Hawk v. City of Pittsburgh Zoning Bd. of Adj., 38 A.3d 1061 (Pa. Commw. Ct. 2012).

Zoning Board of Adjustment did not err in determining that setback variances to go from five feet to zero feet were not de minimis in nature.
Case Details:

Applicant purchased a property located in the City’s high density residential district that included two buildings – one a three-story building with four dwelling units and the other a one-story building with a single dwelling unit.  Applicant began renovating both buildings without obtaining the necessary permits.  Renovations included a complete reconstruction of the smaller rear building to add a second floor and expand it by four feet along its north and east walls, demolishing a laundry room addition on the main building, expanding the second and third floors of the main building, and connecting the two structures to create a single building with five units.  The City’s Code Enforcement Officer issued an order instructing Applicant to cease work and that all non-permitted additions be removed.

Rather than complying, Applicant submitted an application for variances to continue the use of the property as a five-family dwelling and to reduce two setbacks to zero feet when the Code required one of the setbacks to be ten feet and the other fifteen feet.  The prior non-conforming structure was set back only approximately five feet.  Several neighbors opposed the application due to the reduced setbacks and because they believed the rear building had been demolished and rebuilt.  Applicant argued, among other points, that the variance was de minimis.

The Court reiterated the law regarding de minimis variances.

The grant of a de minimis variance is a matter of discretion with the local zoning board.  A de minimisvariance may be granted where the variation requested is minor and rigid compliance with the zoning ordinance is not necessary to protect public policy concerns. There are no set criteria for determining what will be considered de minimis.  Instead, the grant of a de minimis variance depends upon the circumstances of each case.

Here, Applicant argued she was entitled to a de minimis variance because the area at issue was only 4.9 feet by 12 feet.  Applicant’s argument, however, was premised on the assumption that the rear building had not been demolished as part of the renovation and enlarged to a larger footprint.  Because the Zoning Board’s determination that the rear building had been reconstructed and expanded on the north side was supported by sufficient evidence, the Court could not find the Zoning Board abused its discretion when it held the variances from both the rear- and side-yard setbacks for the entire length of the new rear building’s north and east walls were not de minimis.

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