St. John The Baptist Ukrainian Greek Catholic Church v. Pittsburgh Zoning Bd., PICS Case No. 14-0169 (Pa. Commw. Jan. 24, 2014) Friedman, J. (12 pages).

COMMONWEALTH COURT

The Legal Intelligencer

LAND USE AND PLANNING

Zoning • Variance • Special Exception

St. John The Baptist Ukrainian Greek Catholic Church v. Pittsburgh Zoning Bd., PICS Case No. 14-0169 (Pa. Commw. Jan. 24, 2014) Friedman, J. (12 pages).

The Allegheny Court of Common Pleas properly reversed the decision of the Pittsburgh Zoning Board of Adjustment and properly denied a use variance, two dimensional variances and a special exception requested by a property owner who wished to develop a service station with 47 parking stalls, a casual eatery and a convenience center on land that abuts a residential zoning district. Affirmed.

The property was in a general industrial zoning district, abutted a residential zoning district and was across the street from residential properties. The owner filed a request for three dimensional variances for a service station and convenience center that would be open 24 hours a day. The owner also requested a special exception to change from one nonconforming use to another nonconforming use. The prior nonconforming use was an industrial operation that also housed underground gasoline storage tanks on the property. Zoning board favorably reviewed the proposed development. Plaintiff, which is located east of the property, opposed the proposed plan, alleging that the increased traffic would discourage elderly parishioners from traveling to church and make it hard for them to park. The zoning board granted the variances.

The trial court found that the owner was attempting to put a service station within 40 feet of a residential zoning district where it is not permitted. The court additionally found that the owner failed to prove that the physical characteristics of the property constituted an undue hardship, that the property cannot be used in strict conformity with the Code and that the variances would not alter the essential character of the neighborhood. The court also found that the board improperly granted the special exception (a change from one nonconforming use to another) because the prior use was permitted by right and was not a nonconforming use.

The board erred in finding that the prior use was nonconforming. The property is located in a general industrial district, which permits industrial use by right. Although the hours of operation and noise level of the prior use may have been nonconforming, the use itself was not. Thus the trial court was correct in determining that the board erred in granting the special exception.

The 150 foot prohibition is not related to the location of the service station structures vis-à-vis the property line of the lot. It concerns the distance between the property line of the lot containing the service station and the residential zoning district. Attempting to erect a service station where it is prohibited requires a use variance, not a dimensional variance. Thus, the trial court correctly determined that the board erred in granting a dimensional variance and was correct in denying a use variance because owner did not prove that the physical features of the property prevented it from being use for any permitted purpose.

The trial court did not err in denying dimensional variances regarding a rear setback and setback for parking stalls because a service station is not permitted at that location.