              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. 97 C.D. 2019
and East Ohio Capital, LLC                :   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 (Pascal) and Chris Gates (Gates) (collectively, Objectors)
appeal from the Allegheny County Common Pleas Court’s (trial court) December 19,
2018 order affirming the City of Pittsburgh (City) Zoning Board of Adjustment’s
(ZBA) decision and dismissing Objectors’ appeal. Objectors present three issues for
this Court’s review: whether the trial court erred by affirming the ZBA’s grant of (1) a
variance from Section 914.06.A and B of the City’s Pennsylvania Code of Ordinances,
Zoning Code (Code) to East Ohio Capital, LLC (Applicant) for a van-accessible
parking space; (2) a special exception for off-site parking pursuant to Section
914.07.G.2(a) of the Code; and (3) an exception for no-loading space pursuant to
Sections 914.10.A and 914.11.A of the Code. After review, we affirm.
             Applicant owns the vacant property located at 707 East Street, Pittsburgh,
Pennsylvania (Property), in a Local Neighborhood Commercial zoning district (LNC
District),1 in the City’s East Allegheny neighborhood. The Property contains a two-
and three-story structure that extends to all four property lines and includes an interior
two-car garage bay at the rear of the building. Applicant seeks to convert the building,
most recently used as a funeral home, into a six-unit multi-family residential dwelling
with a first-floor office (limited). Applicant retained the services of Hart Architectural
Services, LLC (HAS) to redesign the Property.
                At issue in this case are three of the City’s parking requirements. Section
914.06.A of the Code requires that the Property have at least one Americans with
Disabilities Act of 1990 (ADA)2-compliant van-accessible space served by an eight-
foot-wide access aisle.3 HAS’s design proposed that the Property will have one

       1
           The purpose of the LNC District is to:
                     1. Maintain the small scale and rich diversity of
                     neighborhood-serving commercial districts;
                     2. Promote and enhance the quality of life in adjacent
                     residential areas; and
                     3. Reduce the adverse impacts that are sometimes associated
                     with commercial uses in order to promote compatibility with
                     residential development.
Demko v. City of Pittsburgh Zoning Bd. of Adjustment, 155 A.3d 1163, 1164 n.2 (Pa. Cmwlth. 2017)
(quoting Code § 904.02.A).
        2
          42 U.S.C. §§ 12101-12213.
        3
          Section 914.02.A of the Code mandates that multi-unit residences have a minimum of one
and a maximum of two off-street parking spaces. See Code § 914.02.A; Reproduced Record (R.R.)
at 189. Section 914.06.A of the Code mandates that the Property have at least one space reserved for
persons with disabilities, and that
                [o]ne (1) in every eight (8) accessible spaces, but not less than one (1),
                shall be served by an access aisle eight (8) feet wide minimum and shall
                be designated ‘van accessible’ as required by [the ADA]. The vertical
                clearance at such spaces shall comply with [the ADA]. All such spaces
                may be grouped on one (1) level of a parking structure.
Code § 914.06.A; R.R. at 198-199. Section 914.06.B of the Code further specifies, in relevant part:
                Parking access aisles shall be part of an accessible route to the building
                or facility entrance and shall be five (5) feet wide, except parking
                spaces reserved for vans, which shall be eight (8) feet wide in
                                                    2
standard parking space and one van-accessible parking space in the existing garage,
but the van-accessible parking space would not meet the dimensional requirements.
See Reproduced Record (R.R.) at 99-100.4
               In addition, pursuant to Section 914.07.G.2(a) of the Code, the ZBA is
authorized to consider and approve off-street parking alternatives, including off-site
parking, as special exceptions if the applicant can show that the proposed plan will
yield a better result. Based upon HAS’s design, Applicant proposed to sublease three
parking spaces on Nash Street from Priory Hospitality Group (Priory). 5 See R.R. at
46, 103-105.
               Section 914.10.A of the Code requires that “[o]ff-street loading spaces
shall be provided on the site of new or expanded uses, in accordance with the minimum
standards,” Code § 914.10.A; R.R. at 210, which is one off-street loading space for
multi-unit residential properties of 2,401 to 20,000 square feet. See R.R. at 211. Here,
due to the Property’s space constraints, HAS’s design did not provide for an off-street
loading space. See R.R. at 101.
               On April 10, 2018, Applicant, by and through HAS representatives
Nathan Hart (Hart) and Geoff DiBeneditto, applied to the ZBA for: (1) a dimensional
variance from Code Section 914.06.A for its proposed van-accessible parking space;
(2) a special exception for its off-site parking pursuant to Code Section 914.07.G.2(a);
and (3) a variance from Code Section 914.10.A off-street loading requirement, such

