           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen Pascal, Chris Gates, and      :
Barbara Burns,                        :
                         Appellants   :
                                      :
                    v.                :     No. 337 C.D. 2019
                                      :     Argued: October 3, 2019
City of Pittsburgh Zoning Board of    :
Adjustment, James Street Parking LLC, :
Sean Lange and Morgan Kronk, and      :
City of Pittsburgh and James Street   :
Parking, LLC                          :



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


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                        FILED: April 8, 2020


      Stephen Pascal (Pascal), Chris Gates (Gates), and Barbara Burns (Burns)
(collectively, Objectors) appeal from an Order of the Court of Common Pleas of
Allegheny County (common pleas) dated February 5, 2019, which affirmed the
Decision of the City of Pittsburgh Zoning Board of Adjustment (Board) granting
James Street Parking, LLC (Applicant) two special exceptions, two variances, and a
modification of a previous zoning decision issued by the Board.       On appeal,
Objectors generally argue that the Board erred in granting the above relief. Upon
review, we affirm.
   I. Factual Background and Procedure
       A. Zoning Application
       Applicant owns and operates a parking lot (Parking Lot or Lot) located at 713-
719 James Street, Pittsburgh, Pennsylvania. In 1998, a previous owner of the
Parking Lot applied for and received a Certificate of Occupancy from the City of
Pittsburgh (City) to operate the Parking Lot as a “Sixteen (16) Stall Residential
Community Parking Lot.” (Reproduced Record (R.R.) at 76a.) In 2018, Applicant
filed an application (Application) seeking to “re-stripe existing parking lot to expand
accommodation from 16 to 23 stalls.” (Id. at 45a.)


       B. Board Hearing
       The Board scheduled a public hearing on the Application for April 11, 2018.
The “Notice of Public Hearing” advertised that Applicant sought to “[r]e-stripe
existing parking lot to expand accommodation from 16 to 23 stalls” and that
“[e]nlargement of an existing commercial parking [lot] is a [s]pecial [e]xception.”
(Id. at 48a.)
       At the hearing, two architects, Sean Lange (Lange) and Morgan Kronk
(Kronk), testified on behalf of Applicant by answering questions posed by members
of the Board. Lange testified that the Parking Lot, while only approved for 16
spaces, is currently striped for 24 spaces. (Id. at 446a.) He stated that Applicant
proposes restriping the Parking Lot to reduce the number to 23 parking spaces,
including a handicap accessible space and two bicycle spaces. In addition to the
restriping, Lange stated that Applicant also seeks review of whether lighting is
permitted at the Parking Lot. (Id. at 448a-49a.) Lange acknowledged that in 1998
the Board reviewed a zoning application pertaining to the Parking Lot and that, per



                                          2
the Board’s decision (1998 Decision),1 the addition of lighting required Board
approval. (Id.) Lange also acknowledged that, without the Board’s approval, lights
were added to the Parking Lot at the request of law enforcement. (Id.) As to the
aesthetics of the Parking Lot, Lange proposed adding wrought iron fencing along
the front of the Parking Lot, as well as evergreen shrubbery and trees beside the
entrance to the Parking Lot. (Id. at 450a-51a.) Lange also proposed removing the
chain link fence that runs along the back of the Parking Lot and replacing it with
wood slats to help block the light produced by the headlights of cars parking in the
Parking Lot. (Id. at 453a.) Lange emphasized that the Parking Lot would not be
used for commercial parking but rather 20 of the 23 spaces would be leased by two
nearby apartment buildings because those buildings did not have “enough parking []
as was needed.” (Id. at 451a-52a.) Lange also testified that the certificates of
occupancy of the two apartment buildings was tied to their use of the Parking Lot.
(Id. at 452a.)
      Kronk testified that the Application is merely a request to restripe the Parking
Lot to provide for 23 spaces, that the size of the Lot would not increase, and that the
Parking Lot would continue as a “residential parking lot for residential use.” (Id. at
440a-41a.)       With regard to whether the proposed use of the Parking Lot is
commercial in nature, the Zoning Case Administrative Officer (Zoning Officer)
asserted at the hearing that there was a “misunderstanding with how the City is using
commercial here,” as “[t]he City defines commercial [] broadly.” (Id. at 443a-44a.)
The Zoning Officer concluded that because the Parking Lot “is part of a lease
arrangement not tied to one single owner, but several buildings, several residential
uses, it’s still considered commercial.” (Id. at 444a.) In response, Kronk stated


      1
          The Board’s 1998 Decision is located at pages 367a-71a of the Reproduced Record.


                                               3
“[t]hat’s the understanding that we have of the commercial use.” (Id.) Like Lange,
Kronk also testified that use of the Parking Lot was tied to the certificates of
occupancy of the two apartment buildings. (Id. at 452a.)
      At the hearing, Objectors Burns and Gates spoke in opposition to the
Application. Burns, a resident of the neighborhood where the Parking Lot is located
and an owner of a business in the area, noted that the notice of the hearing stated its
purpose was to consider the expansion of a commercial parking lot. However, Burns
asserted, pursuant to prior litigation, the Parking Lot cannot be utilized for
commercial parking. (Id. at 456a-60a.) However, Burns acknowledged that she
understands the Parking Lot is intended to be used as “a residential lot” to “support[]
residential development.” (Id. at 456a.) Burns also expressed some concerns with
respect to the aesthetics of the Parking Lot. Burns acknowledged that while the
proposed alterations are a “step in the right direction,” she was disappointed that the
proposed changes did not include replacing the cinder block pillars at the entrance
of the Parking Lot with brick pillars. (Id.) Lastly, Burns expressed that “[s]ome of
the problems the community has confronted” with the Parking Lot stem from the
fact that “there is no one in charge” at the Parking Lot, that “there’s no attendant
there.” (Id. at 456a-57a.)
      Gates, a local resident, also expressed concerns regarding the use of the term
“commercial” and whether the Parking Lot is being used commercially. Gates
argued that the term “commercial” was being used “with two different definitions”
and that he would appeal any “permit that includes the terminology commercial,
even if it is understood within certain parts of the City that it means one thing
because it could be understood otherwise.” (Id. at 458a-59a.) Nonetheless, Gates
asserted the Parking Lot is currently being used for commercial purposes. As



