Thursday, July 31, 2008

Settlement Reached Over Hotel Zoning

A court settlement between a developer and Mt. Lebanon's zoning board paves the way for construction of a hotel in the 600 block of Washington Road.

The resolution gives the developer all the variances he was seeking. The developer wanted exemptions from the maximum building and maximum lot coverages outlined in the municipal zoning code. The zoning hearing board denied those exemptions on April 10. But the zoning board did not contest the subsequent appeal of its ruling to Common Pleas Court.

The municipal zoning code outlines what percentage of a lot a building can occupy, and the maximum size of a building on a given lot.

Link: www.thealmanac.net/ALM/Story/07-30-ML-hotel-appeal-B

Updated links as of August 4, 2008 (documents courtesy of Bill Matthews):

The Consent Order (pdf)

The Zoning Hearing Board Decision (pdf)

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12 Comments:

Blogger Bill Matthews said...

I don't have an issue with the development, but the process stinks.

First: The developer knew or should have known the zoning restrictions when it made its unsolicited offer to buy the property. And further, if the Municipality had intended to have it sold with a “WILL ZONE TO SUIT” option, the property was potentially worth much more than being sold “AS IS.” There must have been money left on the table.

Second: The Zoning Hearing Board initially denied the zoning variance request. Then the Municipality went and made an agreement with the developer that it will not have to conform to the MTL ordinance. It is that simple.

It's a funny thing - the Commission cannot "waive" any part of the zoning ordinance. But in its sole discretion, it can make an "agreement" to essentially sanction a non-conforming structure.

But as they say on TV – don’t try this at home. If you desire a zoning variance for a project and cannot “check all the boxes” necessary to justify the request, you are out-of-luck.

Final note: On balance, we have a pretty good zoning code and we are a better Community for it. Nevertheless, we should have a reasonable expectation that it be consistently applied. It’s not like the code is old and outdated. It was just rewritten – in its entirety – at considerable expense - a few years ago.

July 31, 2008 11:19 PM  
Blogger Bill Matthews said...

Actually, Daniel Webster said:
Good intentions will always be pleaded for any assumption of power. The Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.

July 31, 2008 11:24 PM  
Anonymous Anonymous said...

This is an unfortunate example of how the municipal government shows total disrespect for not only the laws (ordinances) they create and are supposed to enforce but egually important the citizens who volunteer to serve on their Boards & Authorities... professionals who are dedicated to upholding those laws.... when the government, for very questionable reasons, wants to achieve a result that requires circumvention or contravention of their own laws.


See Section 106 of the Zoning Ordinance... this hotel site is the poster-boy, the classic example of why we have zoning restrictions per-se and particularly the restrictions that were in effect for that very site.


What the municipality did was *legal*, but also an insult and a disservice to the public. Their new mantra shouts, "come on in...we'll Zone to suit !"..for big,newsworthy projects.


It is also unfortunate that in this dysfunctional State, Zoning Hearing Boards cannot defend court challenges to their decisions..even though they are quasi-judicial bodies... only the local Council or Commission via their Solicitor. In this case, the municipal Solicitor intervened and sided with the developer.

July 31, 2008 11:36 PM  
Blogger Mike Madison said...

We need a real estate/land us lawyer in the house: My understanding -- which I'm ready to correct -- is that seeking and obtaining zoning variances is a bread-and-butter part of the real estate development process. Zoning ordinances, like lots of laws, have to be enforced to achieve most of their effect. Governments usually have discretion regarding whether to enforce them. I don't know the details of the hotel situation in Mt. Lebanon, but how is this different?

I respect the opinions of those who watch this stuff more closely than I do, but I'm still curious about what seems to be the "criticize whatever Mt. Lebanon does" reflex that pops up on the blog from time to time. Bill M.? Bill L.?

August 01, 2008 10:17 AM  
Anonymous Anonymous said...

Mike, I for one do not "criticize everything Mt. Lebanon does"...I support most everything going on in Mt. Lebanon but see no real need to add to the considerable very positive press emanating from the municipality, school district and newspapers. I speak up when things are,in my opinion,inconsistant with good government and governance.


