           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lawrenceville Stakeholders, Inc.,        :
Carol Peterson, Mary Coleman and         :
Jill Joyce,                              :
                        Appellants       :
                                         :
                   v.                    :
                                         :
Zoning Board of Adjustment of the        :
City of Pittsburgh, City of Pittsburgh   :   No. 1518 C.D. 2015
and Chan Real Estate, L.P.               :   Argued: April 12, 2016

BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: April 27, 2016

             Lawrenceville Stakeholders, Inc., Carol Peterson, Mary Coleman and Jill
Joyce (Objectors) appeal from the Allegheny County Common Pleas Court’s (trial
court) July 15, 2015 order affirming the City of Pittsburgh’s (City) Zoning Board of
Adjustment’s (ZBA) decision and dismissing Objectors’ appeal. There are three
issues before the Court: (1) whether the ZBA erred by finding that Chan Real Estate,
L.P. (Applicant) met its burden of proving that an unnecessary hardship existed; (2)
whether the ZBA erred by finding that the requested variances were the minimum
variances that would afford relief; and (3) whether the ZBA erred by finding that
there were four dwellings on the property.
             The subject property is located at 4412 Plummer Street and 152 45th
Street in a Single-Unit Attached Residential, Very-High Density (RIA–VH) zoning
district in the Central Lawrenceville neighborhood (Property).        The Property is
comprised of two adjacent parcels along Plummer Street and between 45th Street and
Locarna Way. Located on the northeasterly parcel, i.e., parcel one, at the corner of
Plummer and 45th Streets (Parcel 80-P-69) is a two-story, single-family brick
structure, i.e. dwelling one, fronting 45th Street and the majority of a two-story,
single-family frame structure, i.e., a portion of dwelling two, fronting Plummer
Street. Located on the southwesterly parcel, i.e., parcel two, at the corner of Plummer
Street and Locarna Way (Parcel 80-P-68) is the remaining portion of a two-story,
single-family frame structure, i.e. the remaining portion of dwelling two, fronting
Plummer Street and a two-story, two-family frame structure, dwellings three and
four, at the corner of Plummer Street and Locarna Way which fronts Locarna Way.
No parking is currently provided on the Property. Applicant proposes to renovate the
existing two-story single-family brick dwelling located on the corner of 45th and
Plummer Streets. Applicant also plans to demolish the two frame structures and
construct two new three-story, single-family dwellings with integral garages.
Subsequent to the proposed renovation and construction, Applicant intends to
resubdivide the parcels to create three new, separate parcels, one for each proposed
structure.
              On October 7, 2014, Applicant applied to the City’s Zoning
Administrator (Administrator) for dimensional variances pursuant to Section
903.03.E.2 of the Pittsburgh Zoning Code (Code) and the Administrator denied the
application. Applicant appealed from the Administrator’s denial to the ZBA. On
November 20, 2014, the ZBA held a public hearing. On January 22, 2015, the ZBA
granted the variance.1 Objectors appealed the ZBA’s decision to the trial court. On




       1
         At the end of the Public Hearing, the ZBA Chairperson gave the parties three weeks to
work out their differences, but no agreement could be reached.


                                              2
July 15, 2015, the trial court affirmed the ZBA’s decision and dismissed Objectors’
appeal. Objectors appealed to this Court.2
              Objectors first argue that the ZBA erred by finding that Applicant met its
burden of proving that an unnecessary hardship existed. Specifically, Objectors
contend that Applicant failed to show any economic detriment caused by the denial of
the requested variance; any financial hardship created by any work necessary to bring
the building into strict compliance with the zoning requirements; and that the
requested variances would not have negative effects on the characteristics of the
surrounding neighborhood.
              Initially,

              As to the requirements necessary to obtain a variance, the
              Code states . . . :
                      922.09.E General Conditions for Approval
                           No variance in the strict application of
                           any provisions of this Zoning 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
          “Where a trial court takes no additional evidence in an appeal from a decision of the
[zoning board of adjustment], this Court is limited to considering whether the [zoning board of
adjustment] erred as a matter of law or abused its discretion.” German v. Zoning Bd. of Adjustment,
41 A.3d 947, 949 n.1 (Pa. Cmwlth. 2012). “A [zoning board of adjustment] abuses its discretion if
its findings are not supported by substantial evidence.” Arter v. Phila. Zoning Bd. of Adjustment,
916 A.2d 1222, 1226 n.9 (Pa. Cmwlth. 2007).


                                                3
                   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
                   ....
                   The applicant shall have the burden of
                   demonstrating that the proposal satisfies the
                   applicable review criteria.
             Section 922.09.E of the Code.

Lamar Advantage GP Co. v. Zoning Hearing Bd. of Adjustment of City of Pittsburgh,
997 A.2d 423, 443 (Pa. Cmwlth. 2010) (bold emphasis added; italics omitted).
Further, this Court has explained:

             In general, an applicant can establish unnecessary hardship
             required for a variance by demonstrating either that physical
             characteristics of the property are such that the property
             cannot be used for the permitted purpose or can only be
             conformed to such purpose at a prohibitive expense, or that
             the property has either no value or only a distress value for
             any permitted purpose. In Hertzberg v. Zoning Board of
             Adjustment of Pittsburgh, . . . 721 A.2d 43, 47 ([Pa.] 1998),
             the Court adopted a more relaxed standard for a

                                          4
            dimensional variance in which ‘the owner is asking only for
            a reasonable adjustment of the zoning regulations in order
            to utilize the property in a manner consistent with the
            applicable regulations.’ In considering a dimensional
            variance request, multiple factors may be considered,
            ‘including the economic detriment to the applicant if the
            variance was denied, the financial hardship created by any
            work necessary to bring the building into strict compliance
            with the zoning requirements and the characteristics of the
            surrounding neighborhood.’ Id. . . . at 50.

