Lumania Properties, L.P. v. Planning Comm. of the City of Pittsburgh ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lumania Properties, L.P., :
Appellant :
:
v. :
:
Planning Commission of the :
City of Pittsburgh, Troiani Group, :
Troy Development Associates, L.P., :
Boulevard & Market, LLC and : No. 531 C.D. 2021
City of Pittsburgh : Argued: February 7, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: May 17, 2022
Lumania Properties, L.P. (Lumania) appeals from the Allegheny
County Common Pleas Court’s (trial court) April 14, 2021 order affirming the City
of Pittsburgh (City) Planning Commission’s (Commission) July 14, 2020 decision
that approved the consolidation of 12 parcels owned by Troiani Group and Troy
Development Associates, L.P. (collectively, Troiani). Lumania presents three issues
for this Court’s review: whether the Commission erred (1) by approving the
Consolidation Plan because the Consolidation Plan did not identify a light access
setback adjacent to its building consistent with the City’s Subdivision Regulations
and Standards1 (Subdivision Regulations);2 (2) by determining that a subdivision
plan need not contain setback lines, required open space, and correct adjacent
building densities as required by the City’s Subdivision Regulations; and (3) by
concluding that the Subdivision Regulations had been repealed.3
The instant appeal pertains to Troiani’s plan to consolidate 12 parcels
of its properties located on Market Street between First Avenue and Boulevard of
the Allies in the Golden Triangle (GT)-C District4 into 2 lots (Consolidation Plan).
Proposed Lot 1 would have 150.46’ of frontage on First Avenue, 162.5’ of frontage
on Boulevard of the Allies, and 159.6’ of frontage on Market Street. Proposed Lot
1 would total 24,971 square feet in area, and currently contains several commercial
buildings.5 Proposed Lot 2 would have 34’ of frontage on Market Street, and 70.2’
1
See https://apps.pittsburghpa.gov/redtail/images/3078_SUBDIVISION_REGULATIONS_AND
_STANDARDS.pdf (last visited May 16, 2022). Pursuant to Section 9 of the Act of May 13, 1927,
P.L. 1011, as amended, 53 P.S. § 22769 (Act), the Commission has jurisdiction and authority to
approve “a subdivision of land,” which is defined therein as “[a]ny division of land into lots or
parcels, two or more in number, by the owner thereof for the purpose of improvement or sale, for
residential, commercial, industrial or similar use[.]” Id. Section 10 of the Act directs the
Commission to “adopt general regulations governing the subdivision of land within its
jurisdiction.” 53 P.S. § 22770.
2
This Court has rephrased Lumania’s issue to correlate with, and as fairly suggested by,
the argument section of its brief. See Pa.R.A.P. 2116(a). Lumania phrased the issue as follows:
“Whether the Commission . . . abused its discretion or committed an error of law in . . .
[c]oncluding that the Subdivision Regulations . . . are inconsistent and inapplicable in creating a
plat within the City . . . .” Lumania Br. at 3.
3
This Court has reordered Lumania’s issues for ease of discussion.
4
The GT District is divided into five subdistrict classifications – Subdistricts A, B, C, D,
and E. See City of Pittsburgh, Pa. Zoning Code § 910.01.B. References herein to the GT District
refer to all GT Subdistricts.
5
Troiani previously sought the Commission’s approval for the demolition of some of the
buildings on proposed Lot 1, but the Commission denied Troiani’s application. This Court
affirmed the trial court’s affirmance of the Commission’s decision. See Troiani Grp. & Troy Dev.
Assocs., L.P. v. City of Pittsburgh Planning Comm’n, City of Pittsburgh & Lumania Props., L.P.
(Pa. Cmwlth. No. 85 C.D. 2021, filed Mar. 21, 2022), petition for allowance of appeal filed, (Apr.
20, 2022). In addition, this Court reversed the trial court’s reversal of the City Board of Appeals’
2
of frontage on Boulevard of the Allies. Proposed Lot 2 would total 2,392 square feet
in area, and currently contains a surface parking lot.
