Appeal from the Order of the Court of Common Pleas of Allegheny County in case of The City of Pittsburgh v. Elman Associates, Inc., a corporation, No. 3445 April Term, 1971.
John R. Valaw, Assistant City Solicitor, with him Daniel M. Curtin, Assistant City Solicitor, and Ralph Lynch, Jr., City Solicitor, for appellant.
Richard H. Martin, with him David W. Craig and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellee.
Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Kramer.
This is an appeal from an Order of the Court of Common Pleas of Allegheny County, dated October 4, 1971, dismissing exceptions of both parties and affirming a Decree Nisi, wherein injunctive relief sought by the City of Pittsburgh (City) was denied, and Elman Associates, Inc. (Elman), was permitted to complete the construction of a building known as Mount Royal Towers, pursuant to a permit issued by the City on June 9, 1970.
The Elman realty was rezoned by the City to an "RP Planned Residential Unit Development District," and thereafter, on April 9, 1970, Elman made application for the construction of an apartment building on
its property.*fn1 The application disclosed a proposal to construct an eleven story building, one hundred four feet in height, containing ninety-seven "suites" together with one hundred twenty-two parking stalls. Elman has a mortgage commitment of $1,800,000 for the project. The application was approved by the Planning Commission of the City on June 5, 1970, and its minutes read, inter alia, as follows:
"4. 'RP' Application No. 23, Mount Royal Towers -- Final Grading and Development Plan, 14th Ward.
" Improvement Subdivision Site Plan, Elman Plan of Lots, Forward Avenue, 14th Ward. . . .
" Motion I : That the Final Grading and Development Plan for 'RP' No. 23, Mount Royal Towers, Elman Associates, Inc., developer, drawing No. A-1 of 13, dated April 8, 1970, Tasso Katselas, Architect, BE APPROVED on condition that the plan be modified to show the lower parking level deck not less than 10 feet from Forward Avenue. This may mean some rearrangement of parking stalls." (Emphasis added)
" Motion II : That the Improvement Subdivision Site Plan, Elman Plan of Lots, Forward Avenue, 14th Ward, City of Pittsburgh, County of Allegheny, Pennsylvania,
made for Marvin G. Elman by Bierworth, McCombs, Barton Associates, Consulting Engineers, dated April, 1970, BE APPROVED, and the signatures of the proper officers of the Commission be affixed thereto (no street improvement needed and no monuments involved) because:
"(1) The combination of plans above (modified as recommended) together form a complete final submission for a planned unit development in accord with Zoning Ordinance and Planning Commission requirements."
Pursuant to the application and its approval by the City Planning Commission, a building permit was issued to Elman by the City Zoning Administrator on June 9, 1970. The minutes of the Planning Commission meeting, at which the application was approved, indicate that a property owner, one Norman Marcus (Marcus), appeared at the Commission meeting to express his concern that the height of the proposed apartment building might block the view from Marcus' residence, which is situate on two lots adjoining the cul-de-sac on Mount Royal Road. The record also indicates that the architect for Elman, one Tasso Katselas, stated at the Planning Commission meeting that: "The top penthouse level would be no higher than ground level of the 'R1' homes to the north on Mount Royal Road." (R-301a) One of the members of the Planning Commission testified, before the Court below, it was his understanding that the height of the subject building would be no higher than the level of Mount Royal Road at a cul-de-sac adjoining the Marcus property. A ...