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.

Why Didn’t the School Board Pursue the Shared-Parking Option Earlier? (Updated)

Updated 2010-10-16 15:55 with details from school-board director Jo Posti’s blog post about the school district’s zoning appeal being denied.

Over on his blog, Commissioner Dan Miller writes about being inundated with questions about the school district losing its zoning appeal. He guesses that the school board is likely to respond by resurrecting an idea the municipal planner had suggested a couple of years back – a shared-parking agreement between the school district and municipality for the Commissioners’ Lot. This agreement would provide the school district with the additional parking needed to meet zoning requirements.

To give residents an idea of how long it takes for the gears of government to turn, Commissioner Miller offers a potential timeline for the school district’s detour through the municipal government, first to obtain the parking agreement and, following that, re-approval of its plans.

The timeline begins with this Monday’s school board meeting, where the board could vote to pursue a shared-parking agreement. The proposed agreement would then go to the commissioners. If they approve the agreement, the school district could then submit parking-enhanced plans to the planning board. The planning board could then meet in December or January to grant preliminary approval of the plans and to recommend to the commissioners that the plans receive final approval. Finally, the commissioners could vote on the planning board’s recommendation – in late February or, more likely, in early March 2011.

I gather that the school district would be able to continue with the high-school project after receiving preliminary approval from the planning board in December or January. Still, that’s quite a detour.

Which raises the question: Why didn’t the school district pursue the shared-parking option earlier?

The option was recommended to the school district two years ago. The school district knew it lacked adequate parking back in March, when the zoning hearing board told it so. So why pursue a time-consuming court appeal to an uncertain conclusion without securing other options? Court cases are always a gamble. If the school district had such an obvious way to hedge its bet, why didn’t it?

The only reason I can fathom is that the school district didn’t think it needed other options; it thought the zoning appeal was a sure thing. If that’s the case, what made it so confident? On its merits, the case didn’t look strong to me, so the sure-thing explanation seems hard to believe.

In the end, it’s a mystery to me. If anybody can explain why the shared-parking option wasn’t pursued earlier, let’s hear it.

Update

On her blog, school-board director Jo Posti implies that a shared-parking agreement was, in fact, pursued but has just taken a long, long time:

[T]he parking agreement concept isn’t new but one that has required ongoing discussions regarding language and terms... It’s an agreement unique to the community that’s been given thoughtful consideration since there isn’t local precedent to model.

But Commissioner Miller’s account is somewhat different: “Some may also be aware that there were some discussions on [the shared-parking agreement] in April and May of this year – but until recently the issue was dead.”

So what really happened? Did the school district earnestly pursue a shared-parking agreement during its zoning appeal or didn’t it?

School District Loses Zoning Appeal (Updated 5)

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:

• 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)

Letter: High School Project needs fewer contradictions, more compromise and responsibility

In the continuing evolution of Blog-Lebo Letters to the Editors, I am going to start posting selected letters individually. That way, each letter will have its own area for comments. Also, the blog's home page now offers instructions for sending a letter to the editors; they're located in the sidebar, right under the comments policy. For reference, I'll reprint them here:

If you've got something to say that doesn't belong in a comment, write a letter and email it to the editors (Joe and Tom). Use the subject "Letter to the editors." We'll select the best and post them at regular intervals. To be selected, a letter should be well written and say something new; it should be insightful, informative, or entertaining, not inflammatory. In short, it should be worth reading.

And now, on to a new letter! –Tom


The High School Project needs fewer contradictions, more compromise and responsibility

Where do I begin? It's hard to put the pen to the paper with so many thoughts running through my head. After all that has been said and done, the high school project design is now potentially being modified as indicated through the architect's recent request for the identification of delete alternates (the potential elimination of features). Now this, in spite of the many times I have heard that the current project simply must move forward as is. The question is why this new development? From anticipated opportunistic bidding environments to necessary features in the "21st century learning environment" contradiction after contradiction has surfaced and it is enough to make one's head spin.

