posted by Tom Moertel at 11:20 PM /
Updated 2010-10-14 10:01 with details from the court’s opinion and order.
Updated 2010-10-14 10:20 with with minor changes for clarity.
Updated 2010-10-14 11:22 with with minor changes for perspective.
Updated 2010-10-14 18:14 with links to media coverage.
Updated 2010-10-15 09:20 with link to P-G’s extended coverage.
Yesterday in the Court of Common Pleas of Allegheny County, the Honorable Joseph M. James affirmed the Mt. Lebanon Zoning Hearing Board’s earlier decision that the Mt. Lebanon School District was not entitled to a variance for the currently planned high-school renovation.
The official opinion and order of the court is only nine pages long, so it’s worth a read. The opening paragraphs are particularly helpful, summarizing the school district’s attempt to comply with zoning code and, failing at that, its appeal to the court.
The opening also puts the appeal into perspective: “When the trial court takes no additional evidence, the scope of its review is limited to determining whether the [Zoning Hearing] Board committed an error of law, abused its discretion, or made findings not supported by substantial evidence.” So, for those plan-supporters who think the Zoning Hearing Board was shortsighted or somehow acted improperly, here’s the reality check.
Moving into the appeal, the school district had argued that it did not require the disputed zoning variance: the high school is currently nonconforming and, therefore, the school district had the right to change it, provided it did not become more nonconforming. No so, wrote the judge: “[T]he law does not relieve the School District from requiring a variance just because a nonconforming building currently exists on the property. Both the Ordinance and case law support this finding.” Although existing nonconforming buildings could “be continued” under the Ordinance, the judge noted, the school district’s plans call for a new building on previously vacant ground and do not qualify for this special consideration.
The school district had also argued that the challenges of high-school project were so great that complying with the disputed zoning requirements would be unreasonably burdensome. But the Zoning Hearing Board had found otherwise, and the judge affirmed that finding on the grounds that the school district had failed to support its claims: “The School District did not prove that the irregularities of the property caused the lot coverage nonconformities or limited the number of parking spaces. Secondly, the School District failed to prove that the property could not be developed without the requested variances.”
The judge concluded, “Based on the foregoing, the decision of the Zoning Hearing Board of Mt. Lebanon is affirmed and the appeal is dismissed.”
What now?
As reported earlier on Blog-Lebo, the Mt. Lebanon Planning Board recently granted the school district preliminary approval of the renovation plans. This approval, however, was conditional on the school district receiving a favorable ruling in its zoning appeal. Having just lost that appeal, the school district now finds its plans on the wrong side of both municipal zoning and municipal planning codes.
So now the question for the school district is this: What’s Plan B?
Read these articles:
Updated 2010-10-14 10:20 with with minor changes for clarity.
Updated 2010-10-14 11:22 with with minor changes for perspective.
Updated 2010-10-14 18:14 with links to media coverage.
Updated 2010-10-15 09:20 with link to P-G’s extended coverage.
Yesterday in the Court of Common Pleas of Allegheny County, the Honorable Joseph M. James affirmed the Mt. Lebanon Zoning Hearing Board’s earlier decision that the Mt. Lebanon School District was not entitled to a variance for the currently planned high-school renovation.
The official opinion and order of the court is only nine pages long, so it’s worth a read. The opening paragraphs are particularly helpful, summarizing the school district’s attempt to comply with zoning code and, failing at that, its appeal to the court.
The opening also puts the appeal into perspective: “When the trial court takes no additional evidence, the scope of its review is limited to determining whether the [Zoning Hearing] Board committed an error of law, abused its discretion, or made findings not supported by substantial evidence.” So, for those plan-supporters who think the Zoning Hearing Board was shortsighted or somehow acted improperly, here’s the reality check.
Moving into the appeal, the school district had argued that it did not require the disputed zoning variance: the high school is currently nonconforming and, therefore, the school district had the right to change it, provided it did not become more nonconforming. No so, wrote the judge: “[T]he law does not relieve the School District from requiring a variance just because a nonconforming building currently exists on the property. Both the Ordinance and case law support this finding.” Although existing nonconforming buildings could “be continued” under the Ordinance, the judge noted, the school district’s plans call for a new building on previously vacant ground and do not qualify for this special consideration.
The school district had also argued that the challenges of high-school project were so great that complying with the disputed zoning requirements would be unreasonably burdensome. But the Zoning Hearing Board had found otherwise, and the judge affirmed that finding on the grounds that the school district had failed to support its claims: “The School District did not prove that the irregularities of the property caused the lot coverage nonconformities or limited the number of parking spaces. Secondly, the School District failed to prove that the property could not be developed without the requested variances.”
The judge concluded, “Based on the foregoing, the decision of the Zoning Hearing Board of Mt. Lebanon is affirmed and the appeal is dismissed.”
