           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Fuller and Cherylie                     :
Fuller, husband and wife,                       :
                   Appellants                   :
                                                :
               v.                               :
                                                :
Zoning Board of Adjustment of                   :   No. 980 C.D. 2018
The City of Pittsburgh                          :   Argued: February 11, 2019



BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge (P.)
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                             FILED: June 26, 2019


               William Fuller and Cherylie Fuller (collectively, Objectors) appeal
from the June 11, 2018 order of the Court of Common Pleas of Allegheny County
(trial court) which affirmed the decision of the Zoning Board of Adjustment of the
City of Pittsburgh (Board) approving a special exception for a community center.
               The property that is the subject of this appeal consists of three parcels
located at 7047-7057 Hamilton Avenue, Pittsburgh (Subject Property) in an RM
(Multi-Unit Residential, Moderate-Density) zoning district.1 See Board’s Findings

       1
         We note that Objectors refer to the zoning district as RM, whereas the Board’s decision
uses both RM-M and RM zoning district. See Board’s Decision at 1, Findings of Fact (F.F.) 1,
Conclusions of Law (C.L.) 5. There appears to be only the RM District, not an RM-M. See Zoning
Code, Art. II, Ch. 903 (concerning residential zoning districts). This discrepancy does not affect
our analysis.
of Fact (F.F.) 1. The Subject Property is currently vacant. F.F. 3. KBK Enterprises
(Applicant) is in the process of developing the Subject Property, along with other
proximate properties, for a proposed residential housing community pursuant to a
development plan, which was not at issue before the Board. F.F. 2. Objectors own
an adjacent parcel located at 7045 Hamilton Avenue, which contains a house. F.F.
3 & 12.
                Applicant filed an application for special exception under Section
911.02 of the Zoning Code of the City of Pittsburgh, Pennsylvania (Zoning Code),2
seeking a “[u]se as a [c]ommunity [c]enter” and describing the project as “[b]uild
new 2 story community center.”3 Reproduced Record (R.R.) at 7a. Subsequently,
the Board held a hearing at which Applicant presented multiple witnesses who
testified regarding the proposed use. One of Applicant’s witnesses testified that the
actual community room will be approximately 800 square feet of the building and
the other half of the building will be office management space. Hearing Transcript
dated 10/12/17 (H.T.) at 8, R.R. at 15a. Objectors also testified in opposition to the
application. See H.T. at 2, 18 & 24-34, R.R. at 9a, 25a & 31a-41a. Additionally,
other area residents appeared and testified, some were in favor of the application,
while others opposed the application. See H.T. at 35-55, R.R. at 42a-62a.
                Thereafter, the Board issued its decision approving Applicant’s special
exception. Board’s Decision at 5. Relevant to our decision, the Board found that
the “proposed use of the building is for a community room and for the management


       2
           Pittsburgh, Pa., Zoning Code (2011).
       3
          The application also sought a special exception pursuant to Section 916.09 of the Zoning
Code with respect to a playground, which the Board ultimately granted; that special exception is
not at issue in this appeal. Objectors’ Brief at 7.

                                                  2
offices for the proposed housing development.” F.F. 4. The Board further found
that Applicant proposes to construct a one-story building with the area of the
building being approximately 1,650 square feet4 on the Subject Property, and that
the community room would be located within an 800-square-foot area of the new
building. F.F. 4-5. The Board concluded that “Applicant presented sufficient
substantial and credible evidence to demonstrate compliance with the special
exception criteria for the community center (limited)[5] use . . . .” Conclusions of
Law (C.L.) 13. Accordingly, the Board approved “Applicant’s request for [a] special
exception[] pursuant to [Zoning] Code Section 911.02 . . . .” Board’s Decision at
5.
               Objectors appealed to the trial court. Original Record (O.R.) Item 1.
The City of Pittsburgh (City) and Applicant intervened. O.R. Items 2 & 6. Objectors
and Applicant filed briefs. O.R. Items 11-12. Subsequently, by opinion and order
dated June 11, 2018, the trial court concluded that the Board properly approved
Applicant’s special exception, and consequently, the trial court denied and dismissed
Objectors’ appeal. Objectors then appealed to this Court.6
               Objectors raise three arguments: (1) that the Board erred as a matter of
law in granting the special exception for a community center (limited) because

