Opinion
No. 1557 C.D. 2011
12-04-2012
Stanton Heights Community Organization, Jeanette Bryant, Byron K. Monroe, Howard Herrington, Stephanie Akers, Matthew & Priscilla Hunter, Nathaniel & Nicole Colvin, Nina Marie Pettiford, Gertrude Lewis and Dorothy McCorvey, Appellants v. Zoning Board of Adjustment of The City of Pittsburgh and The Neighborhood Academy
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge (P.) HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Stanton Heights Community Organization and Jeanette Bryant, Byron K. Monroe, Howard Herrington, Stephanie Akers, Matthew and Priscilla Hunter, Nathaniel and Nicole Colvin, Nina Marie Pettiford, Gertrude Lewis and Dorothy McCorvey, as individuals (collectively, Appellants), appeal from the Allegheny County Common Pleas Court's (trial court) July 21, 2011 order upholding the City of Pittsburgh's (City) Zoning Board of Adjustment's (ZBA) approval of The Neighborhood Academy's (Academy) development plans and elevations. The issues for this Court's review are: (1) whether the ZBA erred by dismissing Appellants' appeal based on the ZBA's lack of jurisdiction; (2) whether the ZBA erred by finding that Appellants' appeal was untimely; and, (3) whether it was error for ZBA members Wrenna Watson (Watson) and Kirk Burkley (Burkley) not to recuse themselves. We affirm.
The Academy owns approximately 7.8 acres of real property located at 706 North Aiken Avenue in the City's Stanton Heights neighborhood (the Property). In 1958, when the Property and an abutting parcel were owned by the Vincentian Sisters of Charity, the Property was rezoned Residential Planned Unit Development (RP). In 1965, the City's Planning Commission (Planning Commission) approved a preliminary land development plan for a 150-unit townhouse development called Stanton Heights Park, but this plan was never carried out. In March 2009, the Academy filed a revised land development plan (Revised Plan), proposing to construct two one-story buildings on a portion of the Property to house a school for 8th through 12th grade girls and an athletic facility.
The school would have a maximum of 110 students.
On April 14, 2009, the Planning Commission held a hearing, after which it unanimously approved the Revised Plan and final land development plan (Final Plan), subject to the conditions that the Academy submit a revised traffic plan, and that the final plans and elevations "are reviewed and approved by the Zoning Administrator" before an occupancy permit is issued. Supplemental Reproduced Record (S.R.R.) at 78b-80b. Watson and Burkley were members of the Planning Commission that approved the Final Plan.
On June 8, 2009, a meeting took place among Appellants (residents who live closest to the proposed development), Academy officials, City Councilman Patrick Dowd, and Community Planner Shelly Martz, to discuss the Academy development project. Appellants notified officials regarding several areas of concern, the foremost of which was the lack of notice to Appellants when the proposed development was brought to the community in January 2009. Appellants' concerns were confirmed in a June 10, 2009 letter to the Planning Commission. Appellants met with the Mayor on August 12, 2009, following which the Mayor asked the City Planning Director to address their concerns regarding the development project. By September 10, 2009 letter, the Director addressed concerns about zoning and notice of the plans, the late filing of Appellants' protest and rezoning options.
On March 17, 2010, the Zoning Administrator issued a letter notifying the Academy that the Planning Commission's conditions for approval of the Final Plan had been satisfied. On April 14, 2010, Appellants filed a protest appeal from the Zoning Administrator's determination to the ZBA, which consisted of Watson (Chair), Burkley and S. Manoj Jegasothy. Appellants averred that the Zoning Administrator's approval of the Final Plan did not meet the criteria in the Pittsburgh Zoning Code (Code) and Subdivision Regulations, and the ZBA lacked a quorum to decide this matter since Watson and Burkley were conflicted out. The Academy filed a motion to quash the appeal alleging that the Zoning Administrator did not make a decision from which Appellants could appeal (other than a signage issue) or, the appeal was untimely. A hearing was held June 24, 2010, at the conclusion of which the ZBA quashed Appellants' appeal for lack of jurisdiction, except for the signage issue. On August 24, 2010, Appellants appealed to the trial court. The Academy intervened. At a December 1, 2010 status conference, the trial court limited the issues to whether the ZBA was the proper forum to hear and decide the appeal and, if so, whether the appeal was timely. By July 21, 2011 order, the trial court affirmed the ZBA's determination. Appellants appealed to this Court. The ZBA joined the Academy's brief.
No evidence as to the merits of Appellants' appeal was presented at the hearing.
In matters such as this, where the trial court took no additional evidence in reviewing the decision of a zoning hearing board, this Court reviews the zoning hearing board's decision for errors of law or an abuse of discretion. Hamilton Hills Grp., LLC v. Hamilton Twp. Zoning Hearing Bd., 4 A.3d 788 (Pa. Cmwlth. 2010).
Appellants first argue that the ZBA erred by granting the Academy's motion to quash Appellants' appeal based on the ZBA's lack of jurisdiction. We disagree. Section 923.01.B of the Code makes it the Planning Commission's responsibility to create and adopt a master City plan, and to oversee the City's physical development in accordance with the master plan. Accordingly, final land development plans are to be submitted to the Zoning Administrator who, in turn, must forward them to the Planning Commission for review and approval. Code Section 922.11.C.1. According to Section 922.11.C.2 of the Code, if the final plan complies with specific criteria related to, inter alia, use compatibility, traffic, architectural relationships to surrounding buildings, etc., the Planning Commission shall approve it. "Any party aggrieved by a decision of the Planning Commission, may, within thirty (30) days, appeal the decision to the [trial court] . . . ." Section 923.01.D of the Code; S.R.R. at 44b.
