Resident questions whether high-school plans meet zoning code

In a widely circulated letter dated February 26, 2011, Mt. Lebanon resident and regular Blog-Lebo commenter Bill Matthews wrote to Mt. Lebanon Municipal Manager Steve Feller about the high-school project. Let me summarize the letter and explain what I think it means.

In the letter, Mr. Matthews argues – with much supporting evidence – that the municipal government failed to apply the standard required by law when it determined whether variances were needed for the high school’s north and southeast parking lots. So, what’s the big deal?

The big deal, Mr. Matthews argues, is that if the municipality decides to issue a building permit for a project that does not comply with zoning code and does not have the variances to account for its nonconformity, the decision can be challenged. Mr. Matthews explains:

Absent a variance for any unresolved nonconformities, should the Municipality issue a building permit, I believe, consistent with the counsel I received from DCED, such a decision may be appealed to the Zoning Hearing Board and subsequently to Common Pleas Court, etc.

The question Mr. Matthews raises is whether the municipality has the authority to apply, at its discretion or through its error, anything but the full standard required by law.

In the past, the answer would have been somewhat open ended. One can imagine an important project being held to a standard slightly more flexible than usual. But now the municipality will have a hard time letting anything, especially the high-school project, squeak through, should the question of compliance with zoning code come before it again.

That’s because – irony time – when the school district received an unfavorable zoning determination about other aspects of the high-school plans, it appealed the determination to the Allegheny County Court of Common Pleas, where it not only lost the appeal but allowed the court to establish a precedent. That precedent, among other things, rejects the school district’s argument that less nonconformity with zoning code equals compliance. This same argument, as it turns out, seems to be what the municipality used in determining that the planned changes to the parking lots complied with zoning code.

So, if we set aside the “less noncomformity equals compliance” standard and apply the court’s standard to the high-school plans instead, are the parking lots in compliance? No, argues Mr. Matthews, pointing to a letter dated December 2, 2009, in which the school district’s lawyers at Tucker Arensberg appear to admit to the municipality that the parking lots will indeed be nonconforming, although less so than previously:

While [the north parking lot] will still be non-conforming, in that it will have a 12-foot setback instead of the required 35-foot setback, it will be a significant improvement over what is existing.... The proposed layout [of the southeast parking lot] does not meet the space requirements as noted in Diagram 11, just like the existing parking lot... After completion of the project, the southeast parking lot will be more conforming and not be substantially reconfigured.

Adding it all up, this seems to be the story: The school district’s lawyers argued that a standard of “less nonconformity equals compliance” should prevail, and the municipality bought that argument, at least when determining that the parking lots were compliant. But, later, in the school district’s separate zoning appeal, the court rejected that standard. So, now, here we are, with the municipality seeming to have approved plans based on a standard of zoning compliance that, if challenged at the zoning hearing board or in court, is not likely to stand. The question is: Will there be a challenge?

Things, I suspect, are about to get complicated.

Copies of Mr. Matthews’s letter and supporting materials are available online:

• Matthews letter, dated February 26, 2011
• Supporting materials for Matthews letter, including a summary of Mt. Lebanon zoning code section 903, “Nonconforming Buildings or Structures,” and two letters between the municipality and the school district’s solicitor regarding the high-school project’s compliance with zoning code.