5542 Penn LP v. Zoning Bd of Adjustment of the City of Pittsburgh

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

5542 Penn LP :
v. :
:
Zoning Board of Adjustment of the :
City of Pittsburgh, City of Pittsburgh, :
Bloomfield-Garfield Corp., Joanne :
Tzortzis, The Friendship Community :
Group, Doug Cruze and The Highland :
Park Community Council :
:
Appeal of: Bloomfield-Garfield Corp., :
Joanne Tzortzis, The Friendship :
Community Group, Doug Cruze and : No. 2227 C.D. 2015
The Highland Park Community Council : Argued: November 15, 2016

BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 20, 2016

Bloomfield-Garfield Corporation, Joanne Tzortzis, The Friendship
Community Group, Doug Cruze and the Highland Park Community Council
(collectively, Appellants) appeal from the Allegheny County Common Pleas Court’s
(trial court) October 8, 2015 order reversing the City of Pittsburgh (City) Zoning
Board of Adjustment’s (ZBA) October 16, 2014 decision denying 5542 Penn LP’s
(Applicant) application for a special exception and variances.1 The issue before this
Court is whether the trial court erred by impermissibly substituting its own factual
and legal determinations for those of the ZBA, and by failing to apply the controlling
standard of review.2

1
The ZBA also submitted a brief to this Court and participated in this appeal.
2
In their brief, Appellants raised four sub-issues in their Statement of Questions Presented:
 Applicant owns property located at 5542, 5536 and 5534 Penn Avenue,
Pittsburgh, Pennsylvania (Property), at its intersection with Negley Avenue, in a
Local Neighborhood Commercial (LNC) Zoning District. The Property is comprised
of four separate adjacent parcels (collectively, Parcels).
Parcel A, which is approximately 4,198.21 square feet, has a street
address of 5542 Penn Avenue and is bounded on the east by Negley Avenue. There
is a structurally-unsound, one-story building on Parcel A which was constructed
along the Property’s boundary lines. Accordingly, there are zero-foot front, rear, and
side yard setbacks.

A. Was it prejudicial error for the [trial] court to disregard the ZBA’s
findings of fact and conclusions of law regarding abandonment of a
setback nonconformity and substitute its own view for that of the
ZBA?

....

B. Did the [trial] court rely upon an inapplicable section of the
[Pittsburgh Zoning Code (C]ode[)] and improperly hold that
[Applicant] did not need to comply with [Local Neighborhood
Commercial Zoning] District standards []?

....

C. Was it an error of law for the [trial] court to reject the ZBA’s
conclusion that [Applicant] failed to establish its entitlement to relief
from multiple . . . [C]ode standards in the form of variances and/or
special exceptions?

....

D. Was the [trial] court bound by the ZBA’s determination that no
special exception could be awarded due to the evidence that the
proposed development would result in harm caused by the unique
traffic conditions fostered by the proposed development?
Appellants’ Br. at 2. These sub-issues are subsumed within the issue of whether the trial court erred
by impermissibly substituting its own factual and legal determinations for those of the ZBA, and by
failing to apply the controlling standard of review.
2
 Parcel B, located adjacent to Parcel A, is approximately 4,998 square
feet, and has no street number. An asphalt parking lot and a cinderblock garage
currently occupy Parcel B. Parcel B likewise maintains zero-foot front, side and rear
yard setbacks. Parcel C, located next to Parcel B, is approximately 2,499 square feet,
and has a street address of 5536 Penn Avenue. Parcel C contains a two-story attached
structure with a zero-foot front, side and rear yard setback.
Parcel D, located next to Parcel C, is approximately 2,499 square feet,
and has a street address of 5534 Penn Avenue. Parcel D contains a two-story,
attached structure with a zero-foot front and side yard setback, and a 5 foot, 9 inch
rear yard setback. There is a substantial grade change downward from Parcel D to
Parcel A. Hugus Place, a 20-foot wide alley with a 16-foot cartway, borders the
Property to the south and, runs parallel to Penn Avenue. It is the dividing line
between the LNC Zoning District and the Three-Unit Residential, Moderate Density
(R3-M) Zoning District to the south.
Applicant proposes to construct a one-story, 6,787 square foot structure
containing an AutoZone retail auto parts store (Proposed Building). The proposed
building will occupy Parcel A and a portion of Parcel B, and will face west towards
the planned parking lots occupying the remaining parcels. Applicant desires to
demolish most of the existing building on Parcel A, but leave the wall along Hugus
Place, and possibly, the wall along Negley Avenue.3 Applicant would also like to

3
Pennsylvania Rule of Appellate Procedure (Rule) 2173 requires a reproduced record to “be
numbered . . . in Arabic figures . . . followed in the reproduced record by a small a . . . , and
followed in any supplemental reproduced record by a small b . . . .” Pa.R.A.P. 2173. For
clarification, we note that Appellants failed to comply with Rule 2173. The Appendices in
Appellants’ brief are numbered in Arabic figures followed by a small a, and the reproduced record
is numbered in Arabic figures followed by a small b. Thus, references to specific pages in the
reproduced record shall be followed by a small b.
The record is unclear as to whether one or two walls will remain after Parcel A’s building is
partially demolished. At the July 17, 2014 ZBA hearing, Applicant’s attorney Jonathan Kamin
(Kamin) explained: “The proposal is to demolish the existing structure with the exception of the
3
demolish the existing parking lot and buildings on Parcels C and D. Applicant’s
plans further include extending the existing Parcel A wall along Hugus Place along
the rear of Parcel B to create a 72-foot-long side wall for the proposed building. An
opposite 72-foot wall will be constructed to run along Penn Avenue, set
approximately 5 feet back from the Property line, and occupy Parcel A and a portion
of Parcel B. The Proposed Building’s 100-foot-long rear wall would face Negley
Avenue. Because a level pad must be constructed for the Property, Applicant’s site
plan proposes to level the grade, resulting in the Proposed Building being
approximately 8 feet higher than the current grade at Negley Avenue between Penn
Avenue and Hugus Place.
Applicant’s proposed 16-space parking lot would cover approximately
6,340 square feet of land, and is equivalent to 92% of the square footage of the
Proposed Building. The parking lot would have approximately 70.5 feet of frontage
on both Penn Avenue and Hugus Place, and would be accessed by entrances from
both. The parking lot entrance/exit along Hugus Place would be located within 60
feet of a residential parking area across Hugus Place. Although there was no loading
dock identified in the proposed site plan, the plan depicted a dumpster to be located
in the southwest corner of the parking lot, within 26 feet of residentially-zoned
property.

