           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Graybrook and Donna Kell,        :
                       Appellants        :
                                         :
            v.                           :   No. 250 C.D. 2017
                                         :   Argued: November 14, 2017
City of Pittsburgh Zoning Board of       :
Adjustment and City of Pittsburgh        :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE J. WESLEY OLER, JR., Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                             FILED: December 21, 2017


            Michael Graybrook and Donna Kell (collectively, Appellants) appeal
from an order of the Court of Common Pleas of Allegheny County (common pleas),
dated January 30, 2017, which affirmed an order of the City of Pittsburgh (City)
Zoning Board of Adjustment (ZBA), granting an application for dimensional
variances, and dismissed Appellants’ appeal. We now reverse.
            On January 8, 2016, Faizan Arif Minhas (Applicant) filed with the ZBA
an application for dimensional variances regarding a property with an address of
5100 Bayard Street, Pittsburgh, Pennsylvania (the Property). The Property is a
corner lot located in an R1D-L (Single-Unit Detached Residential, Low Density)
District in the Shadyside area of Pittsburgh. On the Property is a two-and-one-half
story one-family dwelling (house), which faces Bayard Street. Applicant wishes to
engage in renovations, which, in part, would include enclosing the existing porches,
building a two-story addition to the part of the house that fronts onto Amberson
Avenue (the other street that borders the Property), and reorienting the house by
locating the front door so that it faces the Amberson Avenue property line. In order
to   do   so,     Applicant   filed   an    application   requesting   variances   from
Section 903.03B.2 of the City of Pittsburgh’s Zoning Code (Zoning Code) for the
proposed new front, rear, and exterior side yard setbacks.
                With regard to the specifics of the Property, it is undisputed that the
house, as it is currently oriented towards Bayard Street, is 48’ wide (along Bayard
Street) with a depth of 85’ (along Amberson Avenue). A covered porch and front
door face Bayard Street. In the front, the house is 18’ 11” from the Bayard Street
property line, and the covered porch is approximately 10’ from the Bayard Street
property line. The porch extends around the corner of the house on the Amberson
Avenue side. The exterior side of the house adjacent to Amberson Avenue is
approximately 19’ from the Amberson Avenue property line, and the extension of
the porch is 13’ 11” from the Amberson Avenue property line. The other side of the
house is approximately 3’ from the current interior side property line, which
separates the Property from the adjacent property on Bayard Street. The house is
situated 27’ from the rear property line.
                Applicant’s proposed renovations would reorient the house such that
the setback for the new front of the Property (formerly the side that was adjacent to
Amberson Avenue) would be 13’ 11”, the setback for the new rear of the Property
(formerly the side yard adjacent to the neighboring property on Bayard Street) would
be 3’, the setback for the new exterior side yard of the Property (which is closest to
Bayard Avenue) would be approximately 10’, and the setback for the new interior
side yard of the Property would be 27’.


                                             2
             The ZBA conducted a public hearing on February 4, 2016, during
which Applicant and Carl Broussard, who is employed with B Squared Construction,
appeared in support of the application. Appellants, who reside next to the Property
at 5104 Bayard Street, and another neighbor who lives on Bayard Street, Barbara
Ernsberger (Ernsberger), appeared before the ZBA to oppose the application.
             With regard to unique circumstances of the Property, Applicant
testified that he believes that the Property is unique because it is on a corner and is
narrow and shallow, regardless of how you view the Property. (Reproduced Record
(R.R.) at 19a.) He also believes that it is unique because he requested an address
change, and he does not believe that there is much else he could do to create an
addition. (Id. at 19a-20a.)
             Mr. Graybrook testified that the houses on Bayard Street were built in
the mid-1920s by a developer and builder named Hulley and that they have some
architectural significance. (R.R. at 13a.) Approximately 10 to 15 years ago, a local
television station did a special on houses of Pittsburgh, and the special featured
Appellants’ block. (Id.) Mr. Graybrook further testified:
             Every one of these homes has a front porch. We think it
             is important to the neighborhood. A lot of us use the front
             porches in warm weather. We communicate on our front
             porches. My wife and I eat on our front porch. People
             walk by. It provided a real strong sense of neighborhood.
(Id.) Mr. Graybrook and Ms. Kell testified that they specifically oppose the
enclosure of the front porch that faces Bayard Street. (Id. at 15a.)
             Ms. Ernsberger testified that she concurs that the neighbors all use their
porches. (Id. at 17a.) Her children, now grown, “lived on the porch in the
summertime” when they were young. (Id.) “It is still that way for many families on
the street.” (Id. at 17a-18a.) She believes enclosing the porch facing Bayard Street

