Troiani Group & Troy Dev. Assocs., L.P. v. City of Pittsburgh Planning Comm.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Troiani Group and Troy Development :
Associates, L.P., :
Appellants :
:
v. :
:
City of Pittsburgh Planning :
Commission, City of Pittsburgh and : No. 85 C.D. 2021
Lumania Properties, L.P. : Argued: May 13, 2021
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 21, 2022
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) Planning
Commission’s (Commission) August 18, 2020 decision (Decision) denying
Troiani’s Project Development Plans (Plans) seeking approval to demolish Troiani-
owned vacant structures located in the City at 100-104 Market Street1 and 106
Market Street2 (Market Street Structures).3, 4 Troiani presents three issues for this
1
Record documents also refer to the buildings at 100-104 Market Street as the building at
“100-102 Market Street,” see, e.g., Reproduced Record (R.R.) at 387a, 390a, 393a, and the
building at “104 Market Street.” See, e.g., R.R. at 411a, 412a.
2
Record documents also reference the building located at 106 Market Street as “106/108
Market Street” or “106-108 Market Street.” See, e.g., R.R. at 420a, 421a, 428a-430a, 456a.
3
Project Development Plan 18-PDP-00049 addressed the demolition of the structures at
100-104 Market Street. Project Development Plan 18-PDP-00050 addressed the demolition of the
structure at 106 Market Street.
4
Intervenor Lumania Properties, L.P. (Lumania) owns property neighboring the Market
Street Structures. It has filed a brief requesting this Court dismiss Troiani’s appeal.
Court’s review: (1) whether the Commission erred by misapplying the review
standard, by capriciously disregarding expert testimony, and by treating speculative
testimony as if it were substantial; (2) whether the Commission improperly invented
a prerequisite for demolition-only applications that does not appear in the City
Zoning Code (Zoning Code);5 and (3) whether the Commission exceeded its
authority by effectively declaring the Market Street Structures to be historic outside
of the standards and due process afforded under the City’s Historic Preservation
Ordinance6 and the Fifth Amendment to the United States Constitution.7 After
review, this Court affirms.
The Market Street Structures are located in the Golden Triangle (GT) -
C District in downtown Pittsburgh.8 They were built between the 1860s and 1910s,
and consist of a brick commercial building with two, three, and four-story segments,
and a brick three-story commercial building. See Reproduced Record (R.R.) at 314a.
The Market Street Structures are not located in a locally designated historic district,
5
See https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances?nodeId=PIZOCO_TI
TNINEZOCO (last visited Mar. 18, 2022).
6
“Title XI of the Zoning Code was enacted to ‘preserve and restore the qualities of the
[City] relating to its history, culture, and tradition’ and the ‘harmonious outward appearance of
structures[.]’ [Zoning Code] § 1101.01(b).” Meyer v. City of Pittsburgh Hist. Rev. Comm’n, 201
A.3d 929, 937 (Pa. Cmwlth. 2019).
7
U.S. Const. amend. V.
8
The GT District is divided into five subdistrict classifications - Subdistricts A, B, C, D,
and E. See Zoning Code § 910.01.B. The GT District’s purposes are described in Section
910.01.A of the Zoning Code:
1. Maintain and enhance the Golden Triangle as the economic and
symbolic core of the region;
2. Support and develop commercial, office and cultural uses; and
3. Develop an attractive, pedestrian-oriented physical environment
with a design quality that recognizes the [GT’s] regional
significance.
Zoning Code § 910.01.A.
2
but are located in, and are deemed to contribute to, the Firstside National Register
Historic District.
Troiani filed applications with the Commission for approval to
demolish the Market Street Structures pursuant to the Plans. The Plans were limited
to the proposed Market Street Structures’ demolition and no application for any
development apart from the proposed demolitions was filed prior to the
Commission’s decision. Although a Troiani-owned building located at 209 First
Avenue (First Avenue Structure), on property located adjacent to the Market Street
Structures, was previously part of the Plans’ demolition requests, the Department of
Permits Licenses and Inspections’ (PLI) Board of Standards and Appeals (Board)
approved immediate demolition of the First Avenue Structure on June 26, 2020, as
it is in imminent danger of collapse.9 Prior to Troiani’s request for the Commission’s
approval of the Plans, PLI staff determined that the Market Street Structures did not
constitute an immediate risk of imminent danger to the public.
In seeking the Commission’s approval, Troiani submitted a Historic
Property Assessment of the Market Street Structures, which the City Planning
Historic Preservation staff reviewed. Troiani also submitted structural viability
9
The Board’s denial of Troiani’s request to demolish the Market Street Structures as a
necessary precursor to the First Avenue Structure’s safe demolition (First Avenue Demolition
Application) was the subject of a separate appeal at Troiani Group & Troy Development
Associates, L.P. v. City of Pittsburgh Board of Appeals & City of Pittsburgh, 260 A.3d 106 (Pa.