               accordance with Sec[tion] 914.06.A [of the Code]. Two (2) accessible
               parking spaces may share a common access aisle. Parked vehicle
               overhangs shall not reduce the clear width of an accessible route.
               Parking spaces and access aisles shall be level with surface slopes not
               exceeding 1:50 (two (2) percent) in all directions.
Code § 914.06.B; R.R. at 199.
       4
         Objectors’ Reproduced Record page numbers are not “followed . . . by a small a,” as
Pennsylvania Rule of Appellate Procedure 2173 requires. Pa.R.A.P. 2173.
       5
         Priory leases its Nash Street property from the City. See R.R. at 46, 103-105. According to
HAS Representative Nathan Hart, Priory underutilizes its parking spaces. See R.R. at 103-104.
                                                 3
that the Property was not required to have one, and Applicant would use on-street
parking as necessary. See R.R. at 26.
               The ZBA conducted a hearing on May 3, 2018, at which Objectors (Gates
in person, see R.R. at 109-117; and Pascal by letter, see R.R. at 47-48, 118), who own
nearby properties, opposed the application. On June 21, 2018, the ZBA granted
Applicant: (1) a variance from Sections 914.06.A and B of the Code for the van-
accessible space with modified dimensions, subject to the condition that Applicant
obtain the necessary Department of Labor and Industry (L&I) approvals to maintain an
on-site van-accessible parking space with dimensions less than those mandated by the
ADA; (2) a special exception for Applicant to sublease off-site parking pursuant to
Section 914.07.G.2(a) of the Code, as long as Applicant records the sublease; and (3)
a “variance/special exception” under Sections 914.10.A and 914.11.A of the Code, so
that Applicant was not required to have an off-street loading space. R.R. at 7; see also
R.R. at 8-9. On July 20, 2018, Objectors appealed from the ZBA’s decision to the trial
court. Applicant and the City intervened. The trial court did not take new evidence.
On December 19, 2018, the trial court affirmed the ZBA’s decision and dismissed
Objectors’ appeal. See R.R. at 176-182. Objectors appealed to this Court.6

                      Variance from Code Section 914.06.A and B
                   (for non-compliant van-accessible parking space)
               Objectors first argue that the trial court erred by affirming the ZBA’s grant
of a variance from Section 914.06.A and B of the Code to Applicant for a van-
accessible parking space because Applicant did not satisfy the criteria necessary to
establish entitlement to a variance. Objectors specifically claim that Applicant failed
to prove that the Property is burdened by a hardship and cannot be developed in strict

       6
         “Where, as here, the trial court does not take additional evidence, the [ZBA’s] decision must
be upheld unless [it] committed an error of law or a manifest abuse of discretion.” Demko, 155 A.3d
at 1167 (quotation marks omitted).
                                                  4
conformity with the Code, and that the ZBA applied an overly broad interpretation of
Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa.
1998), to the dimensional requirements for a van-accessible parking space.
               Section 922.09.E of the Code sets forth the ZBA’s variance approval
criteria:7

               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 [Code] 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 [applicant];
                   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


       7
            This Court relies exclusively upon the Code because “[t]he [Pennsylvania Municipalities
Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202,] does not apply
to . . . the City of Pittsburgh.” Allegheny W. Civic Council, Inc. v. Zoning Bd. of Adjustment of the
City of Pittsburgh, 94 A.3d 450, 454 (Pa. Cmwlth. 2014); see also Broussard v. Zoning Bd. of
Adjustment of City of Pittsburgh, 907 A.2d 494 (Pa. 2006).
                                                 5
                 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.
             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
             [Code].
             The applicant shall have the burden of demonstrating that the
             proposal satisfies the applicable review criteria.

Code § 922.09.E; R.R. at 220.

