              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stephen Pascal and Chris Gates,          :
                  Appellants             :
                                         :
            v.                           :
                                         :
City of Pittsburgh Zoning Board of       :
Adjustment, and City of Pittsburgh       :   No. 496 C.D. 2019
and Northside Leadership Conference      :   Argued: October 3, 2019


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: February 28, 2020

            Stephen Pascal and Chris Gates (collectively, Objectors) appeal from the
Allegheny County Common Pleas Court’s (trial court) March 27, 2019 order
affirming the City of Pittsburgh (Pittsburgh) Zoning Board of Adjustment’s (ZBA)
decision and dismissing Objectors’ appeal. Objectors present 8 issues for this Court’s
review: whether the trial court erred by (1) affirming the ZBA’s grant of zoning relief
when the ZBA failed to issue a written decision within 45 days of the public hearing
and Northside Leadership Conference (Applicant) did not agree in writing or on the
record to an extension of time within the 45 days; (2) affirming the ZBA’s grant of
zoning relief where one of the ZBA members had an actual or apparent conflict of
interest in Applicant’s application and failed to recuse herself; (3) affirming the
ZBA’s grant of a variance allowing a floor area ratio (FAR) of 2.66:1; (4) affirming
the ZBA’s grant of a variance permitting zero off-street loading space; (5) affirming
the ZBA’s grant of a special exception permitting a restaurant use in the local
neighborhood commercial zoning district (LNC district); (6) affirming the ZBA’s
grant of a special exception permitting off-site parking; (7) affirming the ZBA’s grant
of a special exception permitting a 5.61-foot rear setback of a property within 50 feet
of a residential, very high-density zoning district (RIA-VH district); and (8) affirming
the ZBA’s grant of zoning relief where, even with the relief requested, the proposed
development would not comply with zoning requirements.1 After review, we affirm.
               Applicant, a non-profit community development corporation, owns 4
parcels of property located at 404-410 East Ohio Street between Cedar Avenue and
East Ohio Street in an LNC district in the East Allegheny neighborhood of Pittsburgh
(Property). The Property contains 3 attached, 3-story commercial buildings forming
a single structure in significant deteriorating condition. Applicant seeks to upgrade
the structure with interior renovations and a rear addition to create 6 new dwelling
units. Applicant plans to maintain the Property’s retail use of the first floor and the
restaurant use of the first and second floors, and to increase the number of apartment
units on the second and third floors from 2 to 8. In addition, Applicant intends to
demolish and rebuild the existing rear portion of the second floor and add a rear
portion to the third floor. Both the rebuilt portion of the second floor and the new
portion of the third floor will be entirely within the existing rear wall line of the first
floor and the roofline of the existing third floor. Applicant proposes to use a 313-
square-foot area at the rear (Residential Strip), with access from Moravian Way, as a
secondary ingress/egress point for tenants. This area will also be used for deliveries
and garbage removal. The garage walls will be affixed to the adjoining residential
property and the Moravian Way access will be gated.
               On March 20, 2018, Applicant applied to the ZBA for: a variance for the
proposed 2.66:1 FAR; approval of the restaurant use as a special exception; approval


      1
          This Court has changed the order of Objectors’ arguments for ease of discussion.
                                                  2
of a special exception for off-site parking for the 6 parking spaces mandated for the
new apartments; a variance from the off-street loading space requirement; and a
special exception waiving the residential compatibility standards for rear-yard
setbacks. The ZBA held a hearing on April 12, 2018. On August 23, 2018, the ZBA
granted Applicant’s requested relief subject to the following conditions: (1) that the
5.6 foot residential/historic district area to be consolidated into the Property be finally
approved and recorded; (2) that the lease for the 6 off-site parking spaces be recorded,
and that said parking spaces be identified as reserved for the Property’s tenants; and
(3) that the Historic Review Commission review the Applicant’s Residential Strip
proposal. On September 21, 2018, Objectors appealed from the ZBA’s decision to
the trial court. On March 27, 2019, the trial court affirmed the ZBA’s decision and
dismissed Objectors’ appeal. Objectors appealed to this Court.2
              Objectors first argue that the trial court erred by affirming the ZBA’s
grant of zoning relief because the ZBA failed to issue a written decision within 45
days of the public hearing, and Applicant did not agree in writing or on the record to
an extension of time within the 45 days.3 The ZBA rejoins that because the 45 days
did not start until the record closed, and the record did not close until the ZBA
received the requested proposed findings of fact and conclusions of law, and
Applicant agreed to all continuances thereafter, the ZBA’s decision was timely.