Lumania owns a six-story building at 216 Boulevard of the Allies which
is adjacent to the Consolidation Plan site, and which has windows on the third
through sixth floors that face the property line that the Consolidation Plan site would
border. The Consolidation Plan reflects that there is no existing building on the
Consolidation Plan site immediately adjacent to Lumania’s building.6 By July 13,
2020 email to the Commission, Lumania objected to the proposed consolidation.
Lumania also submitted to the Commission an “Objection to Lot Consolidation
Plan” (Plan Objection), Reproduced Record (R.R.) at 18a-21a, wherein Lumania
alleged that the Consolidation Plan did not comply with Section 4.10.3 of the City’s
Subdivision Ordinance’s7 requirements pertaining to light access (Subdivision Light
Access Requirements).8, 9
Lumania requested that the Commission deny the
Consolidation Plan for the following reasons:
denial of a proposed emergency demolition plan for one building on proposed Lot 1 (requesting
preemptive demolition of other buildings). See Troiani Grp. & Troy Dev. Assocs., L.P. v. City of
Pittsburgh Board of Appeals & City of Pittsburgh (Pa. Cmwlth. No. 1127 C.D. 2021, filed Mar.
21, 2022), petition for allowance of appeal filed, (Apr. 20, 2022).
6
In fact, Lumania stated to the Commission that Troiani had previously demolished the
building at 212-214 Boulevard of the Allies. See Reproduced Record at 40a. In its brief to this
Court, Lumania stated: “The building which formerly abutted [Lumania’s] structure was a low-
rise building which did not affect the windows on [Lumania’s] structure.” Lumania Br. at 6.
7
It appears that Lumania’s numerous references to the Subdivision Ordinance in the Plan
Objection were intended to be references to the Subdivision Regulations. In its brief to this Court,
Lumania correctly references the Subdivision Regulations.
8
Section 4.10.3 of the Subdivision Regulations states in relevant part: “A minimum
distance between structures shall be provided in accordance with the City’s Building Code, and
in conformance with the following provisions for light access to all structures.” Subdivision
Regulations § 4.10.3, R.R. at 33a (emphasis added).
9
Lumania claimed:
5. Pursuant to [S]ection 4.10.3 of the [Subdivision Regulations], lots
must comply with the [Subdivision] Light Access [Requirements]
3
7. The [Consolidation Plan] . . . is deficient in that at
the lot line between the proposed new lot and
[Lumania’s property], the variable setback (for light
access) as required by [Section] 4.10.3 of the
[S]ubdivision [Regulations] is erroneously not noted.
8. The Subdivision [Regulations] of the City [] also
require[] that lot plans shall conform to the [City of
Pittsburgh, Pa.] Zoning [Code10 (Zoning Code)] and not
be detrimental to any property.
9. The [Consolidation Plan] . . . in addition to being
deficient and not identifying the variable setback required
for subdivision light access, also does not comply with the
Light Access [R]equirements pursuant to [Section]
910.01.C.5 of the Zoning [Code11 (Zoning Light
in which light access of an affected window requires an arc
extending 70 [degrees] on each side of the line perpendicular to the
building wall at the centerline of any affected window. The exterior
radii of the arc [are] required to be 20 feet in length for non-
residential uses. (§ 4.10.3(a)(2).
6. The Subdivision [Regulations] in [Section] 4.10.3 include[]
illustrations which clearly indicate that the height above a window
sill of an affected adjacent window can only be two-thirds of the
setback distance between the structures. . . .
R.R. at 20a (emphasis added).
10
See https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances?nodeId=PIZOCO_TI
TNINEZOCO (last visited May 16, 2022).
11
Section 910.01.C.5 of the Zoning Code, which pertains to the GT District, is titled
“[l]ight [a]ccess,” and provides:
Buildings shall be designed to provide at least five (5) feet from the
zoning lot line to a proposed affected window except when the
zoning lot line is contiguous to a public right-of-way of ten (10) or
more feet in width. An affected window is defined as a window that
provides light, air and visibility to the outdoors not including glazing
for architectural design. The five-foot space may be waived when a
similar amount of open space is provided on the adjacent property
with a recorded easement or similar type of document.