             Where, as here [relative to the van-accessible parking space],
             we are faced with a dimensional variance, our Supreme Court
             has articulated a more relaxed standard for granting a
             variance. Under this relaxed standard, when addressing the
             element of unnecessary hardship, ‘courts may consider
             multiple factors, including the economic detriment to the
             applicant if the variance [is] denied, the financial hardship
             created by any work necessary to bring the building into strict
             compliance with the zoning requirements and the
             characteristics of the surrounding neighborhood.’ Hertzberg
             . . . , 721 A.2d [at] 50. . . . Although Hertzberg eased the
             requirements for a variance, it did not remove them. Tidd v.
             Lower Saucon T[wp.] Zoning Hearing B[d.], 118 A.3d 1 (Pa.
             Cmwlth. 2015). Moreover, despite a more relaxed standard,
             it is still the case that ‘[t]he burden on an applicant seeking a
             variance is a heavy one, and the reasons for granting the
             variance must be substantial, serious and compelling.’ Singer
             v. Phila[.] Zoning B[d.] of Adjustment, 29 A.3d 144, 149 (Pa.
             Cmwlth. 2011).

Demko v. City of Pittsburgh Zoning Bd. of Adjustment, 155 A.3d 1163, 1168 (Pa.
Cmwlth. 2017).
             At the ZBA hearing, Hart testified that, since the building extends to the
property line, on-site parking is precluded except in the garage. See R.R. at 99. Hart
explained:
                                            6
             [The garage] would be dedicated to the residents. The City
             has advised us that [it] would want to see that van space that’s
             referenced there as the sole occupant of that two car garage.
             We [] actually have an illustration here, pending approval
             from the state, a way that we can maintain access to a van as
             well as park a second car, kind of in tandem.

R.R. at 99. However, Hart admitted that, to carry out Applicant’s proposal, the van-
accessible parking space would “not meet the letter of the law in terms of a full[-]depth
accessible aisle adjacent [thereto.]” R.R. at 100.
             Section 922.09.D of the Code mandates: “The [ZBA’s] action shall be
based on stated findings of fact.” Code § 922.09.D; R.R. at 219. The law is well settled
that “[a] [zoning] board abuses its discretion when its findings are not supported by
substantial evidence.” Hawk v. City of Pittsburgh Zoning Bd. of Adjustment, 38 A.3d
1061, 1064 n.5 (Pa. Cmwlth. 2012). “Substantial evidence is such relevant evidence
as a reasonable mind might consider as adequate to support a conclusion.” Arter v.
Phila. Zoning Bd. of Adjustment, 916 A.2d 1222, 1226 n.9 (Pa. Cmwlth. 2007).
             Here, the ZBA made the following relevant findings of fact (FOF):

             5. [] Applicant intends to provide one standard parking space
             and one [van-]accessible parking space in the existing
             garages, within the building. The proposed [van-]accessible
             [parking] space would not strictly comply with the Code’s
             dimensional requirements for [van-]accessible parking
             spaces, as set forth in [] Section 914.06.A [of the Code] but
             would allow for an on-site [van-]accessible [parking] space,
             with the shortest accessible route to the proposed uses. In
             addition to the requested variance from the City’s
             dimensional requirements for [van-]accessible [parking]
             spaces, the [van-]accessible [parking] space, as proposed,
             would require additional approval from the [L&I].
             ....
             10. [Gates] appeared at the hearing to oppose [] Applicant’s
             request, citing concerns about accessibility, parking and
             speculated as to the potential impact of the proposed uses on
             nearby residential properties. The [ZBA] found his concerns

                                            7
             to be speculative and not credible with respect to the specific
             relief requested here.

ZBA Dec. at 1-2; R.R. at 7-8. The ZBA reached the following relevant conclusion of
law (COL):

             Two garage bays are located within the existing building.
             The dimensions of the interior parking area are not sufficient
             to allow for [a] [van-]accessible parking space that would
             strictly comply with the Code’s dimensional requirements
             for [a] [van-]accessible [parking] space, but would allow for
             an on-site [van-]accessible [parking] space. The limitations
             of the existing interior parking is a condition unique to the
             building and, under the standards for dimensional variances
             set forth in Hertzberg . . . , constitute a hardship sufficient to
             justify the requested variance from the dimensional standards
             for the [van-]accessible [parking] space. The [ZBA] thus
             concludes that approval of a dimensional variance to allow
             for the proposed interior [van-]accessible [parking] space is
             appropriate, subject to the additional approval of [L&I].