                                          3
will block the view. (Id. at 18a.) As to hardship, she expressed an opinion that
Applicant should “have no problem selling” the Property, and she could provide
names of some individuals who are potentially interested in buying the Property “as
is.” (Id.)
             Appellants also introduced a petition to oppose the dimensional
variances, purportedly signed by fifteen property owners, including Appellants, who
live on Appellants’ block on Bayard Street. (Id. at 16a, 24a-25a.) The petition
averred, in part, that the application violates existing setbacks and that the houses on
the block are “architecturally significant” in that their porches promote safety and
strengthen the community.
             By decision dated March 10, 2016, the ZBA granted the dimensional
variances. In granting the dimensional variances, the ZBA concluded:
             5. Here, the Applicant seeks dimensional variances to
             allow for the porch enclosure and the two-story addition.
             The proposed height would conform with the height
             limitation. With the reorientation of the house onto
             Amberson Avenue, the setback requirements would also
             change but are constrained by the existing structure.
             Enclosure of the porch would, in effect, extend the
             structure of the Bayard Street side but would not extend
             beyond the footprint of the porch. In effect, the
             Applicant[] seek[s] approval for the extension of a
             nonconforming structure and dimensional variances to
             allow the reorientation of the front of the house, consistent
             with the location of the existing structure.
             6. Given the unique conditions and configurations of the
             . . . Property on the corner lot and the existing structure,
             the requested dimensional variances are minimal and
             would not result in any significant impact on the abutting
             properties.
             7. The Board recognizes the concerns the neighboring
             property owners raised regarding aesthetics and
             neighborhood character. However, the orientation of the

                                           4
               house and use of the porch on . . . Applicant’s [P]roperty
               are not substantial or detrimental impacts in this context.

(ZBA decision at 2, attached to Appellants’ Br. (emphasis added).) Appellants
appealed to common pleas, which took no additional evidence and affirmed the
ZBA’s decision.
               On appeal to this Court,1 Appellants argue that the ZBA erred as a
matter of law in concluding that Applicant demonstrated that he met the criteria for
a dimensional variance under the Zoning Code where (1) there were no unique
physical characteristics of the Property constituting an unnecessary hardship; (2) the
relief requested would alter the essential character of the neighborhood; and (3) the
relief requested would substantially or permanently impair the appropriate use of or
development of adjacent property. Applicant counters that the ZBA and common
pleas did not err or abuse their discretion in granting the requested variances, because
the remodeling work will not extend the existing footprint of the house.2
               Section 903.03.B.2 of the Zoning Code, which sets forth the setback
requirements for primary structures in low-density residential districts,

       1
          “Where a trial court takes no additional evidence in an appeal from a decision of the
Board, this Court is limited to considering whether the Board 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).
The Board “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.), appeal denied,
934 A.2d 75 (Pa. 2007).
       2
          Applicant describes Appellants’ challenge before the ZBA as limited to an objection to
the enclosure of the porch on the Bayard Street side of the Property and now argues that Appellants
have waived any issues on appeal except the variance of the setback from Bayard Street, which
variance Applicant contends is minimal. Although Appellants focus on how the enclosure of the
current front porch would impact the use and enjoyment of their own property, Appellants broadly
challenge that the Applicant failed to meet the requirements for any variance. Thus, we reject
Applicant’s waiver argument.