Zoning Code § 910.01.C.5.
4
Requirements)], and is detrimental to [Lumania’s adjacent
property].
R.R. at 20a-21a (emphasis added).
On July 14, 2020, the Commission held a hearing on Troiani’s
Consolidation Plan, at which Lumania’s owner Jay Green (Green), Lumania’s
counsel Steve Farino (Farino), Troiani’s counsel Cliff Levine (Levine), and City
Zoning Administrator Corey Layman (Layman) testified. Green stated his objection
to the Consolidation Plan based on his opinion that Troiani’s proposed building is
contrary to the community’s best interests. Specifically, Green declared:
[Granting Consolidation Plan approval] would erase the
chance to keep aspects of [d]owntown Pittsburgh diverse,
both in its people and in its architecture.
Besides, you know, another glass tower with expensive
[condominiums] and higher-priced restaurants is not in
keeping with the attitude and desires of the current culture.
Attracting forward-thinking companies and residents to
[the City] will require an honest environment that
represents a true blend of old and new neighborhood
styles, shops, and eateries. That is how we will activate
this area.
. . . . To keep those lots separate and to develop those [sic]
each individual lot with townhouses and -- and correct
buildings for this neighborhood . . . is exactly what we
need, not a giant glass tower and -- and the lip service to
hiding a salvaged brick or a board in some glass
monstrosity. You know, that’s no [sic] keeping the past.
R.R. at 41a-42a.
Farino claimed that “the [Consolidation] [P]lan . . . is deficient in that
it does not have a -- a variable setback for light access for the neighboring property
that has windows which [] [S]ubdivision [Regulation] Section 4[.]10.3
5
requires . . . [.]”12 R.R. at 43a. Levine countered that “this is just a consolidation
which the [Planning Commission] staff has recommended. . . . [I]f there’s an issue
about whether the building will be too close to their windows, I think that waits to
the next [project development plan][.]” R.R. at 44a.
In response to questions from Commissioner Rachel O’Neill
(Commissioner O’Neill), Layman explained that the Subdivision Light Access
Requirements are not applicable because the Consolidation Plan does not involve
development. Layman confirmed that “the [S]ubdivision [R]egulations are
regulations that at one time were adopted by the . . . [C]ommission.” R.R. at 46a.
Layman further stated that, to the extent that the Subdivision Regulations are
inconsistent with the Zoning Code, the Zoning Code would “absolutely” override
those. Id. Commissioner O’Neill then asked Layman: “So if there are setbacks in
the [Z]oning [C]ode, those would override or take precedence over anything
included in the [S]ubdivision [R]egulations?” Id. Layman responded: “That is
correct.” Id.
At the hearing’s conclusion, the Commission voted unanimously to
approve the Consolidation Plan. See R.R. at 48a-49a. In its written decision, the
Commission made eight findings of fact and four conclusions of law. The
Commission concluded, in pertinent part, as a matter of law:
1. The proposed [Consolidation Plan] does not change the
underlying zoning or historic designations of the [s]ubject
[p]roperty. Future development will be subject to
applicable zoning regulations.
12
In the Plan Objection, Lumania raised only that Troiani failed to comply with the
Subdivision Light Access Requirements “at the lot line between the proposed new lot and
[Lumania’s property],” and the Zoning Code Light Requirements, and that the Consolidation Plan
was detrimental to its neighboring property. R.R. at 20a.
6
2. The Commission concludes that the [Consolidation
Plan] is in keeping with the general character of the
surrounding neighborhood as defined in Section 1.1[-
10.0], of the Subdivision Ordinance,[13] and will not cause
negative impacts in the surrounding neighborhood.
3. The Commission concludes that the [Consolidation
Plan] will provide adequate light, air, and privacy[,] and
will not cause undue overcrowding or congestion.