In response to concerns being raised about the high cost of the high school renovation project back in February, one board director voted against the approval of the "spend up to $113.3 million" limit after suggesting the project should be conducted using a phased approach. The idea was to make initial improvements to the high school and, as economic conditions improved or a more certain economic climate emerged, move ahead with other projects accordingly. "It can't be done that way!" was the resounding response. Now, that very option is being put on the table as of the July 12th School Board meeting. Sworn testimony by school district representatives on March 11, 2010 as part of a variance request process, stated that (page 129/315 lines 2-8) "this was the best design to meet the needs of our students and the community" and (page 130/315 lines 1-2) "this ultimately ended up being the best design for our building". The statements were made in an effort to gain needed zoning variances. So, what has changed? If that was the best design, then what does the less than best design represent?

When I raised my concern about the high project cost many months ago, I was told by a school board director that the project would probably come in somewhere around $90 Million. I didn't believe it then based on a few assumptions; one being there would most likely be cost overruns like those which occurred during the elementary school renovation projects. I began circulating a petition in late February requesting a $75 Million cap on the high school project in an effort to prove to our board that there was little community support for their high cost plan. Weeks later when the support for the petition could no longer be denied, the same director presented "what $75 Million won't buy" at a school board meeting, a slap in the faces of some 3,800 residents who signed the petition. Along with stating what reasonable spending wouldn't buy was the minimization of project costs to the taxpayers – a mere $18 per month. The recent whopping 10.5% tax increase which only supports the initial $75 million bond issue raised my school district taxes $68.58 per month or $823.04 annually. That's more than the cost of the extra refrigerator running in my basement, a frequently employed analogy.

There has to be a solution that we can all live with and it is unfortunate the divisiveness the situation has caused over time. The way things are going folks in any of the camps are not going to be happy with the outcome, especially with the new approach of "what $113.3 Million won't buy either". The Mt. Lebanon Board of School Directors, also members of this community, owes it to everyone to find a solution which demonstrates compromise, fiscal responsibility and respect for our municipal law.

Charlotte Stephenson

High School Project Delayed by Traffic and Safety Concerns

According to the Tribune-Review, the high-school project has been detained at another municipal checkpoint, this time by the Planning Board:

Until the Mt. Lebanon School District can address concerns brought up by municipal traffic engineers, formal approval of the $113.3 million high school renovation will have to wait... While the [school] district contends the design is best from an educational standpoint, municipal officials expressed concerns based on zoning, parking and, now, traffic and safety considerations.

The Post-Gazette's coverage of the Planning Board meeting, where the school district's plans failed to meet approval on Tuesday, suggests that such problems are not unusual when complicated projects are first submitted to the planning board:

For a project of the size and scope of the planned high school renovation, it would have been unusual for the high school to receive preliminary land development approval at its first meeting with the planning board, municipal planner Keith McGill said.

The school district's outlook is predictably upbeat, with superintendent Dr. Timothy Steinhauer being "very confident with where we are going from here," reports the Post-Gazette.

One wrinkle, which the Tribune-Review did not overlook, is parking spaces. The planning board, citing visibility and maneuverability concerns, suggested that some half-dozen spaces be eliminated. But earlier this year, if you will recall, the school district's plans were found in violation of municipal zoning code because they didn't include adequate parking, a finding that the school district has appealed to the Court of Common Pleas.

The district's appeal rests, in part, on the notion that the planned renovation would make the high school conform to zoning code more than it does today: the new design adds 3 parking spaces, increasing the total from 502 to 505 (of the required 528). But if the district removes 6 of those spaces to improve visibility and maneuverability, it can no longer claim that its new design is more conforming to zoning code; it will be even less conforming than it is today. Thus, to meet traffic and safety requirements, the school district may have to undermine the foundation of its zoning appeal.

Read more:

• Traffic, safety issues stall approval for Mt. Lebanon high school (Pittsburgh Tribune-Review)
• Mt. Lebanon board tables step in project (Pittsburgh Post-Gazette)

Updated 2010-06-24 16:59 to clarify the parking concerns.

Mt. Lebanon School Group Supports Zoning Board

Nine Mt. Lebanon residents, including two former school board members, have filed a petition to intervene in a court appeal by the Mt. Lebanon School District over a zoning hearing board decision.

The district is planning a $113.3 million renovation for its high school but was denied two variances by the municipality's zoning hearing board in March.

The district filed an appeal in April, and now some residents who previously have spoken out against the renovation project have petitioned to intervene in the case in support of the zoning hearing board.

Read more: www.post-gazette.com/pg/10161/1064418-55.stm

Mt. Lebanon Zoning Board May Be Approached About Project

The Mt. Lebanon School District intends to open a second front in its battle over zoning deficiencies associated with the proposed $113.3 million high school renovation.

