First Ave. Partners, Ltd. v. City of Pittsburgh Planning Comm'n

• Decision Date: 09 December 2016
• Docket Number: No. 2476 C.D. 2015,2476 C.D. 2015
• Citation: 151 A.3d 715
• Parties: FIRST AVENUE PARTNERS, a Pennsylvania limited partnership, James D. Bolander and Mona A. Bolander, husband and wife, Barbara C. Johnstone, William R. Hartz, Paul Richard Bernthal, Christopher Ragland and April M. Ragland, husband and wife, Mary Ellen Purtell and Robert Crecine, Appellants v. The CITY OF PITTSBURGH PLANNING COMMISSION and City of Pittsburgh and Forza Fort Pitt, Inc.
• Court: Pennsylvania Commonwealth Court

151 A.3d 715

FIRST AVENUE PARTNERS, a Pennsylvania limited partnership, James D. Bolander and Mona A. Bolander, husband and wife, Barbara C. Johnstone, William R. Hartz, Paul Richard Bernthal, Christopher Ragland and April M. Ragland, husband and wife, Mary Ellen Purtell and Robert Crecine, Appellants

v.The CITY OF PITTSBURGH PLANNING COMMISSION and City of Pittsburgh and Forza Fort Pitt, Inc.

No. 2476 C.D. 2015

Commonwealth Court of Pennsylvania.

Argued: November 15, 2016

FILED: December 9, 2016

Daniel F. Gramc, Pittsburgh, for appellants.

Rachel E. O'Neill, Pittsburgh, for appellees The City of Pittsburgh Planning Commission and City of Pittsburgh.

William R. Sittig, Jr., Pittsburgh, for appellee Forza Fort Pitt, Inc.

BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE JULIA K. HEARTHWAY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY PELLEGRINI, SENIOR JUDGE

First Avenue Partners, James D. Bolander and Mona A. Bolander, Barbara C. Johnstone, William R. Hartz, Paul Richard Bernthal, Christopher Ragland and April M. Ragland, Mary Ellen Purtell and Robert Crecine (collectively, Objectors)¹ appeal from an order of the Court of Common Pleas of Allegheny County (trial court) quashing as untimely their appeal of the City of Pittsburgh's (City) Planning Commission's oral approval of Forza Fort Pitt, Inc.'s (Forza) project development plan. For the reasons that follow, we reverse.

I.

Forza owns a parcel of property located at 433 Fort Pitt Boulevard in the First Ward of the City of Pittsburgh (Property).² In 2009, Forza applied for a Project Development Plan (2009 Application) with the City's Planning Commission (Planning Commission) seeking approval to construct a seven-story, 107–room hotel on the Property. The Planning Commission's review is conducted pursuant to Section 922.10 of the Pittsburgh Zoning Code (Zoning Code). The purpose is not to review the proposal for zoning compliance but "for evaluating plans in the broader context of development and plans of areas of regional significance." Zoning Code § 922.10. The criteria set forth are not quantitative but involve quality of life issues and consider how the building impacts the streetscape. The Zoning Code does not require a public hearing or that any notice be given for consideration of Project Development Plans unless the matter involves a casino. Zoning Code § 922.10.E.1(a).

At a public hearing on March 8, 2011, where at least two of the Objectors were present and voiced their opposition, the Planning Commission approved the 2009 Application subject to certain conditions.³ The Planning Commission did not issue a written decision of its approval of the 2009 Application.

Subsequently, the Planning Department of the City of Pittsburgh (Planning Department) requested certain design changes to the building while maintaining the same massing, parking and configuration of the building as approved in the 2009 Application. As a result, Forza submitted a new Project Development Plan (2013 Application) in 2013 which explained that it was a revision and improvement to the 2009 Application. As before, in June 2014, the Commission approved the 2013 Application without a written decision. Objectors appealed.

Finding that the Planning Commission erred by not following proper procedure in reviewing the 2013 Application, the trial court reversed and remanded to the Planning Commission, directing it to conduct an evidentiary hearing and make written findings of fact. Specifically, the trial court found that Objectors were limited in their opportunity to be heard at the hearing and that "[t]heir comments were limited to no more than three minutes which was not appropriate in this case." (Reproduced Record (R.R.) at 18a.) Moreover, it reasoned that there lacked evidence to suggest that the mandatory review criteria were considered by the Planning Commission given the lack of written adjudication, findings of fact or a transcript.

By letter to the City's Zoning Administrator in May 2015, Forza withdrew its 2013 Application, explaining in pertinent part:

You indicated that withdrawal of the 2013 Application is required for the issuance of a zoning voucher for the [2009 Application]. Since my client desires to obtain a zoning voucher for the 2009 Application, it has agreed to withdraw the 2013 Application.

The withdrawal of the 2013 Application is predicated on your representation that the zoning voucher for the 2009 Application will be issued upon [Forza's] acknowledgement of certain items referenced in the e-mail sent to you by Erik Harless on March 17, 2015.

