6301 Forbes Ave. Partners, S. Lange v. ZBA City of Pittsburgh ~ Appeal of: Drs. Newman and Singh ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
6301 Forbes Avenue Partners, :
Stephen Lange :
:
v. : No. 1818 C.D. 2019
: Argued: October 13, 2020
Zoning Board of Adjustment of :
the City of Pittsburgh, Dr. Lawrence :
S. Newman, Dr. Silvija Singh and :
City of Pittsburgh :
:
Appeal of: Dr. Lawrence S. Newman :
and Dr. Silvija Singh :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: November 16, 2020
Drs. Lawrence S. Newman and Silvija Singh (Owners) appeal an order
of the Court of Common Pleas of Allegheny County (trial court) reversing a March
21, 2019 determination of the City of Pittsburgh Zoning Board of Adjustment
(ZBA). The ZBA’s determination granted Owners a special exception and variance
to move their psychological counseling practice to 1655 Shady Avenue, Pittsburgh,
Pennsylvania (Subject Property), a site that is zoned for residential use. Owners’
proposed use of the Subject Property would be nonconforming. 6301 Forbes
Avenue Partners and Stephen Lange (Objectors) challenged the determination,
asserting that the ZBA erred in granting the special exception and variance because
the application was successive to an identical, previously unsuccessful, special
exception application by Owners for the Subject Property. On appeal,1 Owners
argue that the trial court erred in reversing the decision of the ZBA, as it did not
abuse its discretion or commit an error of law in granting the special exception and
variance. Upon consideration, we reverse the decision of the trial court.
I. Background
Owners currently operate a psychological counseling practice as
tenants at 6301 Forbes Avenue, Pittsburgh, Pennsylvania, a building owned by 6301
Forbes Avenue Partners, one of the Objectors in the present case. Owners’ Br. at 5.
Owners purchased the Subject Property with the intent to move their practice to a
unit in the Subject Property. Id. at 5-6. 6301 Forbes Avenue is adjacent to the
Subject Property. Reproduced Record (R.R.) at 52a. The Subject Property is zoned
R2-L2 and currently used for three residential units, which constitutes a
nonconforming use. R.R. at 17a-24a.
The Subject Property is a 2 1/2-story structure with four on-site parking
spaces. Id. at 85a, 87a, 92a, 225a. The most recent Certificate of Occupancy for the
Subject Property, issued on February 17, 1989, permits a “multiple family dwelling
with three dwelling units and a two-car detached garage with two outdoor parking
stalls.” Id. at 92a. Currently, three tenants live in the Subject Property’s first floor
1
When, as here, a trial court accepts no additional evidence, “our review is limited to
considering whether the zoning hearing board erred as a matter of law or abused its discretion.”
S. of S. St. Neighborhood Ass’n v. Phila. Zoning Bd. of Adjustment, 54 A.3d 115, 119 n.1 (Pa.
Cmwlth. 2012). “An abuse of discretion occurs when the findings of the [ZBA] are not supported
by substantial evidence.” MarkWest Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hearing
Bd., 102 A.3d 549, 553 n.6 (Pa. Cmwlth. 2014).
2
We take judicial notice of the Pittsburgh Zoning Code and its corresponding Use Table
at Pittsburgh, Pennsylvania., Code of Ordinances (Code) §911.02 (2020). “R2” is defined in the
Code as “two-unit residential” with an “L” designation indicating a “Low-Density Subdistrict.”
Code §§903.02.C, 903.03.B.1.
2
apartment and use all four of the on-site parking spaces. Id. at 225a-26a. This
apartment includes a kitchen, three bedrooms, and a full bath. Id. at 113a.
Owners propose to convert the first floor apartment of the Subject
Property into office space for their counseling practice. Owners’ Br. at 13. The
Owners plan to renovate the apartment into four counseling rooms and a galley
kitchen, maintaining the bathroom for a total office area of less than 1,500 square
feet. Id.; R.R. at 113a. The second and third floor apartments of the Subject Property
would remain unchanged. R.R. at 210a.