On June 22, the district could make its case before Mt. Lebanon's Planning Board and give a formal presentation regarding the construction project.

Read more: www.pittsburghlive.com/x/pittsburghtrib/news/s_683087.html

It’s Happening: Mt. Lebanon School District vs. Zoning Hearing Board of Mt. Lebanon

A few days ago, the Zoning Hearing Board released its decision and findings of fact that denied the Mt. Lebanon School District the variances it had sought for its planned reconstruction of the high school. Now, the School District has appealed the decision to the Allegheny County Court of Common Pleas.

In Mt. Lebanon School District vs. Zoning Hearing Board of Mt. Lebanon, the School District asks the Court to grant both of the denied variances (one for lot coverage, one for parking spaces) and sustain that the lot coverage and parking spaces, as planned, are permitted as a matter of right under Mt. Lebanon Zoning Code.

A copy of the appeal was served upon the Mt. Lebanon Zoning Board on April 27, 2010.

Update (5/2/2010): Added the following article from the Pittsburgh Post-Gazette -- Zoning flap gets appeal in Mt. Lebanon

Zoning Hearing Board Releases Its Findings on High School Project

The Zoning Hearing Board has released its findings about the zoning variances that the School District had requested for the high-school project. At 8 pages, it’s worth a read.

The short story is that the variances were denied because the School District was unable to present a compelling case for them.

Part of the School District’s problem seems to have been a lack of preparedness. “When asked about the square footage of the existing building and structures that contributed to the overall lot coverage, neither the Appellant nor its Consultants provided any clear response to the Board,” wrote the Zoning Hearing Board.

Another part of the problem was that the School District was not convincing in its argument that it had made reasonable efforts to comply with zoning code. The Zoning Hearing Board wrote, “The [School] District provided testimony that other options were investigated and that the proposed design was the sole option to meet the educational needs of the [School] District. Despite that testimony, no other options were presented to the [Zoning Hearing] Board to support this position or to prove, as required by the Ordinance, that the Subject Property could not be developed without the variances.”

Additionally, the Zoning Hearing Board rejected the School District’s (novel) argument that the variances should be allowed because the planned reconstruction made the property less nonconforming: “In the simplest terms, Appellant seeks to take an existing nonconforming building..., tear down a portion of it, and rebuild a new building elsewhere on its property. While the net effect may be slightly less lot coverage than the existing configuration, it will still be in excess of the maximum permitted coverage because of the creation of a new building, regardless of the repair, renovation, or modernization of that portion of the existing nonconforming building which remains.” (Emphasis original.)

In light of the findings, what seems mysterious is not that the requested variances were denied but that the School District ever thought it was going to get them. If you’re going to ask for variances, you had best be able to show that you tried in good faith to get along without them first. If the School District couldn’t make that case, they had to know, going into the hearing, that the Zoning Hearing Board would be unable to overlook the failure. Did it really come as a surprise, then, that the variances were denied?


Read more:

• Zoning Appeal No. 1651; Mt. Lebanon, Pennsylvania (Zoning Hearing Board)

School Board President: Zoning Hearing Board’s Decision is “Incorrect”

At the opening of last night’s regular meeting of the Mt. Lebanon School Board, Mr. Ed Kubit, Board President, discussed the School District’s being denied the zoning variances it needed for the High School Project. “We are disappointed with the decision of the Zoning Hearing Board,” he said.

There are two ways, he explained, that School District’s new design for the high school fails to meet zoning requirements: it exceeds the allowed lot-coverage percentage and lacks sufficient parking. He argued, however, that the new design does improve on the existing facility in both of these regards, and that this improvement should be enough: “It is the school district’s position that it is entitled to the approval of these two non-conformities as a matter of right because in each instance that element of the design actually makes the property more conforming than it is right now.”

The new design improves lot coverage by 0.2 percent and adds 3 parking spaces (of the additional 26 required by code).

The next step, he suggested, may be court: “We feel that the Zoning Hearing Board’s decision is incorrect. We are currently reviewing all of our opinions to determine a course of action that is in the best interests of our students and the community. One possible option is an appeal to the Court of Common Pleas.”