                                                5
establishes 30’ as the minimum front, rear, and exterior side yard setbacks for the
Property and 5’ as the minimum interior side yard setback.3                          Pursuant to
Section 922.09(E) of the Zoning Code, the ZBA may grant a variance for those
setback requirements where it finds that all of the following conditions exist:
               1. That there are unique physical circumstances or
               conditions, including irregularity, narrowness, or
               shallowness of lot size or shape, or exceptional
               topographical or other physical conditions peculiar to the
               particular property, and that the unnecessary hardship is
               due to the conditions, and not the circumstances or
               conditions generally created by the provisions of the
               zoning ordinance in the neighborhood or district in which
               the property is located;
               2. That because of such physical circumstances or
               conditions, there is no possibility that the property can be
               developed in strict conformity with the provisions of the
               zoning ordinance and that the authorization of a variance
               is therefore necessary to enable the reasonable use of the
               property;
               3. That such unnecessary hardship has not been created by
               the 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.




       3
          Pursuant to Section 925.06.D of the Zoning Code, the Zoning Administrator shall
determine which frontages shall be considered the front, sides, and rear. “Criteria to be considered
shall include but not be limited to orientation of the primary structure, orientation of the
neighboring structures, and the location of entrances to the structure.” Section 256.06.D of the
Zoning Code.

                                                 6
(Emphasis added.) In addition, the applicant has the burden to prove that the
proposal satisfies the applicable review criteria. Section 922.09E of the Zoning
Code.
            With regard to the first requirement for a variance—i.e., unique
physical circumstances and conditions of the property constituting an unnecessary
hardship, our Court has explained this requirement in the context of a dimensional
variance:
                   A dimensional variance involves a request to adjust
            zoning regulations to use the property in a manner
            consistent with regulations, whereas a use variance
            involves a request to use property in a manner that is
            wholly outside zoning regulations. Hertzberg[ v. Zoning
            Board of Adjustment of City of Pittsburgh, 721 A.2d 43
            (Pa. 1998)].    The same criteria apply to use and
            dimensional variances. Id. However, in Hertzberg, our
            Supreme Court set forth a more relaxed standard for
            establishing unnecessary hardship for a dimensional
            variance, as opposed to a use variance.
                   Under Hertzberg, courts may consider multiple
            factors in determining whether an applicant established
            unnecessary hardship for a dimensional variance. These
            factors include: “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 (emphasis added).
                   Although Hertzberg eased the requirements, it did
            not remove them. Tri-County [Landfill, Inc. v. Pine Twp.
            Zoning Hearing Bd., 83 A.3d 488, 520 (Pa. Cmwlth.),
            appeal denied, 101 A.3d 788 (Pa. 2014)]. An applicant
            must still present evidence as to each of the conditions
            listed in the zoning ordinance, including unnecessary
            hardship. Id. Where no hardship is shown, or where the
            asserted hardship amounts to a landowner’s desire to
            increase profitability or maximize development potential,
            the unnecessary hardship criterion required to obtain a
                                        7
             variance is not satisfied even under the relaxed standard
             set forth in Hertzberg. Id.
                    Nevertheless, as this Court explains: “Hertzberg
             articulated the principle that unreasonable economic
             burden may be considered in determining the presence of
             unnecessary hardship.” Society Hill Civic Ass’n v. Phila.
             Zoning Bd. of Adjustment, 42 A.3d 1178, 1188 (Pa.
             Cmwlth. 2012) (quoting Yeager v. Zoning Hearing Bd. of
             City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001))
             (emphasis added). Further, in Marshall[ v. City of
             Philadelphia and Zoning Board of Adjustment,
             97 A.3d 323 (Pa. 2014)], the Supreme Court stated: “This
             Court has repeatedly made clear that in establishing
             hardship, an applicant for a variance is not required to
             show that the property at issue is valueless without the
             variance or that the property cannot be used for any
             permitted purpose.” [Marshall, 97 A.3d] at 330 (emphasis
             in original).
Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118 A.3d 1, 8-9 (Pa. Cmwlth. 2015)
(non-citation alterations in original).
             Appellants contend that there are simply no unique physical
circumstances or conditions peculiar to the Property that result in an unnecessary
hardship to Applicant. With regard to unique physical circumstances or conditions
of the Property, the ZBA appears to rely upon the Property being a corner lot. With
regard to hardship, the only possible hardship that Applicant and the ZBA identified
relates to Applicant being unable to increase the square footage of Applicant’s house
and enhance the value of the Property by reorienting the front of the Property,
enclosing the porch, and constructing an addition.
             Applicant has not established a unique physical condition of the
Property that prevents him from using and enjoying his property in strict conformity
with the current Zoning Code. Indeed, Applicant resides in a single-family house
on the Property, albeit a house that does not conform to all current setback