Under Owners’ plan, Owners would maintain the current façade of the
Subject Property, with the exception of an added access ramp for persons with
disabilities. Id. at 113a, 224a. The on-site parking spaces would still be available
for tenants of the remaining apartments, as well as for counselors and for patients of
the practice with disabilities that require use of the new ramp. Id. at 225a. Other
patients would continue to use the public parking lot across Shady Avenue. Id. at
225a-26a.3
The current three-unit dwelling contained within the Subject Property
is a nonconforming use. Three dwelling units are not permitted on a parcel zoned
R2. Pittsburgh, Pa., Code of Ordinances (Code) §911.02 (2020). From 1972 to
1989, the City of Pittsburgh permitted the use of the first floor of the Subject
Property as a dance school pursuant to a special exception granted by the ZBA. R.R.
at 98a-99a. The Subject Property abuts parcels zoned LNC (Local Neighborhood
Commercial) and RM-VH (Multi-Unit Residential, Very High Density). See Code
§§903.02.E, 903.03.D, 904.02.
3
In their current office location at 6301 Forbes Avenue, Owners direct their patients to
utilize the same Shady Avenue public parking lot. R.R. at 88a-89a.
3
The Owners applied to the ZBA on November 16, 2018, for a variance
and a special exception for their proposed use of the Subject Property. R.R. 43a-
45a. The ZBA gave notice to owners of nearby parcels and scheduled a hearing for
December 13, 2018.4,5 Id. at 45a-54a, 198a-200a. Owners posted the required notice
of the ZBA Hearing on the Subject Property. Id. at 57a-58a.
At the ZBA hearing on December 13, 2018, Objectors requested that
the hearing not proceed, as Owners had previously received a deemed denial for an
identical application for a special exception at the Subject Property, which, therefore,
precluded Owners from the presently requested relief.6 Id. at 207a-15a. The ZBA
4
In their brief, Owners note that Stephen Lange, one of the Objectors, resides at 1642
Denniston Street, Pittsburgh, Pennsylvania, “several houses away from the Subject Property.” See
Owners’ Br. at 17-18 n.5; Reproduced Record (R.R.) at 46a-54a. “In fact, Lange does not live
close enough to the Subject Property to have received notice from the City of the ZBA Hearing.”
Id.
5
At the December 13, 2018 hearing, Dr. Newman, one of the Owners, testified that prior
to purchasing the Subject Property, he approached his landlord, a principal at 6301 Forbes Avenue
Partners. “I told him my plan to move my practice from his office building [6301 Forbes Avenue]
to [Subject Property]. He registered zero complaint or concern. He said, ‘I will work with you on
that.’” R.R. at 241a; Owners’ Br. at 18.
6
In 2017, Owners requested a special exception to convert the first floor residential unit of
the Subject Property into a commercial office. R.R. at 149a. The ZBA held a hearing on June 29,
2017, and granted the requested relief on September 7, 2017. Id. at 104a-06a. Due to inaction on
the part of the ZBA, the special exception was not granted within 45 days of the hearing, as
required by the Code. Section 922.07.C of the Code reads:
After the public hearing, the Board shall act to approve, approve with conditions,
approve in part, deny or deny in part the application, within forty-five (45) days of
the Board hearing. Where the Board fails to render its decision within the period
required by this subsection, or fails to hold the required public hearing within forty-
five (45) days from the date of the completed application being received by the
Administrator, the decision shall be deemed to have been rendered in denial of the
applicant unless the applicant has agreed in writing or on the record to an extension
of time.
(Footnote continued on next page…)
4
hearing officer allowed the hearing to proceed on the substance of the Owners’
application but permitted interested parties to make written submissions on the
question of preclusion. Id. at 214a-15a. The ZBA granted the application for special
exception and variance on March 21, 2019. Id. at 17a-24a.
Objectors appealed the ZBA’s decision to the trial court. Upon
consideration of residential districts as defined by the Code and the history of the
Subject Property’s use, the trial court reversed both the ZBA’s approval of the
special exception and its approval of the variance. Id. at 270a-71a. Owners now
appeal to this Court.
II. Discussion
Owners argue that the ZBA acted within its discretion and did not
commit an error of law in granting the special exception.7 Further, Owners assert
that, contrary to Objectors’ view, Owners were not precluded from consideration of
As a result, on June 20, 2018, the trial court issued an order entering a deemed denial of
the application. R.R. at 150a. In response, Owners filed a motion to remand in an attempt to have
the merits of the special exception application heard by the ZBA. The trial court denied the motion
on February 22, 2018. Id. at 151a. On May 10, 2018, the trial court denied Objectors’ Petition for
Rule to Show Cause, decreeing that there would be “no further proceedings on this application
without further order of this [c]ourt.” Id. at 152a. On June 20, 2018, the trial court issued an order
vacating the approval of the special exception by the ZBA due to a deemed denial. Id. at 150a.