       2
          Where the parties present no additional evidence, “our review is limited to determining
whether the ZBA committed an abuse of discretion or an error of law.” Soc’y Hill Civic Ass’n v.
Phila. Zoning Bd. of Adjustment, 42 A.3d 1178, 1185 n.2 (Pa. Cmwlth. 2012).
        3
          Objectors cite Wistuk v. Lower Mt. Bethel Township Zoning Hearing Board, 925 A.2d 768
(Pa. 2007), Humble Oil & Refining Co. v. Borough of East Lansdowne, 227 A.2d 664 (Pa. 1967),
and Borough of Monroeville v. Foltz, 290 A.2d 269 (Pa. Cmwlth. 1976), to support their position.
However, those cases implicate the Municipalities Planning Code, Act of July 31, 1968, P.L. 805,
as amended, 53 P.S. §§ 10101-11202, which does not apply to Pittsburgh, see Allegheny W. Civic
Council, Inc. v. Zoning Bd. of Adjustment of the City of Pittsburgh, 94 A.3d 450 (Pa. Cmwlth.
2014), and concern deemed approvals, as opposed to deemed denials. Consequently, Objectors’
cases are inapposite.
                                               3
             Section 922.07.C of the Pittsburgh Zoning Code (Code) provides, in
relevant part:

             The [ZBA] shall hold a public hearing on the Special
             Exception application. After the public hearing, the [ZBA]
             shall act to approve, approve with conditions, approve in
             part, deny or deny in part the application, within forty-five
             (45) days of the [ZBA] hearing. Where the [ZBA] fails to
             render its decision within the period required by this
             subsection, . . . the decision shall be deemed to have been
             rendered in denial of the applicant unless the applicant has
             agreed in writing or on the record to an extension of time.

Code § 922.07.C. Similarly, Section 922.09.D of the Code states, in pertinent part:

             The [ZBA] shall hold a public hearing on the variance
             application. After the public hearing, the [ZBA] shall act to
             approve, approve with conditions, approve in part, deny, or
             deny in part the application within forty-five (45) days of
             the [ZBA] hearing. Where the [ZBA] fails to render its
             decision within the period required by this subsection . . .
             the decision shall be deemed to have been rendered in
             denial of the application unless the applicant has agreed in
             writing or on the record to an extension of time.

Code § 922.09.D.
             The ZBA’s official website specifically explains:
             WHEN WILL THE ZBA DECISION BE ISSUED?
             In many cases, the record will be closed after the hearing
             has completed. For in-depth cases or appeals with
             considerable opposition, the ZBA may allow proposed
             Findings of Fact and Conclusions of Law to be
             submitted by each party. Typically, the ZBA allows two
             or three weeks after the hearing for these to be
             submitted, at which point the record will then be closed.
             After the record is closed, the ZBA will issue a decision
             within 45 days. This decision will be sent via U[.]S[.] Mail
             to the applicant and all parties who appeared or testified and
             who signed the sign-in sheet with a mailing address at the
             hearing.

                                           4
Supplemental       Reproduced        Record      (S.R.R.)      at    34    (emphasis       added);
http://pittsburghpa.gov/dcp/zba (last visited February 27, 2020).5
              Here, at the close of testimony on May 17, 2018, ZBA Chairwoman
Alice B. Mitinger (Mitinger) stated:

              [W]e do need to move on today. We’ve heard a lot, and we
              have a lot to consider. But we do want to have legal
              positions presented by any and all who want to, and
              we’re going to give you two weeks from the transcript to
              do that.
              So whenever the transcript is ready, we’ll take two weeks
              after that, and then that is flexible, based on the transcript’s
              availability, but the [ZBA] will note that, and we’ll let
              everybody know that.
              There’s [sic] two counsel here who can exchange
              information with one another. If there are extensions one
              way or another that are needed, we’ll entertain those
              requests.
              Thank you all for your testimony.

