83 Pa. Commw. 441 | Pa. Commw. Ct. | 1984
Opinion by
The appellant, Marcella Klanke, appeals here from an order of the Court of Common Pleas of Allegheny County which dismissed her appeal from a decision of the Zoning Board of Adjustment of the City of Pittsburgh (Board) denying her application for an
The appellant is the owner of a two and a half story structure in the City of Pittsburgh located in a “R-4 Multiple-Family Residence District.” In July of 1982, the appellant filed an application with the city’s zoning administrator for an occupancy permit to continue using her property as a three family dwelling unit. The administrator denied this application and the appellant filed an appeal to the zoning hearing board challenging the administrator’s decision and seeking a variance.
At the Board’s hearing in this matter it was established that when the appellant purchased her property in 1984 it was then being used as a three family dwelling. Under the city’s original ordinance passed in 1923, the appellant’s property was zoned in a “B” residence district permitting one or two family dwellings. In 1958, the city by ordinance rezoned the area in which the appellant’s property is located to an R-4 district. Information from the Polk Directory
The appellant next contends, citing Sheedy v. Zoning Board of Adjustment of City of Philadelphia, 409 Pa. 655, 187 A.2d 907 (1963), that she is entitled to a variance since her property has been continuously used as a three family dwelling for 25 years and that when she purchased the property she did not know it was being used in violation of the city’s ordinance. We disagree, for several reasons. First, the single fact that the appellant’s property has been used for 25 years in violation of the zoning ordinance cannot support the granting of a variance. Municipal inaction in enforcing an ordinance, without more, cannot support the granting of a variance. Draving v. Lower Southampton Township Zoning Hearing Board, 40
Lastly, the appellant argues that the Board’s conclusion that granting a variance to the appellant would be detrimental to the neighborhood and that it would not be an undue hardship upon the appellant to deny her request for a variance are totally unsupported by the record. We disagree.
We have reviewed the record in this case and on the issue of detriment, we note the testimony of a Ms. Elizabeth Renner, who appeared at the Board’s hearing in this matter in opposition to the appellant’s request for an occupancy permit. Specifically, Ms. Renner expressed her concern over the “well-being of the community” if a variance were to be granted based upon her observation that more and more people in the area were paving over their front yards to provide for additional parking. Likewise, on the issue of unnecessary hardship, it was established at the Board’s hearing that the appellant could legally use her property for two dwelling units and that an occupancy permit would be issued for such a use. In fact the Board’s order directed that the appellant reduce her property from three to two units. As such, the appellant has not met her burden of proving unnecessary hardship which requires that the physical characteristics of the property be such that it cannot be used for any permitted purpose or for a permitted purpose only at prohibitive expense, or that the characteristics of the area are such that the property has no value or only a distress value if restricted to a permitted use. Botula v. Zoning Board of Adjustment of the City of Pittsburgh, 69 Pa. Commonwealth Ct. 164, 450 A.2d 316 (1962).
Order
Now, July 3, 1984, the order of the Court of Common Pleas of Allegheny County, dated January 10, 1983, is hereby affirmed.
Published by a private concern, the Polk Directory contains listings of businesses and private residences indexed alphabetically, by address and by telephone number.
See Section 3 of the Act of July 27, 1955, P.L. 288, as amended, 21 P.S. §613.
Although it was not discussed in detail, Mr. Walkowski, a member of the Board, opined that all that would be necessary to reduce the appellant’s structure from three to two units would be to remove the kitchen in the third unit. This would only involve removing a sink.
The appellant raises a number of other arguments in her brief which we need not address since they were not raised before the court below. Overstreet v. Zoning Hearing Board of Schuylkill Township, 49 Pa. Commonwealth Ct. 397, 412 A.2d 169 (1980).