A settlement that cleared the way for a controversial 10-story office building in Oakland could be in limbo after a state Commonwealth Court ruling in favor of several neighborhood groups and residents seeking to intervene in the case.
In a 22-page opinion issued last week, a three-judge panel vacated an Allegheny County Common Pleas Court order last year that denied standing for the Coltart Area Residents Association, South Oakland Neighborhood Group, Oakcliffe Community Organization and residents Marjory Lake, Mark Oleniacz and Elena Zaitsoff.
At the same time, it returned the case back to the local court for a hearing to determine whether the groups and residents were adequately represented by the Oakland Planning and Development Corp., the registered community organization in the talks, and whether they had waited too long to seek to intervene.
The case stems from a 2019 Pittsburgh Zoning Board of Adjustment ruling that denied Baltimore developer Wexford Science + Technology a variance and two special exceptions to build a 13-story office tower at 3440 Forbes Ave.
At the time, OPDC and the neighborhood groups and residents opposed the project.
Wexford appealed the decision to Common Pleas Court. During the course of the litigation, it worked out a settlement with OPDC and the city to erect a smaller 10-story building at the site. The settlement also involved a community benefits agreement with OPDC that included a $400,000 grant.
When the three neighborhood groups and the trio of residents learned months earlier through a Pittsburgh Post-Gazette article that a settlement could be in the works, they filed a petition to intervene.
After that request was denied by Common Pleas Senior Judge Joseph James, they appealed to Commonwealth Court.
But with the appeal still pending, Judge James in January issued a consent order — one based on the settlement between Wexford, OPDC and the city — modifying the zoning board ruling to allow for a 10-story building and directing that the case be marked “settled and discontinued.”
However, in a footnote accompanying last week’s opinion, the Commonwealth Court panel declared the January order a “nullity,” calling into question the status of the settlement.
It stated that had the neighborhood groups and residents been permitted to intervene in the appeal, they would have defended the zoning board’s decision to deny the variance and special exceptions.
“Therefore, the trial court did not have jurisdiction to proceed further in the matter, including the entry of an order modifying the zoning board’s decision and closing the case, until the proposed intervenors’ appeal had concluded,” it added.
Given that, Caroline Mitchell, attorney for the neighborhood groups and residents, believes the settlement “is completely void” at this point.
“The settlement is absolutely gone. We are back to square one,” she said. “Judge James had no jurisdiction over the case once we filed our appeal. If he had no jurisdiction over the case, no one could do anything.”
Andrea Geraghty, attorney for Wexford Science, said she could not comment on pending litigation. OPDC had no comment.
In addition to the $400,000 grant, which would be paid at the end of construction, the settlement with OPDC included an annual payment of up to $35,000 that would go into the Oakland Community Land Trust and a $100,000 contribution to a program to help seniors with home repairs.
The same three residents and one of the organizations — the Oakcliffe Community Organization — involved in the Commonwealth Court case also have filed a lawsuit seeking to overturn the deal.
OPDC has said it decided to settle the case after calculating the risk to the community if Wexford had prevailed in its appeal of the zoning board decision. It has described the risk as “significant.”
In vacating the order denying the three neighborhood groups and the residents the right to intervene in the zoning appeal, the Commonwealth Court panel stated that a hearing was needed to determine whether OPDC adequately represented their interests.
“We agree that proposed intervenors’ disagreement with the settlement does not mean that [OPDC] was not representing their interests. The issue of adequate representation cannot be resolved without a hearing,” it stated.
The panel also concluded that a hearing was needed to decide if the groups and residents had waited too long before filing a petition to intervene in the case.
Mark Belko: mbelko@post-gazette.com or 412-263-1262.
First Published: July 30, 2021, 9:43 a.m.