What now?
As reported earlier on Blog-Lebo, the Mt. Lebanon Planning Board recently granted the school district preliminary approval of the renovation plans. This approval, however, was conditional on the school district receiving a favorable ruling in its zoning appeal. Having just lost that appeal, the school district now finds its plans on the wrong side of both municipal zoning and municipal planning codes.
So now the question for the school district is this: What’s Plan B?
Read these articles:
- Judge upholds rejection of Mt. Lebanon High School plan
(Pittsburgh Post-Gazette) - Judge denies Mt. Lebanon's zoning appeal for high school
(Pittsburgh Tribune-Review) - Judge denies Mt. Lebanon renovation request
(Pittsburgh Post-Gazette; extended coverage)
Labels: court of common pleas, high school renovation, planning board, zoning
8 Comments:
Hum... A "Plan B"? Maybe someone will organize a campaign to send 2000 emails that gripe about the decision?
Personally, I liked the decision. I felt that the Judge was very fair. It seems to me that the issue is the condition of the existing building which can be renovated for $75MM. The additional accommodations for the athletic community are excessive and don't comply with local codes. Personally, I don't want to look out my window and see a non-conformity across the beautiful Lebo landscape.
Since a minority of the students participate in the athletic program, the student population as a whole will be better served by limiting the project to a $75MM renovation of the existing high school and starting repairs quickly. The minority of students that participate in the athletic community also represent an even smaller proportion of the population in the community, and therefore the community will be best served by limiting the project to a $75MM renovation of the existing high school. There is no reason for the entire community to carry the financial burden for the few of privilege that pushed this astronomical project and delayed the needed renovations in the process. Sadly, it was the children that were the losers because of the delayed renovations to the existing high school.
If the athletic supporters want facilities, then they should raise funds through contributions, get part-time jobs, start a home business, etc; and then the athletic supporters should buy land, design a building to accommodate their needs, get the permits, and build it.
Another friendly reminder: On Blog-Lebo, we do not publish anonymous comments.
If you have something to say, we welcome your comment. Please include your full name, however. If you don't, we won't be able to publish your words.
For more on our comments policy, see the right-hand sidebar of the home page.
I remind readers of this policy because I just had to reject a comment offered anonymously.
Cheers,
Tom
1)10 years ago the then SB did say the HS would eventually need to be renovated; but, they also said the Elementery Schools needed to be updated and renovated as well.
2) and, about 2001 or so, the District stopped doing some routine maintenance and repairs on the HS...a classic case of what is called deferred maintenance...and as a result, the building began to develop and visibly show problems by 2004 or so. The explanation then was why spend money on things with useful lives of 15 or more years when the building will be replaced soon. It was also done to convince and incite parents to demand that something be done. A SB member asked in a public meeting in 2004 as to "when will we have enough money to do the HS?", and Jan Klein answered "probably by 2008 or 2009".
3) so the reason for deferring the HS project and not doing something more immediately was monetary...*affordability*... in this case a State-mandated limitation on the ability to borrow the funds necessary to do a project that insiders knew would cost far more for what they had in mind (an entirely new HS complex that would be more grand than those of competing districts) rather than what the public had been led to believe might be the case.
4) and why did they have to wait until they could *afford* it ? Because debt limit is determined as a % of operating revenue....as revenues increase, debt limits increase. Since operating revenues of the District had been and continue increasing at twice the rate of inflation, the debt limit was rising at a rate greater than construction cost increases.
5)the District believed a new HS would cost more than renovating the Elementary Schools. So, the Elementary project went first and the millage rate increases necessary to generate funds to pay for the Elementary portion of the bond issue...$44 million of the $50 million bond issue...also raised revenue required levels, which in turn further increased the debt limit.
6)so that by 2004, two years into the Elementary renovation project, it was known that with a continuation of costs and required revenues increasing at twice the rate of inflation (and construction costs), revenue growth would create a debt limit that would permit debt funding of a large HS project by 2008-2009.
7) the whole thing was planned from the get-go. Not altogether really different than planning the funding of a childs college education, a wedding, retirement, buying a house, etc. It takes having a plan in place so that you can *afford* it....5, 15, 25, 30 years out.
8) the problem with the HS project is that the District did not explain the plan to the parents or public; and, the parents grew increasingly concerned and angry with a deteriorating building to such an extent that when some members of the public began to question the eventual project process in 2009 because the then preliminary cost estimates far exceeded earlier estimates, the parents, PTA and SB accused the questioning public with delaying the project for 8 years, and even now the entire 10 years.
9) the "delay" over the past 2 years is entirely a problem of the Districts making. The questioning public has not been the cause of any delay. The 6-month zoning issue "delay" is a problem of the Districts own making. The design caused the zoning violations because the District and the architect failed to heed the repeated advice and warnings of the Muni for over 2 years to abide by all the zoning regulations, and the architect did not. Nor did the SB demand zoning compliance in the 15 design criteria, or in the course of what should have been their normal course of due diligence.