                                          8
requirements in the Zoning Code. He obviously wishes to renovate his house to
make it larger in a way that is not permitted under the Zoning Ordinance. Wishes
and desires alone, however, do not give rise to a hardship for dimensional variance
purposes. Here, Applicant’s desire to renovate his Property is restricted not by
unique physical characteristics of the Property, but by the Zoning Ordinance itself.
Accordingly, we agree with Appellants that the ZBA erred in concluding that
Applicant established a hardship, even under the relaxed standard in Hertzberg.
             Rather than address the hardship requirement directly, common pleas
merely stated that the ZBA “determined that the requested variances are minimal
and would not result in significant impact on neighboring properties.” (Common
pleas opin. at 5.) Common pleas then improperly relied on Nettleton v. Zoning Board
of Adjustment of Pittsburgh, 828 A.2d 1033 (Pa. 2003), and Yocum v. Kingston, 141
A.2d 601 (Pa. 1958), for the basis of its decision. Those cases stand for the
proposition that a zoning board may grant a variance where the proposed addition
would not have the effect of increasing the degree of already existing nonconformity.
Here, the proposed renovations, if allowed, would increase the nonconformity.
             As part of his proposed renovations, Applicant would enclose the open
wrap-around porch on the house, which currently abuts Bayard Street (front yard)
and Amberson Avenue (exterior side yard) and reorient the house. Section 925.06.A
of the Zoning Code, pertaining to features allowed within setbacks, permits certain
structures and features, including porches meeting specific requirements, to be
located within a required setback—i.e., the feature would not be counted as part of




                                         9
the setback calculation.4 Pursuant to Sections 925.06.G and 925.06.G.1, the Zoning
Administrator may permit certain additional features to be located within setbacks,
including enclosures of “existing . . . porches in side or rear yards.” (Emphasis
added.) Accordingly, while the existing open porches abutting Bayard Street and
Amberson Avenue are excluded from setback calculations as the house is currently
oriented, under either the current or proposed orientation of the house, an enclosed
front porch becomes part of the house and must be included in the setback
calculation. Doing so necessarily increases the house’s nonconformance with
existing setback requirements.
              Applicant calculates the post-renovation setbacks as follows:
              [T]he subject house is already beyond the setback lines,
              sitting 18’ 11” from Bayard [Street] and 19’ from
              Amberson [Avenue], and [Applicant] merely wants the
              setbacks to be 10’ and 13’ 11”. Thus, the real-world
              change in the actual, physical setbacks of the house would
              only be from 18’ 11” to 10’, and from 19’ to 13’ 11”. In
              other words, even though the prescribed setbacks are
              each 30’, [Applicant] would not actually be moving his
              setbacks from 30’ down to 10’, or from 30’ down
              to 13’ 11”. Instead, he would only be moving the
              actual setbacks from 18’ 11” (Bayard [Street])
              and 19’ (Amberson [Avenue]) down to 10’ and 13’ 11”
              respectively.

