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RUBEN v. CITY OF PITTSBURGH

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA


June 29, 1956

Sam R. RUBEN et al.
v.
CITY OF PITTSBURGH et al.

The opinion of the court was delivered by: GOURLEY

This is another phase of the convulsion and reverberation of the Pittsburgh renaissance, commonly described as the 'Pittsburgh Story.' The circumstances which give rise to this chapter in Pittsburgh's redevelopment might be appropriately called -- 'Squirrel Hill', 'a Mountain or Luxury Apartment.'

The matter comes before the court on plaintiffs' twofold request for injunctive relief:

 1. To enjoin a rezoning ordinance of the City of Pittsburgh permitting apartment house construction on a tract of 2 1/4 acres in the vicinity of Whiteman Street and Munhall Road. Ordinance 325, City Council File No. 288, File No. 1740, Series 1955.

 2. To specifically enjoin the rezoning of a tract of land within the rezoned area having a frontage of 80 feet and a depth of 233 feet, owned by Public Relations Research Service, Inc., upon which it proposes to erect a luxury type eight story apartment house.

 Petitioners' property owners allege a deprivation of property without due process of law. 14th Amendment, United States Constitution.

 At first impression, I had felt that since the issue posed related to the constitutionality of a municipal ordinance, the matter would require adjudication by a statutory court. Nevertheless, since the suit is not one to restrain the enforcement, operation or execution of a statute of a state within the meaning of the judicial code, it is not within the purview of such court. Ex parte Collins, 277 U.S. 565, 48 S. Ct. 585, 72 L. Ed. 990; 28 U.S.C.A. ยง 2284.

 The general zoning ordinance of 1923, which limited the possible use of defendants' property for 2 1/2 story apartment houses, was in accord with the uses and development of the district at the time of the enactment of said ordinance. Book Vol. 34, page 556, Ordinances, City of Pittsburgh.

 The ordinance to which objection is now directed amended the general ordinance of 1923. It is recognized that a previously adopted zoning plan can be changed by either amendment of the adopting ordinance or by application for a variance. No dispute exists that the pronounced change in the provisions of the general ordinance as presently enacted required amendment.

 Governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals or general welfare. Nectow v. City of Cambridge, 277 U.S. 183, 48 S. Ct. 447, 72 L. Ed. 842.

 Zoning ordinance which bears no reasonable relation to public safety, health or morals, or the general welfare constitutes taking property without due process of law either under the Fifth or Fourteenth Amendment to the Federal Constitution. American University v. Prentiss, D.C.D.C., 113 F.Supp. 389, affirmed 94 U.S.App.D.C. 204, 214 F.2d 282.

 The ordinance now under review must find its justification in some aspect of the police power, asserted for the public welfare.

 The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delineation. It varies with circumstances and conditions. Thus the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use is to be determined by considering the building or the thing, not abstractly but in connection with the circumstances and the locality. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303.

 Besides a most complete and exhaustive hearing held in connection with this proceeding, the court, of its own volition, personally viewed the area encompassed by the amending ordinance as well as the surrounding environs.

 Upon a most thorough evaluation of the evidence, I am compelled to recognize that the comprehensive zoning ordinance as originally passed in 1923 had reference to a neighborhood which was almost entirely residential in nature, with a small number of apartment houses and substantial tract of vacant land.

 Deviation from the restrictive provisions of the general ordinance occurred in 1926 when the five story Beacon Apartment was built. A wave of apartment construction took place throughout 1926, culminating in 1929 with construction of the Wendover Apartments.

 The influx of population and the close proximity in construction of numerous dwellings and apartment houses have resulted in the virtual extinction of available land, so that no room presently exists for the construction of any apartments within the three floor level unless dwellings are purchased, torn down and replaced with new apartments. Since 1923 a gradual and unrelenting process of replacing private residences with apartments transformed this broad expanse of private residences into an apartment area. In spite of zoning restrictions limiting building to 2 1/2 and 3 stories, the inexorable forces of necessity and reality have resulted in a number of four and five story apartments, climaxed by the construction of the Wendover, a large luxury type apartment. I can only conclude that the overpowering and relentless surge of population growth rendered municipal authorities impotent to cope with the new apartment area even though municipal authorities were armed with the restrictive ordinance of 1923.

 In this Squirrel Hill community which is now literally bursting at the seams, a drastic change has taken place in the neighborhood character since the enactment of the 1923 ordinance. The transition from the residential to the luxury apartment type construction is evidenced by the actuality of numerous apartment structures and small commercial establishments which have crept into the neighborhood in violation of existing law. The only possible means to absorb the teaming population who require accommodation in this area is to sanction an eight story luxury apartment.