ZBA COL 4; ZBA Dec. at 3; R.R. at 9. Accordingly, the ZBA approved Applicant’s
dimensional variance, subject to L&I approval. See ZBA Dec. at 3; R.R. at 9. The trial
court agreed.

             This Court may not substitute its interpretation of the
             evidence for that of the [ZBA]. It is the [ZBA’s] function to
             weigh the evidence before it. The [ZBA] is the sole judge of
             the credibility of witnesses and the weight afforded their
             testimony. [This Court] 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). Viewing the evidence in Applicant’s favor as it must, this Court
concludes that there was substantial evidence to support the ZBA’s findings and
conclusions that Applicant met the conditions of Section 922.09.E of the Code




                                             8
necessary to obtain a dimensional variance. Accordingly, the ZBA properly granted
Applicant a variance for a van-accessible parking space.


            Special Exception Pursuant to Code Section 914.07.G.2(a)
                        (for off-site parking spaces)
            Objectors also contend that the trial court erred by affirming the ZBA’s
grant of a special exception for off-site parking pursuant to Section 914.07.G.2(a) of
the Code because the ZBA failed to adequately consider the Code’s special exception
criteria. Objectors generally assert that the ZBA failed to consider or make any
findings relative to traffic, parking and the impact on future development the proposed
conversion would have on the neighborhoods surrounding the Property. Objectors
specifically argue that Applicant did not produce evidence that the proposed sublease
was permissible and, nevertheless, failed to meet the minimum parking space
requirements.
            Preliminarily,

            [a] special exception is a permitted use to which the applicant
            is entitled if the applicant demonstrates compliance with the
            specific, objective requirements contained in a zoning
            ordinance and if the zoning board determines that the use
            would not adversely affect the community. The applicant has
            the burden to show that its application complies with the
            specific criteria delineated in the ordinance. By showing
            compliance with the specific criteria, the applicant
            establishes that the proposal is presumptively consistent with
            the promotion of the public health, safety and welfare. To
            overcome this presumption, an objector must prove to a high
            degree of probability that the impact from the proposed use
            will substantially affect the health, safety and welfare of the
            community to a greater extent than would be expected
            normally from that type of use. The objector does not meet
            its burden with speculation.

Blancett-Maddock v. City of Pittsburgh Zoning Bd. of Adjustment, 6 A.3d 595, 600 (Pa.
Cmwlth. 2010) (citations omitted).
                                          9
             [A] special exception in a zoning ordinance is a use which is
             expressly permitted in a given zone so long as certain
             conditions detailed in the ordinance are found to exist. See
             Appeal of Rieder, . . . 188 A.2d 756, 757 ([Pa.] 1963).
                    Thus, an exception has its origin in the zoning
                    ordinance itself. It relates only to such situations as
                    are expressly provided for and enunciated by the
                    terms of the ordinance. The rules that determine the
                    grant or refusal of the exception are enumerated in
                    the ordinance itself.
             Kotzin v. Plymouth T[wp.] Zoning Bd. of Adjustment, . . . 149
             A.2d 116, 117-18 ([Pa.] 1959). . . .
             When a landowner applies to municipal authorities for a
             special exception, the zoning board’s function ‘is to
             determine that such specific facts, circumstances and
             conditions exist which comply with the standards of the
             ordinance and merit the granting of the exception.’ Kotzin, .
             . . 149 A.2d at 118.

Broussard v. Zoning Bd. of Adjustment of City of Pittsburgh, 907 A.2d 494, 499 (Pa.
2006) (footnote omitted).
             Regarding off-site parking, Section 914.07.G.2(a) of the Code provides,
in relevant part:

             The [ZBA] shall be authorized, in accordance with the
             [s]pecial [e]xception 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.

                                              10
                   ....
                   (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.[8]     Proof of recordation of the
                   agreement shall be presented to the Zoning
                   Administrator prior to issuance of a building permit.