                                          4
support, Gates presented pictures to the Board, which purportedly show workers
from a nearby restaurant getting into vehicles parked in the Parking Lot. (Id. at 460a-
61a.) Gates also took issue with the possibility of the Board granting Applicant
variances for relief from the side and rear setback requirements set forth in the
Zoning Code of the City of Pittsburgh, Pennsylvania (Code) and relief from the
Code’s screening requirements because “[t]here is no hardship that runs with this
parcel.” (Id. at 460a.) Gates also argued that the proposed alterations do not
adequately address the issue of vehicle headlights shining into nearby homes.
Further, Gates argued that the Parking Lot violates the Code in several respects,
specifically that the entrance to the Parking Lot is too close to an intersection and
that the Parking Lot is not fully screened from view.
      After the hearing, Objectors submitted letters in opposition to the Application.
In addition to the issues she raised at the hearing, Burns, in her letter, asserted that
the proposed changes leave some issues unresolved. Specifically, Burns argued that
pursuant to a 1996 decision by the Board (1996 Decision),2 access to the Parking Lot
is supposed to be by means of an automatic parking gate and any decision issued by
the Board should maintain such a requirement because the “window sticker
monitoring system is inadequate to address the problems associated with this
[P]arking [L]ot.” (R.R. at 109a.) Again citing the 1996 Decision, Burns argued the
Board should require Applicant to construct a brick wall along the back of the
Parking Lot. (Id.) Additionally, Burns asserted that the Board should require the
aesthetics of the Parking Lot be improved in order to “enhance the architectural
streetscape of the James Street corridor.” (Id.) Further, Burns asserted that “the
Board[’s] decision should ensure better maintenance and security” of the Parking


      2
          The Board’s 1996 Decision is located at pages 372a-76a of the Reproduced Record.


                                               5
Lot. (Id.) Since the Parking Lot is to be leased out to two nearby apartment
buildings, Burns argued the Parking Lot should not be permitted to have a sign
advertising spaces for lease. (Id. at 110a.) Lastly, Burns asserted that the Board
should require Applicant to use “decorative and/or street level lighting” because the
current wall-mounted lighting system shines outside the Parking Lot and into nearby
homes. (Id.)
      In his letter in opposition to the Application, Gates again asserted that the
Parking Lot is currently being used as commercial parking. Gates asserted that
pursuant to this Court’s decision in East Allegheny Community Council v. City of
Pittsburgh Zoning Board of Adjustment (Pa. Cmwlth., No. 670 C.D. 1994, filed May
22, 1995) (concluding, inter alia, that pursuant to the zoning ordinance in effect at
that time, the then owner of the Parking Lot could not continue to utilize the Lot for
commercial parking in the district in which the Lot is located), prior decisions issued
by the Board, and the Code, the Parking Lot cannot be used for commercial parking.
(Id. at 100a-01a.) As to the proposed restriping, Gates asserted that, pursuant to the
Code, a nonconforming use in a residential district cannot be increased more than
15% and that the Application proposes to increase the number of spaces from 16 to
23 spaces, which is an increase of greater than 25%. (Id. at 101a.) Gates argued the
greatest permissible increase in the number of spaces would be the addition of two
spaces. (Id. at 102a.) Because the Application proposes to add more than two
spaces, Gates concluded the proposed use of the Parking Lot violates the Code. (Id.)
Gates also asserted that the 1996 and 1998 Decisions should not be modified to allow
lighting on the Parking Lot without the submission of detailed specifications because
the “needs of residential lighting are substantially different from those for




                                          6
commercial purposes.” (Id. at 103a.) Additionally, Gates, like at the hearing, argued
that the Parking Lot violates various provisions of the Code.
      Pascal, a local resident who was not present at the hearing, also submitted a
letter in opposition to the Application. In his letter, Pascal, like Gates, argued that,
pursuant to a prior decision from this Court and the Code, the Parking Lot cannot be
utilized for commercial parking. (Id. at 106a.) Additionally, Pascal asserted that
there is no hardship that runs with the Parking Lot and, therefore, the Board should
not grant Applicant the requested variances and special exceptions. (Id.) Pascal
concluded by stating that “[i]n order to receive the permitted increase in residential
parking, the [Applicant] must bring the [Parking Lot] up to modern standards.” (Id.
at 107a).


      C. Board’s Decision
      On July 26, 2018, the Board issued its Decision on the Application. The
Board’s Decision granted Applicant two special exceptions, two variances, and a
modification of the 1998 Decision. The Board, in relevant part, made the following
findings of fact:

      1.    The [Parking Lot] extends from 713 to 719 James Street in an
      R1A-VH (Residential Single-Unit, Very High Density) District in the
      East Allegheny neighborhood. Moravian Way is located at the rear of
      the [Parking Lot].

      2.     A July 19, 1998 Certificate of Occupancy permits [a] “16 stall
      residential commuting parking lot” and the property is currently used
      for a parking lot.

      3.      The existing [P]arking [L]ot on the property extends to all four
      property lines and buildings extend to the property lines on both interior
      sides. A 3.5’ concrete block [wall], with chain-link fencing on top of
      it, is located on the Moravian Way property line. The fence was


                                           7
installed as a security measure to extend the height of the barrier on that
side of the [P]arking [L]ot.