What do I base my opinions on ? I've been a resident and taxpayer of Mt. Lebanon ... don't you just love to hear that sort of statement... since 1966; however, in my case I have been a member of several municipal Boards and Authorities, am or have been a member of several municipal nonprofit organizations, study groups and have even been a Judge of Elections for a voting District. I have also been a very frequent attendee at municipal Commission and many, many Board & Authority meetings and School Board meetings since 1991. During the course of all this I have developed considerable knowledge and insight, met many folks from many walks of life and have developed many friendships and contacts. I am told that I am known and respected for my research and fact-finding and my ability to present those facts.


I have found over the years that the vast majority of folks in Mt. Lebanon obtain their "facts" from the public information offices, official public publications, and the local press.... and thats fine in most cases; however, when someone who has the history and facts that dispute or challenge so called "facts" or opinions, they are all too often criticized by those who themselves are not in possession of all the relevant facts and evidence and/or, for whatever reasons, will not make an effort to factfind or accept contrary opinions themselves.


If you or others do not like my brand of participation on this blog or in this community, let me know... and please do me the courtesy of letting me know why.

August 01, 2008 11:52 AM  
Blogger Bill Matthews said...

Mike: I will send you PDFs of the ZHB decision and the Common Pleas Court Consent Order. Always good to read these things for yourself. Maybe they can be posted.

The ZHB decision appears to be a reasoned decision. But then the MTL Commission, with its "broader" view of the world, apparently saw "special circumstances" to conclude the benefits of the Hotel outweighed the enforcement of the Zoning Code. Not that the ZHB erred in its application of the code or any applicable statute. The reasons for a variance are pretty well spelled out in the PA Municipalities Planning Code (I think) and probably tons of case law.

The Commission's position was really no surprise, but what would have been wrong with the Commission discussing the issue as a body in the light of day and subsequently staking out its position when it authorized the Solicitor to participate in the litigation. They could have explained to the Community that for these specific reasons A) B) & C) the Zoning code should be overlooked ... and how this denial differed from others that similarly lacked adequate foundation.

I am reminded of the School District's recent proposal to build a Natatorium for the high school. The Municipality quickly jumped up to say a secondary building on the HS property violated the Zoning Code and further, would not likely merit a variance. This is MTL, we have standards.

Had the Municipality followed the Community’s heart, rather than the code, they could have just as easily said: Your plan violates the zoning code, so just jump through all our perfunctory hoops and in the end we will agree you can do it.

Oh yeah – the Commission (or certain Commissioners) felt snubbed because the School District was operating independently and would not partner on their dream for a wellness center / pool in main park. Consequently, there was no way they were going to overlook the zoning code for the benefit of the District or Community.

We either have an ordinance with prescribed processes and justifiable reasons for variances or we don't.

One more thing -- I think it was Commissioner Colby that was quoted as saying the Municipality could move to ammend the zoning code to accomodate the hotel -- but that would have certainly been a questionale action. How is overlooking the code any less questionable?

August 01, 2008 1:45 PM  
Blogger Mike Madison said...

Bill M., if you forward the documents, I'll post them.

Bill L., as I said in my comment, I respect those whose opinions differ (especially if they're closer to the facts of the case) and I'm ready to be corrected. (With due respect, however, in general I tend not to be impressed by the pedigree of the speaker. Nor should anyone be impressed, or not, by whatever they make of my pedigree.)

Bill M.'s reprise of what happened with the hotel variance suggests to me that the problem here lies primarily in the claim that "the people of Mt. Lebanon" (my phrase and quotation marks), through their volunteer boards and open hearing processes, weren't properly heard or respected on the topic. I suspect -- but again can be corrected -- that at least some critics of this process believe that had "the people" been heard, the variance would have been denied, and the hotel not built, and that the critics would prefer that outcome.

Re-tracing that assessment backwards, I think that the conclusion is incorrect. I start with my belief that putting a hotel in that location would be a good thing for the community, and that the benefits of the variance are likely to exceed its costs. (A majority of the voting members of the community may disagree with me, and if that's the case, then they can exercise their prerogative at the next election. Someone who feels sufficiently harmed by the variance can file an appropriate lawsuit to stop the construction.)

The merits of the hotel itself to the side, the question is whether an open process, whether driven by volunteer boards or open hearings, is a more politically or ethically legitimate method of arriving either at that variance, or at a denial of the variance. Is this basically an administrative process (which is what happened, in which case legitimacy is more likely presumed here), or a deliberative process (which is what Bill M. and Bill L. would prefer, so that what happened is less likely legitimate)?

Personally, I suspect that neither "administrative" nor "deliberative" is a universal truth in zoning cases. Nor is it the case, in my view, that every variance process needs to be handled alike -- even if every variance process *were* alike, which they almost always are not.

