72 Pa. Commw. 109 | Pa. Commw. Ct. | 1983
Opinion by
Robert I. Malakoff and Carole E. Malakoff (Appellants) bring this appeal from the order of the Court of Common Pleas of Allegheny County which affirmed the decision of the Board of Adjustment of the City of Pittsburgh (Board) to grant certain special exceptions and variances to 568 South Aiken Avenue Corporation and J. D. J. Associates, (Intervenors, hereinafter Applicant).
Applicant sought permission from the Board to reconstruct the warehouse to accommodate business and professional offices and, further, to erect a four story parking garage on the vacant lot. Following a hearing, the Board rendered its decision which granted Applicant certain relief which can be summarized as follows:
1. A special exception under Section 909-.06(b)(5) of the Pittsburgh Code of Ordinances (Code) to change the occupancy from a nom conforming use (warehouse building) to a new nonconforming use (professional and business use).
2. A special exception under Section 909-.06(b) (17) of the Code to rehabilitate the existing structure and to erect a parking garage on the rear lot.
3. A variance from 20 feet to six inches in a portion of the north side yard requirement.
4. A variance to increase the special exception limitation which restricts the enlargement of a nonconforming structure to 25% of the gross floor area of the structure.
Appellants further argue that since that portion of the property which would accommodate the parking garage had never before been devoted to a nonconforming use, and there are no provisions in the Code to allow that use as a special exception, the erection of the garage may only be accomplished by the grant of a variance.
[W]e must refrain from putting form over substance.... “[U]sage of the term ‘special exception’ will not invalidate an order where the right to a variance has been established, and, therefore, we must decide whether or not the board of adjustment was warranted in granting a variance to [the applicant] under the facts introduced.”
Township of Falls, 48 Pa. Commonwealth Ct. at 396, 410 A.2d at 94-95 (quoting Hartenstine v. Pottstown Zoning Board of Adjustment, 88 Montg. 149, 151 (1967)). In the case at bar, the findings of the Board, which we conclude were supported by substantial evidence, provide an adequate basis for the grant of a variance for the proposed parking garage.
A variance may be granted when strict application of the zoning ordinance would result in a unique burden which creates an unnecessary hardship peculiar to the subject property; provided that the grant of the variance does not adversely affect public health, safety or welfare.. Schaefer v. Zoning Board of Adjustment of the City of Pittsburgh, 62 Pa. Commonwealth Ct. 104, 435 A.2d 289 (1981). By judicial definition, unnecessary hardship can be established by showing that the physical or topographical features of the property
The Board found that the proposed parking garage would not adversely affect the public health, safety or welfare. Since this finding is supported by substantial evidence, we may not substitute our evaluation of the testimony for the Board’s. Township of Haverford v. Zoning Hearing Board of Haverford Township, Pa. Commonwealth Ct. , 439 A.2d 1299 (1982). Furthermore, we note that the parking garage is merely supplemental to the professional office use of the existing adjacent structure.
Order
Now, February 16, 1983, the order of the Court of Common Pleas of Allegheny County, dated the thirteenth of April, 1981, which granted the application of 568 South Aiken Corporation and J. D. J. Associates is hereby affirmed insofar as it is not inconsistent with this opinion.
Judge Williams, Jr. dissents.
See Overstreet v. Zoning Hearing Board of Schuylkill Township, 49 Pa. Commonwealth Ct. 397, 412 A.2d 169 (1980) which did not involve the grant of a special exception, but, in quoting City of Philadelphia v. Angelone, 3 Pa. Commonwealth Ct. 119, 128, 280 A.2d 672, 677 (1971), did hold that “the erection of structures upon land not previously so used [as a nonconforming use], may only be accomplished by way of variance, the requisites of which are hardship to the owner and absence of detriment to the public interest.” [citations omitted]. Overstreet at 402-403, 412 A.2d at 172.
Section 989.01 of the Code requires that a professional or business office have one parking space for every 500 square feet of floor area over 2,400 square feet. Therefore, the garage is necessary to enable the applicants to use their building as a professional and business office.