First Avenue Partners, a PA limited partnership v. The City of Pittsburgh Planning Commission

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
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. : No. 2476 C.D. 2015
: Argued: November 15, 2016
The City of Pittsburgh Planning :
Commission and City of Pittsburgh and :
Forza Fort Pitt, Inc. :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY
SENIOR JUDGE PELLEGRINI FILED: December 9, 2016
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
1
First Avenue Partners is a Pennsylvania limited partnership and is the equitable owner
of a multi-story office building commonly referred to as “The Hartley Rose Building” located at
425 First Avenue in the First Ward in the City of Pittsburgh. 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
(Footnote continued on next page…)
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).
(continued…)
Crecine are each owners of condominium units in a multi-story residential condominium located
at 429 First Avenue in the First Ward in the City of Pittsburgh.
2
The Property is bounded to the north by First Avenue, to the west by Cherry Way and to
the south by Fort Pitt Boulevard.
2
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
3
The conditions are as follows:
a. Final plans, elevations, and materials consistent with the current
design shall be reviewed and approved by the Zoning
Administrator prior to the issuance of a building permit, with
particular attention to integration of building identification and
high-wall signage, architectural lighting, and final building facade
details;
b. All necessary approvals for creation of the drop-off/pick-up area
on Fort Pitt Boulevard must be obtained prior to issuance of an
occupancy permit[;]
c. Final traffic and operations information shall be reviewed and
approved by the City Traffic Engineer and the City’s
Transportation Planner prior to issuance of an occupancy permit;
and
d. A construction management plan shall be submitted and
approved prior to issuance of a building permit.
(Reproduced Record (R.R.) at 43a.)
3
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.
4
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
5
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.
4
Our scope of review of a trial court’s order quashing an appeal as untimely is limited to
determining whether the trial court abused its discretion or whether it committed an error of law.
Southern Chester County Concerned Citizens Organization v. Zoning Board of Lower Oxford
Township, 937 A.2d 1141, 1143 n.4 (Pa. Cmwlth. 2007), appeal denied, 960 A.2d 842 (Pa.
2008).
6
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
5
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
6
The title of the MPC, in relevant part, provides:
An Act to empower cities of the second class A, and third class,
boroughs, incorporated towns, townships of the first and second
classes including those within a county of the second class and
counties of the second through eighth classes, individually or
jointly, to plan their development and to govern the same by
zoning, subdivision and land development ordinances, planned
residential development and other ordinances, by official maps, by
the reservation of certain land for future public purpose and by the
acquisition of such land….
Section 981 of the MPC, 53 P.S. § 10918.
7
interest in the claim sought to be litigated.” Spahn v. Zoning Board of Adjustment,
977 A.2d 1132, 1149 (Pa. 2009) (citing William Penn Parking Garage, Inc. v. City
of Pittsburgh, 346 A.2d 269 (Pa. 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
7
The date of the entry of the order from which an appeal can be taken is provided by
Section 5572 of the Judicial Code:
The date of service of an order of a government unit, which shall
be the date of mailing if service is by mail, shall be deemed to be
the date of entry of the order for the purposes of this subchapter.
The date of entry of an order of a court or magisterial district judge
may be specified by general rules.
42 Pa.C.S. § 5572.
8
Section 752 of Local Agency Law, 2 Pa.C.S. § 752, states:
Any 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
(Footnote continued on next page…)
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 to
approve the 2009 Application.9
(continued…)
appeals by or pursuant to Title 42 (relating to judiciary and judicial
procedure).
9
The City and the Planning Commission state that at the time of the March 9, 2011
approval, it was the Planning Commission’s practice to never issue written decisions.
9
In Peterson, the landowner filed an application for approval of a
preliminary subdivision plan. On June 12, 2000, the township Board of
Supervisors orally granted approval of the preliminary plan as long as certain
conditions were met. Peterson was present and raised objections. No written
decision was issued. On July 26, 2000, Peterson appealed to the court of common
pleas and that appeal was quashed as untimely because it was not filed within 30
days.
On appeal, this Court reasoned that because no written decision was
issued, no decision was “entered” as required by Section 1002-A of the MPC, 53
P.S. § 11002-A.10 We also found there to be no “deemed” decision consistent with
Section 1002-A of the MPC because the developer or the municipality did not give
public notice of a deemed approval. We contemplated how the 30-day appeal
period would be triggered in the absence of an “entered” decision pursuant to
Section 5572 of the Judicial Code, 42 Pa.C.S. § 5572, or a “deemed” decision
pursuant to Section 508(3) of the MPC, 53 P.S. § 10508(3), concluding:
[W]hen a decision is neither “entered” pursuant to 42
Pa.C.S. § 5572 nor “deemed” pursuant to 53 P.S.
10508(3), the only two circumstances contemplated by
Section 1002-A, what event triggers the running of the
thirty-day appeal period? We believe that the intent of
Section 1002-A was to begin that period when the
municipality’s decision process has been finalized with
sufficient clarity that any party aggrieved by the decision
can evaluate whether or not to appeal. An oral approval
10
Section 1002–A of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53
P.S. § 11002–A.