The general difficulty is comparing two types of incommensurable risks:

What is the likelihood that an administrative variance or conditional use process is going to be captured by pro-development parties bent on inappropriate or destructive development?

VERSUS

What is the likelihood that some deliberative variance or conditional use process is going to be held hostage by individuals, neighbors, or neighborhood groups parading anti-growth, NIMBY arguments?

My bias in Mt. Lebanon is pro-commercial, tax-it-at-full-value development. I'm more willing to assume the first risk than the second -- even bearing in mind the Washington Park experience. If the hotel proposal is real -- a concern that seems legitimate in light of the lack of progress by the Kossman and Washington Park projects -- then I would not jeopardize it by strong adherence to a traditional deliberative process.

August 01, 2008 2:46 PM  
Blogger Bill Matthews said...

The flavor of the cases a non-lawyer can dig up on the issue tends to go like this:

Where court of common please does not take additional evidence, its scope of review of decisions of zoning boards is to determine if board committed error of law and whether necessary findings are supported by substantial evidence; court may not substitute its judgment for that of board unless board manifestly abused its discretion. (Ramondo v. Zoning Hearing Board of Haverford Township)

This is a well litigated topic. Consequently, this is not to say there is not a legal basis for the Municipality to independently craft an agreement outside of the prescribed process - I just have not found it.

Maybe the "agreement" was considered "new" evidence. Maybe the "agreement" should been presented to the Zoning Hearing Board, in the first place - it would have been much simpler.

August 04, 2008 9:21 PM  
Blogger Mike Madison said...

Bill, thanks for that addition.

As a lawyer, I read the text that you quoted and sigh. That paragraph alone has three separate standards of review somehow masquerading at a single coherent statement! The fact that other PA courts cite or quote Ramondo means, as you note, that the question is well-litigated. Well-litigated, however, doesn't mean clearly answered, and if Ramondo is representative, then the caselaw has gaps big enough to drive a semi through. Neither the law nor the authority of the court or the Municipality are straightforward, at least on the face of things!

August 04, 2008 9:40 PM  
Blogger Matt C. Wilson said...

Mike,

Are there any areas of caselaw that are so watertight that a sufficiently adept legal motorist couldn't drive a semi through them?

Or at least drive a straw through them, and then inflate a semi on the other side? :)

Personally, I feel like it is a bit insincere for the Commission to go through the trouble of crafting a zoning law that expressly prohibits developments like this, only to turn around and supercede the code on a whim.

I'm all for representative democracy, and what the Commission decides is decided. But to me that means approaching decisions like this with a measure of deliberation, to represent the interests of the previous Commissioners and residents who crafted the code in the first place.

If we (the municipality) think the code was overzealous, then we should propose a revision. If we think that this development is in the spirit of the original code but is getting caught on a technicality, then eliminate the technicality. And do so in such a way that considers what it is that we're truly trying to accomplish.

I run into similar circumstances in my work as a software developer. Quite often, I have to create something that is useful and straightforward in accomplishing some task, but that has some degree of consideration for future, unanticipated uses. The goal is to not have to rebuild the entire thing because some small new wrinkle shows up, but also to not patch on some hack just to suit the prevailing need.

I think it's an instructive example that we (the elected representatives and boards) should be both a little more reserved when crafting legal code, and a little more considered when intentionally altering or circumventing it.

August 05, 2008 9:25 AM  
Blogger Bill Matthews said...

If I had a semi for hire I would want our solicitor, Jim Roberts, behind the wheel, he is the master. But this is about more than maneuvering around orange cones.

August 05, 2008 2:44 PM  
Blogger Bill Matthews said...

I think the Honorable Judge Pellegrini said it best in Becker v. Sewickley ZHB:

"the (Zoning Hearing) Board is charged with the exclusive jurisdiction to ... decide whether applicants are entitled to variance relief from local zoning ordinances under Section 909.1 of the Pennsylvania Municipalities Planning Code (MPC) ... although a municipality has the ability to settle zoning disputes that are within the exclusive jurisdiction of the municipality, a municipality cannot settle disputes that fall
within the exclusive jurisdiction of the local zoning hearing board. If that were so, municipalities could supplant every decision of a zoning board by stipulation and nullify Section 901.1(a) of the MPC altogether.
(emphasis added)

August 05, 2008 7:18 PM  

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