Reproduced Record (R.R.) at 996 (emphasis added). On June 12, 2018, both counsel
filed their proposed findings of fact and conclusions of law.7 See R.R. at 176, 211.
              On July 26, 2018, 44 days after counsel submitted their proposed
findings of fact, both counsel “consent[ed] to extend the time for the ZBA to reach a
decision in this matter[,]” until at least August 9, 2018. R.R. at 213. On August 9,


       4
          The supplemental reproduced record page numbers are not followed by a small “b” as
required by Pennsylvania Rule of Appellate Procedure 2173, and thus are not followed by a small
“b” herein.
        5
          Section 923.02.C of the Code lists the ZBA’s Rules and Procedures, and includes: “The
[ZBA] shall adopt and maintain rules of procedure not inconsistent with the provisions of this
Code.” Code § 923.02.C.
        6
           The reproduced record page numbers are not followed by a small “a” as required by
Pennsylvania Rule of Appellate Procedure 2173, and thus are not followed by a small “a” herein.
        7
          Although the record does not disclose when the transcript became available, this Court can
infer that it was available two weeks before June 12, 2018.
                                                 5
2018, counsel agreed to another extension until August 16, 2018. See R.R. at 214.
On August 16, 2018, a third extension was granted through August 23, 2018. See
R.R. at 215. The ZBA filed its decision on August 23, 2018. See R.R. at 217.
               Although the Code directs the ZBA to issue a decision within 45 days of
a hearing, see Code §§ 922.07.C, 922.09.D, the ZBA’s website makes it clear that the
45 days commences after the record is closed. Here, the ZBA clearly left the record
open until 2 weeks after the transcript became available. See S.R.R. at 3. Before the
45 days elapsed, counsel agreed in writing to extensions, see R.R. at 213-215,
through the filing of the ZBA’s decision. See R.R. at 217. Because “[A]pplicant
ha[d] agreed in writing . . . to an extension of time[,]” a deemed denial is not
mandated by the Code. Code §§ 922.07.C, 922.09.D. Accordingly, the trial court did
not err by affirming the ZBA’s grant of zoning relief since the ZBA issued a written
decision within 45 days after the record was closed.
               Next, Objectors contend that the trial court erred by affirming the ZBA’s
grant of zoning relief where one of the ZBA members had an actual or apparent
conflict of interest in Applicant’s application and failed to recuse herself.
Specifically, Objectors assert that ZBA hearing member LaShawn Burton-Faulk
(Burton-Faulk) sits on Applicant’s Board of Directors (Board) and has previously
served as the Board’s president.8
               This Court has explained:

               The general rule is that a municipal officer should
               disqualify [her]self from any proceeding in which [s]he has
               a personal or pecuniary interest that is immediate and direct.
               Our Supreme Court has also found that an impermissible

       8
         This Court is cognizant of the fact that these are merely allegations raised for the first time
in Objectors’ brief to this Court, thus there is no evidence confirming or denying the facts stated
therein. Further, when asked at oral argument before this Court when Objectors learned of the
alleged conflict of interest, Objectors’ counsel responded: “Long after the hearing concluded.”
Thus, the issue was raised at the first possible opportunity.
                                                   6
                commingling of adjudicatory and prosecutorial functions
                occurred when a zoning hearing board was advised by a
                solicitor who was also representing the township in the
                same proceeding. Horn v. [Twp.] of Hilltown, . . . 337 A.2d
                858 ([Pa.] 1975). There it was held that actual prejudice to
                the rights of a party need not be shown to exist but that in
                order to fulfill its duties properly ‘a governmental body
                charged with certain decision[-]making functions . . . must
                avoid the appearance of possible prejudice, be it from its
                members or from those who advise it or represent parties
                before it.’ Id. at . . . 860 (emphasis added).

Borough of Youngsville v. Zoning Hearing Bd. of Borough of Youngsville, 450 A.2d
1086, 1090-91 (Pa. Cmwlth. 1982). This Court agrees that if Objectors’ claims are
true, Burton-Faulk’s participation in the ZBA’s hearing and decision may give the
appearance of possible prejudice and, thus, disqualify her from participating in the
hearing and the decision.
                However,

                [d]isqualification of [a] [ZBA] member . . . does not in and
                of itself require a reversal of the decision that was reached
                []. There has been no allegation that the member in
                question controlled or unduly influenced the other members
                of the [ZBA] in any manner which would raise doubts as to
                the validity of their votes.

Id. at 1091. Accordingly, Burton-Faulk’s possible disqualification does not require
reversal of the ZBA’s decision.
                Objectors next argue that the trial court erred by affirming the ZBA’s
grant of a dimensional variance allowing a FAR of 2.66:1,9 and a variance permitting
zero off-street loading space.10 Specifically, Objectors contend that Applicant based
the FAR on the consolidated lot size rather than the existing lot size which it was
required to do, and granting the zero off-street loading space is a 100% deviation
from the Code that would create traffic and safety problems. Applicant responds that,