R.R. at 26a. Lumania appealed to the trial court, which, on April 14, 2021, affirmed
the Commission’s decision. Lumania appealed to this Court.14
Lumania argues that the Commission erred when it approved the
Consolidation Plan, because the Consolidation Plan did not identify a light access
setback adjacent to its building consistent with the Subdivision Regulations’
Subdivision Light Access Requirements.15 Specifically, Lumania contends that a
light access setback constitutes open space which must be identified in a site plan,
and Troiani’s failure to identify the light access setback adjacent to its building
renders the Consolidation Plan defective.
13
The Commission, in its July 14, 2021 decision, referred to the Subdivision Regulations
both as the “[S]ubdivision [R]egulations” and the “Subdivision Ordinance[.]” R.R. at 25a-26a.
14
“Where, as here, a trial court takes no additional evidence, our scope of review is limited
to determining whether the [] Commission abused its discretion or committed an error of law.
Thus, it is the [] Commission’s decision that we review.” Oakland Plan. & Dev. Corp. v. City of
Pittsburgh Plan. Comm’n, 107 A.3d 873, 881 (Pa. Cmwlth. 2015) (citation omitted).
15
The Subdivision Regulations govern the subdivision of land within the City. See Section
10 of the Act of May 13, 1927, P.L. 1011, as amended, 53 P.S. § 22770. This Court has held that
“[w]here a subdivision plan complies with all objective provisions of the applicable subdivision
ordinance[,] as well as all other applicable regulations[,] the plan must be approved.” Robal
Assocs., Inc. v. Bd. of Supervisors of Charlestown Twp., 999 A.2d 630, 635 (Pa. Cmwlth. 2010)
(quoting Shelbourne Square Assocs., L.P. v. Bd. of Supervisors of Twp. of Exeter, 794 A.2d 946,
950 (Pa. Cmwlth. 2002)).
7
Section 2.27 of the Subdivision Regulations defines Subdivision Site
Plan as:
[A] drawing or map prepared by a registered land surveyor
or engineer which illustrates precisely the lot or lots to be
subdivided and all land within one hundred (100) feet of
the proposed subdivided area. The subdivision site plan
shall contain but shall not be limited to, the following
information: the location and bulk of all buildings, the
location of all roads, vehicular and pedestrian, utility
easements location and points of access; required
building setback lines; required open space of any
kind; and any major natural features on the site including,
but not limited to, hillsides in excess of fifteen percent
(15%) slope, natural water courses and drainage areas and
existing trees in excess of 30” in caliper.
Subdivision Regulations § 2.27, R.R. at 30a (emphasis added).
The Subdivision Light Access Requirements provide, in relevant part:
4.10.3 Light Access. A minimum distance between
structures shall be provided in accordance with the City’s
Building Code, and in conformance with the following
provisions for light access to all structures.
a) Area for light access shall be that area enclosed by:
1) An arc extending seventy degrees on each side of
a line perpendicular to building wall at the center
line of any affected window, and
2) The exterior radii of such arc which shall be forty
feet in length for residential uses and twenty feet in
length for other ma[i]n uses.
The radii arc shall be measured from the exterior face
of the building wall at sill level at the center line of the
affected window. For this purpose, when a sill is less
than two and one-half feet above floor level, sill level
shall be assumed to be two and one-half feet above
floor level.
8
....
c) Requirements for light access.
1) For all affected windows in all buildings, at least
eight units of light access and the space between
such units; and the affected window shall be
unobstructed.
Subdivision Regulations § 4.10.3, R.R. at 33a.
Lumania asserts that Section 2.27 of the Subdivision Regulations’
requirement that a subdivision plan contain “required open space of any kind”
encompasses the Subdivision Light Access Requirements. R.R. at 30a; see also
Lumania Br. at 12. Thus, Lumania declares:
The lot [C]onsolidation [P]lan . . . was deficient, in that at
the lot line between the proposed new lot and 216
Boulevard of the Allies, the variable setback (for light
access) as required by [the Subdivision Light Access
Requirements], is erroneously not noted.
