Wexford Sci. & Tech., LLC v. City of Pittsburgh Zoning Bd. of Adjustment

• Decision Date: 01 August 2022
• Docket Number: 1316 C.D. 2021
• Citation: 280 A.3d 1097
• Parties: WEXFORD SCIENCE AND TECHNOLOGY, LLC v. CITY OF PITTSBURGH ZONING BOARD OF ADJUSTMENT Appeal of: Coltart Area Residents Association, Marjory Lake, Oakcliffe Community Organization, Mark Oleniacz, South Oakland Neighborhood Group and Elena Zaitsoff
• Court: Pennsylvania Commonwealth Court

280 A.3d 1097

WEXFORD SCIENCE AND TECHNOLOGY, LLC
v.
CITY OF PITTSBURGH ZONING BOARD OF ADJUSTMENT

Appeal of: Coltart Area Residents Association, Marjory Lake, Oakcliffe Community Organization, Mark Oleniacz, South Oakland Neighborhood Group and Elena Zaitsoff

No. 1316 C.D. 2021

Commonwealth Court of Pennsylvania.

Argued May 16, 2022
Decided August 1, 2022

Caroline Mitchell, Pittsburgh, for Appellants.

Andrea Geraghty, Pittsburgh, for Appellee Wexford Science and Technology, LLC.

Ian Blythe Everhart, Pittsburgh, for Appellee Oakland Planning and Development Corporation.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION BY SENIOR JUDGE LEAVITT

280 A.3d 1099

Coltart Area Residents Association, Oakcliffe Community Organization, South Oakland Neighborhood Group, Marjory Lake, Mark Oleniacz, and Elena Zaitsoff (collectively, Intervenors) have appealed an order of the Court of Common Pleas of Allegheny County (trial court) that granted the zoning appeal of Wexford Science and Technology, LLC (Developer). The trial court reversed the decision of the City of Pittsburgh Zoning Board of Adjustment (Zoning Board), which denied Developer's application to construct a 13-story office building on Forbes Avenue in the City of Pittsburgh (City). On appeal, Intervenors argue that the trial court erred in holding that the height of an adjacent hotel determined the permitted height of Developer's proposed building. Intervenors also argue that the trial court lacked jurisdiction over Developer's claim for a 20% increase in that permitted height by virtue of its sustainable building design. Upon review, we affirm the trial court.

Background

Developer owns three adjacent lots on Forbes Avenue that are located in the Oakland Public Realm Subdistrict-C Zoning District (Oakland District). Developer's lots are bounded on the west by Coltart Street and on the south by Iroquois Way. The fourth lot on this block has been developed with a 12-story, 128-foot-tall hotel building. The hotel's address is 3454 Forbes Avenue, but its entrance is on McKee Place, which provides the eastern boundary of the block.

Developer proposed to consolidate its three lots and construct a 13-story, 188.6-foot-tall building thereon. The new structure was planned to have nine floors of office and laboratory space; three floors of parking; and one floor of retail space on the ground floor.

In the Oakland District, Section 908.03.D.3(c) of the Zoning Code¹ limits a building's height to 85 feet and regulates the ratio of the building floor size. Because its proposed building would exceed the applicable dimensional standards, Developer applied to the Zoning Board for, inter alia , a variance

[f]rom the permitted height of 128’ (portion of the building where residential compatib[ility] standards don't apply) and 60 feet (with LEED^{[2 ]} Bonus where

280 A.3d 1100

residential compatib[ility] standards do apply) to the requested height of 188.6’.

Zoning Board Decision at 1; Reproduced Record at 181a (R.R.____). The "permitted height of 128 [feet]" was based upon the height of the adjacent hotel, which provided the so-called contextual height for Developer's proposed building. See ZONING CODE , § 925.07.D.

After a hearing, the Zoning Board denied Developer's request for a variance to construct a 188.6-foot-tall building. The Zoning Board held that the height of the adjacent hotel did not establish the permitted, or "contextual," height for Developer's building under the Zoning Code. Section 925.07.D states that "the contextual height may fall at any point between the (zoning district) maximum height limit and the building height that exists on the adjoining lot that is oriented on the same side of the street as the subject lot. " ZONING CODE , § 925.07.D (emphasis added). The Zoning Board concluded that because the hotel's public entrance is on McKee Place, the hotel did not have the same orientation as Developer's proposed building. Accordingly, the Zoning Board held that Developer could not use the height of the hotel to determine the permitted height of its proposed building.

As to Developer's claim for a LEED height bonus, the Zoning Board agreed that Developer's building will meet LEED sustainable building design standards. This would allow Developer a total building height of 102 feet, i.e. , a 20% addition to the maximum 85-foot height. ZONING CODE , § 915.04.D.³ However, the Zoning Code also provides that "bonuses may not be applied" in the context of a variance or special exception. ZONING CODE , § 915.04.B. Because Developer sought a variance to allow construction of a 188.6-foot-tall building, it could not also claim the height bonus. The Zoning Board explained that Developer "can utilize the bonuses, or it can seek variances and special exceptions, but it cannot do both." Zoning Board Decision at 6, Conclusions of Law No. 16; R.R. 186a.

Developer appealed to the trial court.⁴ Developer did not challenge the Zoning

280 A.3d 1101

Board's denial of its variance to construct a 188.6-foot-tall building. Instead, Developer reduced the height of its proposed building to 153 feet, which Developer believed did not require a variance. Specifically, Developer used the 128-foot height of the hotel as the "base height" for Developer's building, to which it added the 20% sustainability height bonus. Developer's Trial Court Brief at 3; R.R. 343a.

Trial Court Decision

The trial court did not take evidence. By opinion and order dated October 19, 2021, the trial court reversed the Zoning Board and permitted Developer to construct a 153-foot-tall building.

The trial court held that Section 925.07.D of the Zoning Code refers to the orientation of the "adjoining lot," not the building thereon. ZONING CODE , § 925.07.D. Here, the hotel is located on "the only other lot on the subject block of Forbes Avenue and it is 128-feet high. All of the lots on the block are oriented to Forbes Avenue." Trial Court Op. at 3. The trial court reasoned that because the term "oriented" is not defined in the Zoning Code, it must be given "its common and approved usage," id. at 4, and concluded that the hotel's height of 128 feet determined the permissible height of Developer's proposed building. Further, Developer was entitled to add the 20% LEED height bonus to the contextual height of 128 feet, for a total of 153 feet.

Intervenors appealed to this Court.

Appeal

On appeal,⁵ Intervenors raise two issues for our consideration. First, they argue that the...