The Zoning Administrator is a City Planning Department employee. The Department is charged with administration of the Code. See Code Section 923.03.A. Relative to final development plans, Section 922.11.C.3 of the Code states:
After a Final Land Development Plan has been approved by the Planning Commission . . . the applicant may submit a Certificate of Occupancy application . . . for a project development to the Zoning Administrator. If the development is determined by the Zoning Administrator to be in substantial compliance with the Final Land
Development Plan, the Zoning Administrator shall approve the Certificate of Occupancy application . . . .S.R.R. at 38b. The Planning Commission's approval expressly made clear, in compliance with Section 922.11.C.3 of the Code, that the Zoning Administrator's role was to assure compliance with the Planning Commission's conditions before she issued any subsequent permit.
Although the Zoning Administrator does have decision-making authority in some areas, as to final development plans, the Zoning Administrator merely transfers the plans to the Planning Commission for review and approval, and then assures that any conditions imposed by the Planning Commission are met before she is authorized to issue a certificate of occupancy.
Section 926.63 of the Code defines "decision-maker" or "decision-making body" as "the entity (City Council, Planning Commission, [ZBA], Zoning Administrator, Planning Director or department head) that is authorized to finally approve or deny an application or permit required under this [Code]. See also Chapter 923." (Emphasis added). Specifically, as to applications for administrative exceptions to use exceptions and conditions (Section 913.02), child care regulations (Section 920.05), development plans (Section 922.08), the Zoning Administrator is charged with determining whether the applications comply with the Code; review of deemed denials are conducted by the ZBA. See Code Section 922.08. Section 923.02.B.1 of the Code specifies that the ZBA shall "hear and decide appeals where it is alleged that there is error in any . . . decision or determination made by the Zoning Administrator . . . in the administration of this Code . . . ."
Here, Appellants' protest appeal cited the following errors:
a. The plans do not have 20% urban open space as defined by the Subdivision regulations and standards at § 2.10 and as required by Title IX Zoning at § 909.02.D.3(b)(3).
b. The plans do not show any residential housing and a school use which is compatibly incorporated in the unified design of this residential planned unit development as required by Title IX Zoning at § 909.02.D.2.(b).
c. The final plans show an independent school use which is not permitted in the approved Stanton Heights Park Preliminary Land Development Plan #9.
d. The signage exceeds the maximum allowed by Title IX § 919.03.N.(2).Reproduced Record (R.R.) at 44a. Although Appellants allege that these are errors by the Zoning Administrator "in approving the final plans and elevations," it is clear that the errors relate to the merits of the Planning Commission's approval of the Final Plans in the first instance, rather than the Zoning Administrator's determination that the conditions on the Final Plan approval had been satisfied. R.R. at 44a. Thus, Appellants should have filed their protest appeal directly to the trial court, which had jurisdiction to hear it.
e. The lighting does not comply with the hillside development standards of the Subdivision Regulations at § 4.12[.]
f. The roofs do not comply with the hillside development standards of the Subdivision Regulations at §[]4.3.
g. The land operations will remove mature trees which the Planning Commission did not expressly authorize in approval and the zoning administrator cannot authorize on her own pursuant to the Subdivision Regulations at §[]4.11.5.
At the ZBA hearing, it was determined that signage was not part of the Final Plan, and approval required a separate application by a sign contractor, so the ZBA dismissed all of Appellants' issues, except this one, which was to be addressed separately. Therefore, this alleged error is not before this Court.
Although the protest appeal refers to violation of Subdivision Regulations, there were no such regulations submitted with this record.
Had Appellants taken issue with the Zoning Administrator's determination that the Academy complied with the conditions of the Final Plan, or with a subsequent occupancy certificate application, as opposed to the substantive approval of the Final Plan, then an appeal to the ZBA may have been proper. --------
Moreover, "it is the practice of this Court to defer to a zoning board's interpretation of the zoning ordinance it is charged to enforce." Seipstown Village, LLC v. Zoning Hearing Bd. of Weisenberg Twp., 882 A.2d 32, 38 (Pa. Cmwlth. 2005) (quotation marks omitted). Here, the ZBA interpreted the Code to require that Appellants should have appealed directly to the trial court. Accordingly, the ZBA properly granted the Academy's motion to quash Appellants' appeal based on the ZBA's lack of jurisdiction.
Appellants next argue that the ZBA erred by finding that Appellants' appeal was untimely. They specifically contend that the Code affords 30 days to appeal a Zoning Administrator action and, because Appellants were aggrieved by the Zoning Administrator's March 17, 2010 letter, their appeal was timely filed April 14, 2010, which is within 30 days. We disagree.
Section 923.02.D of the Code provides that "[a]ppeals to the [ZBA] may be taken by any person aggrieved . . . by a decision of the city official from whose action the appeal is taken. Each appeal shall be taken within thirty (30) days of the determination, action, or decision." S.R.R. at 46b. However, Appellants were appealing the merits of the Planning Commission's approval, not the Zoning Administrator's conclusion that the approval conditions had been satisfied. Thus, their appeal should have been filed within 30 days of the Planning Commission's April 14, 2009 approval, and not impermissibly collaterally attacked one year later. See 1204 Corp. v. Joint Zoning Hearing Bd., 559 A.2d 1007 (Pa. Cmwlth. 1989). Accordingly, the ZBA did not err by finding that Appellants' appeal was untimely.
Appellants finally argue that it was error for ZBA members Watson and Burkley, who also sit on the Planning Commission, not to recuse themselves. Having determined that Appellants should have appealed to the trial court, rather than the ZBA, this issue is now moot.
Based on the foregoing, the trial court's opinion is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 4th day of December, 2012, Allegheny County Court of Common Pleas' July 21, 2011 order is affirmed.
/s/_________
ANNE E. COVEY, Judge