# Nettleton v. Zoning Board of Adjustment

> Supreme Court of Pennsylvania · July 22, 2003 · 574 Pa. 45

URL: https://www.frixlaw.com/law-library/cases/9701685

## Case

- **Full name:** Laura NETTLETON and Samuel Land Company, Appellees, v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH, City of Pittsburgh, Elvidio Grande and Marianne DePlacido, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 22, 2003
- **Citations:** 574 Pa. 45; 828 A.2d 1033; 2003 Pa. LEXIS 1258
- **Precedential status:** Published
- **Opinion:** Dissent by Eakin
- **Judges:** Cappy, C.J., and Castille, Nigro, Newman, Saylor, Eakin, and Lamb
- **Cited by:** 56 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9701685

## How later opinions describe it (automated extraction)

- explaining that “the de minimis zoning doctrine authorizes a variance where the deviation [from the requirements of a zoning ordinance] is relatively minor and strict compliance is not necessary to protect the public interest”
- stating that the ZBA “as factfinder is the sole judge of credibility and conflict in the testimony and has the power to reject even uncontradicted testimony that the [ZBA] finds to be lacking in credibility”
- stating “[t]he de minimis zoning doctrine authorizes a variance in the absence of a showing of the unnecessary hardship traditionally required”
- discussing Yocum Zoning Case, 393 Pa. 148, 141 A.2d 601 (1958)

## Opinion text

EAKIN, Justice,
dissenting.
The request here was to add two new noncompliant stories to a one-story noncompliant building. The question is whether the vertical addition may be in derogation of the setbacks that bind every conforming property in this area. The majority says yes; I must conclude otherwise.
The majority relies on In re Yocum, 393 Pa. 148 , 141 A.2d 601 (Pa.1958), for the proposition that if a nonconforming footprint is not extended horizontally by vertical improvements, the addition is permissible by right; if you remain within the footprint, you may ignore horizontal setbacks up to the maximum allowable height. While there is facial appeal to having such a simply phrased rule, I cannot believe the Yocum Court meant to create such fundamental inequality of treatment. 1
*59 The nonconformity requested in Yocum was minimal, the extension of one end of an existing second story (which was conforming, set back 25'; the ordinance required 20’), to the edge of the nonconforming front of the first floor (which was set back only 17’). The nonconformity at issue was an extra 105 square feet, 3' on the second floor of a 35' wide row home. This Court stated: “[t]he proposed construction does not violate the zoning ordinance by a vertical or upward extension of the building nor does the extension frontward and horizontally of the second floor substantially violate the front yard ‘set back’ provision of the ordinance.” Yocum , at 605 (emphasis added).
According to the record, the present nonconformity is certainly substantial. The lot is about 106' by 97' and the building is not set back at all; the setbacks otherwise required are 25' on three sides, and 10' on the other. Each story without setbacks would comprise about 10,282 square feet; if set back according to the ordinance, the dimensions would be about 56' by 62', and each story’s area would be 3,472 square feet, only one-third the footprint of the existing building. We are involved with 13,620 square feet, not the 105 square feet of Yocum .
Allowing property owners to exploit existing nonconformities to expand contrary to ordinances that bind neighboring property owners places the latter at a significant competitive disadvantage for the future development of their property, and is fundamentally unfair to those properties that conform to the law. Any other conforming owner is told: “Sony. We know your neighbor can build upwards without regard to the setbacks, but you, having a footprint that conforms to the zoning law, will not be excused from setbacks on any vertical expansion. He can ignore them because he’s not in conformance — because you are conforming, you must continue to conform.”
The proposed tripling of this property is not in conformity with the zoning law; the only issue is whether this is excused, *60 and the only excuse given is the nonconformity of the first floor. It seems counterintuitive to permit the expansion of nonconformity when a goal of zoning is to reduce nonconformity. 2 This is “two wrongs make a right,” and is manifestly unfair to owners whose properties conform in the first place.
Yocum , as interpreted by the majority, also raises equal protection problems; how can the law give this owner’s building an advantage over another’s conforming building? Excusing the existing nonconformity is one thing, but does that justify creating a right to ignore setbacks when building vertically that extends to the nonconforming property only? Allowing such disparate treatment does not flow from the reasons allowing the original nonconformity, nor does it flow from any apparent need unique to nonconforming properties. If application of the ordinance creates disparate treatment without reason or justification, the constitution is compromised.
I can find no reason in logic for a rule that gives nonconforming properties advantageous treatment. I find logic only in treating nonconforming properties the same as conforming ones, not better than conforming ones. I question not only the logic but the constitutionality of such disparate application of the zoning laws. I agree with the Commonwealth Court’s conclusion that Yocum permits only de minimis extension of nonconforming structures, and tripling the size of this building is not de minimis. Accordingly, I must offer this respectful dissent from the thoughtful analysis of my colleagues.
Justice CASTILLE joins this dissenting opinion.
. In reality, the Court in Yocum only faced the question of whether the trial court abused its discretion in reversing a Board’s decision made without factual findings or reasons for denying the application — what *59 ever its language, the Supreme Court simply held the trial court did not abuse its discretion reversing a decision made without such findings.
. The purpose of setbacks is to promote access to light and air, enhance aesthetics, maintain privacy, insulate improvements from street activities such as noise, traffic, and exhaust fumes, influence the population density, and improve fire safety by limiting the potential of fire spread to other structures and ensuring access of fire apparatus. See Zoning and Planning Deskbook, Second Edition, § 3:6. Vertically extending the nonconforming structure clearly multiplies the disadvantages of the nonconformity. See, e.g., Lewis v. Maine Coast Artists, 770 A.2d 644, 652-53 (Me.2001).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9701685. Public record. Not legal advice.