Cmwlth. 2021), argued seriately with the instant appeal. In that appeal, this Court vacated the trial
court’s decision affirming the Board’s decision and remanded the matter with direction that the
trial court vacate the Board’s Decision and expeditiously remand the matter to the Board to issue
a decision based on the existing record evidence. On July 26, 2021, the Board, on remand, again
denied Troiani’s First Avenue Demolition Application. Troiani appealed to the trial court. On
September 7, 2021, the trial court reversed the Board’s decision. On October 6, 2021, the City
appealed to this Court from the trial court’s order at Troiani Group & Troy Development
Associates L.P. v. City of Pittsburgh Board of Appeals & City of Pittsburgh ___ A.3d ___ (Pa.
Cmwlth. No. 1127 C.D. 2021, filed Mar. 21, 2022).
3
inspection reports regarding the Market Street Structures’ condition. Individuals and
organizations submitted letters supporting and opposing the Plans.
The Commission held hearings on June 30 and July 14, 2020. At the
June 30, 2020 hearing, Troiani’s president, Michael Troiani, explained that historic
preservation specialists and structural engineers recommended the Market Street
Structures’ demolition. He also discussed the Market Street Structures’ condition,
his attempts to restore them, and his unsuccessful efforts to develop and re-use them.
Troiani’s project architect, Ken Doyno (Doyno), described Troiani’s
new development goals, the Market Street Structures’ structural conditions, and the
events leading to the requested demolition. Doyno also presented proposed options
for new, post-demolition development, and discussed working with community
organizations, including the Pittsburgh History and Landmarks Foundation (PHLF)
and the Young Preservationists Association (YPA), to develop the Plans and the new
development proposals. Doyno stated that a study performed on PHLF’s behalf by
IKM Architecture (IKM) concluded that restoring the buildings would cost
approximately $8 million, but would return only approximately $5 million, thereby
creating a $3 million gap. See R.R. at 64a.
John Jackson (Jackson), a senior vice president for real estate brokerage
firm Cushman and Wakefield, appeared on Troiani’s behalf and presented a report
describing the residential and commercial leasing market in the subject area.
According to Jackson, rehabilitating the Market Street Structures would not be
commercially viable given their design, their deteriorating condition, and the current
real estate market conditions.
Chuck Cornely (Cornely), Troiani’s registered structural engineer,
presented reports describing the Market Street Structures’ condition, and explained
that, due to the use of inferior quality brick, and the buildings’ deterioration, the
4
Market Street Structures are not structurally sound and the building materials are not
suitable for re-use.
Lee Riccetti (Riccetti), an associate with Heritage Consulting Group,
which Troiani retained to research the Market Street Structures’ history, and to
assess their significance, presented her analysis.10 She related that nothing in her
research indicated that the Market Street Structures were “of outstanding
significance.” R.R. at 131a. Riccetti further noted that none of the tenants in the
late 19th and early 20th centuries were of historical importance. Riccetti explained
that the Market Street Structures are not of a particular architectural style. She
stated: “There is very little historic fabric remaining. There just isn’t much left to
connect the building to that period of significance aside from . . . the brick on the
outside.” R.R. at 133a-134a. Riccetti concluded that “these buildings are fairly
common throughout the district.” R.R. at 135a.
At the July 14, 2020 hearing, numerous witnesses appeared in
opposition to the Plans. PHLF’s director, Karamagi Rujumba, reported PHLF’s
efforts to identify alternatives to demolishing the Market Street Structures, including
hiring IKM to conduct a comprehensive design analysis. See R.R. at 194a-195a.
Melanie Como Harris (Como Harris), a historical architect with 25 years of
10
Riccetti represented that she holds a Master’s of Science degree in historic preservation
with a certificate in urban redevelopment, and a Bachelor of Arts degree in urban studies and
architectural studies. See R.R. at 124a. She explained that Heritage Consulting Group
consult[s] with real estate developers on historic real estate[,]
ushering projects through local, federal, and state planning
processes and that includes incentives like historic tax credits.
This also includes assessing the historic significance of the buildings
as [the firm has] done in this case for Troiani. [It has] listed
thousands of buildings in the National Register since [the] firm was
established in 1982 and ha[s] worked in nearly every state in the
U[nited] S[tates].
R.R. at 125a.
5
experience representing IKM as an architectural consultant to PHLF, spoke and also
submitted an analysis (IKM Report) asserting that the Market Street Structures could
be restored. PHLF vice president, Michael Sriprasert (Sriprasert), appeared and
opined that, based on IKM’s analysis, a restoration project for the Market Street
Structures would be more economically viable than the post-demolition projects
proposed by Troiani. Sriprasert further challenged Troiani’s contention that the $3
million gap identified in the IKM Report rendered any restoration non-viable.
