Troiani Group & Troy Dev. Assoc., L.P. v. City of Pittsburgh Bd. of Appeals & City of Pittsburgh ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Troiani Group and Troy Development :
Associates, L.P., :
Appellants :
:
v. :
:
City of Pittsburgh Board of Appeals : No. 86 C.D. 2021
and City of Pittsburgh : Argued: May 13, 2021
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COVEY FILED: July 1, 2021
Troiani Group and Troy Development Associates, L.P. (collectively,
Troiani) appeal from the Allegheny County Common Pleas Court’s (trial court)
January 11, 2021 order affirming the City of Pittsburgh (City) Board of Appeals’
(Board) September 18, 2020 decision that denied Troiani’s appeal from the
Department of Permits, Licenses, and Inspections’ (PLI) denial of an emergency
demolition plan (Demolition Plan) for Troiani’s building located at 209 First Avenue
in the City (First Avenue Structure), and three other Troiani-owned buildings located
in the City at 100/102 Market Street, 104 Market Street and 106/108 Market Street
(Market Street Structures), which abut the First Avenue Structure. Troiani presents
two issues for this Court’s review: (1) whether the Board erred as a matter of law
when it refused to approve Troiani’s Demolition Plan; and (2) whether the Board
misstated, and failed to apply, the proper standards under the Uniform Construction
Code (UCC).1
The First Avenue Structure is a 6-story building with a basement, which
has been vacant for approximately 50 years. The Market Street Structures are 2- to
4-story buildings that have been vacant since the early 2000s. In April 2020, due to
its deteriorating condition, Troiani sought PLI’s approval for emergency demolition
of the First Avenue Structure (Emergency Demolition Application). On May 5,
2020, PLI’s Assistant Director of Construction and City Building Code Official
David Green (Green) denied the Emergency Demolition Application. Troiani
appealed from PLI’s denial to the Board. On June 26, 2020, after a hearing, the
Board reversed PLI’s denial of the Emergency Demolition Application and
authorized the immediate emergency demolition of the First Avenue Structure.
Troiani retained structural engineers and demolition experts to prepare the
Demolition Plan. Thereafter, Troiani submitted its Demolition Plan for the First
Avenue Structure to PLI. Troiani’s Demolition Plan indicated that the Market Street
Structures’ demolition was necessary to safely demolish the First Avenue Structure.
Accordingly, the Demolition Plan provided for demolition of the First Avenue
Structure and the Market Street Structures.2
1
34 Pa. Code §§ 401.1-405.42. The Pennsylvania Supreme Court explained:
The Pennsylvania Construction Code Act (PCCA), [Act of
November 10, 1999, P.L. 491, as amended,] 35 P.S. §[§] 7210.101[-
7210.1103], stresses uniformity: “[t]he way to insure uniform,
modern construction standards and regulations throughout this
Commonwealth is to adopt a [UCC].” [Section 102(a)(3) of the
PCCA, 35 P.S.] § 7210.102(a)(3). Section 301 of the PCCA granted
the Department of Labor and Industry authority to promulgate
uniform statewide construction standards, id., § 7210.301(a)(1),
which it did by adopting the UCC in April[] 2004.
Schuylkill Twp. v. Pa. Builders Ass’n, 7 A.3d 249, 250 (Pa. 2010).
2
The trial court’s affirmance of the City Planning Commission’s August 18, 2020 decision
denying Troiani’s Project Development Plans for the Demolition of the Market Street Structures
2
By September 3, 2020 letter, Green notified Troiani that PLI denied the
Demolition Plan. Green stated therein:
1. This review is for the demolition of [the First Avenue
Structure] only. Demolition of [the Market Street]
[S]tructures need[s] to be addressed under their respective
permit applications. These applications are:
a. DP-2019-03315: 106/108 Market [Street].
b. DP-2019-03314: 104 Market [Street].
c. DP-2019-03311: 100/102 Market [Street].