      9
          Section 904.02.C of the Code provides for a maximum FAR of 2:1.
      10
           Section 914.10.A of the Code requires one off-street loading space at the Property.
                                                  7
because the ZBA conditioned the variance upon the Pittsburgh Planning
Commission’s (Planning Commission) final approval of the consolidation and
Applicant’s recordation thereof, the ZBA was correct in basing the FAR on the
consolidated lot size, and due to past development, the need for off-street loading
space cannot be otherwise met. The ZBA further rejoins that Applicant met all of the
requirements set forth in Section 922.09.E of the Code for both variances.
            Section 922.09.E of the Code provides:

            General Conditions for Approval
            No variance in the strict application of any provisions of
            this [] Code shall be granted by the [ZBA] unless it finds
            that all of the following conditions exist:
            1. That there are unique physical circumstances or
            conditions, including irregularity, narrowness, or
            shallowness of lot size or shape, or exceptional
            topographical or other physical conditions peculiar to the
            particular property, and that the unnecessary hardship is due
            to the conditions, and not the circumstances or conditions
            generally created by the provisions of the zoning ordinance
            in the neighborhood or district in which the property is
            located;
            2. That because of such physical circumstances or
            conditions, there is no possibility that the property can be
            developed in strict conformity with the provisions of the
            zoning ordinance and that the authorization of a variance is
            therefore necessary to enable the reasonable use of the
            property;
            3. That such unnecessary hardship has not been created by
            the app[licant];
            4. That the variance, if authorized, will not alter the
            essential character of the neighborhood or district in which
            the property is located, nor substantially or permanently
            impair the appropriate use or development of adjacent
            property, nor be detrimental to the public welfare; and



                                          8
               5. That the variance, if authorized, will represent the
               minimum variance that will afford relief and will represent
               the least modification possible of the regulation in issue.
               In granting any variance, the [ZBA] may attach such
               reasonable conditions and safeguards as it may deem
               necessary to implement to purposes of this act and the
               zoning ordinance[.]
               The applicant shall have the burden of demonstrating that
               the proposal satisfies the applicable review criteria.

Code § 922.09.E.
               According to Applicant, the pre-development FAR is 2.67:1,11 and the
proposed FAR is 2.66:1.12 Applicant’s architect on the project, Nathan Hart (Hart),
testified:
               [] HART: Yes. Although we are proposing small additions
               on the back, we are also[,] through the [P]lanning
               [C]ommission[,] providing a small access alley behind the
               buildings.
               The additional land that access alley provides actually
               allows us to maintain a slightly less than the [sic] FAR pre[-
               ]development state.
               [] MITINGER: So pre[-]development is 2.67[:1], and post-
               development would be 2.66[:1]. So you’re basically
               maintaining an existing condition?
               [] HART: In essence, yes.
               [] MITINGER: Reconfiguring but maintaining.
               [] HART: Correct.

R.R. at 57 (emphasis added).

       11
           “Existing aggregate gross floor area: 1st floor: 4015 s.f. [+] 2nd floor: 3748 s.f. [+] 3rd
floor: 3222 s.f. [=] 10,985 s.f.” divided by “[t]otal lot area: 4114 s.f.” equals “[p]re[-]development
[FAR]” of “2.67[:1.]” R.R. at 140.
        12
           “Proposed aggregate gross floor area: 1st floor: 4015 s.f. [+] 2nd floor: 3885 s.f. [+] 3rd
floor: 3885 s.f. [=] 11,775 s.f.” divided by “[t]otal lot area: 4424 s.f.” equals “[p]roposed [FAR]:” of
“2.66[:1.]” R.R. at 140.
                                                   9
                With respect to the off-site loading space, Applicant’s counsel (Counsel)
represented:

                [] MITINGER: Is it your position that because the structure
                of the building extends to the property lines, essentially, all
                around, you don’t really have any loading space, and that
                the loading needs for the residential use would be limited,
                because it would be for moving in and out?
                [Counsel]: That’s our contention. Our contention is there’s
                a public loading space directly in front of the building on
                East Ohio Street.

R.R. at 66-67.
                Concerning both variances, Applicant member Mark Fatla (Fatla)13
explained:

                Real quick, there was a suggestion that somehow this
                removed that strip from the historic district. It in fact
                remains within the historic district and will be subject to,
                assuming its approval -- nothing is being rezoned. Nothing
                is being removed.
                That strip will still be subject to all the requirements of the
                processes. With regard to loading, it’s a physical
                impossibility to incorporate it onto this site.
                With regard to safety, the premise here -- first of all, I can’t
                control the trucks for the liquor store or contractors of the
                like. There is a loading zone at the front of the building that
                can serve people.
                But, now, rather than businesses having to make their
                deliveries through their space, they’ll be able to take on the
                sidewalk. They’ll be able to take their deliveries around to
                enter through the rear of the building. This will let them put
                out their trash for collection in the alley, which is where the
                trash is collected.
                Nobody is suggesting that we’re going to have trucks
                parking in the alley, but, also, in terms of alleys, it’s an