Bernotas v. Zoning Hearing Bd. of City of Bethlehem, 68 A.3d 1042, 1049 (Pa.
Cmwlth. 2013) (citations omitted). Our Supreme Court has held:
            The failure of a zoning board to consider each
            requirement of a zoning ordinance prior to granting a
            variance is an error of law. Here, the [ZBA] failed to
            consider each of these requirements. Furthermore, the
            record reveals that [Applicant] failed to provide evidence
            that would satisfy even the first criteria.
Larsen v. Zoning Bd. of Adjustment, 672 A.2d 286, 289-90 (Pa. 1996) (citation
omitted; emphasis added).
            Applicant presented only one witness, architect David Brenenborg
(Brenenborg), who testified:

            Okay. Right now this is two parcels of property. One
            parcel is on 45th Street, and has a brick dwelling on that.
            There’s another dwelling on that property, which is a frame
            dwelling, and then two dwellings on the rear piece of
            property. They are both frame. None of them provide any
            parking. The condition of this was such that it was not
            renovatable at all. [Applicant] would like to continue use
            of this corner property, renovate that, and then take the
            three units in the back and construct two units in that area.
            We need to relocate the property line so that we can split
            the property behind this building into two pieces. That
            allows that to work.
Reproduced Record (R.R.) at 39a-40a (emphasis added). He further related: “We
would be constructing new two-bedroom, single-family homes which will have an


                                         5
integral garage in each of the two new properties.” Id. at 41a. Brenenborg continued:
“We would not be using the same footprint. We would be tearing down those
buildings. They are in pretty bad shape.” Id. Brenenborg explained that although
they would still have no setbacks, two buildings would replace the three existing
buildings and they would provide parking which the others did not. In order to
accomplish this, they would have to rebuild with different lot lines, and create two
different parcels.
             Although the standards for a dimensional variance are less strict than a
use variance, an applicant still “ha[s] the burden of demonstrating that the proposal
satisfies the applicable review criteria” established in the requirements of Section
922.09.E of the Code.” Lamar Advantage, 997 A.2d at 443 (italics omitted) (quoting
Section 922.09E of the Code). Here, there was absolutely no evidence regarding the
“unique physical circumstances or 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 . . . [.]” Id.
Nor was there any evidence proving “[t]hat because of such physical circumstances
or conditions, there is no possibility that the property [could] 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[.]” Id.
Finally, Brenenborg did not nor did anyone else testify “[t]hat 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[.]” Id.
             Even under the lesser standards of Hertzberg, Brenenborg’s testimony
that “[t]he condition of this was such that it was not renovatable at all[,]” (R.R. at
39a-40a) cannot satisfy Applicant’s burden of establishing “the economic detriment
to [Applicant] if the variance was denied, the financial hardship created by any work
necessary to bring the building into strict compliance with the zoning requirements
                                            6
and the characteristics of the surrounding neighborhood.” Bernotas, 68 A.3d at 1049
(quoting Hertzberg, 721 A.2d at 50). Accordingly, we are constrained to agree with
Objectors that the ZBA erred by finding that Applicant met its burden of proving that
an unnecessary hardship existed.3
                Moreover, the ZBA expressly concluded:
                2. Because the proposed construction results in a net
                reduction of units resulting in a decreased nonconformity,
                the footprint of the proposed structures would be
                substantially similar to the current footprint, and the and the
                [sic] proposed increase in stories and height allows for
                increased off-street parking spaces, allowing [] Applicant
                to construct the proposed dwellings is a reasonable use
                of the [] Property with minimal deviation from the Code
                Standards.

                3. Consistent with the evidence and testimony presented
                and the applicable legal standards governing dimensional
                variances, the [ZBA] concludes that approval of the
                requested variances is appropriate.

Applicant Br. Ex. A (emphasis added). However, the ZBA did not “find[] that all of
the [applicable] conditions exist[,]” as required by the Ordinance. Lamar Advantage,
997 A.2d at 443 (emphasis added). In fact, the ZBA made no findings whatsoever
concerning the Ordinance’s requirements. “A zoning board has a duty to make
essential findings of fact sufficient to support its conclusions.” Domeison v. Zoning
Hearing Bd., O’Hara Twp., 814 A.2d 851, 860 (Pa. Cmwlth. 2003). Thus, the ZBA’s
conclusions of law are meaningless because there are no findings to base them on.
                For all of the above reasons, the trial court’s order is reversed.


                                              ___________________________
                                              ANNE E. COVEY, Judge


      3
          In light of this determination, we need not address Objectors’ remaining issues.
                                                  7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lawrenceville Stakeholders, Inc.,          :
Carol Peterson, Mary Coleman and           :
Jill Joyce,                                :
                        Appellants         :
                                           :
                   v.                      :
                                           :
Zoning Board of Adjustment of the          :
City of Pittsburgh, City of Pittsburgh     :   No. 1518 C.D. 2015
and Chan Real Estate, L.P.                 :

                                         ORDER

             AND NOW, this 27th day of April, 2016, the Allegheny County
Common Pleas Court’s July 15, 2015 order is reversed.


                                         ___________________________
                                         ANNE E. COVEY, Judge