2. Please note that the demolition of [the Market Street
Structures] requires approval from the [City’s] Planning
Commission [(Planning Commission)]. As it stands, the
Planning Commission has denied the demolition of these
structures. PLI has no direct authority to grant the
demolition of these structures. Additionally, while the
contract for demolition identifies demolition of these
structures, this permit will be limited to demolition of [the
First Avenue Structure].
The submitted documentation shall be revised to establish
a plan for the demolition of [the First Avenue Structure]
that does not include the demolition of adjacent structures.
You may appeal PLI’s decision to the [Board]. . . .
3. Your engineer proposes that protection measures related
to the demolition of [the First Avenue Structure] include
the demolition of [the Market Street Structures]. Please
note[,] as discussed[,] these types of measures are not
required by the [International Building Code of 2015
(Building Code)3] and it is not standard industry practice
to demolish adjacent structures as a protection measure.
Further, [Chuck] Cornely [(Cornely)] has identified that
vibrations from demolition of the adjacent structures could
cause the collapse of [the First Avenue Structure] and that
is the subject of a separate appeal at Docket No. 85 C.D. 2021, argued seriately with the instant
appeal.
3
Section 403.21 of the UCC, 34 Pa. Code § 403.21, in pertinent part, adopted the provisions
of Chapters 2-10, 12-29 and 31-35 and Section 3006 of the Building Code.
3
the fall zone into Market Street is the same whether the
Market Street [Structures] are demolished first or not.
Given the above, PLI does not deem demolition of the
Market Street [Structures] a necessary protection measure.
Reproduced Record (R.R.) at 190a-191a. Troiani appealed to the Board from PLI’s
decision.
The Board conducted a hearing on September 15, 2020. Troiani
presented testimony from structural engineers Cornely and Dirk Taylor (Taylor) and
demolition contractor Tim Schaaf (Schaaf).
Cornely drafted the Demolition Plan for the First Avenue Structure. He
testified: “The demolition of the buildings along Market Street will reduce the
potential for damage to the buildings across Market Street and reduce the potential
for life [sic] and increased life safety for people using Market Street and people in
the buildings across Market Street.” R.R. at 242a. Specifically, Cornely confirmed
that “[t]he only means to minimize the life safety concerns for a controlled
demolition of [the] First Avenue [Structure] is to first demolish the Market
Street [Structures].” R.R. at 244a (emphasis added). He reasoned that
“[e]liminating these, demolishing these buildings on the east side of Market Street
will absolutely reduce the risk of damage to the buildings on the west side of Market
Street . . . .” R.R. at 248a.
Cornely explained:
[There’s] an 8[-]foot alley between [the First Avenue
Structure] and the rear walls of the buildings along Market
Street. That alley, the width of that alley precludes any
kind of protection of the buildings along the east side of
Market Street. It’s all part of a convoluted situation of risk
of actually fairly big proportions. The reducing of risk to
the buildings on the west side of Market Street by
demolishing the buildings on the east side of Market Street
is, in my opinion, a very good move to limit damage from
the potential uncontrolled and unexpected collapse of [the
4
First Avenue Structure] to the west and onto the buildings
along the east side of Market Street.
R.R. at 249a.
When asked why the First Avenue Structure could not be brought down
without falling to the west, Cornely expounded:
The situation is this [-] [t]he wall that we see on the first
floor, the first floor brick bearing wall with the brick
courses, brick wythes [are] missing on the exterior of that
wall, that wall has approximately . . . .
....
60[%] of its strength. The point is it’s very weak. In
addition to that, those bricks that are exposed along that
first floor west bearing wall are, they are not stable. Any
disturbance, any vibration can further remove the
brickwork in that wall. That can happen at any time.
That’s what’s got me so excited myself because it’s like a
straw that will break the camel’s back. If you do work
inside that building, you’re liable to disturb that brick and
displace that brick because of the deteriorated mortar in
that brickwork of that first floor. That’s why it’s
dangerous. This is something that’s incipient. Any
vibration may be the straw that breaks the camel’s back.
R.R. at 250a-252a.