 The complainants in this proceeding place principal reliance on the decision of the United States Court of Appeals for the Third Circuit, Wilcox v. City of Pittsburgh, 121 F.2d 835. In that decision, this Circuit enunciated the rule of law that where a municipality amends a zoning ordinance in which one block or one part of a larger area is changed to permit constructions to be made, which are different than the constructions permitted at the time of the adoption or enactment of the original zoning ordinance, even if the change is, in fact, for the benefit of the individuals who reside or desire to reside in such part of the municipality, the change in the ordinance cannot be sustained unless at the time of the enactment of the amended zoning ordinance there has been a change of neighborhood character as evaluated and compared with the neighborhood character at the time of the adoption of the original zoning ordinance.

 I am satisfied that the inevitabilities of Pittsburgh Progress have wrought a change in the character of the neighborhood concerned, which by its very nature conforms to the requirements specified by this Circuit to justify the exercise of municipal police authority in authorizing luxury type apartment construction.

 I am further satisfied that a substantial segment of opposition to the proposed construction arises from the owners of the nearby Wendover Apartment who naturally look askance upon the probabilities of competition in the renting field.

 Finally, the peculiar shape of the lot in question and the unusually high cost required to prepare the land for occupancy by any building structure make it unfeasible to develop the land situs with any kind of a residential structure except a six or more story apartment house, having an earning capacity sufficient to carry the land preparation costs.

 The stringent limitations for the possible use of this lot are so apparent that were the circumstances of this proceeding reversed, and had City Council barred Public Relations Research Service, Inc., from utilizing the situs for the proposed luxury apartment, I am of the belief that such restriction might most conceivably constitute an unconstitutional deprivation of the property rights of this corporation to make a reasonable use of its land.

 The benefits which would redound to the area and the community from construction of a luxury type apartment are manifold. What at present is a useless and unproductive lot would become a source of tax revenue for municipal coffers. The appearance of the area upon which the edifice is built would be materially enhanced. Most significantly, however, Squirrel Hill, which includes the rezoned territory, is predominantly the residence for persons of Hebrew race extraction. Such persons show a strong preference to reside among friends and relatives, and demonstrate an affinity toward the luxury type apartment. This elementary fact is poignantly brought into focus by the undisputed fact that the nearby Wendover Apartment is not only filled to capacity but that a waiting list of tenants is on its rolls. Such an apartment would help fill this vacuum of public need.

 To enjoin construction of a luxury type apartment on the proposed lot, recognizing as I must the reality of a changed neighborhood, and the impelling need and demand for such living accommodations, would do violence to the stupendous redevelopment program of the Pittsburgh community, and seriously hinder and retard the onward march of public progress.

 I therefore, find that Ordinance No. 325 is not a taking of petitioners' property without due process nor in any way impinges upon petitioners' constitutional rights, but to the contrary, is a reasonable exercise of police authority in the interest of public safety, health, morals and general welfare.

 I further find that the rezoning of the tract of land having a frontage of 80 feet and a depth of 233 feet, owned by Public Relations Research Service, Inc., to permit the erection of a luxury type apartment is a valid and constitutional exercise of municipal police authority in the interest of the public safety, health, morals and general welfare.

 The Court enters the following Findings of Fact and Conclusions of Law:

 Findings of Fact

 1. The rezoned area is a tract of 2.9 acres, having frontage on the west on Wightman Street and on the east on Munhall Road. It is located in the 14th Ward of the City of Pittsburgh, between Beacon Street and Hobard Street.

 2. Part of the rezoned area is a tract of land of irregular shape, having a frontage of 80 feet on the eastern side of Wightman Street, a 60 foot public street of the City of Pittsburgh, and exending back from that street a depth of about 233 feet. This part of the rezoned area is in the approximate shape of the letter 'T' with the foot of the 'T' fronting on the street. It has a maximum width at the rear of about 250 feet. It is owned by Public Relations Research Service, Inc., one of the defendants. For the sake of convenience, this part of the rezoned area will be referred to as the 'Apartment Site'. The balance, and larger part, of the rezoned area is a tract of land of irregular shape being approximately square, fronting on Munhall Road at the westerly terminus of that street. It lies between the easterly property line of the Apartment Site and Munhall Road. It is owned by H. N. Goldstein, who is not a party to this suit. For the sake of convenience, it will be referred to as the 'Beacon Apartments Property'. The total area of the rezoned area is about 95,000 square feet.

 3. The Apartment Site has located on it the shell of a residence, which was abandoned years ago. The abandoned building has no economic value and is, according to the neighbors, a health and safety hazard. It is located toward the rear property line at a distance of more than 150 feet from Wightman Street. Aside from the abandoned building, the Apartment Site is unimproved. It is a steep hillside. The property rises 35 feet from its Wightman Street frontage to the rear property line. By reason of excavation of adjoining properties on all sides except the east, the property is substantially above the level of such adjoining properties.