Sriprasert explained:
Unfortunately, what the [C]ommission heard [at the June
30, 2020 hearing,] were only the financial aspects of the
restoration or the restoration scenarios.
These projects, restoration or new construction, need
subsidy. I remember a number of $3 million was talked
about for a -- a financial gap, if you restored the buildings,
and those were numbers that we came up with. We did
very similar buildings down the street on Market [Street].
We know what it takes. That was a gap.
Unfortunately what you didn’t hear was the -- was the
financial scenario for a new construction building of this
scale, of this magnitude. From our analysis, talking with
our architects and construction folks, looking at this square
footage, we estimated that the project would cost in excess
of [$100] million [], but when you look at the rental rates
for office, for residential, for retail, that we have today,
and -- and what that can support in terms of equity and
debt, the gap is substantially higher; in fact, 15 times
higher than if you were to just restore these buildings, so
that $3 million gap turns into nearly a $50 million gap
potentially, and maybe higher.
Those funds would need to be sought from likely
government sources, private capital wouldn’t go in there
because there might not be a -- [] a return, and with that,
because of such a large gap to fill, the possibility of a site
that is cleared that may sit there for years and years is very
high, and for that reason we feel that the project being
proposed is not viable at this time.
6
R.R. at 216a-218a.
PHLF director of real estate and finance, David Farkas (Farkas), also
spoke in opposition to the Plans. He explained that he is responsible for leasing and
managing the seven commercial properties PHLF developed and owns in Market
Square and along Wood Street. Farkas opined that Troiani’s intended post-
demolition development is not economically viable given changes in the City’s
commercial real estate market, in part, due to the COVID-19 pandemic and resulting
work-from-home positions, and a current glut of available office and luxury
apartment space.
Matthew Craig, YPA’s executive director, expressed concerns about
clearing the “historic” Market Street Structures for an uncertain, unfunded building
project. R.R. at 209a. Other individuals also appeared in opposition to the
demolition, expressing their concerns regarding the loss of the buildings’ historic
character, demolishing the Market Street Structures without a development plan to
replace the buildings, concerns that the location would remain a vacant lot, and
concerns about the viability of Troiani’s proposed new construction. At the close of
the July 14, 2020 hearing, the Commission voted to deny the Plans without
prejudice. On August 18, 2020, the Commission issued its written Decision denying
the Plans without prejudice.11
11
Lumania preliminarily argues that the trial court should have dismissed the instant
appeal. It reasons that, on August 14, 2020, Troiani initially appealed from the Commission’s
Decision announced on July 14, 2020 (which the trial court later quashed as untimely).
Notwithstanding Troiani’s pending appeal from the July 14, 2020 decision, Troiani also appealed
from the Commission’s Decision on September 4, 2020. Lumania contends that Troiani’s appeal
from the July 14, 2020 decision divested the Commission of jurisdiction to issue the Decision and,
thus, there was no Decision from which to appeal.
However, this Court has explained:
[A]ll zoning decisions are not final until a written decision is
issued, and until a written decision is issued, there is no order to
appeal. “The decisional law of this Commonwealth confirms that a
final order of a [ZHB] must be reduced to writing.” See also Pendle
7
On September 4, 2020, Troiani appealed to the trial court. On January
11, 2021, the trial court affirmed the Commission’s Decision, and denied and
dismissed Troiani’s appeal. Troiani appealed to this Court.12
Initially, Section 922.10.B of the Zoning Code provides that, “in
addition to conforming to any and all regulations pertaining thereto that are
specifically set forth in this Zoning Code, developments shall be in accord with a
Project Development Plan approved by the Commission.” Zoning Code § 922.10.B
(emphasis added). Section 926.67(e) of the Zoning Code defines “development” to
include “[d]emolition of a structure . . . .” Zoning Code § 926.67(e).
Section 922.10.E.2 of the Zoning Code mandates the Commission’s
consideration of 13 designated criteria for Project Development Plan approval as
follows:
In reviewing applications for Project Development Plan
approval, the . . . Commission shall consider the extent to
which the Project Development Plan addresses the
following criteria. The . . . Commission shall not
approve any Project Development Plan that, in the
determination of the . . . Commission, does not
Hill v. Zoning Hearing B[d.] of Nether Providence T[wp.], 134 A.3d
1187 (Pa. Cmwlth. 2016); Seipstown Vill., LLC v. Zoning Hearing
B[d.] of Weisenberg T[wp.], 882 A.2d 32 (Pa. Cmwlth. 2005) (citing
Relosky v. Sacco, . . . 523 A.2d 1112 ([Pa.] 1987)).
First Ave. Partners v. City of Pittsburgh Plan. Comm’n, 151 A.3d 715, 722 (Pa. Cmwlth. 2016)
(emphasis added; footnote omitted). Because the Commission had not yet issued the Decision,
“there [was] no order to appeal” on July 14, 2020, and Troiani’s original appeal attempt did not
deprive the Commission of jurisdiction to issue the Decision.