       4
          Applicant’s testimony demonstrates that the building has two floors — with one floor
being at street level facing Hamilton Avenue, and the other, lower floor being at ground level in
the rear due to the slope of the land. See H.T. at 21, R.R. at 28a. Applicant also testified that the
building is 2,400 square feet. See id. These discrepancies do not affect our analysis.
       5
        The Zoning Code provides for two types of community center uses — limited and general.
See Zoning Code §§ 911.02 & 911.04.A.14.
       6
           Where, as here, the trial court does not take additional evidence following the
determination of a zoning hearing board, our scope of review is limited to determining whether
the board committed an error of law or “a manifest abuse of discretion.” Valley View Civic Ass’n
v. Zoning Bd. of Adjustment, 462 A.2d 637, 639 (Pa. 1983). A zoning board abuses its discretion
“only if its findings are not supported by substantial evidence.” Id. at 640.
                                                 3
offices are not a permitted use in the RM zoning district by special exception or any
other exception under the Zoning Code; (2) that the Board abused its discretion by
capriciously disregarding the testimony of Objectors and witnesses regarding the
traffic impact; and (3) that certain findings of fact are not supported by substantial
evidence. Objectors’ Brief at 12-13 & 17. Because the first issue is dispositive, we
address only that issue.
               Objectors argue that the Board erred in granting the special exception
because offices are not a permitted use in the RM zoning district, and they contend
that “[Applicant] is using the guise of a [c]ommunity [c]enter to circumvent the
[Zoning] Code.” Objectors’ Brief at 11-12. Objectors argue that rather than
focusing on whether the use was permitted under the Zoning Code, the Board instead
focused on the applicable standards. Id. at 12. Objectors argue that “[t]he standards
are not relevant if the use is not permitted.” Id.
               Notably, Applicant and the Board (together, Appellees)7 do not dispute
that the Board’s approval of the special exception includes an office use and that
Applicant intends to use a portion of the community center as an office. Further,
Appellees do not dispute that an office use is not permitted by special exception in
a residential zoning district and, in particular, the RM zoning district. Instead,
Appellees assert that Objectors’ argument is both untimely and unfounded.
Appellees’ Brief at 6. Appellees argue that Objectors have waived their argument
by failing to raise it before the Board. Id. at 7-8.
               We disagree that Objectors waived this issue. Objectors point out that
the Board’s Finding of Fact No. 4 states, “‘The building is for a community center
and for management offices for the proposed housing development.’” Objectors’


      7
          The City has joined in Appellees’ brief. See Cmwlth. Ct. Docket, Letter filed 10/4/18.
                                                4
Brief at 6 (quoting Board’s Decision) (emphasis by Objectors). Objectors further
point out that despite the Board’s finding that the building includes management
offices and that offices are not a permitted special exception in the RM zoning
district under the Zoning Code, the Board nevertheless granted Applicant’s special
exception application. Id. In essence, Objectors’ argument is that the Board’s
decision is legally inconsistent—that is, Objectors argue that the Board’s finding that
the building will be used for offices cannot as a matter of law support the Board’s
conclusion that the special exception is permitted, because offices are not a permitted
use in the RM zoning district by special exception or otherwise. It was not apparent
until after the Board issued its decision that the Board would approve the office use
as a special exception, so this argument could not have been raised until after the
Board rendered its decision. Objectors raised this issue in their notice of appeal filed
with the trial court. See O.R. Item No. 1, Objectors’ Appeal from Board’s Decision
¶ 11; O.R. Item No. 12, Objectors’ Brief in Opposition to Board’s Decision at 6. As
such, Objectors raised this argument at the first opportunity to do so, and therefore,
it is not waived. See 2 Pa.C.S. § 753(a) (stating generally, with certain enumerated
exceptions not applicable here, that a party who proceeded before a zoning board
may not raise on appeal any question not raised before the zoning board “unless
allowed by the court upon due cause shown”); G. Ronald Darlington et al.,
Pennsylvania Appellate Practice § 302:1 (2018) (stating an exception to the general
rule of waiver may occur where counsel had no opportunity to raise an issue below).
Accordingly, we will address the merits of Objectors’ argument.
             Initially, we note that “[a] special exception is a conditionally permitted
use, allowed by the legislature if specifically listed standards are met.” In re
Brickstone Realty Corp., 789 A.2d 333, 340 (Pa. Cmwlth. 2001) (citing Bray v.


                                           5
Zoning Bd. of Adjustment, 410 A.2d 909 (Pa. Cmwlth. 1980)). “The [applicant] has
the burden of persuading the [Board] that the proposed use satisfies the objective
requirements of the ordinance.” Dunbar v. Zoning Hearing Bd. of Bethlehem, 144
A.3d 219, 224 (Pa. Cmwlth. 2016) (citing Bray, 410 A.2d at 910). “‘Whether a
proposed use, as factually described in the application and the testimony, falls within
a given categorization contained in the zoning regulations is a question of law, on
which the zoning board’s determination is subject to review.’” Manor Healthcare
Corp. v. Lower Moreland Twp. Zoning Hearing Bd., 590 A.2d 65, 68 (Pa. Cmwlth.
1991) (quoting Merry v. Zoning Bd. of Adjustment, 178 A.2d 595, 597 (Pa. 1962)).
               Under the Zoning Code, the criteria for a special exception for a
community center (limited) use include, among other things, that “[a]ll activities
conducted on the premises of the Community Center shall be noncommercial and
nonprofit.” Zoning Code § 911.04.A.14(a)(1)(ii) (emphasis added). Here, the Board
found that “the proposed use of the building is for a community room and for the
management offices for the proposed housing development.” F.F. 4. Generally, a
management office for a housing development is not noncommercial, and there are
no findings or other evidence that would enable us to conclude otherwise. 8 See
Manor Healthcare, 590 A.2d at 68 (stating whether a proposed use falls within a use
category is a question of law). Indeed, Applicant testified that it would have a