wall that runs along the corner of [Hugus] Place and Negley [Avenue]. That wall is to be left
intact.” Reproduced Record (R.R.) at 26b. He further stated: “The wall that runs along the alley
will be left. The rest of the structure will be demolished.” Id. ZBA Chairwoman Alice Mitinger
(Mitinger) sought further clarification: “I just need to orient. The intent is to demolish the rest of
the structure, with the exception of what would be the rear wall along [Hugus] Place?” Id. Kamin
replied: “That’s correct.” Id. In response, Mitinger asked: “Okay. But not the Negley [Avenue]
wall side or not Penn Avenue? All of that is to be demolished?” Id. Kamin responded: “That’s
Correct.” Id. Later, Mark Mox (Mox), the site engineer who prepared the plans, was asked: “Of the
[building on Parcel A], everything there will be demolished except for the wall running along
[Hugus] Place; correct?” R.R. at 70b. Mox replied: “And also a portion along South Negley.” Id.
Mox was then asked: “What portion along South Negley will not be demolished?” Id. He replied:
“That will be determined by the architect.” Id.
4
 On July 17, 2014, the ZBA held a hearing to consider whether special
exceptions should be granted pursuant to Residential Compatibility Standards, as set
forth in Sections 916.09,4 916.02.A.8(a) and 916.02.A5 of the Pittsburgh Zoning Code
(Code), and whether variances should be granted from Sections 904.02.B.2,6

4
Section 916.09 of Code states:

The [ZBA] may approve a Special Exception according to the
provisions of Sec[tion] 922.07 [of the Code] to waive one (1) or more
of the Residential Compatibility Standards imposed by this Chapter,
subject to the following standards:

A. The [ZBA] shall determine that the waiver will not create
detrimental impacts on the surrounding properties, taking into
consideration the physical relationship of the proposed use and
structure to surrounding residential uses and structures;

B. The [ZBA] shall impose alternative methods which will cause
the development to comply with the purpose of the Residential
Compatibility Standards;

C. Building height restrictions found in this chapter may be
waived only if there is a taller intervening structure between the
proposed structure and the adjacent residential zoning district, in
which case the height shall be limited to the height of the
intervening structure; and

D. Setbacks for accessory uses, required by Sec[tion] 912.04 [of
the Code], shall be waived only if additional screening is required
by the [ZBA], beyond that required by Chapter 918 [of the
Code], such that the items are completely screened from view
from abutting residential properties at grade level of the
residential properties.
5
Sections 916.02.A.8(a) and 916.02.A of the Code pertain to building setbacks.
6
Section 904.02.B.2 of the Code prohibits accessory uses in an LNC Zoning District from
exceeding 25% of the gross floor area of the primary use.
5
914.09.A.2,7 and 922.04.E.3.a-e8 of the Code.
Applicant presented its general partner Brian Gumberg and the engineer
who prepared Applicant’s site plan Mark Mox’s (Mox) testimony. Mox testified that
the Property’s proposed grade change presented design challenges in planning a
building that would comply with the Code and the Americans with Disabilities Act of
1990 (ADA).9 Mox stated that, in order to satisfy the ADA’s requirements, “the site
must connect to the existing sidewalk on Penn Avenue; must furnish handicapped[-
]accessible parking; and must provide a handicapped[-]accessible parking route from
the parking lot to the building.” Appellants’ Br., Appendices (App.) at 10a (Finding
of Fact (FOF) No. 32). Mox also explained that to be ADA-compliant, the grade of
the route from the proposed parking lot may not exceed 2%, and that “restrictions on
the permitted grade required the [P]roposed [Building] to be constructed with a floor
elevation height that maintains the permitted grade from the parking lot.” Id. (FOF
No. 33). Mox further represented that the existing grades limited the structure’s
location.
Appellants offered licensed architect and Evolve Environment
Architecture’s partner Marc Mondor, and architect and Carnegie Mellon University’s
School of Architecture faculty member Stefani Danes’ (Danes) testimony. Danes
presented a massing sketch of the Proposed Building using Applicant’s dimensions,
and explained how Applicant could position a compliant building on the Property.
“[Danes] did not attempt to detail specific articulation and façade treatments for the

7
It appears the ZBA erroneously referenced Section 914.09.A.2 of the Code in its decision,
rather than Section 914.09.A.1 of the Code, which pertains to visibility of off-street parking areas
from public streets.
8
Sections 922.04.E.3.a-e of the Code pertain to required building frontage, ground floor
transparency, required street-level doorways on street-fronting building facades, prohibited building
designs with long, flat facades, and side parking areas, respectively.
9
42 U.S.C. §§ 12101-12213.
6
building as required under Section 922 [of the Code], but testified that no
architectural or physical reason prevented compliance with those standards.” App. at
11a (FOF No. 41). “[Danes] did not address [the] parking lot design for the site or
ADA accessibility[,] but opined that nothing required the precise building and
parking lot layout presented and that other options existed for meeting [the City’s]
design and accessibility requirements.” App. at 11a (FOF No. 42).
Appellants also presented traffic engineer Michael Mudry’s (Mudry)
testimony. Mudry testified that Applicant’s proposed store would generate abnormal
traffic patterns which would exacerbate existing traffic issues. According to Mudry,
a median barrier along Penn Avenue between Negley and Stratford Avenues would
cause 75% of the vehicular traffic to use Hugus Place alley as an arrival route, and
50% of the traffic to use it as a departure route. Mudry further opined that the
proposed plans and existing traffic turn restrictions would create circuitous traffic
routing that would negatively affect the neighboring community. He further
described traffic conflicts that could arise based on projected traffic volumes.
Neighbor Joanne Tzortzis, owner of two residential buildings bordering
Hugus Place, testified that the only means of accessing the parking area to her
buildings was by Hugus Place. She recounted stories of delivery trucks blocking
Hugus Place, and expressed concerns about additional delivery trucks and traffic that
could result from the proposed project. Richard Swartz (Swartz), Executive Director
of Bloomfield-Garfield Corporation, a community advocacy and planning and
development organization, also expressed worries pertaining to parking and traffic.
Swartz also raised trepidations regarding residential compatibility issues and
transparency requirements for Penn and Negley Avenue storefronts.
On October 16, 2014, the ZBA issued its decision denying Applicant’s
application. The ZBA explained:

7
 Code Chapter 916 sets forth Residential Compatibility
Standards which are designed to protect residential
properties and neighborhoods from the adverse impacts
sometimes associated with adjacent non-residential
development and uses. The [ZBA] may grant a waiver of
[R]esidential [C]ompatibility [S]tandards as a special
exception, in accordance with the general review criteria for
a special exception in Code Section 922.07.D, including
consideration of detrimental visual impacts relating to the
size and bulk of the proposed development in the context of
the surrounding built environment, transportation impacts,
operational impacts and impacts on future and potential
development of parcels in the vicinity of the proposed site.
....
[] Code Section 922.04.E.3 sets forth specific site plan
review criteria for all properties zoned LNC, including
those for a) a build-to line of 65% building frontage on the
primary frontage and 50% on the secondary frontage for a
corner lot; b) ground floor transparency between 3 to 8 feet
above the walkway grade for no less than 60% of the
building façade; c) a prominent and highly visible street
level doorway or entrance for all façades which front a
street; and d) design that considers siting, massing
proportions, scale, façade treatment in relation to
surrounding architectural context.
....
[] Code Chapter 921 addresses the protections and
limitations for maintaining nonconforming uses and
structures. Code Section 921.02.B.2 describes evidence of
abandonment of a nonconforming use, including removal of
a building or a physical change in the building or structure
in a way that clearly indicates a change in its use or activity.

App. at 13a (Conclusions of Law (COL) Nos. 3, 5, 7).
The ZBA continued:

[] Razing or demolishing a nonconforming use or structure
constitutes abandonment of the nonconformity.
[] Applicant indicated that it intends to retain the wall of the
current nonconforming structure along Hugus Place and

8
 that it intends to relocate the existing parking lot. The
Applicant’s witnesses testified, however, that the current
parking lot would be demolished and that the building
would be a ‘new build.’
[] The demolition of substantially all of the existing
building on Parcel A and the demolition of the parking [l]ot
on Parcel B constitutes abandonment of the nonconforming
aspects of the structures and uses on those lots.

App. at 13a (COL Nos. 9, 10, 11) (citations omitted). The ZBA concluded that
Applicant did not meet its burden for the grant of special exceptions or variances.
Applicant appealed from the ZBA’s decision to the trial court. The trial
court did not take new evidence. On October 8, 2015, based on the ZBA’s record, the
trial court reversed the ZBA’s decision because the ZBA “incorrectly concluded that
no nonconforming protections exist on the Property[,]” and that Applicant’s
“proposed redevelopment of the Property would continue the pre-existing legal
nonconforming setback along Hugus Place of zero-feet and is no more
nonconforming than what is currently on the Property.” App. at 4a. The trial court
addressed only the setback issue and did not discuss any of the ZBA’s other reasons
for denying the application. Appellants appealed to this Court.10
Appellants first argue that the trial court erred by impermissibly
substituting its own factual and legal determinations for those of the ZBA, and by
failing to apply the controlling standard of review to find that the Applicant was
permitted to proceed with its plan as of right.
Initially, we acknowledge that

a basic purpose of zoning is to promote orderly
development; non-conforming uses are inconsistent with
that goal and are tolerated to avoid imposing hardship and
to avoid constitutional problems. The policy of the law,

10
Where “the parties presented no additional evidence after the [ZBA’s] decision, our
review is limited to determining whether the [ZBA] committed an abuse of discretion or an error of
law.” Dunn v. Middletown Twp. Zoning Hearing Bd., 143 A.3d 494, 497 n.1 (Pa. Cmwlth. 2016).
9
 however, is to restrict such uses closely and to strictly
construe ordinance provisions providing for their
continuance, so that they may be reduced to conformity as
speedily as is compatible with the law and the constitution.

S. Coventry Twp. Bd. of Supervisors v. Zoning Hearing Bd., 732 A.2d 12, 15 (Pa.
Cmwlth. 1999) (emphasis added) (citing Hanna v. Bd. of Adjustment of the Borough
of Forest Hills, 183 A.2d 539 (Pa. 1962)).
Specifically, Appellants contend that the trial court erred when it
reversed the ZBA, which properly relied on Keebler v. Zoning Board of Adjustment
of the City of Pittsburgh, 998 A.2d 670 (Pa. Cmwlth. 2010) for the rule that “[r]azing
or demolishing a nonconforming use or structure constitutes abandonment of the
nonconformity.” App. at 13a (COL No. 9). Notably, the trial court held that the
ZBA erred because, in the trial court’s view, Keebler stands for the proposition that
the right to reconstruct a structure is extinguished only where the entire structure has
been razed. The trial court reasoned that the retention of a part of an existing
nonconforming structure permits a nonconforming reconstruction.
In Keebler, this Court considered whether the ZBA properly granted a
use variance to construct condominiums after the existing building was demolished.
The property owner sought a special exception to change from one nonconforming
use to another.
In its decision . . . [t]he [ZBA] noted, however, that prior to
being razed, the [p]roperty was a nonconforming use and
that upon razing of the building, the [p]roperty abandoned
its status as a nonconforming use . . . . [T]he [ZBA]
reasoned that it could permit the grant of the proposed use
on a different legal theory than that which was initially
requested by [the property owner].