Taylor testified that he reviewed Cornely’s assessment and the
Demolition Plan. See R.R. at 218a. Taylor related that he visited the buildings,
reviewed the interior and exterior conditions of the First Avenue and Market Street
Structures, and based on his observations, investigation and analysis, he concurred
with Cornely’s documents. See id. Taylor described:
[I]f [the First Avenue Structure] . . . falls on top of [the
Market Street Structures], depending on the manner of the
fall and how much of the [First Avenue Structure] is left,
it is most likely to -- it under certain circumstances could
actually end up creating pressure within the building with
a correct blast that would not only push the buildings[]
5
over[,] but could also end up projecting portions of the
front wall outward as a result of that interior pressure that
could build up under certain collapse circumstances.
R.R. at 227a-228a.
Taylor confirmed that “it is extremely likely that the impact from a
collapsing taller building at [the First Avenue Structure] falling onto the roofs of [the
Market Street Structures] would push these buildings onto and possibly even across
Market Street and First Avenue, presenting a major danger to public safety and likely
causing significant property damage[,]” and that the pressure could project pieces of
brick, glass and timber-like shrapnel. R.R. at 228a. Taylor concluded:
In my opinion, based on the condition of the lower west
wall, the most heavily loaded portion of that wall, and
looking at the conditions throughout all the floors in the
building at [the First Avenue Structure], I feel that the risk
is extremely high that under any reasonable demolition
circumstance, there’s a very high risk that that’s going to
fail no matter what’s done . . . . My feeling is that there is
a high likelihood that no matter what’s done, that building
is going to end up collapsing based on its current
condition.
R.R. at 233a.
When asked if it was possible to shore up the First Avenue Structure to
remove the deteriorating west wall, Taylor responded:
Because there is so little lateral instability in there, I would
not feel safe being involved in any kind of a shoring
system that would unload that wall. There is no
measurable lateral stability in that building, in my opinion,
right now. The front wall of the building is all glass. The
back wall is propped up with windows and things like that.
It’s also cracked and severely deteriorated. All the beam
connections to the wall at every floor, the beams are
shrunk, the beams are rotted. There’s no mechanical
connections between the beams and walls. It’s all friction.
It’s 150[-]year-old or 100[-]year-old friction
connections that are all failed and inadequate. It’s my
opinion there is no measurable lateral stability. Which
6
is why I would not put a shoring crew in there, based
on the conditions that I have seen.
R.R. at 233a-234a (emphasis added).
Schaff described the usual demolition method for buildings like the
First Avenue Structure, as follows:
Conventionally, a building of this size and this nature, the
way that it’s structured, we would take the top of the
building off. Our Stage 1 would be to go inside and pull
the floors around the perimeter walls from the inside
approximately 3 foot inward of the building, which would
give us somewhere to drop the brick from the top of the
building down to the basement. That’s not possible with
this building because there is not an engineer out there that
we found that would sign off on a plan to put our guys
inside that building because of the possibility of collapse.
Our second option would be to go to the top of the
building, which is part of Phase 2 of the [D]emolition
[P]lan, and take some weight off of that wall. Once again
it poses the same factor, that any brick that comes from the
top of the building, anything that falls down to the bottom,
because that alleyway is only 8 foot [sic] wide at the
bottom, and the building overhangs, there’s only 6 foot
[sic], so any brick that falls doesn’t necessarily fall straight
down. They fall outward. The buildings along Market
Street are in such bad condition that even a handful of
brick that hit [the] back of those buildings are going to
cause the rear brick facades of [the] Market Street
[Structures] to collapse into the building along First
Avenue. At that point, we have guys right there. I don’t
want anybody getting killed there.
As the City Solicitor stated, we are mobilized. We are one
of two companies in the Pittsburgh area that can even
reach a building of that magnitude. We have a high-reach
excavator onsite. Buildings this size are not meant to be
let go this long and be able to be a controlled demolition
on the way down. It’s a high risk from our end because []
this building is going to be top heavy.