Owners filed an appeal of the order to this Court on August 27, 2018, but discontinued the appeal
prior to filing the application that is the subject of the present case. See R.R. at 43a.
7
While the ZBA granted a variance for the Subject Property on March 21, 2019, (in
addition to the special exception), and the trial court vacated approval of both the variance and the
special exception on November 5, 2019, Owners do not raise the issue of the variance on the merits
before this Court. In Owners’ brief, the argument presented focuses solely on the merits of
approving the special exception. However, Owners request relief in the form of reinstating the
decision of the ZBA, a decision approving both the special exception and the variance. Therefore,
we evaluate this case on the basis of the special exception with an understanding that the trial
court’s order implicates both the special exception and variance for the Subject Property.
5
their special exception application by the ZBA as a result of a trial court order, the
doctrine of res judicata, or the requirements of the Code. Owners ask that this Court
reverse the decision of the trial court and reinstate the decision of the ZBA approving
the special exception application.8
A. ZBA: Abuse of Discretion and Error of Law
The current use of the Subject Property is a nonconforming use under
the Code. See Code §§903.02.C, 921.02. As a residential structure located in an
“R2” zoning district with three apartment units, the Subject Property exceeds the
“two-unit” maximum. Code §903.02.C. Section 903.02 of the Code reads: “A
nonconforming use which has a valid Certificate of Occupancy and lawfully
occupies a structure or vacant site on the date that it becomes nonconforming may
be continued as long as it remains otherwise lawful, subject to the standards and
limitations of this section.” Code §903.02. Per the Reproduced Record, Subject
Property, as it currently exists, meets these requirements to lawfully remain. See
R.R. at 92a.
The City of Pittsburgh allows a property owner to change a
nonconforming use to another nonconforming use as a special exception. Code
§921.02.A.4. Section 921.02.A.4 of the Code explains:
A nonconforming use may be changed to another nonconforming use,
as a special exception, provided that the new use shall be of the same
general character or of a character that is more closely conforming than
the existing, nonconforming use. The determination of whether a
8
Objectors raise an issue for the first time before this Court. Objectors argue that they were
denied due process before the ZBA as a result of a conflict of interest by an attorney appearing on
behalf of the ZBA. Objectors’ Br. at 1. “Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.” Pa. R.A.P. 302 (a); see Meyer v. City of Pittsburgh Historic
Review Comm’n, 201 A.3d 929, 940 (Pa. Cmwlth. 2019). As this issue was newly raised on appeal,
and not at the trial court level, we consider the issue of due process to be waived and will not
address it within our discussion.
6
proposed use is a conforming use or is less intense than the existing
nonconforming use shall be made by the [ZBA] based on factors
including, but not limited to:
(a) Hours of operation;
(b) Number of parking spaces;
(c) Number of employees;
(d) Physical size of building relative to surrounding buildings;
(e) Design characteristics of building relative to design features of
surrounding buildings; and
(f) Traffic generation.
In addition, in determining whether a proposed change to another
nonconforming use is more or less intensive than the existing use, the
[ZBA] shall use the Use Classification System of Sec. 911.02, wherein
all residential and mixed use zoning districts are listed in hierarchical
order of intensity, with RSD being the least intensive and GI being the
most intensive. This hierarchy of zoning districts shall not apply to
Special Districts or Downtown districts. Within the Use Classification
System, the Zoning Board shall use the following criteria:
1. Any use which is permitted as-of-right in a less intensive zoning
district shall be considered less intensive than a use permitted as-of-
right within a more intensive zoning district.
2. Within the same zoning district, a use shall be considered more
intensive than another use if the approval required for such use is a
higher level in the following hierarchy: as-of-right (P), Administrator's
Exception (A), Special Exception (S), Conditional Use (C).
3. When two (2) uses cannot be compared according to the above
criteria, the Zoning Board shall consider the districts where the uses are
permitted, and shall consider the Use Standards of Sec. 911.04 in
determining the relative intensity of use.