Code § 914.07.G.2(a); R.R. at 202-203 (emphasis added).
               Section 922.07.D.1 of the Code directs relative to 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 the City[;] and (2) the following general criteria
               are met:
                   (a) That the development will not create detrimental
                   visual impacts, such that the size and visual bulk of
                   the proposed development is determined to create an
                   incompatible relationship with the surrounding built


       8
           Despite this Court’s March 8, 2019 order directing Applicant “to file a copy of the entire
applicable ordinance or code with this [C]ourt” that is “relevant to this appeal,” Applicant only
supplied those Code provisions to which it referred in its argument. March 8, 2019 Order. Therefore,
this Court takes judicial notice of the official Code on the City’s website, as authorized by Section
6107(a) of the Pennsylvania Rules of Civil Procedure, which states that “[t]he ordinances of municipal
corporations of the Commonwealth shall be judicially noticed.” Pa.R.C.P. No. 6107(a). Moreover,
this Court has ruled that it “may take judicial notice of information provided on a website.” In re
York Cty. Tax Claim Bureau, 3 A.3d 765 n.10 (Pa. Cmwlth. 2010), disapproved of on other grounds
by Horton v. Wash. Cty. Tax Claim Bureau, 81 A.3d 883 (Pa. 2013).
         According to Section 923.03.A of the Code, the City’s zoning administrator is “a staff member
of the Department of City Planning so designated by the City Planning Commission, who is herein
charged with the administration of [the Code].” Code § 923.03.A.
PITTSBURGH,                    PA,                 CODE                   §                   923.03.A,
https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances?nodeId=PIZOCO_TITNINE
ZOCO_ARTVIIREEN_CH923REDEMA_923.03ZOAD (last visited 2/26/2020).
                                                  11
               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 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; R.R. at 217-218.




                                         12
              At the ZBA hearing, Hart described that Applicant has reached an
agreement whereby it would sublease three of Priory’s parking spaces near the
Property. Based thereon, the ZBA found: “Applicant proposes to provide three off-site
parking spaces in an existing parking lot located at 707 Nash Street, which is located
approximately 0.1 mile or 528 feet from the [] Property and is in the LNC District.”9
ZBA FOF 6; ZBA Dec. at 2; R.R. at 8.

              The [ZBA] conclude[d] that the Applicant presented
              substantial credible evidence to demonstrate that the
              proposed off-street parking spaces are within less than 1,000
              feet of the [] Property; [are] within the same zoning district;
              and [are] subject to an off-site parking agreement that will be
              record[ed]. No contrary evidence was presented. The [ZBA]
              thus concludes that approval of a special exception for off-
              site parking is appropriate.

ZBA COL 3; ZBA Dec. at 2; R.R. at 8. Thus, the ZBA approved Applicant’s request
for a special exception to allow off-site parking in Priory’s lot, subject to sublease
recording. See ZBA Dec. at 3; R.R. at 9. The trial court agreed.
              Viewing the evidence in Applicant’s favor, as we must, this Court
concludes that there was substantial evidence to support the ZBA’s findings and
conclusions, and “[b]y showing compliance with the specific criteria, [Applicant]
establishe[d] that the proposal is presumptively consistent with the promotion of the
public health, safety and welfare.” Blancett-Maddock, 6 A.3d at 600. Because
Applicant satisfied the conditions of Section 914.07.G.2(a) of the Code, the ZBA
properly granted Applicant the special exception for off-site parking spaces.




       9
           Based upon this Court’s record review, Hart testified that the Priory parking spaces were
located approximately three or four blocks from the Property. See R.R. at 105. It is unclear where
the trial court obtained the precise distance measurements upon which its finding and conclusion are
based.
                                                13
             Exception Relative to Code Sections 914.10.A and 914.11.A
                   (no off-street loading space is required)
               Lastly, Objectors claim that the trial court erred by affirming the ZBA’s
grant of a variance/special exception from the off-street loading space requirements of
Section 914.10.A and 914.11.A of the Code.
               Section 914.10.A of the Code mandates that multi-unit residences with a
floor area of 2,401 to 20,000 square feet must have at least one off-street loading space.
See Code § 914.10.A; R.R. at 211.               Section 914.11.B.2 of the Code authorizes
exceptions to the Code’s off-street loading space requirement as follows:

               The Zoning Administrator may authorize an exception to the
               off-street loading standards of Sec[tion] 914.10.A [of the
               Code], provided that the Zoning Administrator determines
               that projected vehicular service volumes do not warrant the
               provision of the number of off-street loading spaces
               otherwise required and that such volume will not cause
               undue interference with the public use of streets or ways, nor
               imperil public safety.