The way that we take the buildings apart is basically the
way they were constructed. The wooden beams serve as
7
our support from east to west. We will go through and
systemically take those out on the way down from top to
bottom. You have a certain level of vertical support that
needs to be maintained throughout demolition. When you
have all that weight up top, and you have no support at the
bottom, it’s pretty much almost a failure situation[]. We
can take as much care. We can try.
R.R. at 253a-255a. Schaff cautioned:
[The First Avenue Structure demolition] has been running
through our head[s] for two years now, these buildings,
which way to get those down safely, with or without the
Market Street [Structures]. When I was made aware of the
[Board’s] decision to take down [the First Avenue
Structure] and not [the] Market Street [Structures], it’s the
first time in my career that I just didn’t have all the
answers to it. I looked back at the engineers. The
engineers confirmed my suspicions.
R.R. at 255a (emphasis added).
In contrast, Green testified in support of PLI’s denial of the Demolition
Plan, explaining:
[T]his proposal . . . exceeds the code required protection
measures as prescribed by both the Building Code, as well
as [the] Pittsburgh City Code. A reminder that the
[B]uilding [C]ode official is charge[d] with determining
what adequate protection measures are. Secondarily
noting that, additionally, this protective measure of
demolishing adjacent structures is not an industry practice.
It’s not atypical for a structure to have to be demolished
on a tight, urban infill site. I would further note that[,]
while the property owners have the luxury of site control,
if they did not have site control of the Market Street
[S]tructures, I think this case and their options would be
very different. Ideally everyone would love to have site
control. You can’t guarantee it. Keep in mind that simply
because they have site control doesn’t mean that
demolition of those structures is necessarily the
appropriate measure for protecting the public. Also noting
that[,] in previous reports, [] Cornely . . . clearly identified
that the demolition of these structures causes him
8
experience [sic] and can cause the demolition of, cause the
collapse of [the First Avenue Structure].
R.R. at 299a-300a. Green concluded: “PLI has assessed what has been proposed
and does not determine it to meet the standard that would indicate . . . that a clear
and public imminent danger exists if the Market Street [S]tructures are to remain and
[the First Avenue Structure] is demolished independently from those.” R.R. at 315a-
316a.
When asked whether structural engineers had given input in his
decision to reject the Demolition Plan, Green responded:
[W]hile ultimately the decision rests with me as [B]uilding
[C]ode official, [Troiani’s Demolition Plan] has been
reviewed internally by both myself, who is an architect,
other architects and [a] registered engineer on our staff.
This was peer reviewed internally. Ultimately, the
decision, due to my position in PLI as [B]uilding [C]ode
official, it is ultimately my determination. All the
internal staff who evaluated it agreed in terms of this
assessment.
R.R. at 316a (emphasis added).
Concerning the testimony of PLI’s staff, Green related:
We are not going to present that. . . . [A]gain, this is an
assessment of an application made to PLI. . . . [W]hile
they may be registered, they are not providing assessment
in a similar fashion to what [] Cornely or [] Taylor have
done. Our assessment is based on our experience and
background in evaluating this type of application. We
get about 60 to 100 of these a year for commercial
structure[s], demolition of structures. Applying these
standards, what have we seen in our collective experience,
what protection measures have been presented.
R.R. at 317a (emphasis added).
The Pittsburgh History and Landmarks Foundation’s representative
Karamagi Rujumba (Rujumba), and adjacent property owner Jay Green, also
9
testified on the City’s behalf. After the hearing, the Board affirmed PLI’s denial of
the Demolition Plan, and issued its written decision on September 18, 2020
(Decision).
Troiani appealed to the trial court. On January 11, 2021, the trial court
affirmed the Board’s Decision. Troiani appealed to this Court.4 On May 3, 2021,
Troiani filed an Application to Request Judicial Notice and to Supplement the
Record with the City’s April 22, 2021 Condemnation Notice for the Structure at
Issue (Motion to Supplement). Therein, Troiani averred that, on April 22, 2021, PLI
posted “CONDEMNATION” notices (Condemnation Notices) on the First Avenue
Structure and the Market Street Structures and issued “First Request for
Compliance” notices (Compliance Notices) to Troiani for all of the structures,
identifying the First Avenue Structure and the Market Street Structures as “Unsafe
Structures” under the International Property Maintenance Code. Motion to
Supplement at 2-3. See also id., Attachments A, B (emphasis added). As corrective
action, the Compliance Notices directed Troiani to: seek permits to protect the public
right-of-way; “stabilize” the structures; and/or seek approvals for the structures’
demolition from PLI and the Department of City Planning. Id. Troiani attached
supporting photos of the Condemnation Notices and Compliance Notices as exhibits
to its Motion to Supplement.
