Posted by: Patricia Salkin | January 28, 2019

PA Appeals Court Holds Commission Did Not Deny Due Process to Objectors

This post was authored by Matthew Loeser, Esq.
Objectors owned eight brick row houses on the 1400 block of Buena Vista Street, referred to as “Lemmon Row”, that was granted a historical designation. Johnson owned 1405 Buena Vista Street, the site of a house in Lemmon Row that was demolished in 2013. On 2016, Johnson applied to the Commission for a certificate of appropriateness for her proposed “three-story single-family home with one integral garage” on the lot. The Commission advised Johnson that her proposal needed to be “compatible with the historic character of the site and take into account the size, proportion, façade composition, rhythm, proportions of openings, materials, and colors within the neighboring buildings.” At the following meeting on February 1, 2017, the Commission voted to issue Johnson a certificate of appropriateness with conditions. The Commission further explained that because Lemmon Row had not yet been granted historical status, it was not subject to formal guidelines; as such, the Commission used the United States Department of Interior’s standards for guidance. The trial court affirmed the Commission’s decision.
On appeal, Objectors contended that the Commission erred in using the Department of Interior guidelines, and did not properly apply those guidelines to Johnson’s design. Specifically, Objectors interpreted the Department of Interior’s standards to mean that “the new construction could be different from the original construction but for massing, size, scale, and architectural features.” Objectors further argued that Johnson failed to demonstrate that her house was compatible with the “exquisite architectural style of Italianate and Simple Victorian” homes in Lemmon Row with “commonality of scale, material, and finish.” Here, after Johnson made the changes recommended by the Commission, the Commission voted unanimously in favor of issuing the certificate of appropriateness. The court found that absent fraud, bad faith, or abuse of discretion, the Commission’s interpretation of the term “compatibility,” was entitled to deference on appellate review. Accordingly, the court held that the trial court did not err in affirming the Commission’s exercise of discretion in issuing a certificate of appropriateness to Johnson.
Objectors next argued that because Johnson’s new construction constituted a “significant deviation in height from the existing houses on Lemmon Row,” their property rights had been diminished without due process of law. The court rejected this contention, however, finding that Objectors did not identify, with any particularity, how the procedures afforded to them before the Commission were insufficient. The record reflected that Objectors were present at the relevant meeting and voiced objections to Johnson’s plan. Additionally, Objectors did not dispute that they were given adequate notice or the opportunity to be heard during the public meeting. Furthermore, the Zoning Code required the Commission to seek recommendations on guidelines from residents in a proposed historic district; however, it was the Commission, not residents, that was responsible for the guidelines. Thus, it was immaterial that Objectors were not given more time to draft guidelines for Lemmon Row for the Commission’s consideration.
Lastly, Objectors argued that since the Commission did not adequately address the Department of Interior guidelines, the record was incomplete. Here, Objectors did not argue to the trial court that the record was incomplete or that they were not given a base upon which they could appeal. As such, the issue is waived. Moreover, ass this case involved issuance of a certificate of appropriateness, rather than a certificate of economic hardship, Title XI did not require the Commission to issue a written decision. Accordingly, the trial court’s holding was affirmed.

Meyer v. City of Pittsburgh Historic Review Commission, 201 A.3d 929 (PA Cmwlth 1/7/2019)


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