10) yet the BOSN, VOICE, PTA , REAL LEBO, SB and that ilk have convinced parents to attribute all failures, shortcomings, delays and problems associated with the HS project to a small group of resident taxpayers who elicited petition signatures of almost 4,000 others to curtail the cost of the project. It just ain't so !
The District left zoning out of the design criteria so they could argue the zoning variance was needed BECAUSE OF the design criteria. If compliance with zoning ordinances was one of them, their argument could not have been made, and therefore the basis of the entire variance request and subsequent appeal would have gone out the window.
District representatives testified under oath at the Zoning Hearing Board hearing on March 11, 2010 that it was impossible for them to reduce the size or scope of the project in order to conform to the zoning requirements because of "design criteria" and "because the design represented the minimum requirements for a 21st century education."
On 15-MAR-2010 Ed Kubit wrote,
"One of the criteria for the ongoing High School design project was to avoid or minimize any zoning issues while still being able to meet the educational and programmatic goals of the School District."
Mr. Kubit knew zoning should have been one of the criteria, yet it was not part of the 15 design criteria list. David Huston
As I read it, the District lost the request and the appeal because they didn't present evidence or testimony regarding alternative designs, which is a specific requirement for obtaining a variance. The zoning board and Judge James applied the law. Unfortunately, the SB and its solicitor made it very easy for them to shoot this down.
Instead of following the criteria for obtaining a variance, the SB and the solicitor argued "Here's our non-conforming design. Take it or leave it."
I think that it's interesting to see Mr Franklin suddenly pointing his fingers in so many different directions ...
... to answer your question from an earlier thread Mr Franklin, the only sign that I would ever place in my front lawn is one that says, "FOR SALE"; but I have NO PLANS to leave my home and the community that I have loved so dearly for the last 33 years of my life.
The people in our community need to get interested and learn how our Board candidates are selected. They need to understand who the nameless and faceless people are that decide who is selected, and who the very powerful local machine will place in office to make the decisions that impact ALL of our lives. Our residents need to get interested, get active, exercise their right to free speech, and vote!
- and if you show up at the polls for three elections in a row and some little old retired school teacher tells you that your voter registration was lost [for three elections in a row] and you can't vote today DON'T TAKE IT! Do something about it!
See you on election day!!!
Bill Lewis made some interesting points! Thanks for the post!
A little known but real reason for issuing the $69 million bonds early, believing the general public would not catch on, was to put into effect as early as possible the millage rate increase and resultant tax revenue increase which in turn would raise the debt limit....so the 2nd. bond issue would be *affordable* in 2012, the intended issue year.....this has subsequently been extended to 2014 allegedly because their Construction Manager told them earlier this year that the funds would not be required until 2014....isn't it interesting that the 2nd. issue is timed on when it will be needed to pay bills, but that was not a consideration or bases with the premature 1st. & larger $69 million issue.
If the truth be known, the revised2014 date more likely reflects only when the debt limit would be high enough to legally permit a 2nd. bond issuance large enough to finance the remainder of the $113.3million project....2012 seemingly wouldn't cut it.
The District has told the public that the $69 million issue in Oct. 2009 was to be able to pay $700,000 in bond principal by Feb. 11, 2011....a State payment requirement in order to permit that $700,000 to be applied to an increase in debt limit.
Thinking through all this further and putting some of this together raises a question as to whether Lebo taxpayers have really been hornswoggled ? For instance :
1) the SB approved a Bond Resolution in 2009 (that probably 99.9% of Lebo taxpayers have not read) that authorized the District issue date for the bonds to occur no later than Dec. 31, 2010, which the District could have done legally, and structured the debt amortization to pay down the $700,000 principal by Feb. 2011, and then apply that $700,000 to an increase in debt limit.
Of course they didn't go this route because they wanted instead to increase the millage by 2+ mills ($4.2 million +)for school year 2010-2011 in order to bump the debt limit as soon as possible ....they could not do that if the bonds were issued in Dec.2010; and, they would qualify for the $700,000 bump in debt limit in either case.
2) the District claimed they wanted to capture record low interest rates in late 2009, but guess what : muni. bond rates now are at or even slightly lower than what they were in Oct. 2009, and have been for several months. And with likely Fed easing very soon, rates may go even lower.
3) Here's the District dirty deed : tell the taxpayers you need to issue bonds early..2009..to achieve a $700,000 bump in the debt limit (not true), and then sock the same unknowing taxpayers with an unnecessary and wasted 15-month debt service bill of $5.1 million for funds we didn't need for the priviledge.
I really cannot see why we don't run these people out of town on a rail, with a little coat of tar & feathers to keep them warm.
Bill Lewis
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