Ondek v. Allegheny County Council

• Citation: 860 A.2d 644
• Parties: William ONDEK, Robert Silber and Michelle Obid, Appellants v. ALLEGHENY COUNTY COUNCIL and Allegheny County Chief Executive, James Roddy.
• Decision Date: 01 November 2004
• Court: Commonwealth Court of Pennsylvania

860 A.2d 644

William ONDEK, Robert Silber and Michelle Obid, Appellants v. ALLEGHENY COUNTY COUNCIL and Allegheny County Chief Executive, James Roddy.

Commonwealth Court of Pennsylvania.

Argued October 5, 2004.

Decided November 1, 2004.

James G. Georgalas, Pittsburgh, for appellant.

George M. Janacsko, Pittsburgh, for appellee.

BEFORE: FRIEDMAN, Judge, and LEAVITT, Judge, and FLAHERTY, Senior Judge.

OPINION BY Judge LEAVITT.

William Ondek, Douglas Fowkes, Sharon Pillar, Robert Silber and Michelle Obid (Appellants), in their capacity as taxpayers and residents of Allegheny County (County), appeal from an order of the Court of Common Pleas of Allegheny County (trial court) dated December 30, 2003. In its order, the trial court denied Appellants' appeal under the Local Agency Law¹ challenging the enactment of Resolution 01-03-RE (Resolution) by the Allegheny County Council (Council). The Resolution authorized the use of "tax increment financing" (TIF)² to finance certain costs of a proposed commercial development project in Ohio Township, Allegheny County.

In October 2001, Developers Diversified Realty ("DDR") submitted an application to the Allegheny County Department of Economic Development requesting that the County use tax increment financing to assist DDR with financing public infrastructure improvements in connection with its plan to construct the Mt. Nebo Pointe Retail Center (Mt. Nebo Pointe). DDR described Mt. Nebo Pointe as an "Office, Hotel and Commercial project containing 50,000 [square feet] of office, 150 hotel rooms, convenience gas station, restaurants, food store and major retailers. Outparcels will contain 22,000 [square feet] of space. Center will contain 355,600 [square feet] of space." Reproduced Record at 216a (R.R.____). DDR estimated that Mt. Nebo Pointe would cost approximately $35 to $40 million, produce 1,000 permanent jobs and provide substantially increased tax revenues to the affected local taxing bodies: Allegheny County, Ohio Township and the Avonworth School District.

In March 2002, Ohio Township and the Avonworth School District each enacted resolutions authorizing the Redevelopment Authority of Allegheny County (Redevelopment Authority) to prepare a statutorily required "project plan"³ for a redevelopment area in Ohio Township. A similar resolution was subsequently adopted by Council. The Redevelopment Authority's professional staff studied the proposed redevelopment area, designated as the "Green Valley Study Area," which included the proposed site of Mt. Nebo Pointe. The staff issued a "Basic Conditions Report" describing the area as follows:

The Green Valley Study Area incorporates an area spanning approximately 293 acres. The Study Area consists predominantly of steeply-sloped woodlands and floodplains. Additionally, a 9-hole public golf course consisting of nearly 45 acres and surface parking facilities occupying less than an acre exist within the Study Area. There are seven residential structures in various states of disrepair in the Study Area that are uninhabited, two sheds with one still in use and another structure in use as the club house for the golf course; these buildings have no historical or architectural significance.

R.R. 228a.

The authors of the Report recited the statutory criteria for determining that an area is blighted⁴ and concluded that four of those criteria were satisfied in the Green Valley Study Area: economically undesirable land uses; faulty street and lot layout; unsafe, unsanitary, inadequate or overcrowded conditions of the dwellings and inadequate planning of the area. The Basic Conditions Report concluded with two recommendations: (1) that the Green Valley Study Area "be declared an Area in Need of Redevelopment according to the criteria outlined in the Pennsylvania [Urban] Redevelopment Law"; and (2) that the area "be designated a certified Redevelopment Area by the Board of Supervisors of Ohio Township and the Redevelopment Authority of Allegheny County." R.R. 232a.

Ohio Township and the Redevelopment Authority accepted the recommendations of the Basic Conditions Report. On July 8, 2002, Ohio Township's Board of Supervisors enacted a resolution finding the Green Valley Study Area to be blighted. On August 28, 2002, the Redevelopment Authority Board also adopted a resolution certifying to Council that the Green Valley Study Area is blighted and in need of redevelopment under the Urban Redevelopment Law.