Lumania Br. at 14. Lumania reasons that the Subdivision Regulations, including the
Subdivision Light Access Requirements, are subdivision requirements and thus,
apply to consolidations.16 In addition, Lumania contends that the Consolidation Plan
must also comply with the Zoning Code’s light access requirements, which Lumania
asserts it did not.
This Court has distinguished zoning applications and subdivision plans
as follows:
[A] zoning application “addresses the use of the land,
while a subdivision plan addresses how the land is to be
developed.” Philomeno [& Salamone v. Bd. of
Supervisors of Upper Merion Twp.], 966 A.2d [1109,]
1110 [(Pa. 2009)]. “While the governing body of a
16
Lumania acknowledges that “[the] Subdivision Regulations . . . apply to the creation of
lots, and the [Z]oning [Code] [is] for the creation of buildings and uses.” Lumania Br. at 15.
9
municipality has broad discretion in adopting standards for
the approval of subdivision and land development plans, it
cannot include provisions relating to the use of land.
Regulation of use is a matter appropriate for control
through a zoning ordinance.” Id. (quoting 2 Robert M.
Anderson, Law of Zoning in Pennsylvania § 22.20
(1982)).
Bd. of Comm’rs of Cheltenham Twp. v. Hansen-Lloyd, L.P., 166 A.3d 496, 504-05
(Pa. Cmwlth. 2017), aff’d, 211 A.3d 845 (Pa. 2019) (emphasis added). Further,
“approval of a final [subdivision] plan does not extend to any zoning approvals
needed to effect the development[.]” Rickert v. Latimore Twp., 960 A.2d 912, 918-
19 (Pa. Cmwlth. 2008); see also Stolz v. Zoning Hearing Bd. of the Borough of
Lewisburg, 568 A.2d 746, 748 (Pa. Cmwlth. 1990).
Troiani rejoins that because the Zoning Light Requirements address
light access for buildings in the GT District, light access is a zoning matter to be
addressed when a development plan is considered, and not a matter for consideration
in a consolidation plan application approval.17 The Commission and the City
(collectively, City Appellees) argue that “a lot consolidation on its own causes no
changes to property in either the physical or regulatory realm[,]” and there is no
record evidence of any harm resulting from the Consolidation Plan’s approval. City
Appellees’ Br. at 9.
This Court agrees with Lumania that the Subdivision Regulations apply
to subdivision plans, including the instant Consolidation Plan. However, the
Commission did not conclude otherwise. See R.R. at 26a (wherein the Commission
17
Troiani emphasizes that the Consolidation Plan provides only lot consolidation, and
Troiani has not sought approval for any construction at the site. Troiani maintains that the
Commission was required to approve the Consolidation Plan since “zoning and other structural
development requirements do not apply to lot consolidations because consolidations do not
constitute development.” Troiani Br. at 12.
10
“conclude[d] that the [Consolidation Plan] is in keeping with the general character
of the surrounding neighborhood as defined in Section 1.1, et seq., of the
Subdivision [Regulations.]”) (emphasis added).
By their own terms, the Subdivision Light Access Requirements
mandate “a minimum distance between structures . . . .” Subdivision Regulations
§ 4.10.3, R.R. at 33a (emphasis added). The Consolidation Plan identifies the
location of Lumania’s structure, and as the Consolidation Plan reveals, and Lumania
acknowledges, there is no existing structure adjacent to Lumania’s building. Absent
an existing adjacent structure on the proposed consolidated site, the applicable
Subdivision Light Access Requirements setback cannot be calculated, and thus the
lack of such notation on the Consolidation Plan was not a deficiency. Moreover,
because the matter before this Court does not involve zoning, the Zoning Light
Requirements are not relevant to this Court’s decision herein. Accordingly, the
Consolidation Plan was not deficient.18
Lumania next contends that the Commission erred by “[c]oncluding
that a [s]ubdivision [p]lan need not contain setback lines, required open space, and
correct adjacent building densities, as required by the Subdivision Regulations . . . .”