      13
           Fatla is “the head of the [L]eadership [C]onference.” R.R. at 62.
                                                  10
            ordinary alley. You are going to have vehicles, but they are
            going at a very low rate of speed.
            There’s some pedestrian activity in there, but it’s like any
            other alley. So with regard to loading, there’s a loading
            zone. We simply have access for the customer spaces.
            Let me speak quickly -- buildings were somewhat of a
            locus of legal activity for many years, predatory
            businesses. We had to purchase them in order to
            eliminate that blight.
            Also, the previous owners have not reinvested in the
            buildings. [sic] So we had spare roof leaks, one building
            that suffered a fire. So we had to purchase the buildings
            before they deteriorated further. This is a preservation
            strategy. They are dedicated to preservation when
            possible.
            The economics of that -- I have a developer friend years ago
            who told me, ‘The pencil tells me the answer.’ If I know
            my costs of operating, I know my costs of renovation,
            and I know what the market will bear in terms of
            revenue.
            I plug those numbers in. The pencil tells me the answer.
            The reality here is, the economic need of this building, is
            that we need [a] sufficient number of apartments to
            carry the cost of the project.
            We’ve done so in a way that maximizes that return, while
            staying within the physical footprint of the building and
            adding the strip of the rear that actually enhances the
            separation from the residential districts, and meets the goals
            of the HRC as well.
            I think we’ve done what we can to satisfy the economic – [.
            . . .]

R.R. at 95-98 (emphasis added).
            With respect to the FAR, although Section 904.02.C of the Code
requires a FAR of 2:1, because the proposed FAR is less than the pre-existing FAR,
the ZBA concluded it was a non-conforming condition. The ZBA further concluded:


                                         11
            Applicant presented sufficient, credible evidence relating to
            the unique conditions of the site, including the existence of
            the building in its current configuration; that the slight
            reduction of the FAR, as proposed, will not have any
            adverse effects on the surrounding area and will allow for a
            secondary egress point;[14] that the FAR could not
            reasonably be reduced to a compliant 2:1; and that the
            2.66:1 FAR, proposed, is the minimum variance that would
            afford relief and allow for viable redevelopment of the site.
R.R. at 15-16.
              Concerning the off-street loading space, the ZBA ruled:
              Applicant requests a variance to address its inability to
              provide an off-street loading space on the site. It provided
              sufficient, credible evidence to demonstrate that, since at
              least 1939, structures on the site extended to the lot lines
              and no off-street parking space has been available. It also
              demonstrate[d] that the new 5.6/313 [square foot] area at
              the rear is not of sufficient size to allow for a viable loading
              space. [] Applicant did not create this condition. The
              continued use of the existing on-street loading space that
              has served the site will not result in any additional impacts
              and will allow for continuation of an existing
              nonconforming condition.

R.R. at 16.
              After a thorough review of the record, this Court concludes that the
above-cited record evidence is substantial evidence15 “[t]hat there are unique physical
circumstances or conditions” and “[t]hat because of such physical circumstances or
conditions, there is no possibility that the property can be developed in strict
conformity with the provisions of the zoning ordinance[.]” Code § 922.09.E.


       14
           See R.R. at 67 (Applicant’s counsel represented: “And the reason, really, for adding the
strip of land in the back was to provide for secondary egress from the apartments, from the
residential properties.”).
        15
            “Substantial evidence is such relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.” DiMattio v. Millcreek Twp. Zoning Hearing Bd., 147 A.3d 969,
974 (Pa. Cmwlth. 2016) (quoting Eichlin v. Zoning Hearing Bd. of New Hope Borough, 671 A.2d
1173, 1175 (Pa. Cmwlth. 1996)).
                                                12
             In Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 721
A.2d 43 (Pa. 1998), the Pennsylvania Supreme Court explained:

             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.