Code §921.02.A.4. Therefore, as Owners request to change the use of the Subject
Property from one nonconforming use to another nonconforming use, in evaluating
their application for special exception, the criteria contained in Section 921.02.A.4
of the Code apply.
“The important characteristic of a special exception is that it is a
conditionally permitted use, legislatively allowed if the standards are met.” Bray v.
Zoning Bd. of Adjustment, 410 A.2d 909, 911 (Pa. Cmwlth 1980) (citing City of
Pittsburgh v. Herman, 298 A.2d 624 (Pa. Cmwlth. 1973)). In evaluating an
7
application for special exception, the ZBA must engage in a burden shifting scheme,
requiring the applicant to demonstrate that in complying with the specific
requirements of the ordinance, the proposal is presumptively consistent with the
promotion of health, safety and general welfare. Bray, 410 A.2d 909; Siya Real
Estate LLC v. Allentown Zoning Hearing Bd., 210 A.3d 1152, 1157 (Pa. Cmwlth.
2019). Objectors then have the burden to prove that the proposal is in fact
detrimental to health, safety, and welfare and that the detrimental impact is greater
or different from that which the governing body anticipated. Bray, 410 A.2d 909;
see also Appeal of O’Hara, 131 A.2d 587 (Pa. 1957).
In reviewing the decision of the ZBA, the trial court noted that “the
[ZBA] must consider several factors[,] including: hours of operation, number of
parking spaces, number of employees, physical size of building relative to
surrounding buildings, design characteristics of the building relative to design
features of surrounding buildings and traffic generation.” Trial Ct. Op., 11/05/2019,
at 3. Further, the trial court explains that the ZBA must consider whether the
proposed use is more or less intensive than the previous nonconforming use and the
general criteria for special exceptions set forth in Section 922.07.D of the Code.9 Id.9
Section 922.07.D.1 of the Code reads:
General Criteria
The Zoning Board of Adjustment shall approve Special Exceptions 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 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
(Footnote continued on next page…)
8
The trial court decided that while the ZBA evaluated the application for special
exception under these criteria, its conclusion that the Owners met their burden was
not justified by the record. Trial Ct. Op., 11/05/2019 at 6.
Owners argue that the trial court erred by reversing the decision of the
ZBA, as the ZBA did not abuse its discretion or commit an error of law. Citing
Zoning Hearing Board of Sadsbury Township v. Board of Supervisors of Sadsbury
Township, 804 A.2d 1274, 1278 (Pa. Cmwlth. 2002), Owners assert that the ZBA
relied on substantial evidence, or “such relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.” (citing Valley View Civic Ass’n
v. Zoning Bd. of Adjustment, 462 A.2d 637 (Pa. 1983)). As a result, in Owners’
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.
9
view, the ZBA decision “result[ed] from resolutions of credibility and the weighing
of evidence rather than a capricious disregard for the evidence.” Zoning Hearing
Bd. of Sadsbury Twp., 804 A.2d at 1278.
The ZBA outlined the criteria for granting a special exception under
Section 922.07.D.1 of the Code and for granting a special exception to change one
nonconforming use to another under Section 921.02.A.4 of the Code in its March
21, 2019 decision. ZBA Decision, 03/21/2019, Conclusions of Law (C.L.) Nos. 19,
23. The ZBA found Owners presented sufficient evidence to satisfy the Code. First,
the hours of operation at the Subject Property will decrease, as the counseling
practice will only operate during daytime hours on weekdays, as opposed to the
current 24/7 operation within the existing first floor residential unit. Also, the
number of employees, two counselors, is no greater than the current occupancy of
three tenants within the residential unit. Additionally, the physical size of the
building would not change and the only change related to “design characteristics”
would be an access ramp. Finally, new traffic will not be generated as the same
clients that visit the adjacent building at 6301 Forbes Avenue would visit the Subject
Property. Findings of Fact (F.F) Nos. 20-27.10
Further, the ZBA found that Owners presented sufficient evidence to
demonstrate that the proposed special exception would not produce detrimental
impacts as outlined in Section 922.07.D.1 of the Code. C.L. No. 22. Specifically,
the ZBA references a letter submitted by the Squirrel Hill Urban Coalition (SHUC),
a recognized community group, in support of Owners’ application for special
10
The ZBA also evaluated the effect of granting the special exception on the number of
parking spaces as required by Section 921.02.A.4.b of the Code and found that Owners met this
criterion. The Subject Property currently has four parking spaces and Owners stipulated through
testimony at the ZBA hearing, at the request of a neighbor, that the number of parking spaces will
not exceed six at any given time. R.R. at 224a, 228a.
