Sotereanos, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh

FRIEDMAN, Judge,

concurring.

I reluctantly agree with the majority because, technically, William P. Damico has failed to establish his entitlement to the requested dimensional variances which finally would enable him to enlarge his restaurant by acting on Pittsburgh’s City Council’s 1979 grant of a conditional use to convert the vacant second floor of the building housing the Cliffside Restaurant to restaurant use. City Council expressly conditioned the grant of the conditional use on Damico’s providing fifteen dedicated parking spaces for the restaurant; however, in almost twenty years, Damico has been unable to acquire the necessary parking spaces. Damico’s failure has been due, in large part, to circumstances that are unique to the Grandview Avenue area of Mount Washington in which his restaurant is located. As noted by the majority, this stretch of Grandview Avenue is home to many competing restaurants, and Damico’s competitors already own most of the existing parking spaces for those restaurants.1

It was recognition of the unique, practical difficulties faced by Damico, as he tried to meet the parking requirements imposed by the 1979 conditional use grant, that prompted the zoning board and the trial court to grant Damico the requested variances. In granting the variances, the zoning board, affirmed by the trial court, concluded that Damico would suffer unnecessary hardship if the variances were denied because, without additional parking, Damico would be unable to open the second floor of his restaurant. Obviously, the zoning board’s reasoning was based on a fifteen year search by Damico to find *554property that could provide him with the fifteen dedicated parking spaces he needed to acquire before he could expand his restaurant. (See zoning board’s Findings of Fact, Nos. 8, 20, 21; R.R. at 128a-29a.) Additionally, the zoning board considered that Dami-co’s proposed parking facility would be on property zoned commercial that abutted existing parking lots and garages used by patrons of other restaurants on Grandview Avenue. Indeed, the zoning board noted that “[t]he property’s use as a parking facility will in fact ‘square off the large area devoted exclusively to parking, ... and will not encroach into the residential zoned area.” (R.R. at 130a.) I would agree with the zoning board’s assessment of the situation here, and I consider it unfortunate that, in strictly adhering to the law, we must now defy common sense.

Further, I believe that the inability to take a common sense approach and grant Dami-co’s request for variances is made all the more unfortunate when one considers that the Cliffside Restaurant, which clearly would benefit from the additional parking spaces, is in the area of Mount Washington zoned S-A Special District. An S-A Special District has as its intended goal the encouragement of development suitable to those portions of the City of Pittsburgh uniquely located in relation to major business, cultural and recreational areas. Damico v. Zoning Board of Adjustment of the City of Pittsburgh, 164 Pa.Cmwlth. 394, 643 A.2d 156 (1994). We have recognized that, where the S-A District would benefit from construction of a particular project in that district, strict adherence to zoning regulations that would preclude such construction is unwarranted. Instead, in such a case, the objectives of the S-A District should be achieved through a more flexible approach to zoning that would permit construction of the project. Id. Although Damico’s Cohasset Street property, zoned C-1 Neighborhood Retail District, is not afforded the flexible approach reserved for S-A Special District properties, it is undeniable that the Cliffside Restaurant and, in fact, the entire S-A District, would benefit from the construction of a parking garage on the Co-hasset Street site.2

I must concede that, in applying the law, the majority has come to a result that is not incorrect, and, thus, I concur in that result. However, I do so reluctantly because I believe that the unique fact situation here, coupled with the uniqueness of the S-A District that abuts the property at issue, begs for a more equitable and sensible resolution. In essence, I believe that the lot, zoned C-l, and the restaurant, zoned S-A, should be treated as one property in order to permit the grant of the requested variances.

. Indeed, at oral argument, Damico stated that the Cohasset Street property, on which Damico sought to build the parking garage, was the only available property within reasonable walking distance from the Cliffside Restaurant. Damico also indicated that, because of the size of the lot, it would he impossible to accommodate fifteen parking spaces on the property without the requested variances.

. The zoning board recognized that the preferable solution to Damico's dilemma would be the formulation and implementation of a comprehensive plan for all the parking needs of the various patrons on Grandview Avenue. However, the zoning board concluded that it would be unreasonable to ask Damico to wait to open the second floor of his restaurant until such a plan was operable, particularly because disputes between Grandview Avenue restaurant owners make it unlikely that overall parking requirements could be satisfied in an equitable manner. (Zoning board’s Findings of Fact, Nos. 16-17; R.R. at 129a-30a.)