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, 
2

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’. 
3

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 
4

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 
5

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.
6

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. 
7

(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 
8

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 
9

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 
10

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;
11

(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 
12

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. 
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 :

O R D E R

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