Id. at 672. Thus, the ZBA granted the property owner a use variance instead. The
trial court affirmed the ZBA’s decision. This Court vacated the trial court’s order,
and remanded for the ZBA to afford the objectors an opportunity to address the

10
property owner’s right to the use variance. This Court also disagreed with the
property owner’s contention that it was entitled to a special exception, thereby
agreeing with the ZBA’s conclusion that the property owner had abandoned the
nonconforming use. The Court held:

[The property owner] claims that it did not abandon, nor did
it intend to abandon the nonconforming use. By razing the
building, however, [the property owner] has abandoned
its status as a nonconforming use as defined in [Section]
921.02.B.2 [of the Code] inasmuch as it has physically
changed the structure of the building by demolishing
it[,] which clearly indicates a change in use. Moreover,
‘while proof of intent to relinquish the use voluntarily is
necessary in an abandonment case, such proof is not
necessary where the structure is destroyed because the
right to reconstruct a structure is extinguished by
operation of law.’ Korngold v. Zoning B[d.] of Adjustment
of the City of Phila[.], . . . 606 A.2d 1276, 1280 [(Pa.
Cmwlth. 1992).]

Keebler, 998 A.2d at 674 (emphasis added). This Court rejected the property owner’s
argument that “because the foundation remains, there has been no abandonment[,]”
explaining that “inasmuch as there is no dispute that the structure itself has been
demolished and where the structure has been destroyed, the right to reconstruct the
structure is extinguished by operation of law.” Id. at n.3.
The trial court herein interpreted Keebler to hold that a right to
reconstruct a nonconforming structure is extinguished only where the entire existing
nonconforming structure is completely destroyed. Further, the trial court relied on
Money v. Zoning Hearing Board of Haverford Township, 755 A.2d 732 (Pa. Cmwlth.
2000), wherein a landowner sought a building permit to replace a nonconforming use
with another nonconforming use. Specifically, the landowner sought to replace a
deteriorated nonconforming garage/chicken coop with a smaller nonconforming
garage. The proposed garage exceeded the zoning ordinance’s size limitations, but

11
the landowner contended that he was permitted to build the garage because it was a
replacement of a nonconforming structure and a continuation of a nonconforming
use.
The zoning hearing board denied the application and the common pleas
court affirmed. On appeal, this Court reversed, explaining:

‘A lawful nonconforming use establishes in the property
owner a vested property right which cannot be abrogated or
destroyed unless it is a nuisance, it is abandoned or it is
extinguished by eminent domain.’ Keystone Outdoor
Adver[.] v. Dep[’]t of Transp[.], 687 A.2d 47, 51 (Pa.
Cmwlth. 1996)[.] Here, the sole issue is whether [the
l]andowner abandoned the nonconforming use. The
[t]ownship contends that [the l]andowner abandoned the
nonconforming use by allowing the old garage/chicken
coop to fall into a state of disrepair. The [t]ownship argues
that the dilapidated condition of the old garage/chicken
coop prevented the structure from being used as a garage
for a substantial period of time and supports the conclusion
that the use was abandoned.
As the party claiming the abandonment, the [t]ownship
bears the burden of proving that [the l]andowner abandoned
the nonconforming use. To sustain its burden of proof, the
[t]ownship must show that (1) [the l]andowner intended to
abandon the nonconforming use and (2) [the l]andowner
actually abandoned the use consonant with his intention.
Here, the [t]ownship has failed to meet its burden of
proving either [the l]andowner’s intent to abandon or actual
abandonment.
With respect to [the l]andowner’s intent to abandon the use,
we observe that a landowner’s failure to use property for a
period of time designated by a zoning ordinance is evidence
of the intention to abandon.

Money, 755 A.2d at 736-37 (citations and footnotes omitted). The Money Court
expounded:

[W]e acknowledge that, even where a landowner has used
the building within the prior designated time period,

12
structural alterations to a building that are inconsistent with
continuance of the nonconforming use may establish both
intent to abandon and actual abandonment. Indeed, this was
the basis of our conclusion in Tantlinger [v. Zoning Hearing
Board of South Union Township, 519 A.2d 1071 (Pa.
Cmwlth. 1987)]. In that case, the landowners replaced a
nonconforming mobile home with a modular home, which
was a conforming use, arguing, inter alia, entitlement to do
so as a continuation of a nonconforming use. Rejecting this
argument, we explained[:] ‘Clearly, the complete removal
of a nonconforming structure, and replacement of it with a
different type of structure, is an abandonment of the
nonconforming use thus eliminated, and is inconsistent with
the concept of continuing it.’ Tantlinger, 519 A.2d at 1074
(emphasis added). Thus, contrary to the trial court’s
interpretation, Tantlinger does not prohibit the replacement
of ‘one nonconforming structure with another
nonconforming structure,’ (see trial court op. at 4); rather, it
prohibits only the replacement of a nonconforming structure
with a different type of structure.
Here, [the l]andowner proposes to replace the old
garage/chicken coop with a similar structure - a garage.
Because both structures are nonconforming as to area, it
cannot be said that [the l]andowner is abandoning the
nonconforming use by building the new garage. Unlike the
situation in Tantlinger, [the l]andowner’s proposed
replacement garage is a continuation, not an abandonment,
of a nonconforming use.
Courts have permitted landowners to demolish
nonconforming structures and replace them with new
nonconforming structures. For example, in Amoco Oil Co.
v. Ross Township Zoning Hearing Board, . . . 426 A.2d 728
([Pa. Cmwlth.] 1981), we held that the razing of a building
that is a nonconforming use does not eliminate the
landowner’s right to continue that use by erection of
another building also nonconforming as to use. Similarly,
in Trettel v. Zoning Hearing Board of Harrison Township, .
. . . 658 A.2d 741 ([Pa.] 1995), our [S]upreme [C]ourt
granted a country club permission to demolish its old,
dilapidated nonconforming maintenance shed and replace it
with a new one on exactly the same site.