Consistent with Erik's message, my client acknowledges the following items: (i) a separate Demolition permit application and narrative will be required; (ii) all temporary safeguards, scaffolding and crane life, etc., are subject to OSHA inspection and certification requirements; (iii) review for building code compliance will take place with standard review of final construction documents; and (iv) foundation design needs to indicate that there will be adequate safeguards, protections, etc. to address, if necessary, any impact on the adjacent structure.

(Id. at 21a.) Forza requested that the zoning voucher for the 2009 Application be issued.

Objectors responded by writing to the Planning Department's Director, stating that they "very strongly object to the City issuing any permits or in any way allowing a project to move forward under an alleged 2011 approval." (Id. at 51a.) The bases for their objections were: 1) that there lacked any indication in the 2013 Application that Forza preserved the 2009 Application or intended to preserve rights associated with the 2009 Application, meaning that the Planning Commission's approval of the 2009 Application was merged into the 2013 Application and upon withdrawal of the 2013 Application, all applications have been withdrawn; 2) Forza abandoned the 2009 Application when it submitted the 2013 Application and "[i]t is unreasonable to abandon an approval for four (4) years, pursue a revised approval, and then go back to the original ‘approval’ without an additional examination of the project by the Planning Commission"; 3) because the Planning Commission did not issue a written adjudication or findings of fact for the 2009 Application, that application was not approved; and finally 4) there are specific review criteria that apply to the project that must be examined and findings of fact and an adjudication must be made on each of the criteria. (Id. at 52a.)

On July 6, 2015, the City notified Objectors' counsel that the Planning Department reviewed and approved Forza's 2009 Application and issued Forza a zoning voucher on June 3, 2015. Objectors appealed to the trial court on July 20, 2015. Explaining that the lack of a written decision by the Planning Commission does not affect the timeliness of an appeal, the trial court found that Objectors did not appeal the Planning Commission's March 8, 2011 decision within 30 days and, therefore, quashed the appeal.

II.

A.

The central issue on appeal⁴ is whether the Planning Commission's approval without a written decision was sufficient to commence the 30–day appeal period within which Objectors must take their appeal. Because the Planning Commission did not issue a written decision subsequent to its approval, Objectors argue that the appeal period never commenced and that their appeal was timely filed.

Before we address the arguments of the parties, it is necessary to set forth the procedure employed in the City to process land use appeals. The City is governed by the provisions of the Zoning Code, not the Pennsylvania Municipalities Planning Code (MPC).⁵ Vitti v. Zoning Board of Adjustment of City of Pittsburgh , 710 A.2d 653, 657 n.4 (Pa. Cmwlth. 1998).⁶ Regarding appeals from the Planning Commission, Section 923.01.D of the Zoning Code provides that:

Any party aggrieved by a decision of the Planning Commission, may, within thirty (30) days, appeal the decision to the Court of Common Pleas of Allegheny County under the Local Agency Law, 2 Pa.C.S. Sections 751 –754.

For an individual to be aggrieved by a decision of the Planning Commission, that individual must have "a substantial, direct and immediate interest in the claim sought to be litigated." Spahn v. Zoning Board of Adjustment , 602 Pa. 83, 977 A.2d 1132, 1149 (2009) (citing William Penn Parking Garage, Inc. v. City of Pittsburgh , 464 Pa. 168, 346 A.2d 269 (1975) ). The 30–day time period begins to run "after the entry of the order from which the appeal is taken." 42 Pa.C.S. § 5571(b). An order is deemed entered on the date of mailing. 42 Pa.C.S. § 5572.⁷

Most pertinent to this appeal is Section 555 of the Local Agency Law which provides that:

All adjudications of a local agency shall be in writing , shall contain findings and the reasons for the adjudication, and shall be served upon all parties or their counsel personally, or by mail.

2 Pa.C.S. § 555 (emphasis added). If a person is aggrieved, then the Planning Commission's approvals can be appealable under the Local Agency Law.⁸ Northwest Wissahickon Conservancy, Inc. v. Philadelphia City Planning Commission , 64 A.3d 1135, 1138 (Pa. Cmwlth. 2013). No one has raised an issue whether Objectors are aggrieved or whether the Planning Commission's approval is an adjudication, only that Objectors' appeal has not been timely filed. That issue is determined by whether there is a requirement that the decision must be in writing.

While the City is not governed by the MPC, the parties agree that the relevant laws applicable to the City regarding appeals are substantially the same as those provided under the MPC, and that cases decided under the MPC are applicable.

B.

Forza and the City contend that under Peterson v. Amity Township Board of Supervisors , 804 A.2d 723 (Pa. Cmwlth. 2002), notwithstanding the requirement of entry of an order, the 30–day appeal period began to run on March 8, 2011, the date the Planning Commission voted without written decision...