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COMMONWEALTH PENNSYLVANIA v. CITY PITTSBURGH (08/22/85)

decided: August 22, 1985.

COMMONWEALTH OF PENNSYLVANIA, BUREAU OF CORRECTION, APPELLANT
v.
CITY OF PITTSBURGH, PITTSBURGH CITY COUNSEL, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania, Bureau of Correction v. City of Pittsburgh, Pittsburgh City Council, No. S.A. 654 of 1984.

COUNSEL

Thomas F. Halloran, Senior Deputy Attorney General, with him, Allen C. Warshaw, Chief, Litigation Section, Andrew S. Gordon, Senior Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for appellant.

Kellen McClendon, Assistant City Solicitor, with her, D. R. Pellegrini, City Solicitor, for appellees.

Judges Rogers and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Barry did not participate in the decision in this case.

Author: Barbieri

[ 91 Pa. Commw. Page 294]

The Commonwealth of Pennsylvania, Bureau of Correction (Bureau), appeals here an order of the Court of Common Pleas of Allegheny County. That order dismissed the Bureau's appeal and affirmed the decision of the Pittsburgh City Council (Council) which denied the Bureau*fn1 a conditional use permit to

[ 91 Pa. Commw. Page 295]

    operate a pre-release facility for state prisoners in the Soho/Bluff area of Pittsburgh.

The factual background of this case is not complex. On November 21, 1983, a conditional use application was filed on behalf of the Bureau which sought permission to use a three-story building and adjacent lot at 108-110 Miltenberger Street, Pittsburgh, as a pre-release facility for twenty-four state prisoners. The bureau had operated a pre-release facility at 915 Ridge Avenue in Pittsburgh without incident since 1969 and it was this facility which the Bureau desired to relocate to Miltenberger Street. This relocation was made necessary by the sale of the Ridge Avenue property. The Miltenberger property is located in a C-3 commercial district in which an institutional facility is permitted as a conditional use under Section 993.01(a)(A)(10) of the Pittsburgh zoning ordinance. The Pittsburgh Planning Commission held hearings on January 24, 1984 and February 7, 1984, after which it recommended that the Bureau's application be denied as the pre-release facility would be detrimental to the general welfare of the neighborhood and impede the normal and orderly development of surrounding properties. On March 21, 1984, the Council requested the Commission to meet with state officials and neighborhood residents in an attempt to resolve the objections to the facility. The Commission declined to act and on April 30, 1984 the Council considered the Bureau's application and voted to accept the Commission's recommendations and deny the application. The Bureau appealed Council's decision to common pleas court which affirmed the Council and dismissed the Bureau's appeal on December 3, 1984.

[ 91 Pa. Commw. Page 296]

In this appeal, the Bureau contends that the findings that the proposed pre-release facility would be detrimental to the general welfare of the neighborhood and would impede the normal and orderly development of surrounding properties are not supported by substantial evidence and constitute an error of law. We are cognizant, of course, that our scope of review, where a complete record was made before the local agency and the common pleas court took no additional evidence, is limited to determining whether the agency violated any constitutional rights, committed an error of law, or whether any necessary findings of fact made by the agency are unsupported by substantial evidence. Section 754(b) of the Local Agency Law, 2 Pa. C.S. ยง 754(b); Wilson v. City of Philadelphia, Board of Licenses and Inspection Review, 16 Pa. Commonwealth Ct. 586, 329 A.2d 908 (1974).

The essence of the Bureau's appeal is that the objectors to its proposed pre-release facility did not satisfy their burden of proof to show by substantial, competent and relevant evidence that the proposed facility would be detrimental to the general welfare of the neighborhood or impede the normal and orderly development of surrounding properties so as to defeat the Bureau's right to a conditional use permit. There is no question that the pre-release facility proposed by the Bureau satisfied all of the objective criteria for a conditional use under Section 993.01(a)(A)(10) of the ordinance. The common pleas court specifically stated as much*fn2 and the Council concedes this fact in its brief.*fn3 The resolution of this matter is dependent upon ...


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