13
 We recognize that, where a building has become so
dilapidated that complete reconstruction is necessary, a
zoning ordinance may bar reconstruction in the interest of
the public health, safety, morals or general welfare.
However, such a restriction ‘must be specifically set forth in
the ordinance and, absent such regulations, a landowner
seeking to continue a valid nonconforming use must be
permitted to do so.’ Zeiders v. Zoning Hearing B[d.] of
Adjustment of W[.] Hanover T[wp.], . . . 397 A.2d 20, 21
([Pa. Cmwlth.] 1979). Thus, in Zeiders, because no
ordinance prohibited demolition and rebuilding, this [C]ourt
permitted a nursery business, as a continuation of a
nonconforming use, to remove and rebuild a shade house
that was nonconforming as to setback requirements.

Money, 755 A.2d at 737-38 (italic emphasis added; citations omitted).
In the instant action, the trial court considered the application in the
context of Section 921.03 of the Code, which states:

A nonconforming structure, including a nonconforming
sign, which has a valid Certificate of Occupancy and
lawfully occupies a site on the date that it becomes
nonconforming that does not conform with the site
development standards of the underlying zoning district or
any other development standards of this Code may be used
and maintained, subject to the standards and limitations of
this section.

Code § 921.03 (emphasis added). In particular, the trial court applied Section
921.03.A.1 of the Code, pertaining to the maintenance, remodeling and repair of a
nonconforming structure which provides: “Maintenance, remodeling and repair of
a nonconforming structure shall be permitted without a variance and without
special exception approval, provided that such maintenance, remodeling or
repair does not increase the degree of nonconformity.” Code § 921.03.A.1
(emphasis added).
Appellants dispute that Section 921.03.A.1 of the Code is applicable
and, in contrast, contend that Section 921.03.D.1 of the Code which pertains to

14
enlargement, expansion or extension of nonconforming structures applies. Section
921.03.D.1 of the Code states:

A nonconforming structure may be enlarged, expanded or
extended, in compliance with all applicable regulations of
this Code, unless the enlargement, expansion or extension
has the effect of increasing the degree of nonconformity or
making a use or structure nonconforming in any other
respect, subject to any applicable requirements of Sec[tion]
922.02 [of the Code].

Code § 921.03.D.1. We agree with Appellants that Section 921.03.A.1 of the Code is
inapplicable to this matter. Further, we hold that Sections 921.03.C.3 and/or
921.03.D.1 of the Code are applicable.
Section 921.03.C.3 of the Code states:

In the event of arson or other willful destruction,
reconstruction of nonconforming structures shall be
prohibited if such casualty is traceable to the owner or
his/her agent. Such instances shall result in forfeiture of
the nonconforming status, and must subsequently be
brought within all the prevailing restrictions applied to the
surrounding district.

Code § 921.03.C.3 (emphasis added).
Here, the Property consists of four separate parcels. According to the
proposed plan, the vast majority of the existing nonconforming structure on Parcel A
will be demolished, rather than “enlarge[d or] expan[ded.]” Code § 921.03.D.1.
Only the wall along Hugus Place, and possibly a portion of the wall along Negley
Avenue, will remain. In addition, the leveling of the downward grade will result in
an 8-foot increase in the height of Parcel A at Negley Avenue between Penn Avenue
and Hugus Place, along the zero-foot setback that Applicant seeks to maintain. Thus,
presumably, only the portion of the remaining wall or walls above the new parking
lot height would be visible. Further, Parcels C and D each contain nonconforming
two-story structures without front and side yard setbacks. Parcel C lacks a rear-yard

15
setback. Parcel D contains a 5 foot, 9 inch rear-yard setback. Applicant plans to raze
the structures on Parcels C and D, and the garage and existing parking lot on Parcel
B. These nonconforming structures are not being enlarged or expanded pursuant to
Section 921.03.D.1 of the Code. Instead, they are being willfully destroyed, and the
Proposed Building would be constructed on Parcel A and part of Parcel B using the
above-ground portion of one or two existing walls, and a parking lot that would bury
most of the subject parcels. Thus, as “specifically set forth in” Section 921.03.C.3 of
the Code, the nonconforming status for each of those Parcels would be extinguished
and a structure, including a parking lot subsequently constructed on those Parcels
would be required to comply with the Code. Money, 755 A.2d at 738 (quoting
Zeiders, 397 A.2d at 21).
Even if the nonconforming structures were deemed to be “enlarge[d or]
expan[ded],” rather than destroyed, Section 921.03.D.1 of the Code would require
Applicant to adhere to all applicable Code regulations. Code § 921.03.D.1. This
Court has explained:

A special exception is not an exception to a zoning
restriction, but a use that is expressly permitted.
An exception in a zoning ordinance is one allowable
where facts and conditions detailed in the ordinance,
as those upon which an exception may be permitted,
are found to exist. Thus, an exception has its origin
in the zoning ordinance itself. It relates only to such
situations as are expressly provided for and
enunciated by the terms of the ordinance. The rules
that determine the grant or refusal of the exception
are enumerated in the ordinance itself. The
function of the [ZBA] when an application for an
exception is made is to determine that such specific
facts, circumstances and conditions exist which
comply with the standards of the ordinance and
merit the granting of the exception.

16
Broussard v. Zoning Bd. of Adjustment of City of Pittsburgh, 831 A.2d 764, 769 (Pa.
Cmwlth. 2003), aff’d, 907 A.2d 494 (Pa. 2006) (citation omitted) (quoting Kotzin v.
Plymouth Twp. Zoning Bd. of Adjustment, 149 A.2d 116, 117-18 (Pa. 1959))
(quotation marks omitted).