4.     Access to the [P]arking [L]ot is by means of a 12’ curb on James
Street. Concrete pillars are located on each side of the entrance.

5.     Lighting has been installed for the [P]arking [L]ot, mounted on
the sides of the adjacent abutting buildings.

6.     The spaces within the [Parking] [L]ot are to be leased to residents
of two nearby multi-residential buildings, at 500 Lockhart Street and
600 Cedar Street. A total of 23 off-street parking spaces are required
for those two developments.

7.     In [the 1998 Decision], the Board approved the [then owner’s]
request for variances from the Code’s setback provisions to permit use
of the [Parking Lot] as [a] residential community parking lot with 16
spaces, subject to the following conditions:

           a. Use shall be exclusively by residents of the
              neighborhood for the parking of noncommercial vehicles
              ...;
           b. Access to the [P]arking [Lot] will be by means of an
              automatic parking gate, and only residents of the
              neighborhood with leases shall have access, with leases
              to be made available for inspection by the community;
           c. The [P]arking [L]ot shall be kept paved, with striping
              and wheel stops;
           d. The constructed wall along the Moravian Way consists
              of 3[.5’] high concrete block with [a] 40” wide black
              wrought iron gate, with the gate locked at all times.
              Plantings shall be maintained on James Street;
           e. Applicant shall comply with the 1998 site plan;
           f. No dumpsters or trash receptacles [shall] be placed on
              the property except with the approval of the [z]oning
              [a]dministrator. The property shall be kept free of trash;
           g. Improvements and maintenance of the property shall be
              subject to the review and approval [of the] [z]oning
              [a]dministrator; and
           h. No lighting shall be installed without approval of the
              Board.



                                    8
      8.     Although the Certificate of Occupancy allows use of the property
      for 16 parking spaces, the Applicant indicated that i[t] has been used
      for 24 spaces for a considerable period of time, within the same
      footprint as approved for parking in 1996. The lighting was installed
      without the Board’s approval. However, the Applicant explained that
      it had been installed at the request of law enforcement and community
      officials, to address safety and security concerns.

      9.      The Applicant now proposes to restripe the parking lot for 23
      spaces, without altering the existing [P]arking [L]ot footprint. The
      Applicant proposes to reduce the area used for parking and to provide
      180 sf [(square feet)] of additional landscaping and screening. The
      Applicant would also replace the deteriorating pillars at the James
      Street entrance with brick pillars and wrought-iron fencing to enhance
      the appearance of the entrance to the [L]ot[.] The Applicant would
      install opaque fencing on the Moravian Way side to limit the impact of
      car headlights within the [L]ot.

      10. The Applicant also seeks [] review and approval of the lighting
      that has been installed, at the request of law enforcement and
      community, for safety purposes.

(Board’s Decision, Findings of Fact (FOF) ¶¶ 1-10.) Based upon the above findings
of fact, the Board, in relevant part, made the following conclusions of law:

      1.     The Applicant seeks a special exception pursuant to Code
      Section 921.02.A.1 to permit the expansion of the [P]arking [L]ot from
      16 to 23 spaces, and a special exception pursuant to Code Section
      914.07.G.2 to permit use of the [L]ot for off-site parking. The
      Applicant also seeks variances from Section 903.03.E.2, the Code’s
      rear and side setback requirements[,] and Section 918.03.A, the Code’s
      screening requirement for parking lots.

      2.    Additionally, the Applicant seeks approval for the lighting in the
      [P]arking [L]ot, and thus seeks a modification of one of the conditions
      the Board imposed in [] [the 1998 Decision].

      3.    The Board concludes that Code Section 907.03.A, the North Side
      Commercial Parking Overlay District [(NSCPO)], is not applicable to
      the [Parking Lot] because the site is not currently vacant and the [L]ot



                                         9
      is intended for use as an accessory off-site parking for residents in the
      immediate vicinity and not for commercial parking.

      4.     Code Section 922.09.E sets forth the general conditions the
      Board is to consider with respect to variances. The Pennsylvania
      Supreme Court has summarized the criteria for determining whether to
      grant a variance as: 1) unique circumstances or conditions of a property
      would result in [] an unnecessary hardship; 2) no adverse effect on the
      public welfare; and [] 3) [the] variance proposed is the minimum
      variance that would afford relief with the least modification possible.
      Marshall v. City of Philadelphia and Zoning Bd. of Adj[ustment], 97
      A.3d 323, 329 (Pa. 2014); see also Hertzberg v. Zoning Bd. of
      Adj[ustment] of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998)[(citing
      Allegheny West Civic Council v. Zoning Bd. of Adj[ustment] of the City
      of Pittsburgh, 689 A.2d 225 (Pa. 1997))].

      5.    In Hertzberg, the Court recognized that a less restrictive standard
      is appropriate for dimensional variances, which require only a
      reasonable adjustment of the zoning regulations to accommodate a use
      of property that is permitted. Hertzberg, 721 A.2d at 47-48.

      ...

      8. The Board concludes that maintaining the existing and long-term
      parking lot use, with the 7 additional spaces, the expanded and
      improved [P]arking [L]ot will have the effect of improving
      neighborhood conditions through the improvement of the James Street
      and Moravian Way frontages. It thus concludes that the requested
      special exception to allow the expansion for the nonconforming parking
      lot use, and the associated special exceptions for waiver of residential
      compatibility standards and dimensional variances are appropriate,
      subject to the conditions set forth below.