10
exception. R.R. at 115a; C.L. No. 24. In the letter, the SHUC described a public
meeting that it hosted with Owners and neighbors to discuss the proposed changes
to Subject Property. Id. The president of SHUC wrote:
SHUC supports the proposed change in use. This support is based on:
• The fact that historically this building had had non-residential uses on
the first floor
• The proposed change is not considered major
• The impacts such as traffic would be minor
• Parking is not a major issue because there is parking in back of the
building and the municipal lot is across the street . . . .
R.R. at 115a. “The ZBA found credible and persuasive the community
organization’s assertions that the proposed office use would not have negative
impacts on the surrounding neighborhood.” C.L. No. 24.
“To prove a ‘detrimental impact[,]’ objectors to a proposed special
exception cannot simply speculate but must raise specific issues regarding the effect
of the proposed use on the public interest and they must show with ‘a high degree of
probability’ that the effect of the proposed use will be substantial.” C.L. No. 28
(citing Allegheny Tower Assocs., LLC v. City of Scranton Zoning Hearing Bd., 152
A.3d 1118, 1124 (Pa. Cmwlth. 2017)). As the ZBA concluded that Owners met their
burden of compliance with the Code for a special exception for the change of one
nonconforming use to another, the burden shifted to Objectors to identify and present
evidence with respect to any general detrimental impacts and the burden of
persuasion with respect to those impacts. C.L. Nos. 26-27 (citing Allegheny Tower,
152 A.3d at 1124 (quoting Bray, 410 A.2d at 912-13)). “[O]bjectors failed to submit
substantial or credible evidence that demonstrates to any degree of probability that
the proposed use would have a detrimental impact on the surrounding
neighborhood.” C.L. No. 29.
11
“Upon reviewing a decision of a [ZBA], a court may not substitute its
judgment for that of the [ZBA]; and, assuming the record demonstrates substantial
evidence, the court is bound by the [ZBA]’s findings which result from resolutions
of credibility and the weighing of evidence. . . .” Zoning Hearing Bd. of Sadsbury
Twp., 804 A.2d at 1278 (citing Vanguard Cellular Sys., Inc. v. Zoning Hearing Bd.
of Smithfield Twp., 568 A.2d 703 (Pa. Cmwlth. 1989)). “An abuse of discretion will
only be found if the [ZBA]’s findings are not supported by substantial evidence that
a reasonable mind might accept as adequate to support a conclusion.” Zoning
Hearing Bd. of Sadsbury Twp., 804 A.2d at 1278 (citing Valley View Civic Ass’n,
462 A.2d 637).
The ZBA found that Owners presented credible evidence to support
their application for a special exception, demonstrating that the proposed use would
not result in detrimental impacts. In contrast, the ZBA found that Objectors did not
present credible evidence to contradict Owners’ claims, thereby failing to
demonstrate a detrimental impact if the special exception is approved. Further, the
ZBA cited substantial evidence and relevant Code provisions in making its
determination. We decline to substitute our judgment for that of the ZBA as its
decision was based on credibility determinations. The ZBA did not abuse its
discretion or commit an error of law in granting Owners’ application for a special
exception.11
B. Preclusion
11
As discussed supra at note 7, we decline to evaluate the merits of Owners’ application
for a variance. Because we determined that the ZBA’s granting of the special exception was
proper, a determination on the application for a variance is unnecessary to grant Owners relief.
12
Objectors argue that the ZBA erred in approving Owners’ application
in the present case because it was a successive application, identical to the
application that was found to be a “deemed denial” by the trial court on June 20,
2018. Owners contend that because the application at issue in the present case
included an application for both a special exception and a request for a variance, it
does not constitute a successive application. The ZBA previously found that while
Code Section 922.07.E12 does not allow “a similar application” to a denied
application for special exception to be filed, in the ZBA’s view, the application
considered at present contains significant changes from the previous application.