       8
         The Zoning Code does not define noncommercial. See Zoning Code § 926. “An
undefined term in a zoning ordinance ‘must be interpreted and applied in accordance with its usual
and generally accepted meaning.’” Council of Middletown Twp., Del. Cty. v. Benham, 496 A.2d
1293, 1295–96 (Pa. Cmwlth. 1985), aff’d, 523 A.2d 311 (Pa. 1987) (quoting Fidler v. Zoning Bd.
of Adjustment, 182 A.2d 692, 694 (Pa. 1962)). “Noncommercial” is defined as “[n]ot having a
commercial objective; not intended to make a profit.” Non-Commercial, English by Oxford
Dictionaries, https://en.oxforddictionaries.com/definition/non-commercial (last visited June 24,
2019). Additionally, we note that the Board chairwoman repeatedly stressed that what was before
the Board was a “community center use” and limited the testimony to the “800 square foot
community center.” See N.T. at 5-7 & 23, R.R. at 12a-14a & 30a; see also N.T. at 26, 33, 35, 48
& 54, R.R. at 33a, 40a, 42a, 55a & 61a.
                                                6
property manager and property management staff in the building and that after hours,
and if necessary during business hours, security will be housed there. H.T. at 12,
R.R. at 19a. Applicant agreed that its employees would be using the parking spaces
at the building. H.T. at 14, R.R. at 21a. Applicant further explained that it selected
the proposed location of a playground so that children can be outside playing while
their parents are inside talking to staff about an issue they have or paying their rent.
See H.T. at 14-15, R.R. at 21a-22a. Further, an office use is a separate type of use
under the Zoning Code, and, as Objectors point out, it is not a use permitted by
special exception or other exception in the RM zoning district. See Zoning Code §
911.01.F (stating uses not associated with a letter in district column of use table are
prohibited) & § 911.02 (use table listing office (limited) and office (general) use),
R.R. at 76a-78a.
             Applicant had to satisfy the Board, in the first instance, that the use
itself is permitted by special exception. See Bray, 410 A.2d at 911 (stating “applicant
must bring the proposal within the specific requirements expressed in the ordinance
for the use”). The Board’s legal conclusion that Applicant demonstrated compliance
with the special exception criteria is inconsistent with the Board’s finding that the
use includes management offices and, therefore, constitutes an error of law. Because
the proposed use does not fall within the specific requirements expressed in the
Zoning Code, as a matter of law, Applicant is not entitled to the special exception.
See Bray. Consequently, the trial court erred in affirming the Board’s decision to
approve Applicant’s request for a special exception for a community center (limited)
use.
             Nonetheless, Appellees contend, in the alternative, that management
offices are permissible as an accessory use and assert that “there would seem to be


                                           7
little question that a housing complex’s management office would fit well within
Section 912.02(15) [governing accessory uses].”9 Appellees’ Brief at 9. Appellees
state that because Objectors “did not properly exhaust their administrative remedies”
before the Board, there is no record as to the exact rationale behind the Board’s
approval of the management offices. Id. at 8.
               The contention that the office use is permissible as an accessory use
was not advanced before the Board, nor did Appellees seek to raise it before the trial
court in response to Objectors raising the argument there. See generally O.R. Item
No. 11, Appellees’ Brief In Opposition to Appeal. This is a new and different theory
and one that is not properly before this Court for review. See Segal v. Zoning
Hearing Bd. of Buckingham Twp., 771 A.2d 90, 94 (Pa. Cmwlth. 2001) (stating,
“[i]n zoning cases, a new and different theory may not be advanced for the first time
on appeal without the permission of the common pleas court”). Therefore, we will
not consider it.
               Accordingly, for the foregoing reasons, we reverse.


                                            __________________________________
                                            CHRISTINE FIZZANO CANNON, Judge


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



      9
          Zoning Code Section 912.02(15) provides:

               The following accessory uses, activities and structures shall be
               permitted by-right in Residential and H Districts:
               ...
               (15) Other necessary and customary uses determined by the Zoning
               Administrator to be appropriate, incidental and subordinate to the
               primary use on the lot.
                                               8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Fuller and Cherylie            :
Fuller, husband and wife,              :
                   Appellants          :
                                       :
            v.                         :
                                       :
Zoning Board of Adjustment of          :   No. 980 C.D. 2018
The City of Pittsburgh,                :


                                  ORDER


            AND NOW, this 26th day of June, 2019, the June 11, 2018 order of the
Court of Common Pleas of Allegheny County is REVERSED.




                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