       4
         Pursuant to Section 925.06.A(14)(1) of the Zoning Code, the following structures may be
located within required setbacks:
       14. Open structures such as porches, decks or landing places which do not extend
       above the first floor of the building, with railing no more than forty-two (42) inches
       high, and with no roof construction measuring more than four (4) feet from the
       under side of the supporting plate to the top of the roof, may be erected:
              1. In required front or rear yards, or side yard abutting a street, provided
              the structure is not more than nine (9) feet in depth and not nearer an
              abutting interior lot line than [the] required width of the side yard; or the
              existing side wall setback whichever is the minimum amount;

                                                10
(Applicant’s Br. at 24 (emphasis added).) Thus, Applicant acknowledges that the
enclosure of the wrap-around porch and reorientation of the house would increase
the current dimensional nonconformity in relationship to what the Zoning Code
requires. With regard to the 3’ distance between Applicant’s house and Appellants’
house, Applicant notes that the actual distance would not change whatsoever. What
Applicant fails to acknowledge is that, as currently oriented, the area between the
two houses is the interior side yard, which requires only a 5’ setback under the
Zoning Code. As currently oriented, the nonconforming setback for the interior side
yard is 40% less than the required 5’ setback. If Applicant’s house were reoriented
as Applicant proposes, the area between the two houses would become the
Property’s rear yard, which requires a 30’ setback under the Zoning Code. As
reoriented, the new rear yard setback of 3’ would be 90% less than the required 30’
setback, resulting in a substantial increase in nonconformity.5

      5
         Article VII, Chapter 921 of the Zoning Code pertains to nonconformities, including
nonconformities involving uses, structures, lots, and “other” types of nonconformities.
Section 921.01.A of the Zoning Code, explains the purpose of Chapter 921:
      It is the general policy of the City to allow uses, structures and lots that came into
      existence legally in conformance with then-applicable requirements to continue to
      exist and be put to productive use, but to bring as many aspects of such situations
      into compliance with existing regulations as is reasonably possible. This chapter
      establishes regulations governing uses, structures and lots that were lawfully
      established but that do not conform to one (1) or more existing requirements of this
      Code. The regulations of this chapter are intended to:
             1. Recognize the interests of property owners in continuing to use their
             property;
             2. Promote reuse and rehabilitation of existing buildings;
             3. Place reasonable limits on the expansion of nonconformities that have
             the potential to adversely affect surrounding properties and the community
             as a whole; and



                                               11
               Thus, although the proposed renovations would not change the current
footprint of the Property, the renovations would impact how the setbacks are
measured, resulting in a substantial increase in dimensional nonconformity (with the
exception of the new interior side yard). In light of this increase in nonconformity,
coupled with the lack of any hardship owing to unique physical conditions of the
Property, we conclude that common pleas erred in affirming the ZBA’s decision.6
               Accordingly, we reverse common pleas’ order.




                                      P. KEVIN BROBSON, Judge


Judge McCullough did not participate in the decision of this case.




               4. Protect the integrity of residential neighborhoods from the potential
               impacts of nonconforming uses.
        Section 921.01.A of the Zoning Code makes clear that the City generally allows
circumstances that legally came into existence prior to the enactment of the current Zoning Code
to continue to exist, but that the goal is to bring as many aspects of the situation into compliance
as reasonably possible. A substantial increase in the nonconformity of the setbacks of the Property
would be inconsistent with the purpose of the City’s Zoning Code.
       6
        Because the Court concludes that Applicant failed to meet the requirements for a variance
based on unnecessary hardship, we need not consider Appellants’ remaining arguments.

                                                12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Graybrook and Donna Kell,      :
                       Appellants      :
                                       :
            v.                         :   No. 250 C.D. 2017
                                       :
City of Pittsburgh Zoning Board of     :
Adjustment and City of Pittsburgh      :



                                     ORDER


            AND NOW, this 21st day of December, 2017, the order of the Court of
Common Pleas of Allegheny County, dated January 30, 2017, is REVERSED.




                              P. KEVIN BROBSON, Judge