10
by the Board meets this standard. Moreover, causing the
appeal time to be triggered by expiration of the time for
delivery of a written decision is problematic. First, a
written decision is served on the applicant, not the
objecting neighbor. See Tierney v. Upper Makefield
Township, 654 A.2d 621, 624 (Pa. Cmwlth. 1995). In
addition, an applicant may extend the time within which
the Board must reduce its oral approval to writing, or
waive the requirement altogether. 53 P.S. § 10508(3). In
this circumstance, an aggrieved objector would be left to
guess when his appeal time has begun to run or, worse,
the time might never begin to run at all. Accordingly, we
hold that the formal vote of the municipality to approve a
subdivision plan begins the thirty-day period within
which an aggrieved objector must appeal, at least to the
extent the objector has actual or constructive notice of the
decision.
Peterson, 804 A.2d at 728.
Finding that the township Board of Supervisors orally approved the
landowner’s preliminary plan on June 12, 2000, we concluded that Peterson’s
appeal filed on July 26, 2000, was untimely. However, we also noted that Section
508 of the MPC, 53 P.S. § 10508, requires a decision in writing for all requests for
a subdivision, that the municipality failed to comply with its obligation to render
one, and that Peterson reasonably and in good faith waited for an entry of a written
decision. When it became apparent that no decision would be issued, Peterson
promptly filed his appeal. Due to the breakdown in the administrative process, we
granted nunc pro tunc relief, reversed the common pleas’ court order and
remanded for a determination on the merits. Forza and the City contend that this
establishes that the time period for an appeal begins from oral approval of the
Project Development Plan by the Planning Commission.
11
Relying on Narberth Borough v. Lower Merion Township, 915 A.2d
626 (Pa. 2007), Objectors argue that the appeal period begins to run when the
written adjudication is mailed to or personally served on the parties. In that case, a
landowner sought approval from the municipality to subdivide two parcels of land,
which the township’s Board of Supervisors orally approved, with conditions, at a
public meeting held on March 20, 2002. On March 28, 2002, the township’s
Board of Supervisors issued and mailed the landowner and the Borough a written
decision in support of its conditional approval of the plan. The Borough appealed
to the court of common pleas on April 26, 2002, within 30 days of the written
decision but not from the date the township orally approved the plan, by motion, at
its public meeting. The landowner filed a motion to dismiss this appeal as
untimely. The court of common pleas denied the landowner’s motion and reversed
the Board of Supervisors’ determination to approve the landowner’s plan on the
merits.
On appeal, this Court reversed the court of common pleas’
determination that the Borough’s appeal had been timely. Finding that the 30-day
appeal period began to run on March 20, 2002, when the township’s Board of
Supervisors orally announced its approval of the plan, we held that Narberth
Borough’s April 26, 2002 appeal was untimely filed because more than 30 days
had passed since the oral approval. We concluded that the lower court was without
jurisdiction to review the appeal.
Our Supreme Court, however, reversed, holding that the appeal period
runs from the date of the mailing of the written decision, which meant that the
12
Borough filed its appeal within the 30-day appeal period set forth in Section 1002-
A of the MPC, 53 P.S. § 11002-A. Addressing Peterson, it stated:
While the Peterson court argued convincingly that
lawmakers should take into account various problems the
court identified with the process we find to be required
by the current statute, we will not offer what amounts to
amendatory legislation from the bench. The MPC neither
identifies nor demands any asymmetry of treatment as
between land use applicants and objectors seeking to
appeal land use decisions. Rather, it creates a period of
time during which all appeals must be filed and it
specifies a triggering event, the mailing or other direct
communication of the written decision, that begins the
running of that time, an identifiable event, one that not
only occurred in this case but occurred at a time certain
actually known to all relevant parties.11
Narberth, 915 A.2d at 636.
Peterson has effectively been overruled by Narberth, which holds that
all zoning decisions are not final until a written decision is issued, and until a
11
In footnote 19, our Supreme Court stated:
We will not speculate as to the disposition of a case where a
decision is “entered” by mailing to an applicant, and an objector
subsequently argues that it neither knew nor could have known of
that mailing. However, we caution objectors that under the current
statutory scheme, they may well have the burden of determining
the date of the entry of the decision by communication to the
applicant, notwithstanding that they are not legally entitled to
service thereof.
Narberth Borough, 915 A.2d at 636 n.19.
13
written decision is issued, there is no order to appeal.12 “The decisional law of this
Commonwealth confirms that a final order of a [ZHB] must be reduced to
writing.” See also Pendle Hill v. Zoning Hearing Board of Nether Providence
Township, 134 A.3d 118 (Pa. Cmwlth. 2016); Seipstown Vill., LLC v. Zoning
Hearing Board of Weisenberg Township, 882 A.2d 32 (Pa. Cmwlth. 2005) (citing
Relosky v. Sacco, 523 A.2d 1112 (Pa. 1987)).
For the foregoing reasons, we reverse the trial court.
___________________________________
DAN PELLEGRINI, Senior Judge
12
Forza, the City and the Planning Commission further argue that Stanton Heights
Community Organization v. Zoning Board of Adjustment of Pittsburgh (Pa. Cmwlth., No. 1557
C.D. 2011, filed December 4, 2012), supports their position. Ignoring that it is an unreported
opinion, the matter of whether a written decision was required was not at issue in that case. Even
if it was at issue, Stanton Heights is inconsistent with Narberth.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
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. : No. 2476 C.D. 2015
:
The City of Pittsburgh Planning :
Commission and City of Pittsburgh and :
Forza Fort Pitt, Inc. :
ORDER
AND NOW, this 9th day of December, 2016, the order of the Court of
Common Pleas of Allegheny County, dated October 29, 2015, at No. SA 15-000600,
is reversed.
___________________________________
DAN PELLEGRINI, Senior Judge