A variance, like a special exception, is issued by a zoning
hearing board; however, unlike a special exception, a
variance is not provided for in the zoning ordinance, but is
permission to deviate from the ordinance in either the
dimensions of the improvements made to the land or in the
use of the land. A variance is the proper relief where an
unnecessary hardship attends the property; a variance
cannot provide relief where a hardship afflicts the property
holder’s desired use of the land and not the land itself.
Although zoning ordinances are to be liberally construed to
allow for the broadest possible use of the land, the applicant
seeking a variance bears a heavy burden. The reasons for
granting a variance must be substantial, serious, and
compelling.

Nowicki v. Zoning Hearing Bd. of Borough of Monaca, 91 A.3d 287, 291 (Pa.
Cmwlth. 2014) (citations omitted). “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.” Hertzberg v. Zoning Bd. of Adjustment of City
of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998).

[I]n determining whether unnecessary hardship has been
established, courts should examine whether the variance
sought is use or dimensional. To justify the grant of a
dimensional variance, courts may 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.

Id. at 50. However,

while Hertzberg eased the requirements for granting a
variance for dimensional requirements, it did not make
17
 dimensional requirements . . . ‘free-fire zones’ for which
variances could be granted when the party seeking the
variance merely articulated a reason that it would be
financially ‘hurt’ if it could not do what it wanted to do with
the property, even if the property was already being
occupied by another use. If that were the case, dimensional
requirements would be meaningless - at best, rules of thumb
- and the planning efforts that local governments go through
in setting them to have light, area (side yards) and density
(area) buffers would be a waste of time. Moreover,
adjoining property owners could never depend on the
implicit mutual covenants that placing dimensional
restrictions on all property would only be varied when there
were compelling reasons that not to do so would create a
severe unnecessary hardship.

Soc’y Created to Reduce Urban Blight v. Zoning Bd. of Adjustment of City of Phila.,
771 A.2d 874, 877-78 (Pa. Cmwlth. 2001).

[Accordingly], this Court consistently rejects requests for
dimensional variances where proof of hardship is lacking.
Where no hardship is shown, or where the asserted hardship
amounts to a landowner’s desire to increase profitability or
maximize development potential, the unnecessary hardship
criterion required to obtain a variance is not satisfied even
under the relaxed standard set forth in Hertzberg. See, e.g.,
Singer v. Zoning Bd. of Adjustment of City of Phila., 29
A.3d 144 (Pa. Cmwlth. 2011) (rejecting applicant’s request
for dimensional variances from [z]oning [c]ode’s parking,
floor area ratio and loading dock requirements where
asserted hardship amounted to applicant’s desire to
maximize development potential of property); Lamar
Advantage GP Co. v. Zoning Bd. of Adjustment of City of
Pittsburgh, 997 A.2d 423 (Pa. Cmwlth. 2010) (rejecting
applicant’s request for dimensional variance for proposed
sign where only asserted hardship involved alleged benefit
to community and increase in income); Twp. of
Northampton v. Zoning Hearing Bd. of Northampton Twp.,
969 A.2d 24 (Pa. Cmwlth. 2009) (rejecting applicant’s
request for variance from ordinance’s off-street parking
requirements where no evidence of hardship presented even
under relaxed Hertzberg standard and evidence revealed
applicant could use property in a manner consistent with
ordinance requirements); In re Boyer, 960 A.2d 179 (Pa.

18
 Cmwlth. 2008) (rejecting applicant’s requests for
dimensional variances from ordinance's steep slope and
setback requirements in order to construct in-ground pool
where no evidence of hardship presented even under
relaxed Hertzberg standard); One Meridian Partners, LLP
v. Zoning Bd. of Adjustment of City of Phila., 867 A.2d 706
(Pa. Cmwlth. 2005) (rejecting request for dimensional
variance from floor area ratio and height requirements
where asserted hardship was essentially financial in nature);
Yeager v. Zoning Hearing B[d.] of City of Allentown, 779
A.2d 595 (Pa. Cmwlth. 2001) (rejecting applicant’s request
for dimensional variances from ordinance’s setback and
clear sight triangle requirements where only hardship
amounted to applicant’s desire to construct a building for its
new car dealership that complied with specifications
required by vehicle manufacturer).

Soc’y Hill Civic Ass’n v. Phila. Zoning Bd. of Adjustment, 42 A.3d 1178, 1187 (Pa.
Cmwlth. 2012). An applicant has the burden to demonstrate that it is entitled to a
special exemption or variance. See Camp Ramah in the Poconos, Inc. v. Zoning
Hearing Bd. of Worcester Twp., 743 A.2d 1019 (Pa. Cmwlth. 2000).
With respect to Applicant’s special exception requests, Section
922.07.D.1 of the Code provides:

The [ZBA] shall approve Special Exceptions only if (1) the
proposed use is determined to comply with all applicable
requirements of this Code and with adopted plans and
policies of the City and (2) the following general criteria are
met:
(a) That the development will not create detrimental
visual impacts, such that the size and visual bulk of
the proposed development is determined to create an
incompatible relationship with the surrounding built
environment, public streets and open spaces and
land use patterns;
(b) That the development will not create
detrimental transportation impacts, such that the
proposed development is determined to adversely
affect the safety and convenience of residential

19
 neighborhoods or of vehicular and pedestrian
circulation in the vicinity of the subject tract;
(c) That the development will not create detrimental
transportation impacts, such that the proposed
development will result in traffic volumes or
circulation patterns that substantially exceed the
capacity of streets and intersections likely to be
used by traffic to and from the proposed
development;
(d) That the development will not create detrimental
operational impacts, including potential impacts of
hours of operation, management of traffic,
servicing and loading operations, and any on-site
operations associated with the ongoing functions
of the use on the site, in consideration of adjacent
and surrounding land uses which may have differing
sensitivities to such operational impacts;
(e) That the development will not create detrimental
health and safety impacts, including but not limited
to potential impacts of noise, emissions, or
vibrations from the proposed development, or
functions within the proposed site which would
otherwise affect the health or safety of others as a
direct result of the operation of the proposed use;
(f) That the development will not create detrimental
impacts on the future and potential development of
parcels in the vicinity of the proposed site of the
development; and
(g) That the development will not create detrimental
impacts on property values.