(Id., Conclusions of Law (COL) ¶¶ 1-5, 8.) Accordingly, the Board ordered as
follows:

      The Applicant’s request for special exceptions to Code Sections
      921.02.A.1 and 914.07.G.2; variances from Code Sections 903.03.E.2
      and 918.03.A; and modification of the lighting condition in [the 1998
      Decision] is hereby APPROVED, subject to the following conditions:



                                         10
               1.     The Applicant shall make improvements to the [Parking
               Lot], consistent with the site plan submitted to the Board,
               including installation of a 42” wrought-iron fence on the James
               Street property line; additional plantings on both the front and
               rear property line; and a wooden privacy fence on the Moravian
               Way property line;

               2.    Proposed landscaping shall be approved [by] the City
               Planning Department, in consultation with the East Allegheny
               Community Council;

               3.    Concrete pillars at the James Street entrance shall be
               replaced with brick pillars; and

               4.    The 23 parking spaces will be used for residential parking
               only, with preference given to tenants of the properties at 600-
               606 Cedar Avenue and 502 Lockhart Street.

(Id. at 4.)


       D. Appeal to Common Pleas.
       Objectors appealed the Board’s Decision to common pleas. Objectors and
Applicant filed briefs, and common pleas held oral argument on January 22, 2019.
Thereafter, without taking additional evidence, common pleas, by Order dated
February 5, 2019, affirmed the Board’s Decision. Objectors then filed the present
appeal with this Court.


   II. Discussion
       On appeal,3 Objectors generally argue that the Board erred by: (1) granting
Applicant a special exception to Section 921.02.A.1 of the Code; (2) granting

       3
         “Our scope of review where the trial court took no additional evidence is limited to
determining whether the Board committed an error of law or abused its discretion. A zoning
hearing board abuses its discretion only if its findings are not supported by substantial evidence.”



                                                11
Applicant a special exception to Section 914.07.G.2 of the Code; (3) granting
Applicant variances from Sections 903.03.E.2 and 918.03.A of the Code; and (4) the
Parking Lot violates the Code even with the relief granted by the Board.
       In reviewing this matter,

       [t]his Court may not substitute its interpretation of the evidence for that
       of the [Board]. It is the [Board]’s function to weigh the evidence before
       it. The [Board] is the sole judge of the credibility of witnesses and the
       weight afforded their testimony. We must view the evidence in a light
       most favorable to the prevailing party, who must be given the benefit
       of all reasonable inferences arising from the evidence.

Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118 A.3d 1, 13 (Pa. Cmwlth. 2015)
(citations omitted).


       A. Whether the Board erred in granting Applicant a special exception to
          Section 921.02.A.1 of the Code.
       Objectors argue the Board erred in granting Applicant a special exception to
Section 921.02.A.1 of the Code.            Specifically, Objectors argue4 that Section
921.02.A.1 prohibits the enlargement of a nonconforming use in a residential district
by more than 15% and since the Application proposes to increase the number of
spaces in the Parking Lot from 16 to 23, an enlargement of greater than 15%, the
Board erred as a matter of law in granting this special exception. Further, Objectors,
citing the testimony of the Zoning Officer that the proposed use of the Parking Lot
is commercial in nature, assert that the Board erred in granting this special exception
because commercial parking is not permitted in the NSCPO District. As support for

Thomason v. Zoning Hearing Bd. of Twp. of Radnor, 26 A.3d 562, 565 n.5 (Pa. Cmwlth. 2011)
(citations omitted). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Coal Gas Recovery, L.P. v. Franklin Twp. Zoning
Hearing Bd., 944 A.2d 832, 838 n.9 (Pa. Cmwlth. 2008).
        4
          Objectors’ arguments have been rearranged for ease of discussion.


                                              12
their argument that the Parking Lot is commercial in nature, Objectors contend that
the Parking Lot cannot be accessory parking for the two apartment buildings for two
reasons. First, the Code, Objectors argue, permits off-site accessory parking for a
single primary lot. Since the Parking Lot is intended to be used as accessory parking
for two apartment buildings, Objectors assert the Lot cannot be construed as an
accessory use. Second, Objectors, citing Lange’s testimony “that only 20 of the
proposed 23 spaces would be leased by the residents of” the two apartment buildings,
assert that the Parking Lot is not accessory parking because three spaces will not be
leased by the two apartment buildings; therefore, the Parking Lot “must be
characterized as [] commercial parking” because the entirety of the Lot will not be
used as accessory parking. (Objectors’ Brief (Br.) at 11.) In addition, Objectors also
argue that the Board ignored the fact that the Parking Lot is not in compliance with
several provisions of the Board’s 1998 Decision. Specifically, Objectors aver the
Parking Lot does not have an automatic parking gate nor does it have wheel stops.
Since the Parking Lot is not in compliance with the 1998 Decision, Objectors
contend the Board erred by granting this special exception.
      Applicant responds5 by arguing that it is not clear it even needs this special
exception in order to restripe the Parking Lot. Applicant contends that since its
proposal does not involve increasing the footprint of the Parking Lot, and in fact
proposes decreasing the Lot’s footprint, this special exception is not needed.
Further, Applicant argues that the proposed use of the Parking Lot is not commercial
in nature, but to the extent that it is, the Lot is a preexisting nonconforming use. As
such, Applicant asserts, the prohibition of commercial parking in the NSCPO
District does not apply to the Parking Lot since it was already in existence.