At argument before this Court on May 13, 2021, the City’s counsel
represented to the Court that the City did not oppose this Court taking judicial notice
4
The standard of review in an appeal of a local agency decision,
where the trial court has taken no additional evidence, is whether
constitutional rights have been violated, whether an error of law has
been committed, or whether a finding of fact of the agency necessary
to support its adjudication is not supported by substantial evidence.
Meyer v. City of Pittsburgh Historic Rev. Comm’n, 201 A.3d 929, 935 n.6 (Pa. Cmwlth. 2019).
10
of the Condemnation Notices or the Compliance Notices. Accordingly, this Court
grants the Motion to Supplement.
Initially, Troiani argues that the Board’s Decision is inadequate to
support its denial of the Demolition Plan. Specifically, Troiani contends:
In its written [D]ecision, [the Board] identified the
witnesses who had testified at the hearing but did not
describe any of the testimony or evidence presented. The
Board failed to articulate any reasoning and did not cite
any evidence to support its [D]ecision.
....
Without any reference to the evidence or the factors that
are actually to be considered for “appeals,” as set forth in
[Section 403.122(f) of the UCC,] 34 Pa. Code §
403.122(f), or the standards for “variances” described in
[Section 403.122(g) of the UCC,] 34 Pa. Code §
403.122(g), the Board summarily denied “the variance
request.” [R.R. at 352a-353a].
Troiani Br. at 21-22 (footnote omitted).
The entirety of the Board’s Decision states:
BUILDING DATA:
Existing [6]-story building built of 5-wythe brick bearing
walls on east and west sides and multi-wythe brick
masonry on north and south sides with heavy timber wood
framing at each floor and roof level spanning east-west.
The building is comprised of 6 stories above grade with a
basement. The building has been vacant for
approximately 50 years.
SUBJECT:
The variance request is appealing the [Building] Code
Official’s decision or interpretation. The [Building] Code
Official’s September 3, 2020 decision was to deny the []
[D]emolition [P]lan for the [First Avenue Structure]. The
[] [D]emolition [P]lan stated that the adjacent [Market
Street Structures] needed to be demolished in order to
demolish the [First Avenue Structure]. [Troiani]
11
presented testimony . . . as well as the proposed
[D]emolition [P]lan dated August 11, 2020[,] provided by
[] Cornely and an August 31, 2020 peer review report
prepared by [] Taylor. PLI presented testimony from []
Green regarding his decision to not approve the []
[D]emolition [P]lan. Corey Layman[, Zoning
Administrator for the Department of City Planning,] then
presented testimony regarding the previous application for
these building[s’] demolition to the [City] Zoning Board
[of Adjustment]. Jay Green presented testimony regarding
his previous experience with a building demolition project
on the adjacent property. [] Rujumba then presented
testimony regarding the proposed demolition of the
Market Street [Structures] and the [First Avenue
Structure] demolition. . . . It was noted that, per [UCC]
[S]ection 403.122(f), the Board[’s] decision[] on a
variance which appeals the [Building] Code Official’s
decision or interpretation, is solely to decide whether the
true intent of the [UCC] has been incorrectly interpreted.
DECISION: The Board denies the variance request. The
vote was unanimous.
R.R. at 352a-353a.
Section 555 of the Local Agency Law requires that “[a]ll 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).