Id. at 47. “[T]he quantum of proof required to establish unnecessary hardship is
indeed lesser when a dimensional variance, as opposed to a use variance, is sought.”
Id. at 48. Further,

             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 49 (quoting in Vitti v. Zoning Bd. of Adjustment of the City of Pittsburgh, 710
A.2d 653, 658 (Pa. Cmwlth. 1998)).
             Here, Fatla testified, that the buildings were somewhat of a locus of legal
activity and predatory businesses for many years, and that Applicant had to purchase
them in order to eliminate that blight. Further, he related that it was a preservation
strategy, the reality of which is that a sufficient number of apartments are required to
carry the cost of the project. This evidence supports the existence of the unnecessary
hardship and Applicant’s need to obtain dimensional variances from the Code’s FAR
and off-street loading space requirements in order to remediate and preserve what has
become deteriorated buildings in this neighborhood. Accordingly, the trial court
properly affirmed the ZBA’s grant of a dimensional variance allowing a FAR of
2.66:1, and a variance permitting zero off-street loading space.

                                          13
             Objectors further assert that the trial court erred by affirming the ZBA’s
grant of special exceptions permitting a restaurant use in the LNC district,16 off-site
parking,17 and a 5.61-foot rear setback of a property within 50 feet of a RIA-VH
zoning district.18 Specifically, Objectors contend that, since the restaurant use was
abandoned, it is no longer a permitted non-conforming use; substantial evidence does
not support the number of parking spaces purportedly available for sublease; and
extending LNC district uses beyond the boundaries does not mitigate the impact of
such uses. The ZBA rejoins that, pursuant to Section 921.02.B.2(d) of the Code, the
restaurant use was not abandoned; Applicant presented a letter of intent from Priory
Hospitality, Inc.’s (Priory) Chief Executive Officer (CEO) to sublease 6 parking
spaces from Priory’s Nash Street lot; and, while zoned residential and historical, the
consolidated strip will act as a buffer and offer a level of setback.
             This Court has explicated:

             Generally speaking, ‘[a] special exception is not an
             exception to a zoning ordinance, but rather a use which is
             expressly permitted, absent a showing of a detrimental
             effect on the community.’ Manor Healthcare Corp. v.
             Lower Moreland [Twp.] Zoning Hearing [Bd.], . . . 590
             A.2d 65, 70 ([Pa. Cmwlth.] 1991). In other words, as stated
             in our seminal decision in Bray v. Zoning Board of
             Adjustment, . . . 410 A.2d 909, 911 ([Pa. Cmwlth.] 1980),
             ‘[t]he important characteristic of a special exception is that
             it is a conditionally permitted use, legislatively allowed if
             the standards are met.’
             This Court recently explained that an applicant for a special
             exception has both the duty of presenting evidence and the
             burden of persuading the zoning hearing board that the
             proposed use satisfies the objective requirements of the
             zoning ordinance for the grant of [a] special exception.


      16
         Section 911.02 of the Code permits a restaurant in the LNC district as a special exception.
      17
         Section 914.04.G.1(a) of the Code permits off-street parking as a special exception.
      18
         Section 916.09 of the Code permits reduced rear setbacks as a special exception.
                                                14
Tower Access Grp., LLC v. S. Union Twp. Zoning Hearing Bd., 192 A.3d 291, 300
(Pa. Cmwlth. 2018).
            Section 922.07.D.1 of the Code specifies the “General Criteria” for
special exceptions:

            The [ZBA] shall approve [s]pecial [e]xceptions only if (1)
            the proposed use is determined to comply with all
            applicable requirements of this Code and with adopted
            plans and policies of [Pittsburgh] 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 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


                                         15
             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.
             With respect to Applicant’s proposed restaurant use, “Restaurant
(General)” is listed as a special exception in the use table under Section 911.02 of the
Code, and the “Use Standards” are described in Section 911.04 of the Code.
Specifically, Section 911.04.A.57(a) of the Code provides:

             In LNC . . . Districts.
             Restaurant (General) uses shall be subject to the following
             standards in the LNC. . . Districts:
             (1) Parking facilities and access shall be designed and
             located to clearly meet the demand of the facility in a way
             which does not interfere with parking spaces required for
             surrounding residential uses;
             (2) Off-site impacts of the use, which are directly
             attributed to activities occurring on-site, shall be controlled
             to avoid conflicts with surrounding residential use; and
            (3) The proposed use shall be subject to the Site Plan
            Review procedures of Section 922.04 [of the Code].
Code § 911.04.A.57(a).
             Relative to the restaurant use, Hart testified:
             [] MITINGER: If it had been used as restaurants previously,
             and the request is for reconfiguration and renovating, for
             whichever restaurant is so lucky to be in this renovated
             building.
             [] HART: Indeed.