Code § 922.07.D.1 (emphasis added).
Appellants argue that the ZBA properly denied Applicant’s plans
because:

[T]he proposed development is prohibited by virtue of the
increase and extension of the prior nonconformity.
The [existing] structure on Parcel A complied with the
build-to line requirement of [Section] 922.04.E.3.a [of the
20
 Code11] along Penn Avenue. It complied with the ground
floor transparency requirement of [Section] 922.04.E.3.b [of
the Code12]. It complied with the Doorways and Entrances
requirement of [Section] 922.04.E.3.c [of the Code13]. It
had no front yard parking and was, therefore, in compliance
with [Section] 922.04.E.3.e.i [of the Code14], though it did
not meet all [Code Section] 922.04.E.3.e.ii[15] requirements.
As proposed by [Applicant], its AutoZone store would
satisfy none of these standards.
Parcel D was compliant in all respects. Now, Parcel D is
proposed to be transformed into a parking lot which
exceeds the accessory use limitations of [Section]
904.02.B.2 [of the Code16].
Appellants’ Br. at 22 (citations omitted).

11
“All new construction and/or enlargements shall maintain a sixty-five (65) percent
building frontage along the established build-to line. Properties on corner lots shall maintain a
sixty-five (65) percent building frontage on the primary frontage and shall maintain a fifty (50)
percent building frontage on the secondary frontage.” Code § 922.04.E.3.a.
12
“The street[-]level facade shall be transparent between the height of three (3) feet and
eight (8) feet above the walkway grade for no less than sixty (60) percent of the horizontal length of
the building facade or shall include commercial-type windows and door openings.” Code §
922.04.E.3.b.
13
“All primary structures shall provide a prominent and highly visible street[-]level
doorway or entrance on all facades of the building which front on a street. Main entrances to
buildings should be emphasized using larger doors and framing devices such as deep overhangs,
recesses, peaked roof forms and arches. To the maximum extent feasible, the entrance shall face a
public street.” Code § 922.04.E.3.c.
14
“No parking spaces shall be located between the front building facade and the front lot
line. No corner lot shall be used as off-street parking unless the parking area serves as a shared
parking area.” Code § 922.04.E.3.e.i.
15
“Off-street parking spaces may be located on the side of buildings, provided that the
facade of the building facing the parking area is transparent between the height of three (3) feet and
eight (8) feet above parking area grade for no less than thirty (30) percent of the horizontal length of
the building facade.” Code § 922.04.E.3.e.ii.
16
“Accessory uses shall be permitted in the LNC [Zoning] District in accordance with the
Accessory Use regulations of [Code] Chapter 912. In addition, accessory uses in the LNC [Zoning]
District shall not exceed twenty-five (25) percent of the gross floor area of the primary use.” Code
§ 904.02.B.2. Notably, Section 912.03 of the Code defines parking as an accessory use in a
nonresidential district.

21
 Regarding the requested variances and special exceptions, the ZBA
explained:

Section 922.09.E [of the Code] sets forth the general
conditions the [ZBA] is to consider with respect to
variances. . . . [T]he criteria for determining whether to
grant a variance [are]: 1) unique circumstances or
conditions of a property that would result in [] an
unnecessary hardship; 2) no adverse effect on the public
welfare; 3) the minimum variance that would afford relief
with the least modification possible.
....
[] The Code’s special exception review criteria also require
the [ZBA] to consider potential visual impacts, parking and
traffic impacts, operational impacts and impacts on future
and potential development in the vicinity.
[] Applicant did not present sufficient evidence to
demonstrate entitlement to the requested variances from
the site plan review criteria set forth in Section
922.04.E.3 [of the Code] or the requested variance from
Section 904.02.B.2 [of the Code] related to accessory
parking.
[] Applicant described topographical issues related to the
site but did not demonstrate an unnecessary hardship that
would warrant the grant of the requested variances.
[] Applicant presented only a site plan with general
dimensions for the proposed use and only generally
addressed the transparency, massing, proportions, scale,
facade treatment and materials of the proposed building. It
did not describe any specific efforts to adapt the proposed
building to the context of the [] Property and its vicinity,
specifically its location on the prominent corner of Penn
and Negley Avenues.
[] Applicant’s witnesses alluded to landscaping plans for the
street frontage and the challenges of providing transparency
within the existing topography of the site. However, it did
not demonstrate that its retail store design was the only
possible way of configuring a building and parking on the []
Property, in a manner compatible with the LNC District.
22
 [] Applicant’s site plan indicated that the primary
entrance to the building would face the parking lot,
within the interior of the [] Property, with the rear of
the building facing Negley Avenue, with the raised grade
well above the street level. This configuration directly
contravenes the requirement of Section 922.04.E.3.c [of
the Code] that all primary structures ‘shall provide a
prominent and highly visible street level doorway or
entrance on all façades of the building which front a
street.’
[Appellants] presented credible testimony that a retail
store could be located on the [] Property in a manner
that complies with or is more consistent with the nature
of the LNC [Zoning] District and the applicable site plan
review criteria for that district.
[] Applicant also did not present any specific information
regarding parking or traffic impacts from the proposed
use. Although a retail store had been located on the
property, [] Applicant merely referenced the prior retail use
and did not provide any comparative information as to
traffic and parking impacts, based on the proposed use.
[] Applicant indicated that the hours of operation of the
proposed use would be from 7:30 am until 9[:00] pm
Monday through Saturdays and 9:00 am until 8:00 pm on
Sundays but did not address how these hours, and the
associated impacts, would compare to the prior use of the []
Property or uses, generally, in the vicinity.
[Appellants] presented substantial and credible evidence
that the proposed use would have detrimental traffic
and parking impacts.[17]

17
Applicant contends that the ZBA should not have relied on Mudry’s testimony because:

[Mudry] has never prepared any traffic studies in [area
neighborhoods] in any capacity prior to issuing his traffic report on
this matter. [] Mudry also testified that all of the alleged traffic
access conflicts addressed in his report currently exist and would
not be modified or otherwise affected by the redevelopment of the []
Property.