      5
          The City and the Board joined in the brief filed by Applicant and Kronk.


                                               13
      Preliminarily, before turning to the merits of the parties’ arguments, we
recount the law regarding special exceptions. “A special exception is not an
exception to a zoning ordinance but rather a use which is expressly permitted absent
a showing of detrimental effect on the community.” Freedom Healthcare Servs.,
Inc. v. Zoning Hearing Bd. of City of New Castle, 983 A.2d 1286, 1291 (Pa. Cmwlth.
2009). As such, “[a] special exception is . . . not an ‘exception’ to the zoning
ordinance, but a use permitted conditionally, the application for which is to be
granted or denied by the zoning [] board [of adjustment] pursuant to express
standards and criteria.” Monroe Land Invs. v. Zoning Bd. of Adjustment, 182 A.3d
1, 7 (Pa. Cmwlth. 2018) (quoting In re Appeal of Brickstone Realty Corp., 789 A.2d
333, 340 (Pa. Cmwlth. 2001)).
      The applicant for a special exception has the burden of demonstrating that a
proposal meets the objective (specific) criteria set forth in a zoning ordinance.
Freedom Healthcare Servs., Inc., 983 A.2d at 1291. Once an applicant meets its
burden, “a presumption arises that the use is consistent with the health, safety[,] and
general welfare of the community.” Id. The burden then shifts to the objectors of
the proposal to demonstrate that the proposal “will have a generally detrimental
effect” to health, safety, and welfare (general criteria). Id. “The evidence presented
by [the] objectors must show a high probability that the use will generate adverse
impacts not normally generated” by the specific type of proposed use, “and that these
impacts will pose a substantial threat to the health and safety of the community.” Id.


             (1)    Whether the Application proposes an impermissible expansion.
      Objectors argue that the Application proposes to enlarge the Parking Lot by
more than 15% and, therefore, the special exception should have been denied since



                                          14
the Application proposes an impermissible expansion. Pursuant to Section 921.02
of the Code, “[a] nonconforming use which has a valid Certificate of Occupancy and
lawfully occupies a structure or vacant site on the date that it becomes
nonconforming may be continued as long as it remains otherwise lawful.” Section
921.02.A.1 provides that “[a] nonconforming use may not be enlarged, expanded or
extended to occupy parts of another structure or portions of a site that it did not
occupy on the date that it became nonconforming, unless approved by the []
Board.” (Emphasis added.) Specifically, the Board

      shall not allow as a special exception any enlargement, expansion or
      extension that has the effect of increasing the total floor area or lot
      coverage of a nonconforming use . . . by more than fifteen (15) percent
      in a residential zoning district, when compared to the floor area or site
      area coverage of the nonconforming use at the time it became
      nonconforming.

Section 921.02.A.1(a)(1) of the Code (emphasis added).
      Here, the Application proposes restriping the Parking Lot to increase the
number of spaces from 16 to 23. Objectors argue that this is an impermissible
expansion because the increase in the number of spaces is greater than 15%.
However, in reaching this conclusion, Objectors misinterpret Section 921.02.A.1 of
the Code. The focus of that section is whether an alteration of a nonconforming use
increases the footprint of that use. Lange and Kronk testified, and the Board
specifically found, that the proposed alterations of the Parking Lot would not
increase the footprint of the Parking Lot. (Board’s Decision, FOF ¶ 9.) Further, the
Board found that the proposed alterations to the Parking Lot would actually decrease
the lot coverage of the Lot. (Id.) Significantly, the Board also found that “[t]he
existing [P]arking [L]ot on the property extends to all four property lines.” (Id., FOF
¶ 3.) As such, it would be impossible for the Parking Lot to be enlarged, expanded,

                                          15
or extended to occupy new areas not already occupied or to “increase[] the total floor
area or lot coverage,” Section 921.02.A.1 of the Code, since the Lot is already built
out to the full perimeter of the property on which it sits. Thus, to the extent that a
special exception was needed to restripe the Parking Lot, the Board did not err as a
matter of law in granting such special exception because the proposed alterations of
the Lot do not “increase[] the total floor area or lot coverage,” id., of the Parking
Lot.


             (2)    Whether the Parking Lot is permitted in the NSCPO District.
       Objectors argue that the proposed use of the Parking Lot is commercial in
nature and, as such, is prohibited in the NSCPO District. Pursuant to Section
907.03.A of the Code, “[t]he intent of the NSCPO District is to prohibit the
installation of commercial parking areas as defined under Sec[tion] 911.02 on
vacant lots.” (Emphasis added.) Section 907.03.B of the Code provides that
“[w]hen an Occupancy Permit Application is filed for zoning approval of a
commercial parking area on property located within a NSCPO District, the Zoning
Administrator shall disapprove the application.”       The Code defines “Parking,
Commercial” as “an area used or intended to be used for the off-street parking of
operable motor vehicles on a temporary basis, other than as accessory parking to a
principal use, and excluding parking structures.” Section 911.02 of the Code
(emphasis added).
       Here, the Board found that the prohibition of commercial parking in the
NSCPO District “is not applicable to the [Parking Lot] because the site is not
currently vacant and the [L]ot is intended for use as an accessory off-site parking for
residents in the immediate vicinity and not for commercial parking.” (Board’s



                                          16
Decision, COL ¶ 3.) We agree. First, it is clear to this Court that the intended use
of the Parking Lot is not for commercial parking because Applicant does not intend
to use the Lot for temporary parking. Instead the Parking Lot “is intended for use as
an accessory off-site parking” area. (Id.) We acknowledge that there was some
confusion at the hearing as to whether the Parking Lot was commercial in nature.
Specifically, at the hearing, the Zoning Officer testified that because the Parking Lot
“is part of a lease arrangement not tied to one single owner, but several buildings,
several residential uses, it’s still considered commercial.” (R.R. at 444a.) However,
the Zoning Officer’s testimony is contrary to the definition of commercial parking
provided in the Code. Section 911.02 of the Code generally defines commercial
parking as temporary parking. We must follow the letter of the law as defined by
the Code. Therefore, because the Parking Lot is not intended for use as temporary
parking we cannot conclude, as Objectors suggest, that the Parking Lot’s use is
commercial in nature.
      Objectors also argue that the Parking Lot cannot be accessory parking and,
therefore, must be commercial parking. Specifically, Objectors assert that the
Parking Lot is not wholly accessory for two reasons. First, Objectors argue that
because the Parking Lot is intended to be used as off-site parking for two different
apartment buildings, the Lot cannot be considered accessory parking. Second, citing
Lange’s testimony at the hearing that only 20 of the 23 spaces would be used as
accessory parking for the two apartment buildings, Objectors assert the remaining 3
spaces would be used as commercial parking; thereby making the Parking Lot, at
least in part, commercial parking. However, whether the Parking Lot is indeed
accessory parking is not outcome determinative. As stated above, the proposed use
of the Parking Lot is not commercial in nature. The Board specifically ordered that