                                           16
            [] MITINGER: I guess the question is, what is the square
            footage, because that would be part of our understanding of
            the parking needs.
            And if there’s an understanding as to whether any
            additional square footage is being used for the restaurant
            use, or you just are maintaining what had been there --
            [] HART: There would be a small increase in the square
            footage. We are looking at expanding, to provide
            potentially restroom space.
            We had been informed by city planning that the overall
            parking count, and we’ll get to this obviously in the next
            discussion, it would require one additional parking space
            for the commercial use.
R.R. at 58-59 (emphasis added).
            Fatla further testified:
            [] MITINGER: And it is intended that the restaurant use
            would be generally consistent with the restaurant that was
            there previously, in terms of operations?
            [] FATLA: I’ll speak to that. Yes, albeit, hopefully
            different terms of quality. But the nature of the operation
            would be similar.
            [] MITINGER: As the owner of the building, would you
            propose any requirements about hours of operation, or
            anything of that nature?
            [] FATLA: My guess is that would be part of the discussion
            during the lease process, and the neighboring organization
            would be involved in that conversation.
            Typically, we’re looking at closures around 11:00 or 12:00,
            but there are existing bars on this street. So it’s an active,
            shall we say, restaurant and bar district.
R.R. at 59-60.

            With respect to the parking spaces, Fatla declared: “[W]ith regard to
commercial parking, there’s a commercial lot for the walkway, which will primarily

                                         17
serve a restaurant nature. That lot is no more than a third occupied – it’s vastly
underutilized.” R.R. at 69.
             In the instant matter, the ZBA concluded:
             15. [] Applicant seeks a special exception to allow the
             restaurant (general) use in the LNC [d]istrict, within the
             space previously used for a restaurant on the first and
             second floors of the building on the 408-410 East Ohio
             Street po[r]tion of the site.
             16. The existing valid 1991 Certificate of Occupancy
             permits the restaurant use. To the extent that [] Applicant
             proposes to expand the use by 240 [square feet], it has
             demonstrated compliance with the Code’s criteria for
             the special exception. No credible evidence and only
             speculation of any detrimental impact was presented in
             opposition to the proposed restaurant use.

R.R. at 16 (emphasis added).
             Because the location has been used as a restaurant since 1991, Hart
testified the additional 240 square feet was intended to be used for restrooms and
required only one additional parking space, and Fatla testified to available parking
spaces within walking distance and the neighboring community’s involvement with
discussions concerning the hours of operation, this Court concludes the trial court
properly affirmed the ZBA’s grant of a special exception permitting a restaurant use
in the LNC district.
             Concerning the off-site parking, Section 914.07.G.2 of the Code
provides, in relevant part:

             The [ZBA] shall be authorized, in accordance with the
             Special Exception provisions of Sec[tion] 922.07 [of the
             Code], to consider and approve any alternative to providing
             off-street parking spaces on the site of the subject
             development if the applicant demonstrates to the
             satisfaction of the [ZBA] that the proposed plan will result
             in a better situation with respect to surrounding
             neighborhoods, citywide traffic circulation and urban

                                         18
design than would strict compliance with otherwise
applicable off-street parking standards.
(a) Off-Site Parking
The [ZBA] shall be authorized, in accordance with the
Special Exception provisions of Sec[tion] 922.07 [of the
Code], to permit all or a portion of the required off-street
parking spaces to be located on a remote and separate lot
from the lot on which the primary use is located, subject to
the following standards.
(1) Location
No off-site parking space shall be located more than one
thousand (1,000) feet from the primary entrance of the
use served, measured along the shortest legal, practical
walking route. This distance limitation may be waived by
the [ZBA] if adequate assurances are offered that van or
shuttle service will be operated between the shared lot and
the primary use.
(2) Zoning Classification
Off-site parking areas shall be considered accessory uses of
primary uses that the parking spaces are intended to serve.
Off-site parking areas shall require the same or a less
restrictive zoning classification than that required for the
use served.
(3) Report from Planning Director
The [ZBA] shall request a report and recommendation from
the Planning Director on the planning aspects of the
proposed shared parking use.
(4) Off-Site Parking Agreement
In the event that an off-site parking area is not under
the same ownership as the primary use served, a written
agreement among the owners of record shall be
required. An attested copy of the agreement between the
owners of record shall be submitted to County Recorder’s
Office for recordation on forms made available in the office
of the Zoning Administrator. Proof of recordation of the
agreement shall be presented to the Zoning Administrator
prior to issuance of a building permit. An off-site parking
                            19
               agreement may be revoked by the parties to the agreement
               only if off-street parking is provided on-site pursuant to
               Sec[tion] 914.02.A [of the Code] or if an Alternative
               Access and Parking Plan is approved by the [ZBA] pursuant
               to Sec[tion] 914.07 [of the Code].