12
The standard of review in an appeal of a local agency decision,
where the trial court has taken no additional evidence [as is the case
here], 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, 201 A.3d at 935 n.6.
8
adequately address one (1) or more of these criteria in
accordance with objectives contained in general or site
specific policy documents adopted by the . . . Commission.
(a) The proposed development must include
retail facilities, where such facilities would
maintain and continue the existing retail patterns;
(b) The proposed development must address
compatibility with any existing residential area,
including provision for maintenance of residential
uses in existing residential areas;
(c) The proposed development must make
provision for adequate parking . . . ;
(d) The proposed development must
adequately address traffic generation
characteristics . . . ;
(e) The proposed development must
adequately address pedestrian traffic generation,
proposed pedestrian circulation facilities and
patterns . . . ;
(f) The proposed development must
adequately address access to public transportation
facilities . . . ;
(g) The proposed development must
adequately address the preservation of historic
structures and significant features of existing
buildings, including, if applicable, the retention
and reuse of structures which are locally or
federally designated historic structures;
retention and reuse of significant structures,
provided that such preservation requirements
may be waived if the applicant shows that use of
such structure is no longer economically or
physically viable; and retention and reuse of
structures which contribute to the character of
an historically significant area;
(h) The proposed development must
adequately address architectural relationships with
surrounding buildings . . . ;
9
(i) The proposed development must
adequately address microclimate effects of
proposed development . . . ;
(j) The proposed development must
adequately address protection of views and view
corridors . . . ;
(k) The proposed development must
adequately address the location, development and
functions of open space . . . ;
(l) The proposed development must address
the project’s compatibility and conformance with
any overall master plans or comprehensive plans .
. . ; [and]
(m) If the proposed application includes a
building(s) that exceeds fifty thousand (50,000)
square feet of building footprint, the proposed
development must adequately address large
footprint building criteria of Section 922.04.E.6
[of the Zoning Code].
Zoning Code § 922.10.E.2 (emphasis added).
Our Supreme Court stated that the burden is on a project
development plan applicant to submit evidence that
shows the project development plan meets the Zoning
Code’s criteria as follows:
Under [Zoning Code] Section 922.10.C, all
applicants for project development plan
approval are to file an application with the
Zoning Administrator. [Zoning Code,] §§
922.10.C, 922.10.D.1. . . . The []
Commission reviews the master development
plan application and approves it, if it meets
certain designated criteria. Id. When the
requirements of master development plan
review have been fulfilled, the Zoning
Administrator schedules review of the project
development plan application before the []
Commission. [Zoning Code,] § 922.10.E.1.
The [] Commission then holds a public
hearing, reviews the project development
10
plan application to determine whether it
complies with [13] designated criteria, and
either approves, approves with conditions, or
denies the application. [Zoning Code,] §§
922.10.E.1, 922.10.E.2.
Riverlife Task Force v. Plan[.] Comm[’n] of City of
Pittsburgh, . . . 966 A.2d 551, 553-54 ([Pa.] 2009)
(emphasis added).
Oakland Plan. & Dev. Corp. v. City of Pittsburgh Plan. Comm’n, 107 A.3d 873,
881-82 (Pa. Cmwlth. 2015) (bold emphasis added). “Similar to special exception
applications,[13] project development plan applications are approved if all of a zoning
ordinance’s requirements are met . . . and these criteria are also presumptively
compatible with the advancement of the public’s health, safety, and general
welfare.” Id. at 882 (citation omitted; emphasis added).
Troiani first argues that “[o]f [the 13] criteria, . . . only Section
922.10.E.2(g) of the Zoning Code applies to a ‘development’ that is limited to the
‘demolition of a structure.’” Troiani Br. at 35 (quoting Zoning Code §
922.10.E.2(g)). Troiani contends that it met its burden thereunder when it
established that the Market Street Structures are not designated historic, they are not
historically significant, and their preservation is not economically or physically
13
The Oakland Planning & Development Corp. Court explained:
Special exceptions are approved so long as they meet a zoning
ordinance’s enumerated criteria. Bray [v. Zoning Bd. of
Adjustment], 410 A.2d [909,] 911 [(Pa. Cmwlth. 1980)] (“The
important characteristic of a special exception is that it is a
conditionally permitted use, legislatively allowed if the standards
are met.”) If an applicant meets the requirements for a special
exception, there is a presumption that the application is consistent
with the “promotion of health, safety and general welfare.” Id.
“[H]ence[,] it is logical that . . . the Pennsylvania decisions have
placed on the objectors the ‘burden’ of showing the proposal to be
detrimental to public health, safety and welfare.” Id.
Oakland Plan. & Dev. Corp., 107 A.3d 882.
11
viable. Troiani further asserts that the Commission erred by misapplying the
standard of review, capriciously disregarding its expert testimony, and treating
speculative testimony as substantial evidence.