                                          17
all “23 parking spaces will be used for residential parking only.” (Board’s
Decision at 4 (emphasis added).) Therefore, whether the proposed use of the Lot is
indeed accessory or whether the proposed use is for non-accessory residential
parking is not outcome determinative. The Parking Lot is not transformed into
commercial parking simply because it is not accessory. The fact remains that the
Board authorized the use of the Parking Lot for “residential parking only.” (Id.)
      To the extent that Objectors are raising a substantial evidence argument
because the Board found that all 23 spaces in the Parking Lot would be leased by the
two apartment buildings, (Board’s Decision, FOF ¶ 6), when Lange’s testimony was
that only 20 of the 23 spaces would be leased by the two apartment buildings, (R.R.
at 451a-52a), we agree this was an error, but it does not alter the outcome. Even if
three of the spaces were not used as accessory parking for the two apartment
buildings but instead were leased to individuals for residential use, such an
arrangement would not transform the Parking Lot into commercial parking because
the three spaces would not be used as temporary parking. Therefore, under the facts
of this case, where the Board specifically ordered that all “23 parking spaces will be
used for residential parking only,” (Board’s Decision at 4), whether the Parking Lot
is wholly accessory is not outcome determinative here because it is clear from the
Board’s Decision that the Parking Lot must be used for residential parking. The fact
that the Lot may in fact contain three non-accessory residential parking spaces does
not transform the use of the Parking Lot into commercial parking.
      Further, even if the Parking Lot was used for commercial parking, that fact
alone would not bar Applicant’s ability to apply for and receive special exceptions
and variances.   Section 907.03.A of the Code “prohibit[s] the installation of
commercial parking . . . on vacant lots.” (Emphasis added.) Again, the Board found



                                         18
that the prohibition of commercial parking in the NSCPO District “is not applicable
to the [Parking Lot] because the site is not currently vacant and the [L]ot is intended
for use as an accessory off-site parking for residents in the immediate vicinity and
not for commercial parking.” (Board’s Decision, COL ¶ 3 (emphasis added).) Here,
the Parking Lot is neither a new installation nor is the property on which it sits
vacant. The property on which the Parking Lot sits has been used as a parking lot
since at least 1951, (1996 Decision, FOF ¶ 6), and the Parking Lot has operated with
a valid certificate of occupancy since 1998, (R.R. at 76a); therefore, under these facts
it is clear the prohibition against commercial parking in the NSCPO District does
not apply with respect to the Parking Lot because it is neither a new parking lot nor
is the property on which it sits vacant. See Section 907.03.A of the Code; see also
Allegheny W. Civic Council, Inc. v. Zoning Bd. of Adjustment of the City of
Pittsburgh, 94 A.3d 450, 456 (Pa. Cmwlth. 2014) (rejecting, inter alia, the argument
that Section 907.03.A of the Code prohibits the operation of existing commercial
parking lots in the NSCPO District).


             (3)    Whether the Parking Lot is not in compliance with the 1998
                    Decision.
      Objectors argue that the Parking Lot is not in compliance with several of the
provisions of the Board’s 1998 Decision and, therefore, the Board erred by granting
this special exception. This argument is misplaced. Whether the Parking Lot is not
compliant with the Board’s 1998 Decision goes to the issue of enforcement.
However, the Board is not the designated authority to initiate enforcement actions.
Section 924.01 of the Code provides that “[t]his Code shall be enforced by the Chief
of the Bureau of Building Inspection [(Chief Inspector)].”             To initiate an
enforcement action, the Chief Inspector must “give written notice of the nature of



                                          19
the [zoning] violation to the owner of the land . . . after which the person receiving
such notice shall have thirty (30) days to correct the violation before further
enforcement action.” Section 924.05.A of the Code. Section 923.02.B of the Code
grants the Board the power to hear appeals from the Chief Inspector’s decision, but
does not grant the Board the authority to initiate enforcement actions. The record is
devoid of any evidence that the Chief Inspector initiated an enforcement action
regarding the Parking Lot. Therefore, whether the Parking Lot complies with the
Board’s 1998 Decision was not before the Board and is not relevant to the issues
before this Court. Accordingly, for the foregoing reasons, the Board did not err in
granting this special exception.

      B. Whether the Board erred in granting Applicant a special exception to
         Section 914.07.G.2 of the Code.
      Objectors argue that the Board erred in granting Applicant a special exception
to Section 914.07.G.2 of the Code. Specifically, Objectors argue that the Parking
Lot is not the qualifying property to receive a special exception to Section
914.07.G.2 of the Code under these facts. Rather, Objectors contend that the two
apartment buildings seeking to use the Parking Lot as accessory parking are the
correct parties to apply for this special exception. Objectors aver that the two
apartment buildings did, in fact, receive their own special exceptions to use the
Parking Lot as off-site accessory parking. As such, Objectors contend the Board
erred as a matter of law in granting this special exception to Applicant. Applicant
responds by stating that Objectors “may [] be correct in their assertion that, []
[Applicant’s] proposed parking use does not itself require [Applicant] to provide
additional parking spaces for persons who park” at the two apartment buildings.
(Applicant’s Br. at 28 n.5 (emphasis omitted).) However, Applicant contends that



                                         20
“there was no occasion for the [Board] to consider the special exception for offsite
parking,” (id.), which this Court reads to mean the Board had no other occasion to
decide whether a special exception to Section 914.07.G.2 of the Code was needed in
order to restripe the Parking Lot.
      Pursuant to Section 914.07.G.2 of the Code, the Board is authorized

      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 [Board] that the proposed plan
      will result in a better situation with respect to surrounding
      neighborhoods, citywide traffic circulation and urban design than
      would strict compliance with otherwise applicable off-street parking
      standards.