23
 [] In an effort to support its request for variances, []
Applicant presented testimony regarding the need to supply
ADA-compliant access. However, the access it proposed
was consistent only with its proposed configuration of
the site, designed to accommodate its proposed use, and
did not address the possibility of other means of ADA-
[compliant] access or other potential configurations of
the site.[18]

In fact, [] Mudry’s calculations confirm that the minimal number of
traffic trips generated by the proposed use are so insignificant that no
traffic study is even required under the [Code], and that any potential
impact would be negligible. [] Mudry was likewise not aware of the
manner in which deliveries would be made to the site with respect to
vans, short wheelbase tractor trailers or full size tractor trailers.
However, despite the utter lack of knowledge, he concluded that there
would be difficulties in delivery vehicles accessing the site.

Importantly, with respect to each of his conclusions regarding alleged
traffic impact to the [] Property, [] Mudry states that each of the
concerns raised are the same as the existing current conditions of
the site and would not be enhanced or would otherwise
detrimentally affect the surrounding neighborhood in any manner.
Applicant’s Br. at 21-22 (citations omitted).
“It is the function of a ZHB to weigh the evidence before it. The ZHB is the sole judge of
the credibility of witnesses and the weight afforded their testimony.” Lamar Advantage GP Co. v.
Zoning Hearing Bd. of Adjustment, 997 A.2d 423, 441 (Pa. Cmwlth. 2010) (citation omitted). The
ZBA was free to evaluate Mudry’s credibility and weigh his testimony accordingly. Based upon
that testimony, the ZBA concluded that given the existing access, the proposed plans and the
additional traffic, “the proposed use would have detrimental traffic and parking impacts.” App. at
15a (COL No. 24).
18
In Aquaro v. Zoning Board of Adjustment, 673 A.2d 1055 (Pa. Cmwlth. 1996), this Court
reversed a [ZBA]’s decision granting a variance to a dentist so the property could provide adequate
access in accordance with the ADA. This Court held:

[A] variance is not required to be granted per se where a property
owner desires to conform with the ADA.

Additionally, even if the ADA were applicable in zoning areas, all the
ADA requires is that ‘reasonable accommodations’ through
‘reasonable modifications’ be made, which does not mean that the
‘best’ accommodation is required.

24
 [] Applicant did not present sufficient substantial evidence
to support the grant of any of the requested variances.
[] Applicant did not present sufficient evidence to warrant
the grant of a special exception for a waiver from the
Residential Compatibility Standards.

App. at 14a-15a (COL Nos. 12, 15-25) (emphasis added; citations omitted).
The record evidence reflects that the proposed parking lot, an accessory
use under the Code, would use approximately 92% of the gross floor area of the
primary use, more than three times Code Section 904.02.B.2’s 25% requirement.19
The proposed plan also fails to provide the required ground floor transparency
required by Section 922.04.E.3.b of the Code. Further, the full rear wall of the
proposed structure would face Negley Avenue, in violation of Section 922.04.E.3.c of
the Code, which requires “[a]ll primary structures shall provide a prominent and
highly[-]visible street level doorway or entrance on all facades of the building which
front on a street.” Id. Applicant had the burden to demonstrate its right to the
requested relief, and the ZBA was entitled to judge witness credibility, weigh the
evidence and determine whether Applicant met its burden. The ZBA considered the
evidence presented by both Applicant and the Appellants, made credibility

Id. at 1061. In contrast to Aquaro, some federal courts have held that enforcement of a zoning
ordinance may constitute a regulated activity under the ADA. See, e.g., RHJ Med. Ctr., Inc. v. City
of DuBois, 754 F. Supp. 2d 723 (W.D. Pa. 2010).
19
In O’Neill v. Zoning Board of Adjustment of Philadelphia County, 254 A.2d 12 (Pa.
1969), our Supreme Court reversed a trial court’s dismissal of an objector’s appeal from the grant of
a variance. There, the property owner sought to construct an apartment building where the city
zoning code limited total floor space square footage. In reversing the trial court, the Supreme Court
explained:

[The property owner’s] 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.
Id. at 16.
25
determinations, weighed the evidence, and ultimately found that Applicant failed to
meet its burden. After reviewing the record evidence and the relevant legal authority,
we conclude that the ZBA’s decision is based on substantial record evidence, and we
discern no legal error in the ZBA’s analysis or an abuse of its discretion.
For all of the above reasons, the trial court’s order is reversed, and the
ZBA’s decision is reinstated.

___________________________
ANNE E. COVEY, Judge

Judge McCullough did not participate in the decision in this case.

26
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

5542 Penn LP :
v. :
:
Zoning Board of Adjustment of the :
City of Pittsburgh, City of Pittsburgh, :
Bloomfield-Garfield Corp., Joanne :
Tzortzis, The Friendship Community :
Group, Doug Cruze and The Highland :
Park Community Council :
:
Appeal of: Bloomfield-Garfield Corp., :
Joanne Tzortzis, The Friendship :
Community Group, Doug Cruze and : No. 2227 C.D. 2015
The Highland Park Community Council :

ORDER

AND NOW, this 20th day of December, 2016, the Allegheny County
Common Pleas Court’s October 8, 2015 order is reversed. The City of Pittsburgh
Zoning Board of Adjustment’s October 16, 2014 decision is reinstated.

___________________________
ANNE E. COVEY, Judge