Read more:

• Transcript of Mr. Kubit’s report (MLAO)

Zoning Rulings Stall Mt. Lebanon High Renovations

The Mt. Lebanon School District's $113.3 million renovation of its high school has effectively been halted, after the municipality's zoning board denied two variances the school district had requested.

School board president Ed Kubit said at last night's school board meeting that he was "disappointed" in the outcome of Thursday's hearing.

Read more: www.postgazette.com/pg/10075/1043224-100.stm

School District Was Denied Zoning Variances For High School Renovation

Updated 2010-03-12 22:51 and 2010-03-13 10:51 with additional details.

Last night, at the conclusion of a public hearing that ran from 7:30 to nearly 11 p.m., the Zoning Hearing Board denied the School District’s appeal for the zoning variances needed to support the current plan to renovate the high school. The appeal requested variances for parking and lot-coverage. Both were denied in 3-0 votes. Additionally, in two more 3-0 votes, the Zoning Hearing Board sustained earlier findings of the municipal zoning officer, in effect affirming that the variances were necessary.

A court reporter was present to make a transcript of hearing, and all speakers were sworn in before testifying.

First to proceed was the School District. The District’s testimony was directed by its attorney, Irving S. Firman, of Tucker Arensberg Attorneys. Mr. Firman led Dr. Timothy Steinhauer, School District Superintendent, through an hour-long presentation about the high-school project. This was followed by testimony from Thomas C. Celli, of Celli-Flynn Brennan Architects, the District’s architect for the project. Also representing the School District were a landscape architect, who testified about lot coverage, and a parking consultant, who testified about a parking analysis of the project.

Following the District’s testimony, the three-member Zoning Hearing Board questioned the School District’s representatives. At first, they asked questions to clarify the District’s testimony. Then, they asked more-specific questions, designed to understand the District’s request for variances.

After that exchange, an attorney for the municipality spoke. The municipal solicitor stated that the municipality had reviewed the zoning officer’s previous findings – that, in effect, the School District did not have an existing “matter of right” that would permit the plan to proceed without the requested variances.

Next, a handful of residents offered their testimony to the Zoning Hearing Board. Some residents spoke more than once, returning to present additional testimony as needed throughout the evening. Between speakers, the Zoning Hearing Board asked follow-up questions, allowing for meaningful back-and-forth discussion.

After all parties had made their concerns and positions known, the members of the Zoning Hearing Board held a brief, off-the-record discussion. Then, back on the record, they summarized the School District’s requests, listed the four items up for consideration, and voted:

First, on the request for a lot-coverage variance, the vote was 3-0 to deny the variance.

Second, on the request for a parking variance, the vote was 3-0 to deny the variance.

Third, on the zoning officer’s determination on the necessity of a lot-coverage variance, the vote was 3-0 to sustain the zoning officer’s determination that a variance was required.

Fourth, on the zoning officer’s determination on the necessity of a parking variance, the vote was 3-0 to sustain the zoning officer’s determination that a variance was required.

The decisions rendered, the hearing concluded.

Public Hearing To Discuss Zoning Ordinance Change

The commission will have a public hearing at 8 p.m. May 26, in commission chambers, 710 Washington Road, to hear residents' comments about a proposed zoning ordinance change that would allow health clubs as a conditional use in certain areas of the municipality.

Kossman Development Co. would like to build a health club on property it owns at Castle Shannon and Mt. Lebanon boulevards and lease the space to LA Fitness. Kossman previously had plans that received final approval for two office buildings on the site. The land currently is cleared and vacant.

While Kossman has not submitted a formal development plan, the club could be 46,864 square feet with 286 parking spaces, 129 of which would be covered. The fitness center would have free weights, cycling, yoga, Pilates, personal training, aerobics, a pool, racquetball and basketball courts, a juice bar and a babysitting center.

The club has 280 locations in 21 states and typical operating hours are 5 a.m. to midnight weekdays and 8 a.m. to 8 p.m. on weekends. The nearest club is in Bridgeville.

Currently, health clubs are not permitted in districts with the "mixed use transitional overlay" designation. The overlay is meant to buffer the area between a residential community and a nearby commercial area. Mt. Lebanon has two such areas: the Kossman property and 1145 Bower Hill Road, near the post office.

In March, the Mt. Lebanon Planning Board voted not to recommend the zoning change but the commission has the final word and wants to hear from residents.

Link: www.post-gazette.com/pg/09120/966518-55.stm