in which to attempt to announce new or modified standards pertaining to requests for dimensional variances. A foundational prerequisite to a request for a dimensional variance is a determination that the proposed use for the property is itself permissible, and such permitted use is, in turn, the benchmark from which the entitlement to a dimensional variance must be assessed. Thus, I would not, in a case premised upon waiver, redirect the legal standards for determining the availability of a variance from their traditional focus upon those uses that are permitted by the zoning ordinance. See generally Allegheny West Civic Council, Inc. v. Zoning Bd. of Adjustment of the City of Pittsburgh,
Since the majority’s holding declaring a new, multi-factor test for determining the availability of a dimensional variance is essentially detached from the facts of this case, it is difficult to discern the scope of the criteria it has identified, in particular, the economic detriment to the applicant if the variance were denied, and the characteristics of the surrounding neigh
While some relaxation of the unnecessary hardship standard may be appropriate in cases involving true dimensional variances, the contours of the standard should be developed in cases in which issues pertaining to dimensional variances are legitimately framed and truly ripe, thus ensuring the factual and legal controversy requisite to a properly informed decision. Judicial caution and restraint are particularly warranted in areas such as zoning, where the General Assembly and local lawmaking bodies have endeavored to develop and implement laws and regulations reflecting policies that will facilitate land use appropriate to particularized local needs and concerns.
Although not unmindful of the societal benefits of Miryam’s stated purpose of aiding women with emotional disabilities, given the zoning regulations at issue and the record before us, I believe that such concern would be best addressed to the Pittsburgh City Council, the author of the Pittsburgh Code of Ordinances.
. The second factor identified by the majority, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements, appears to be a restatement of a traditional criterion for determining unnecessary hardship. See Allegheny West,