 4. The cost of preparation of the Apartment Site for construction of an apartment building at the level of Wightman Street will well exceed $ 100,000.

 5. The peculiar shape of the Apartment Site and the high cost of land preparation for construction make it unfeasible to develop the Apartment Site with any kind of a residential structure except a six or more story apartment house, having an earning capacity sufficient to carry the land preparation costs.

 6. The highest and best use of the Apartment Site is for a six or more story apartment house with elevators, having sufficient rental units to produce an income sufficient to amortize the cost of land preparation and building development.

 7. The fact that the property has not been utilized for any residential use (or for that matter, any other use) for many years, is an indication that the previous zoning classification did not permit economic utilization.

 8. Defendant Public Relations Research Service, Inc., proposes to erect a luxury type eight story apartment house on the Apartment Site. The plans for the proposed structure indicate that it will be of a tasteful architectural design, which will enhance the immediate neighborhood. The proposed construction will contribute greatly to the improvement of health and safety in the immediate neighborhood by converting the present unimproved and unsanitary condition of the property into a first class residential structure site.

 9. The proposed improvement will substantially increase tax revenues to the City of Pittsburgh by permitting a maximum economic utilization of the property.

 10. While some of the owners of property in the neighborhood oppose improvement on the Apartment Site, several neighbors living or owning in the immediate vicinity of the property believe that a first class apartment house will benefit their properties and the entire neighborhood by converting the blight of the property as it presently exists into a first class residential area.

 11. The plans for the building indicate that it will have no commercial shops and that its garage facilities will be completely enclosed in the basement of the building. The plans also show that the Wightman Street frontage will be improved with a garden plaza approach to the apartment house structure, producing a most desirable appearance to the neighbors across Wightman Street, which include several of the plaintiffs.

 12. The rezoned area is in the Fourteenth Ward of the City of Pittsburgh, which is numerically and geographically the largest Ward of the City of Pittsburgh. It is in general a residential district, although it has zoning classifications from Light Industrial to Single Family Residential.

  13. The general neighborhood of which the rezoned area is a part is bounded on the north by Beacon Street, on the east by Murray Avenue, on the south by Pocusset Street and on the west by Schenley Park. It is in general a multiple-family dwelling unit neighborhood, but the area along Murray Avenue is Commercial.

 14. Beacon Street, in part 80 feet wide (from Wightman Street to Murray Avenue) and in part 100 feet wide (from Wightman Street to Schenley Park), divides the neighborhood of the rezoned area from a different type of neighborhood to the north in which there are many more single-family homes.

 15. The immediate neighborhood of the rezoned area is bounded by Hempstead Road and Covode Street on the south, Wendover Street on the west, Beacon Street on the north and Munhall Road on the east.

 16. In the immediate neighborhood there are 55 multiple-family dwellings not counting row houses and double duplexes, and 63, including those two classifications, which occupy the majority of the land in the neighborhood. Most of the rest of the property in the neighborhood is developed with two family houses (or duplexes).

 17. The nearest single family house section to the rezoned area is north of Beacon Street. None of the plaintiffs live in that section. It is apparent that the width of Beacon Street serves as an effective physical and psychological barrier between that section and the immediate neighborhood of the rezoned area.

 18. The apartment houses in the immediate neighborhood are, with the exception of two small apartments, three stories or more in height. The difference in height zones in the immediate neighborhood does not seem to have affected height of structures. For example, the Parkway Apartments, located on the property immediately abutting to the south, owned by Morris Kwall, one of the plaintiffs in this action, is four stories in height, although in an H-1 (2 1/2 story -- 35 feet) zone.

 19. The largest apartment house in the neighborhood is the Wendover, fronting on Hobart Street, about 100 feet west from the corner of Wightman Street and about 250 feet from the nearest part of the rezoned area. The Wendover is a seven story apartment house, with 125 families in it.

 20. In the immediate neighborhood there are eight different classification areas, one of which is identical with the rezoned area, and two of which differ in only one particular (H-2 instead of H-3 height classification). Only one of the classification areas is more restrictive in every particular than the rezoned area, and none of the plaintiffs live in that classification area, which is the area north of the rezoned area, fronting on Beacon Street. 21. By comparison with the classification of the rezoned area, the classifications in the immediate neighborhood are as follows: Use Classification Rezoned area Immediate Neighborhood U-4 (Multiple-family) 6 U-4, 1 U-3 (Commercial) 1 U-5 (2 family) Area Classification Rezoned area Immediate Neighborhood A-4 3 A-4, 1 A-3, 3 A-2, 1 A-1 Height Classification Rezoned area Immediate Neighborhood H-3 1 H-3, 4 H-2, 3 H-1

19560629

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