(Emphasis added.) Accordingly, the Board, in accordance with Section 922.07 of
the Code, is permitted to grant a special exception “to permit all or a portion of the
required off-street spaces to be located on a remote and separate lot from the lot on
which the primary use is located.” Section 914.07.G.2(a) of the Code (emphasis
added).
      Here, the question becomes whether Applicant needs the special exception to
Section 914.07.G.2 to provide off-site accessory parking for the two apartment
buildings at the Parking Lot or whether the apartment buildings themselves need a
special exception. We conclude, as Objectors contend and as Applicant appears to
concede, that the two apartment buildings are the “subject development[s]” that
require a special exception to utilize the Parking Lot as off-site accessory parking
because the two apartment buildings are the “subject development[s]” seeking to
provide off-street parking on a separate lot from which they are located. Section
914.07.G.2 of the Code. We further conclude that to the extent the Board erred in
granting this special exception to Applicant, in addition to the two apartment


                                         21
buildings, such error is harmless. Regardless of the Board’s grant to Applicant of a
special exception to provide off-site parking at the Parking Lot, the Board, as
admitted by Objectors, has previously granted the two apartment buildings their own
special exceptions to utilize the Lot for off-site parking. Therefore, even if the Board
erred in granting Applicant this special exception, our vacating the special exception
would have no practical effect because the two apartment buildings have their own
special exceptions.

      C. Whether the Board erred in granting Applicant variances to Sections
         903.03.E.2 and 918.03.A of the Code.
      With respect to the two variances granted to Applicant, Objectors argue that
Applicant did not meet its burden of demonstrating the conditions required to receive
a variance and, therefore, the Board erred in granting the variances to Sections
903.03.E.2 and 918.03.A of the Code. Applicant responds that it did demonstrate
all five conditions required for obtaining the variances. Applicant asserts that the
variances merely allow Applicant to continue to operate the Parking Lot’s current
use, which has existed in the current condition for some time.            Specifically,
Applicant contends that the Parking Lot has existed with zero-foot setbacks on all
sides and without screening against the buildings that abut the Parking Lot “well
before the City issued the 1998 Occupancy Certificate.” (Applicant’s Br. at 29.)
          “A variance is a departure from the exact provisions of a zoning
ordinance.” S. Broad St. Neighborhood Ass’n v. Zoning Bd. of Adjustment, 208 A.3d
539, 547 (Pa. Cmwlth. 2019). The Board cannot grant a variance unless 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


                                          22
             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
            appellant;

         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

         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.

Section 922.09.E of the Code. To demonstrate unnecessary hardship, Applicant
must demonstrate: “(1) the physical features of the property are such that it cannot
be used for a permitted purpose; [] (2) the property can be conformed for a permitted
use only at a prohibitive expense; or (3) the property is valueless for any purpose
permitted by the zoning ordinance.” Lamar Advantage GP Co. v. Zoning Hearing
Bd. of Adjustment of the City of Pittsburgh, 997 A.2d 423, 443 (Pa. Cmwlth. 2010).
      “[T]he quantum of proof required to establish unnecessary hardship is [] lesser
when a dimensional variance, as opposed to a use variance, is sought.” Hertzberg,
721 A.2d at 48. “A dimensional variance involves a request to adjust zoning
regulations to use the property in a manner consistent with regulations, whereas a



                                         23
use variance involves a request to use property in a manner that is wholly outside
the zoning regulations.” Tidd, 118 A.3d at 8. Under the lesser Hertzberg standard,
this Court may consider multiple factors when considering whether an applicant for
a dimensional variance has demonstrated unnecessary hardship. These factors
include: “the economic detriment to the applicant if the variance [is] denied [and]
the financial hardship created by any work necessary to bring the building into strict
compliance with the zoning requirements and characteristics of the surrounding
neighborhood.” Hertzberg, 721 A.2d at 50.
      The burden of demonstrating the foregoing is on the applicant. Singer v.
Phila. Zoning Bd. of Adjustment, 29 A.3d 144, 149 (Pa. Cmwlth. 2011). As we
explained in Tidd, “[a]lthough Hertzberg eased the requirements, it did not remove
them. An applicant must still present evidence as to each of the conditions listed in
the zoning ordinance, including unnecessary hardship.” Tidd, 118 A.3d at 8 (citation
omitted).
      The Board granted Applicant variances from Sections 903.03.E.2 and
918.03.A of the Code, reasoning that “the expanded and improved Parking Lot” that
Applicant proposed “will have the effect of improving neighborhood conditions
through the improvement of the James Street and Moravian Way frontages.”
(Board’s Decision, COL ¶ 8.) Section 903.03.E.2 of the Code imposes lot setback
requirements in high-density residential districts. Pursuant to Section 903.03.E.2 of
the Code, the Parking Lot is required to maintain a minimum rear setback of 15 feet
and a minimum side setback of 5 feet. Pursuant to the Board’s 1998 Decision, the
Parking Lot has already received a variance to have a front setback of seven feet, a
south side setback of zero feet, a north side setback of three feet, and a rear setback