Lumania Br. at 7. The Commission made no such conclusion, and nothing in the
Commission’s decision holds that “a [s]ubdivision [p]lan need not contain setback
lines, required open space, and correct adjacent building densities[.]” Id. Rather,
18
With respect to Lumania’s claim that the Consolidation Plan’s approval would be
detrimental to its property, Lumania’s Plan Objection contains no support therefor other than
asserting that the Consolidation Plan does not comply with the Subdivision Light Access
Requirements and the Zoning Light Requirements. At the Commission hearing, Lumania’s owner
argued only that preserving the existing buildings would be better for the City, but made no
argument about specific detriment to Lumania from the Consolidation Plan Approval. Lumania’s
attorneys did not address any detrimental effect to Lumania.
11
the Commission simply approved the Consolidation Plan. Thus, Lumania’s
argument fails.
Finally, Lumania argues that the Commission erred by “concluding that
the Subdivision Regulations . . . had been repealed, even though they are still in full
force and effect[.]” Lumania Br. at 16. However, the Commission did not conclude
that the Subdivision Regulations had been repealed, and nothing in the
Commission’s decision holds or otherwise declares that the Subdivision Regulations
had been repealed. In Finding of Fact 8, the Commission found that Layman
explained that the Subdivision Light Access Requirements do not apply to
consolidations since a consolidation plan does not involve development as
considered in the Subdivision Regulations, and that the relevant Subdivision
Regulations had been superseded by Zoning Code amendments. See R.R. at 25a.
Nonetheless, the Commission did not render a legal conclusion declaring that the
Subdivision Regulations had been repealed and did not denote such as the basis for
its decision. Accordingly, Lumania’s contention is meritless. This Court therefore,
concludes that the Commission did not err when it approved the Consolidation
Plan.19
19
City Appellees contend that the present appeal is not ripe because, “[e]ven though no
new development has yet been formally proposed, Lumania asserts that the [C]onsolidation [P]lan
fails to account for the impact on light, space, and design of hypothetical future development.”
City Appellees Br. at 7; see DeNaples v. Pa. Gaming Control Bd., 150 A.3d 1034, 1040 (Pa.
Cmwlth. 2016) (“[A]n action ‘may not be employed to determine rights in anticipation of events
which may never occur . . . or as a medium for the rendition of an advisory opinion which may
prove to be purely academic.’ [Brown v. Pa. Liquor Control Bd., 673 A.2d 21, 23 (Pa. Cmwlth.
1996)].” “An issue that ‘may’ arise in the future ‘is not considered ‘ripe’ for judicial
interpretation.’ Id. (citation omitted).”).
This Court disagrees with City Appellees’ characterization of the dispute. The
Commission issued a decision granting approval of the Consolidation Plan. Lumania has
challenged the Commission’s approval. It does so on the grounds that the Commission’s decision
is erroneous because the Consolidation Plan is legally inadequate. Accordingly, with respect to
12
For all of the above reasons, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
Lumania’s challenge to Troiani’s compliance with the Subdivision Regulations, Lumania is not
seeking “to determine rights in anticipation of events which may never occur” but, rather, whether
the Commission properly approved the Consolidation Plan. DeNaples, 150 A.3d at 1040.
Accordingly, City Appellees’ argument is without merit. Nonetheless, this Court recognizes that
Lumania’s arguments pertaining to Trioani’s compliance with the Zoning Light Requirements are
premature.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lumania Properties, L.P., :
Appellant :
:
v. :
:
Planning Commission of the :
City of Pittsburgh, Troiani Group, :
Troy Development Associates, L.P., :
Boulevard & Market, LLC and : No. 531 C.D. 2021
City of Pittsburgh :
ORDER
AND NOW, this 17th day of May, 2022, the Allegheny County
Common Pleas Court’s April 14, 2021 order is affirmed.
_________________________________
ANNE E. COVEY, Judge