Notwithstanding Troiani’s contention, there is nothing in Section
922.10.E.2 of the Zoning Code limiting the applicability of its 13 criteria where a
development application involves only demolition. Rather, it prohibits the
Commission from approving “any Project Development Plan that . . . does not
adequately address one (1) or more of the [13] criteria . . . .” Zoning Code §
922.10.E.2 (emphasis added). Thus, Troiani was required to comply with all 13
criteria. Moreover, “[w]hen the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its
spirit.” Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa.C.S. §
1921(b).14
Here, the Commission appropriately concluded that the Plans did not
adequately address the 13 required criteria. Specifically, the Commission explained:
2. In deliberation[,] the [] Commission expressed
significant concerns about approving the demolition of
the existing historic structures in a prominent
[d]owntown location with only a speculative plan for
redevelopment of the site, particularly when presented
with credible evidence that an office building at that
location may not be financially viable. The impact of []
such a large vacant site in that prominent location for an
unknown period of time would have a deleterious impact
on the surrounding architecture and character of the
neighborhood.
3. Further, the [] Commission was not satisfied that
[Troiani] adequately addressed the preservation of the
14
“Although the Statutory Construction Act of 1972 . . . is not expressly applicable to the
construction of local ordinances, the rules of statutory construction are applicable to statutes and
ordinances alike.” Geerling Florist, Inc. v. Bd. of Supervisors of Warrington Twp., 226 A.3d 670,
676 (Pa. Cmwlth. 2020).
12
historic structures on the [s]ubject [p]roperties and could
not conclude that the existing buildings are no longer
economically or physically viable. [Troiani’s] contention
that new construction may be more lucrative does not
justify demolition, and [Troiani] did not meet its burden of
demonstrating that reuse [of] existing buildings was
unreasonable or not economical. [The o]bjectors
presented credible evidence and analysis that the existing
buildings could be reused and remain economically viable.
4. Reviewing the proposed demolitions without a clear
plan for future development, the [] Commission found
that it was unable to determine compliance with the
approval criteria generally. The impact of the
demolitions on retail and residential uses, parking,
traffic, pedestrian activity, historic preservation,
architectural design, microclimate effects, views, and
open space cannot be determined without a clear
understanding of how long the property might sit
vacant. While [Troiani] stated that the [s]ubject
[p]roperty would not be used for parking pending new
development, [Troiani] did not present sufficient
information that the resulting vacant lot or any
temporary improvements satisfied the requirements of
Section 922.10.E.2 [of the Zoning Code].
R.R. at 318a-319a (emphasis added). Because the Commission concluded that
Troiani failed to adequately address at least 1 of the 13 required criteria, its first
argument fails on this basis alone. See Zoning Code § 922.10.E.2.
However, based on its belief that Section 922.10.E.2(g) of the Zoning
Code was the only applicable criteria, Troiani further contends the Commission’s
Decision is unsupported by substantial evidence. It asserts that its expert testimony
demonstrated that the Market Street Structures are not “historic structures,” have no
historic significance, and are “no longer economically or physically viable[,]”
Zoning Code § 922.10.E.2(g), which was unrefuted, and the objectors’ testimony
consisted of only speculation, bald assertions, and personal opinions. See Troiani
Br. at 34.
13
Even if Troiani was correct that only Section 922.10.E.2(g) of the
Zoning Code applied to demolition applications, the Commission found that Troiani
did not satisfy those requirements. Relying on the objectors’ evidence, the
Commission denied approval, in part, under Section 922.10.E.2(g) of the Zoning
Code, based on its finding that the Market Street Structures are “considered as
contributing buildings to [the Firstside National Register Historic District,]” R.R. at
314a, and its conclusion that demolition of those structures would create “a large
vacant site” and “would have a deleterious impact on the surrounding architecture
and character of the neighborhood.” R.R. at 318a; see also Zoning Code §
922.10.E.2(g).15
Troiani characterizes the objectors’ testimony supporting the
Commission’s finding as speculative. “[This Court has] repeatedly held that an
objector cannot meet his burden with speculation.” Tower Access Grp., LLC v. S.
Union Twp. Zoning Hearing Bd., 192 A.3d 291, 300 (Pa. Cmwlth. 2018). Further,
“evidence cannot consist of mere ‘bald assertions, personal opinions, and
perceptions’ . . . .” Visionquest Nat’l, Ltd. v. Bd. of Supervisors of Honey Brook
Twp., Chester Cnty., 569 A.2d 915, 917 (Pa. 1990) (quoting Bureau of Corr. v. City
of Pittsburgh, 532 A.2d 12, 14 (Pa. 1987)). However, the Commission’s finding that
the Market Street Structures contribute to the Firstside National Register Historic
District is supported in the record.