                                          24
of zero feet. (1998 Decision.) Thus, Applicant is essentially asking for a variance
to decrease the current variance to allow for a zero-foot setback on all sides.
      The second variance is in regard to Section 918.03.A of the Code, which
requires that all off-street parking areas “be screened on all sides except those sides
that abut . . . other features required to be screened.” Due to the configurement of
the Parking Lot, this variance essentially prevents Applicant from having to erect
screening against the buildings that abut the Parking Lot.
      Viewing the evidence in Applicant’s favor, Tidd, 118 A.3d at 13, we conclude
there was substantial evidence to support the Board’s finding that Applicant met the
conditions required to receive a variance from Sections 903.03.E.2 and 918.03.A of
the Code. With regard to the variance to reduce the lot setback to zero, we observe
that the Parking Lot has been built out to the perimeter of the property on which it
sits for some time. (Board’s Decision, FOF ¶ 3.) Requiring Applicants to tear up
portions of the existing Parking Lot in order for the Lot to comply with the Code’s
setback requirements would constitute an unnecessary hardship. See Hertzberg, 721
A.2d at 50. Therefore, we conclude the Board did not err in granting Applicant a
variance to allow for a zero-foot setback on all sides of the Parking Lot in light of
the fact that the Lot has existed with zero-foot setbacks for some time.
      With regard to the variance to prevent Applicant from having to construct
screening against the existing buildings that abut the Parking Lot, we conclude that
literal enforcement of the Code’s screening requirement would result in an
unnecessary economic expense and would provide no benefit seeing that the
buildings already act to screen the Lot from view. Section 918.03.A of the Code
requires Parking Lots to be screened on all sides. Here, the Parking Lot is partially
screened by the buildings that abut it. Requiring Applicant to erect fencing against



                                          25
the existing buildings for the purpose of screening the Parking Lot would be
unreasonable and would cause Applicant to suffer an unnecessary economic expense
because the existing buildings already act to screen the Parking Lot. See Tioga Pres.
Grp. v. Tioga Cty. Planning Comm’n, 970 A.2d 1200, 1204-05 (Pa. Cmwlth. 2009).
      In Tioga Preservation Group, we reviewed, inter alia, whether the Tioga
County Planning Commission erred in granting the developer of a wind farm a
waiver from the county’s subdivision and land development ordinance’s (SALDO)
screening requirement, strict application of which would require the proposed 200
foot wind turbines be screened from view. Noting that the county’s SALDO allowed
the planning commission to grant a waiver if literal enforcement of the SALDO
would be unreasonable or would result in undue hardship, we concluded the
planning commission did not err in granting the waiver. Id. at 1205. We reasoned
that “[d]enying the waiver and requiring [developer] to construct 200-foot high
fences around the [wind] turbines would unquestionably frustrate the effect of the
wind turbines” and “would provide little or no additional benefit to the community.”
Id.
      Like in Tioga Preservation Group, requiring Applicant to construct fencing
against existing buildings to screen the Parking Lot would offer no benefit since the
existing buildings already act to partially screen the Parking Lot. Again, requiring
Applicant to construct fencing against the existing buildings would constitute an
unnecessary economic expense since the Code’s screening requirement is met by the
existing buildings shielding the Parking Lot from view. Pursuant to the Application,
the portions of the Parking Lot not abutting existing buildings will have fencing and
plants to screen the Lot. Therefore, the Code’s screening requirement can be
accomplished without Applicant unnecessarily erecting fencing against buildings



                                         26
that abut the Parking Lot. Accordingly, we conclude that the Board did not err in
granting Applicant a variance from the Code’s screening requirements.


       D. Whether Applicant’s proposed plan violates the Code even with the relief
          granted by the Board.
       Objectors argue that even with the relief granted by the Board, the Parking
Lot violates the Code. Specifically, Objectors argue that the Parking Lot violates
the Code because it: (1) is not screened; (2) does not have complying perimeter
strips; (3) does not have sufficient square footage of landscaping; (4) is dilapidated;
(5) is not maintained in a safe condition; (6) lacks wheel stops; (7) creates light
pollution; (8) does not have a sufficiently wide center aisle; (9) lacks double-striping;
and (10) lacks a site plan. Applicant responds that Objectors misunderstand the role
of the Board. Applicant contends that the Board is given the authority “to decide the
matters that come before it” and that the Board is not tasked with “decid[ing]
whether entire plans comply with every provision of the Code.” (Applicant’s Br. at
33.)
       Like Objectors’ arguments regarding the Parking Lot not being in compliance
with the 1998 Decision, Objectors arguments here are misplaced because they go to
the issue of enforcement. As stated above, the Chief Inspector is tasked with
enforcing the Code. The Board’s role in enforcement actions is limited to hearing
appeals from decisions of the Chief Inspector. Here, there is no evidence of record
that the Chief Inspector issued an enforcement notice with respect to the Parking
Lot. As such, whether the Parking Lot is in violation of various sections of the Code
was not before the Board. Therefore, Objectors’ arguments regarding the Parking
Lot being compliant with the Code are not relevant to the issues before this Court.




                                           27
   III.     Conclusion
      For the foregoing reasons, we hereby affirm common pleas’ affirmance of the
Board’s grant of special exceptions to Sections 921.02.A.1 and 914.07.G.2 of the
Code and the Board’s grant of variances from Sections 903.03.E.2 and 918.03.A of
the Code.



                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge




                                       28
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen Pascal, Chris Gates, and      :
Barbara Burns,                        :
                         Appellants   :
                                      :
                    v.                :     No. 337 C.D. 2019
                                      :
City of Pittsburgh Zoning Board of    :
Adjustment, James Street Parking LLC, :
Sean Lange and Morgan Kronk, and      :
City of Pittsburgh and James Street   :
Parking, LLC                          :


                                  ORDER


      NOW, April 8, 2020, the Order of the Court of Common Pleas of Allegheny
County in the above-captioned matter is hereby AFFIRMED.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