On October 9, 2002, the Redevelopment Authority prepared a project plan entitled "Mt. Nebo Pointe Tax Increment Financing Plan" (TIF Plan) for consideration by the affected local taxing bodies. In accordance with Section 5 of the Tax Increment Financing Act, the TIF Plan included, inter alia, a description of the proposed Mt. Nebo Pointe project, the specific roadway, sewer and water infrastructure improvements that would be undertaken with the TIF proceeds and an economic feasibility analysis concerning the proposed project with detailed information on job creation, tax revenues and financing of revenue bonds to pay for the public improvements. The Ohio Township Board of Supervisors and the Avonworth School Board enacted resolutions agreeing to use tax increment financing for the Mt. Nebo Pointe project in accordance with the TIF Plan.

At its regularly scheduled meeting on October 22, 2002, Council gave a first reading to the Resolution, which authorized the County's participation in the TIF Plan and created the Mt. Nebo Pointe Tax Increment Financing District. The proposed Resolution was referred to Council's Committee on Economic Development for review and recommendation. Council also adopted a separate motion scheduling a public hearing on the Resolution for November 26, 2002 and directed its clerk to advertise notice of the hearing as required by Section 5 of the Tax Increment Financing Act, 53 P.S. § 6930.5(a)(5).⁵ The public hearing was advertised in the Pittsburgh Post-Gazette on October 22, 2002.

Council's Economic Development Committee met on November 6, 2002. At that meeting, Steve Morgan, the Director of the County's Department of Economic Development, and Ralph Conti, a vice president for DDR, provided the members of the committee with basic preliminary information on Mt. Nebo Pointe, including its proposed location and the reasons why tax increment financing was not only necessary for the project but beneficial to the public.

On November 26, 2002 Council conducted its public hearing as advertised regarding the County's participation in the TIF Plan. At this hearing, Mssrs. Morgan and Conti again testified about the proposed Project and the necessity of tax increment finaing. Council also heard comments from thirty-six members of the general public, including four of the five Appellants.

On January 7, 2003, Council's Economic Development Committee held its first regularly scheduled meeting for 2003. At that meeting, which was attended by six of its seven members, the committee voted 4-2 to recommend adoption of the Resolution by the full Council. Council met on January 22, 2003 and, after some debate, approved the Resolution by a vote of 11-3 with one abstention. Council's Chief Executive signed the Resolution on January 28, 2003. The Resolution enumerated the findings required by the Tax Increment Financing Act,⁶ created a TIF District to be known as the Mt. Nebo Pointe Tax Increment Financing District for a term of twenty years, specifically adopted the TIF Plan prepared by the Redevelopment Authority and pledged sixty percent (60%) of tax revenues generated by Mt. Nebo Pointe for the repayment of any debt issued by the Redevelopment Authority to pay for the public infrastructure improvements described in the TIF Plan.

On February 27, 2003, Appellants filed an appeal to the trial court under the Local Agency Law. Appellants challenged Council's enactment of the Resolution on both procedural and substantive grounds. The trial court found no merit to Appellants' arguments and denied their appeal. This timely appeal followed, in which Appellants continue to raise procedural and substantive challenges to Council's enactment of the Resolution.⁷

As a threshold matter we must address Council's argument, raised for the first time on appeal, that Appellants' action should have been dismissed as an improper appeal under the Local Agency Law.⁸ The Local Agency Law states that "[a]ny person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure)." 2 Pa.C.S. § 752 (emphasis added). Council argues that the Resolution was not an adjudication and that Appellants' appeal was an improper challenge of legislative action by a local governing body.

For purposes of the Local Agency Law, an "adjudication" is "[a]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made." 2 Pa.C.S. § 101. In interpreting this provision, we have held that any agency action determining the personal or property rights or obligations of the parties before an agency in a particular proceeding is an adjudication. LaFarge Corp. v. Commonwealth, Insurance Department, 690 A.2d 826, 833 (Pa.Cmwlth.1997), rev'd on other grounds, 557 Pa. 544, 735 A.2d 74 (1999). "If, however, the agency action does not affect the rights of the parties, but only affects the interest of the public in general, then the action will not be deemed an adjudication." Id. (citing Insurance Department v. Pennsylvania Coal Mining Association, 25 Pa.Cmwlth. 3, 358 A.2d 745 (1976); Xun Imaging Associates, Ltd. v. Department of Health, 165 Pa.Cmwlth. 112, 644 A.2d 255 (1994)).

Appellants...