15
Section 922.10.E.2(g) of the Zoning Code addresses the preservation of historic
structures. This Court agrees that the Commission erred when it referred to the Market Street
Structures as “historic structures.” R.R. at 318a. Section 926.104 of the Zoning Code defines
“Historic Structure” as “a building or structure that has been designated by a local authority.”
Zoning Code § 926.104. Because the Market Street Structures are not locally designated historic
structures, this Court agrees that they are not “[h]istoric [s]tructure[s,]” as defined in the Zoning
Code. Id. Regardless, given the Commission’s conclusion that the Plans failed to adequately
address 12 of the 13 criteria, any one of which requires the Commission to refuse approval, its
error is harmless. See Commonwealth v. Allshouse, 36 A.3d 163 (Pa. 2012).
14
At the Commission’s hearing, Troiani’s counsel admitted that “[t]his is
a contributing building to a national historic site[.]” R.R. at 22a. Michael Troiani
also acknowledged, “these structures have marginal significance as contributing
structures in recent 2013 federal designation.” R.R. at 23a. Riccetti conceded that
“[a]ll of the buildings we’re discussing are listed as contributing buildings on the
First[s]ide National Register [Historic] District boundary expansion that was
completed in 2013[.]” R.R. at 127a. Troiani, its counsel, and witnesses attempted
to minimize the existing federal designation’s significance as contrasted with local
historical designation. See R.R. at 23a, 127a-128a. However, Section 922.10.E.2(g)
of the Zoning Code makes no such distinction with respect to a contributing
structure.
Como Harris explained:
[The Market Street Structures] contribute to a [N]ational
[R]egister [H]istoric [D]istrict. Designation is an arduous
and lengthy process. It recognizes that which is special
and unique. The existing form to preserve is the public
realm shaped by the buildings. Integrity of place is
maintained by articulated volumes, not just facades. The
amount of southern sky visible beyond are defined by the
building heights. Removal or reinvention of the buildings
around First [Avenue] and Market [Street] will surely
result in visible discontinuity of the historic fabric and
deteriorate the sense of place.
R.R. at 197a-198a.
The Commission also determined based on the evidence that it “could
not conclude that the [Market Street Structures] are no longer economically or
physically viable.” R.R. at 318a. Record evidence supports this conclusion. Como
Harris declared:
The structural reports are observations without
exploratory demolition or testing. The reports do not
definitively state that collapse is imminent. These
15
masonry bearing walls are 16 inches thick, that’s [4]
[bricks] wide, thicker than most historic buildings of their
scale. Only one wall of one of the buildings was observed
as bowing, bricks falling is not extensive, and [sic] no
mention of orange brick dust piling up at the interior walls.
Masonry building rehabilitation is very straightforward.
There’s no limit on usable life when mortar, parapets, and
roofs are properly maintained.
Our most historic cities, Philadelphia, Boston, [and]
Baltimore, have maintained buildings of a variety of brick
conditions for hundreds of years. PHLF has done it right
here in downtown.
The masonry report clearly outlines repair. Phased
rehabilitation of the most unstable walls could buy several
years while [Troiani] awaits an investment partner in a
market upswing that will support pro forma for the high
rise. Different floor levels are negotiable.
. . . . All or partial removal of wood floor structure could
achieve the floor to floor heights desired. Resources
should not be reduced to vulnerable facades or piles of raw
material.
Financing of a large project is many years off. The
salvaged materials would have to be stored and protected
indefinitely. Degradation to the historic integrity would
be indefinite, if not permanent. Retaining the full volumes
of these buildings provides the best solution to
maintaining structural stability.
The impediments listed by [Troiani] are surmountable.
[Troiani] argues these buildings are disposable. The
historic designation proves otherwise. [Troiani] has no
interim plan. Stabilization efforts would buy time to
incorporate these resources into a long-range, high-density
development. To eliminate potential integration without a
tangible and approved [project development plan] would
be shortsighted with long-lasting consequences.
R.R. 198a-200a.
16
DJ Bryant (Bryant), another IKM representative, described the IKM
Report which PHLF presented to Troiani as part of its discussions therewith. Bryant
explained:
The intent behind the study was to produce a document
that could be provided to [Troiani] and the project team in
order to assist them in their design efforts for the proposed
development at the subject properties located within the
First[s]ide [National Register Historic] [D]istrict.
The study demonstrated that not only could a
signature tower be incorporated onto the site, but it
was possible to achieve this development while also
preserving the historical structures. We had three
components in this study.
Component No. 1 was we produced a total of eight
different massing schemes for a proposed tower while also
integrating the historical structures. The intent behind
producing so many options was to shy away from one size
fits all development approach, and to demonstrate that
depending upon which variables and criteria were favored
by a developer, that a multitude of options could be
accommodated onto the site.
It should be noted that the development schemes we -- we
presented without insight and programmatic ratios
provided by [Troiani]. As a baseline, however, we tried to
target around 16,000 square feet to 20,000 square feet,
four place sizes, in order to demonstrate that the
development could be achieved on the site.