This Court has explained:
It is well[ ]settled that “the constitutional guarantees of due
process apply equally to proceedings before
administrative tribunals,” and that “[t]he basic
requirements of due process are notice and an opportunity
to be heard.” Gow v. Dep’t of Educ., 763 A.2d 528, 533
(Pa. Cmwlth. 2000). . . . Nevertheless, administrative
proceedings “must comply with a different set of standards
to satisfy due process requirements.” R. v. Dep’t of Pub.
Welfare, . . . 636 A.2d 142, 144 ([Pa.] 1994). Those
standards, set forth by our Supreme Court in Peak v.
Unemployment Compensation Board of Review, . . . 501
A.2d 1383 ([Pa.] 1985), require that the fact[]finder’s
12
decision be “subject to judicial review on the substantial
evidence test” and be explained “in sufficient detail to
permit meaningful appellate review.” Peak, . . . 501
A.2d at 1389.
Fisler v. State Sys. of Higher Educ., Cal. Univ. of Pa., 78 A.3d 30, 41 (Pa. Cmwlth.
2013) (emphasis added; footnote omitted).
The absence of . . . a reasoned adjudication [can] preclude
a court from conducting meaningful appellate review, thus
implicating the constitutional guarantee of a “right of
appeal . . . from an administrative agency to a court of
record or to an appellate court . . . .” Pa. Const. art. V, §
9.
Salters v. Pa. State Police Mun. Police Officers’ Educ. & Training Comm’n, 912
A.2d 347, 355 n.16 (Pa. Cmwlth. 2006).
At the Board hearing, Troiani’s expert witnesses, who are structural
engineers, gave detailed testimony supporting their opinions that the Market Street
Structures’ demolition was necessary for the safe demolition of the First Avenue
Structure. According to Troiani,
[a]s the only expert structural engineers to testify
explained to the Board, the [] Demolition Plan requires, as
Phase I, the demolition of the Market Street Structures,
which are located on the adjoining property, only 8 feet
from the First Avenue Structure. [See ]R.[R. at] []240a-
[]341a[]. No option exists for demolishing the First
Avenue Structure safely, without first demolishing the
Market Street Structures. [See ]R.[R. at] []314a[]. If the
First Avenue Structure falls on top of the Market Street
Structures, the force of the collapse will send “shrapnel”
of brick, glass and timber into and across Market Street,
into occupied buildings. []R.[R. at] []229a[].
The structural engineers described why controlled
demolition of the Market Street Structures as Phase I of
the [D]emolition [P]lan for the First Avenue Structure
would effectively “remove the ammunition from the
chamber,” so that the potential projectiles would be
collapsed into the basements of the Market Street
13
Structures. R.[R. at] []248a-[]249a[]. With the demolition
of the Market Street Structures, the First Avenue Structure
can be more safely collapsed onto the Market Street
[p]roperty, without the potential hazards of a collapse onto
those other deteriorating structures and without causing
damage to buildings across Market Street or First Avenue,
or even worse, causing injury to nearby residents or
pedestrians.[5] [See ]R.[R. at] []10[a]-32a[]. As [] Taylor,
the structural engineer who peer-reviewed the
[Demolition] Plan[] warned, “trying to demolish the [First
Avenue Structure] without first taking down the adjacent
lower buildings on Market Street presents an unacceptable
risk to public safety and property damage to the buildings
located directly across Market Street.” []R.[R. at]
[]164a[].
Troiani Br. at 26-27. Further, Troiani asserts that PLI “offered only the unsupported
opinion of [] Green, who is not [an] engineer and who had not conducted any
extensive inspection or analysis of the structures, in support of his denial of the
[Demolition P]lan.” Id. at 29.
“We have explained that [a capricious disregard of evidence] ‘occurs
where the fact[ ]finder willfully and deliberately disregards competent and relevant
evidence that one of ordinary intelligence could not possibly have avoided in
reaching a result.’” Bertram v. Unemployment Comp. Bd. of Rev., 206 A.3d 79, 83
(Pa. Cmwlth. 2019) (emphasis added) (quoting Wise v. Unemployment Comp. Bd. of
Rev., 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015)).