Code § 914.11.B.2; R.R. at 215. The term “exception,” as used in Section 914.11.B.2
of the Code, refers to an administrator exception, rather than a special exception, and
that provision authorizes the City’s Zoning Administrator, rather than the ZBA, to
authorize such exceptions in the first instance.10 However, since appeals from Zoning
Administrator decisions relative to off-street loading space exceptions are made to the
ZBA, see Section 922.08.C of the Code, Code § 922.08.C (relating to Administrator
Exception action) and Section 923.02.B.1 of the Code, Code § 923.02.B.1 (relative to

       10
           Whereas Section 923.02.B.4 of the Code grants the ZBA the power “[t]o hear and decide
special exceptions . . . in accordance with Sec[tion] 922.07 [of the Code,]” Code § 923.02.B.4, Section
923.03.A of the Code clarifies that “[t]he Zoning Administrator shall administer Administrator
Exceptions pursuant to Sec[tion] 922.08 [of the Code (relating to Administrator Exceptions)].” Code
§ 923.03.A.
PITTSBURGH,                P A,         CODE              §§           922.03A,            923.02.B.4,
https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances?nodeId=PIZOCO_TITNINE
ZOCO_ARTVIIREEN_CH923REDEMA_923.03ZOAD (last visited 2/26/2020).
                                                 14
ZBA powers), this Court concludes that Applicant’s failure to first submit the matter
to the Zoning Administrator in this case was harmless.
               Hart stated at the ZBA hearing that the Property’s constraints would not
allow for the off-street loading space that the Code requires. See R.R. at 101. Hart
explained that the Property’s limited commercial use would necessitate only an
occasional two-minute Amazon-type delivery, and the vehicles could be parked on the
street or in the immediately adjacent alley for those brief times. See R.R. at 101-102.
               The ZBA found: “[S]treet parking in the immediate vicinity of the []
Property could accommodate the limited requirements for loading for the proposed
residential and office uses, without frequent or significant disruptions to traffic or
parking.” ZBA FOF 7; ZBA Dec. at 2; R.R. at 8. The ZBA concluded:

               Pursuant to Section 914.11.A [of the Code11], the [ZBA] may
               modify requirements for loading requirements as a special
               exception. Based on the credible evidence presented, the
               [ZBA] concludes that the loading needs for the proposed uses
               will be limited and, when loading is necessary, will not result
               in significant or prolonged disturbances to traffic or parking.
               The existing building extends to all property lines,
               precluding the provision of an off-street loading space. The
               [ZBA] thus concludes that modification of the loading space
               requirement is appropriate.

ZBA COL 5; ZBA Dec. at 3; R.R. at 9. Accordingly, the ZBA granted Applicant relief
from the Code’s off-street loading space requirement. See ZBA Dec. at 3; R.R. at 9.
The trial court agreed.



       11
           Objectors argued that the ZBA granted a special exception for off-street loading pursuant
to a Code provision for off-street parking. This Court observes that Section 914.11.A of the Code,
upon which the ZBA relied in reaching its decision, authorizes the ZBA to grant special exceptions
to Section 914.10.A of the Code for off-street parking, which was not at issue here. See R.R. at 213-
214. Although the ZBA referenced an incorrect Code provision to support its decision, since it is
clear that the ZBA intended to grant relief from the Code’s off-street loading space requirements, the
error was harmless.
                                                 15
             Viewing the evidence in Applicant’s favor, as we must, this Court
concludes that there was substantial evidence to support the ZBA’s findings and
conclusions that Applicant met the criteria necessary for an exception from Code’s off-
street loading space requirements. Accordingly, the ZBA properly granted Applicant
an off-street loading space exception.


                                      Conclusion
             For the foregoing reasons, the trial court’s order is affirmed.


                                         ___________________________
                                         ANNE E. COVEY, Judge




                                           16
             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. 97 C.D. 2019
and East Ohio Capital, LLC             :

                                     ORDER

            AND NOW, this 28th day of February, 2020, the Allegheny County
Common Pleas Court’s December 19, 2018 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