Component No. 2 of this study were conceptual renderings
demonstrating how the existing structures could be
restored in the interim, at least until any substantial anchor
tenant or investor could be acquired. The interim scheme
gains further relevance when you consider the glut of
office space in downtown Pittsburgh, which was
[Component No. 3] of our study, a real estate analysis.
At the time of our study, which we were using Quarter 3
2019 data for the central business district, which indicated
3.3 million square feet of vacant office space downtown.
As of Quarter 2 of this year, that number now stands at 4
17
million square feet across Class A and B offices. That’s
equivalent to two U[.]S[.] Steel Towers’ worth of vacant
real estate downtown.
In my professional opinion, [Troiani] and his team have
not performed their due diligence in this matter, and rather
than being an open and participatory design process, the
proposed development was pre-conceived, and there was
limited space for analysis and feedback from IKM or
PHLF.
R.R. at 203a-205a (emphasis added).
PHLF’s President, Arthur Ziegler, stated:
We got together with [Michael] Troiani, [] Doyno, and we
did not go there to stop his new building. We don’t work
that way with developers. We try to finds [sic] ways that
[are] good for the historic buildings on the site and good
for what a developer wants to do, and for that reason we
employed IKM to come up with various possible plans,
working together, and I think we have submitted those to
the Commission. They preserve all or part of the
buildings, as has been done elsewhere in [the City] and
around the country, and gives [Michael] Troiani a very
good new building of the size he requires.
That has not suited him, and we are sorry about that. We
think they work, and we think that Market Street, our most
historic street in [d]owntown Pittsburgh, should be
preserved, the scale should be preserved, the building
should be preserved, and our organization committed
heavily to saving the other end of Market Street where the
buildings were in far worse condition, the roofs were in
the basement, we cleaned all the bricks, took them off site,
cleaned all the historic bricks, brought them back, re-
erected them, we have leased them, and we are generating
a return, and yes, we did have to subsidize them and use
historic tax credits, but the fact is they work, Market Street
works. The only place that hasn’t worked is where PPG,
a nice glass building [was] built, and in 25 years couldn’t
lease its retail space at the first floor.
We think we can save the buildings or part of the
buildings. [Michael] Troiani can have a new building, we
can live congenially, and we do not want to sacrifice these
18
buildings for open land where no actual building has been
proposed on a feasible basis yet.
R.R. at 223a-224a.
The above-referenced record evidence, is far more than “mere ‘bald
assertions, personal opinions, and perceptions’ . . . .” Visionquest, 569 A.2d at 917.
The objectors’ evidence included IKM’s detailed study, and testimony by IKM
representatives, historical architect Como Harris, and PHLF representatives, all of
whom are experienced in historical renovations, and who worked with Troiani in an
attempt to reach an amicable resolution.
This Court has ruled:
A reviewing court must accept the credibility
determinations made by the municipal body which hears
the testimony, evaluates the credibility of the witnesses
and serves as fact[-]finder. The reviewing court is not to
substitute its judgment on the merits for that of the
municipal body. Assuming the record demonstrates the
existence of substantial evidence, the court is bound by the
municipal body’s findings which are the result of
resolutions of credibility and conflicting testimony.
In re Thompson, 896 A.2d 659, 668 (Pa. Cmwlth. 2006) (emphasis added; citations
omitted).
In the instant matter, the Commission specifically found Farkas’s
testimony and Como Harris’s testimony and conclusions to be credible. See R.R. at
316a. Troiani may not agree with the Commission’s credibility determinations and
factual findings, but its disagreement therewith does not mean the Commission’s
Decision is unsupported by substantial evidence. Rather, the Commission, as fact-
finder, was entitled to weigh the evidence and determine witness credibility.
19
Accordingly, this Court concludes that the Commission’s Decision is supported by
substantial evidence. Thus, Troiani’s argument to the contrary fails.16
Troiani next argues that the Commission improperly invented a
prerequisite for demolition-only applications that does not appear in the Zoning
Code when it refused to approve the Plans because Troiani had not submitted a “clear
plan for future development” or “a complete Project Development Application for
redevelopment of the wider site.” R.R. at 319a.
Troiani’s contention that there is no basis in the Zoning Code requiring
that demolition-only applications may only be considered in conjunction with “a
clear plan for future development,” id., mischaracterizes the Commission’s actions.
The Commission explained: “Reviewing the proposed demolition without a clear
plan for future development, the [Commission] found that it was unable to
determine compliance with the [13 criteria in Section 922.10.E.2(g) of the Zoning
Code] generally.” R.R. at 319a (emphasis added). The Commission did not dictate
a standard not contained in the Zoning Code but, rather, explained that, based on the
application before it, it could not conclude that Troiani had met its burden to
“adequately address” the 13 criteria, absent a complete plan for redevelopment.
