Wexford Sci. & Tech. v. City of Pittsburgh Zoning Bd. of Adjustment
| Decision Date | 01 August 2022 |
| Docket Number | 1316 C.D. 2021 |
| 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 |
MARY HANNAH LEAVITT, PRESIDENT JUDGE EMERITA
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.
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.
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 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.
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 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.
On appeal,[5] Intervenors raise two issues for our consideration. First, they argue that the trial court erred in ruling that Developer was permitted to use the height of the adjoining hotel as the base height for its proposed building. Second, they argue that the trial court lacked subject matter jurisdiction over the 20% LEED height bonus because Developer did not follow the procedures in the Zoning Code for obtaining such a bonus. We address these issues seriatim.
In their first issue, Intervenors argue that the trial court erred in concluding that the 128-foot height of the adjacent hotel provided the permitted height for Developer's building because the hotel building is oriented to McKee Place, not to Forbes Avenue. The evidence was uncontested that the hotel's "pedestrian entrance, the vehicle entrance, [the] canopy over the front door, the prominent signage identifying the [hotel] building and [the] flags are all oriented on McKee Place." Intervenors' Brief at 17. Because the dictionary meaning of the term "oriented" is "to align or position in a particular direction" or to be "functionally directed," Intervenors contend that only a building can be oriented. Intervenors' Brief at 13-14. Here, the hotel is "'functionally directed' to serve guests and receive mail only via its east main door" on McKee Place, not north on Forbes Avenue. Intervenors' Brief at 20. Intervenors assert that the trial court's observation that both the hotel and Developer's proposed building have addresses on Forbes Avenue was irrelevant because a property owner may change its street address under the City's Uniform Street Naming and Addressing Ordinance, No. 20-2009, §§420.01-420.12, effective October 31, 2019.
Developer responds that the trial court correctly applied the Zoning Code. Contextual height does not depend upon the location of the neighboring building's front door but, rather, on the orientation of each lot. Section 925.07.D of the Zoning Code provides 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 adjective "oriented" modifies the noun "lot," not "building." This same wording appears in the Zoning Code's definition of "contextual height" as "the building height that exists on a lot that is adjacent to and oriented to the same street as the subject lot." Zoning Code, §926(58) (emphasis added). In short, contextual height turns on lot, not building, orientation.
In support, Developer observes that the City's site map shows that all of the lots on the block where Developer's proposed building will be built face Forbes Avenue. R.R. 28a. South of this block, the lot orientations change. The smaller residential lots along Coltart Avenue face Coltart Avenue, and lots along McKee Place face McKee Place. In every case, the longer lot lines are parallel to each other and perpendicular to the street to which the lot is oriented. The long lot lines for Developer's lots and the hotel lot all lie perpendicular to Forbes Avenue.
The interpretation of an ordinance presents this Court with a question of law subject to plenary review. Northampton Area School District v. Zoning Hearing Board of Township of Lehigh, 64 A.3d 1152, 1157 (Pa. Cmwlth. 2013). In reviewing the plain language of the text of an ordinance, we "construe words and phrases in a sensible manner,...
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