[This Court] may conclude that a fact[ ]finder has
capriciously disregarded competent evidence “when
the unsuccessful party below has presented
‘overwhelming evidence’ upon which the adjudicator
could have reached a contrary conclusion, and the
5
Troiani acknowledges that the Building Code requires adjoining public and private
properties be protected during demolition. See Troiani Br. at 27-28. Troiani nonetheless contends
that the unique circumstances involving the First Avenue Structure’s dangerous condition and
Troiani’s ownership of the adjoining properties are reasonable justifications for allowing a
variance from the Building Code’s provisions, especially where demolition of the Market Street
Structures would protect other neighboring properties. See id. at 28, R.R. at 114a, 121a.
14
adjudicator has not satisfactorily addressed that
evidence by resolving conflicts in the evidence or making
credibility determinations that are essential with regard to
the evidence.” Balshy v. [Pa.] State Police, 988 A.2d 813,
835-36 (Pa. Cmwlth. 2010) (quoting Grenell v. State
Civ[.] Serv[.] Comm[’n], 923 A.2d 533, 538 (Pa. Cmwlth.
2007)). “In other words, where there is strong ‘critical’
evidence that contradicts evidence supporting a contrary
determination, the adjudicator must provide an
explanation as to how it made its determination.” [Balshy,
988 A.2d] at 836.
Kiskadden v. Pa. Dep’t of Env’t Prot., 149 A.3d 380, 401 (Pa. Cmwlth. 2016)
(emphasis added).
Here, the Board appears to have disregarded Troiani’s “strong ‘critical’
evidence” quoted above, Balshy, 988 A.2d at 836, and “has not satisfactorily
addressed that evidence.” Id. at 835. Despite Troiani’s expert witnesses’ lengthy
and detailed testimony supporting the Market Street Structures’ demolition, the
Board denied the Demolition Plan with no analysis or rationale supporting its
adjudication. In its Decision, the Board simply described the First Avenue Structure
and the decision under review, identified the witnesses who appeared, and provided
non-specific overviews of the witnesses’ testimony. There are no “findings and . . .
reasons for the adjudication[.]” 2 Pa.C.S. § 555. The Board’s denial is not
“explained ‘in sufficient detail to permit meaningful appellate review.’” Fisler, 78
A.3d at 41 (quoting Peak, 501 A.2d at 1389). In fact, it is not explained at all.
Accordingly, this Court cannot conduct meaningful appellate review of the Board’s
Decision.
15
For all of the above reasons, this Court vacates the trial court’s order
and remands this matter to the trial court with direction that the trial court vacate the
Board’s Decision and expeditiously remand the matter to the Board to expeditiously
issue a decision based on the existing record evidence consistent with this opinion.
_________________________________
ANNE E. COVEY, Judge
Judge McCullough did not participate in the decision in this case.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Troiani Group and Troy Development :
Associates, L.P., :
Appellants :
:
v. :
:
City of Pittsburgh Board of Appeals : No. 86 C.D. 2021
and City of Pittsburgh :
ORDER
AND NOW, this 1st day of July, 2021, the Allegheny County Common
Pleas Court’s (trial court) January 11, 2021 order is VACATED, and the matter is
REMANDED to the trial court with direction that it vacate the City of Pittsburgh
(City) Board of Appeals’ (Board) decision and remand the matter to the Board to
issue a new decision based on the existing record evidence consistent with this
opinion. Because time is of the essence, the trial court shall, within 7 days of the
date of this Order, remand the matter to the Board and direct the Board to issue a
new decision within 20 days of the date of the trial court’s remand order. If, after
the Board issues its new decision, an appeal is taken therefrom, the trial court shall
expedite the briefing schedule and shall issue its decision within 30 days of the date
of the filing of that appeal.
Troiani Group and Troy Development Associates, L.P.’s Application
to Request Judicial Notice and to Supplement the Record with the City’s April 22,
2021 Condemnation Notice for the Structure at Issue is GRANTED.
The Prothonotary of the Commonwealth Court is directed to
immediately transmit the record to the trial court.
Jurisdiction is relinquished.
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ANNE E. COVEY, Judge