Objectors ask this Court to view Owners’ application as a successive
application, noting that the trial court declined to evaluate this argument. See Trial
Ct. Op., 11/05/2019, at 3. However, the ZBA concluded “that the current
application, which seeks both a variance and a special exception as alternative
theories of approval, is significantly different from the first application and [it] is not
barred.” C.L. No. 10. In interpreting the Code, the ZBA found that the present
application constitutes “a different use than the original request.” Code §922.07.E;
See C.L. No. 10. This Court will not substitute its judgment for that of the ZBA, and
therefore, we defer to the ZBA’s determination that, in weighing the evidence, the
12
Code Section 922.07.E reads:
Successive Applications
In the event that the [ZBA] denies an application for a Special Exception, a similar
application shall not be refiled unless the [ZBA] determines that significant
physical, economic or land use changes have taken place within the immediate
vicinity, or a significant zoning regulation text change has been adopted, or when
the reapplication is for a different use than the original request. The applicant shall
submit a statement in detail setting out those changes which he or she deems
significant and upon which he or she relies for refiling the original application.
Code §922.07.E.
13
present application is not a successive application as described in the Code.13 See
Zoning Hearing Bd. of Sadsbury Twp., 804 A.2d at 1278.
“Pennsylvania courts generally apply res judicata narrowly in zoning
matters, because the need for flexibility outweighs the risk of repetitive litigation.”
Callowhill Ctr. Assocs., LLC v. Zoning Bd. of Adjustment, 2 A.3d 802, 809 (Pa.
Cmwlth. 2010) (citing Price v. Bensalem Twp. Zoning Hearing Bd., 569 A.2d 1030(Pa. Cmwlth. 1990)). While Objectors argue that Owners’ present application
should be barred based on the principle of res judicata, Owners assert that
Pennsylvania courts have never applied res judicata under the circumstances at issue
in this case. Owners cite two characteristics common to cases holding that res
judicata precluded the claim: 1) The first proceeding resulted in an adjudication on
the merits against the applicant; and 2) in the second proceeding, the ZBA
determined for itself that res judicata barred the applicant’s claim. See Callowhill
Ctr. Assocs., LLC, 2 A.3d at 805-06. Neither of these characteristics are present in
this case.
As we defer to the ZBA’s determination that Owners’ present
application is not barred by the successive application provision of the Code, we also
accept the ZBA’s determination that the present application is not barred by res
judicata. See C.L. Nos. 12-17. Further, the prior precedent of Pennsylvania courts
indicates that the principle of res judicata has not been applied in this context. In
13
The ZBA also discussed the issue of successive applications as a matter of fairness,
acknowledging that, in the present case, the deemed denial of Owners’ 2017 application was due
to inaction on the part of the ZBA, not Owners. “[T]o deny the [Owners] the right to reapply
following a deemed denial decision would deprive [Owners] of a full and fair hearing on the merits
of their request due to no fault of their own, in violation of [Owners’] due process rights.” C.L.
No. 9. Therefore, the ZBA declined to bar the present request as a successive application.
14
applying res judicata “narrowly” in zoning matters, we conclude that Owners’
present application and appeal in this Court are not barred as a result of preclusion.
III. Conclusion
The ZBA did not abuse its discretion or commit an error of law in
granting Owners’ application for special exception. Further, Owners’ present
application and subsequent appeal are not precluded by res judicata. We reverse the
decision of the trial court.
______________________________
J. ANDREW CROMPTON, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
6301 Forbes Avenue Partners, :
Stephen Lange :
:
v. : No. 1818 C.D. 2019
:
Zoning Board of Adjustment of :
the City of Pittsburgh, Dr. Lawrence :
S. Newman, Dr. Silvija Singh and :
City of Pittsburgh :
:
Appeal of: Dr. Lawrence S. Newman :
and Dr. Silvija Singh :
ORDER
AND NOW, this 16th day of November 2020, we REVERSE the
decision of the Court of Common Pleas of Allegheny County and REINSTATE the
Zoning Board of Adjustment of the City of Pittsburgh’s approval of Dr. Lawrence
S. Newman’s and Dr. Silvija Singh’s application for special exception.
______________________________
J. ANDREW CROMPTON, Judge