Zoning Code § 922.10.E.2. Further, the Commission denied the Plans without
prejudice and “encouraged [Troiani] to bring the application for demolition before
16
With respect to Troiani’s assertion that the Commission capriciously disregarded its
evidence, “[a] capricious disregard occurs only when the fact-finder deliberately ignores relevant,
competent evidence. Capricious disregard of evidence is a deliberate and baseless disregard of
apparently reliable evidence.” Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 814
(Pa. Cmwlth. 2005) (citation omitted). Here, as in Taliaferro, “application of the capricious
disregard standard . . . does not warrant reversal. The [Commission’s] [D]ecision plainly
demonstrates it did not deliberately ignore the testimony of [Troiani’s] experts, as evidenced by
its express summation of their testimony.” Id. at 815; see R.R. at 315a-316a. “Rather, the
[Commission] considered their testimony, and chose to reject it. The . . . consideration and
rejection of this evidence, by its definition, is not capricious disregard.” Taliaferro, 873 A.2d at
815-16.
20
the Commission with a complete Project Development Application for
redevelopment of the wider site.” R.R. at 319a. The Commission did not impose a
prerequisite for demolition-only applications but, rather, applying the Zoning Code’s
plain meaning, described Troiani’s failure to adequately address the Zoning Code’s
required criteria. Accordingly, this Court discerns no error.
Finally, Troiani contends that the Commission exceeded its authority
by treating the Market Street Structures as historic and/or as contributing to the
character of a historic district without affording due process protections as provided
in the City’s Historic Preservation Ordinance, Section 1101.03 of the City’s Code of
Ordinances.17 Further, Troiani asserts that in denying its approval for structures that
have not been nominated or designated “historic” through required proceedings, the
Commission violated the Takings Clause of the Fifth Amendment to the U.S.
Constitution.18 As discussed, supra, the Market Street Structures are not “[h]istoric
[s]tructure[s]” as defined in the Zoning Code. Zoning Code § 926.104. However,
evidence supported the Commission’s conclusion that the Market Street Structures
contributed to the character of the Firstside National Register Historic District.
This Court need not reach the constitutional issue Troiani raises.
“Typically, ‘when a case raises both constitutional and non-constitutional issues, a
court should not reach the constitutional issue if the case can properly be decided on
non-constitutional grounds.’” Renner v. Ct. of Common Pleas of Lehigh Cnty., 234
A.3d 411, 417 n.6 (Pa. 2020) (quoting Ballou v. State Ethics Comm’n, 436 A.2d 186,
187 (Pa. 1981)). The Commission denied the Plans based on more than just the
Commission’s characterization of the Market Street Structures as being historic or
contributing to the character of a historic district. The Commission also denied the
17
Pertaining to the Designation of Historic Structures, Districts, Sites and Objects. See
https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances?nodeId=PIZOCO_TITEL
EVENHIPR_CH1101HISTDISIOB#TOPTITLE (last visited Mar. 18, 2022).
18
U.S. Const. amend. V.
21
application because the Plans did not adequately address the 13 criteria in Section
922.10.E.2 of the Zoning Code. Pursuant to Section 922.10.E.2 of the Zoning Code,
the Commission was required to deny the Plans’ approval where, “in the
determination of the . . . Commission, [the Plans did] not adequately address one (1)
or more of [the 13] criteria[.]” Id. In fact, the Commission determined that the Plans
failed to adequately address any of the other required criteria. That failure mandated
the Commission’s denial, separate and apart from its denial under Section
922.10.E.2(g) of the Zoning Code.19
For all of the above reasons, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
Judge McCullough did not participate in the decision in this case.
19
On May 3, 2021, Troiani filed in this Court 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 (Application to Supplement). Therein, Troiani avers 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 Structure[s]” under the International Property Maintenance Code.
Application to Supplement at 2-3. See also id., Attachments A, B. As corrective action, the
Compliance Notices direct Troiani to seek permits to protect the public right-of-way; to “stabilize”
the structures; and/or to seek approvals for the structures’ demolition from PLI and the Department
of City Planning. Id. Troiani attached supporting photographs of the Condemnation Notices and
Compliance Notices as exhibits to its Application to Supplement.
At the May 13, 2021 argument before this Court, the City’s counsel represented that the
City did not oppose this Court taking judicial notice of the Condemnation Notices or the
Compliance Notices. Accordingly, this Court grants the Application to Supplement.
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Troiani Group and Troy Development :
Associates, L.P., :
Appellants :
:
v. :
:
City of Pittsburgh Planning :
Commission, City of Pittsburgh and : No. 85 C.D. 2021
Lumania Properties, L.P. :
ORDER
AND NOW, this 21st day of March, 2022, the Allegheny County
Common Pleas Court’s January 11, 2021 order is affirmed.
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.
_________________________________
ANNE E. COVEY, Judge