Code § 914.07.G.2.
               Here, Applicant’s Counsel explained: “If you look in our exhibit book, I
believe it’s Exhibit[s] 9 through 11, you will see we entered into an agreement with []
Priory, to use space in their lot.” R.R. at 60. Exhibit 9 is a copy of a letter from
Priory’s President and CEO, which states:

               Pursuant to the required off-street parking for the
               redevelopment of the properties that [Applicant] is
               developing at 404-410 East Ohio Street, [Priory] will to be
               happy to sublease six (6) reserved parking stalls to
               [Applicant] from its parking lot on Nash Street. Note the
               Nash Street parking lot is leased to the [Priory] by the City
               of Pittsburgh until 2044, at which time the lease is
               renewable for another 49 years.

R.R. at 134.
               The ZBA concluded:

               Applicant also seeks a special exception to provide six off-
               site parking spaces on a lot, owned by [] Priory, at the
               corner of East Ohio Street and Nash Street. That site is
               within 1,000[] [feet19] of the primary entrance of the
               building at issue, within the same LNC [d]istrict, and []
               Applicant intends to record its lease for the spaces in that
               lot. Substantial evidence thus supports [] Applicant’s
               compliance with the criteria for the proposed special
               exception and no substantial, or credible evidence of any
               detrimental impact of the proposed off-site parking
               arrangement was presented.




       19
           Hart testified that “[i]t’s less than a thousand linear feet from the entrance door of the
residences or the commercial buildings to the parking lot.” R.R. at 72. Exhibit 11 describes that the
“[t]otal distance [is] 999.00 [feet.]” R.R. at 136.
                                                 20
R.R. at 16. This Court concludes that Applicant has complied with the off-site
parking standards. Accordingly, the trial court properly affirmed the ZBA’s grant of
a special exception for off-site parking.
             Relative to the 5.61-foot rear setback of a property within 50 feet of a
RIA-VH district, Section 916.02.A.7 of the Code mandates a minimum 15-foot rear
setback for any property that abuts the interior sideyard of an “R” zoned lot. Code §
916.02.A.7. Pursuant to Section 916.09 of the Code,

             [t]he [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; [and]
             B. The [ZBA] shall impose alternative methods which will
             cause the development to comply with the purpose of the
             Residential Compatibility Standards;
            ....
Code § 916.09.
             The ZBA concluded:
             The current configuration of the building does not conform
             to this Standard and [] Applicant has made an effort to
             mitigate the impact of the LNC [district] uses on the R
             [d]istrict by acquiring the additional area and creating a rear
             setback, where none existed. [] Applicant recognizes that
             this area is within an historic district and that its proposed
             use is also subject to the Historic Review Commission’s
             review. From a zoning perspective, no substantial or
             credible evidence was presented of any detrimental impact
             that would preclude [a] grant of the requested waiver of the
             residential compatibility standard.


                                            21
R.R. at 16. Because the ZBA considered the impact of the proposed development on
the adjoining R district, observed that Applicant had provided an alternative method
of protecting the neighboring residential properties through the acquisition of the strip
of land (the use of which was restricted due to its location in a historic district), and
found that no credible evidence of detriment to the surrounding properties was
presented, this Court concludes that the ZBA did not err in granting the special
exception allowing for the waiver of the 15-foot rear setback requirement for the
Property. Accordingly, the trial court properly affirmed the ZBA’s grant of a waiver
of the Residential Compatibility Standards.
             Finally, Objectors maintain that the trial court erred by affirming the
ZBA’s grant of zoning relief where, even with the relief requested, the proposed
development would not comply with zoning requirements. Specifically, Objectors
contend that Applicant’s proposed plan violates Section 914.06.A of the Code by not
providing parking for disabled persons. However, because the trial court did not take
additional evidence, our review is limited to the ZBA’s determinations. See Society
Hill Civic Ass’n. Accordingly, since Section 914.06.A of the Code was not before the
ZBA, it is not now before this Court.
             For all of the above reasons, the trial court’s order is affirmed.



                                        ___________________________
                                        ANNE E. COVEY, Judge




                                           22
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stephen Pascal and Chris Gates,         :
                  Appellants            :
                                        :
            v.                          :
                                        :
City of Pittsburgh Zoning Board of      :
Adjustment, and City of Pittsburgh      :   No. 496 C.D. 2019
and Northside Leadership Conference     :


                                   ORDER

            AND NOW, this 28th day of February, 2020, the Allegheny County
Common Pleas Court’s March 27, 2019 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
