IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
March 18, 2009
RIVERLIFE TASK FORCE, RANDY ZOTTER AND ROBERT BLACKWELL, APPELLANTS
PLANNING COMMISSION OF THE CITY OF PITTSBURGH, APPELLEE
PITG GAMING, LLC, INTERVENOR
Petition for Review/Appeal from the January 14, 2008 decision of the Planning Commission of the City of Pittsburgh.
The opinion of the court was delivered by: Mr. Chief Justice Castille
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
SUBMITTED: May 23, 2008
Petitioners Riverlife Task Force, Randy Zotter, and Robert Blackwell (collectively, "Riverlife")*fn1 filed a Petition for Review/Appeal ("Petition") in this Court from the decision of Respondent Planning Commission of the City of Pittsburgh ("Planning Commission") made on January 14, 2008, approving a project development plan application for the Majestic Star Casino ("the Casino"). In its appeal, Riverlife seeks to challenge the Planning Commission's approval of the height of the Casino's garage. On March 28, 2008, the Planning Commission and Intervenor PITG Gaming, LLC ("PITG") filed a Joint Application for Summary Relief, asserting that Riverlife's appeal was not timely because the decision Riverlife disputes in fact was rendered months before the Planning Commission's January 14, 2008 decision and Riverlife failed to appeal the earlier decision. For the reasons that follow, we conclude that Riverlife's appeal indeed was untimely, and that accordingly, this Court lacks the jurisdiction to consider it. Therefore, we grant the Joint Application for Summary Relief, and quash Riverlife's appeal.
In July of 2004, the General Assembly enacted the Pennsylvania Racehorse and Gaming Act ("Gaming Act"), a statute that provides for slot machine gaming at a number of licensed facilities within the Commonwealth. 4 Pa.C.S. § 1102. The Gaming Act established the Pennsylvania Gaming Control Board ("Board"), and empowers it to issue slot machine licenses at its discretion. 4 Pa.C.S. §§ 1201, 1202(b)(12). The Gaming Act provides for three types of slot machine licenses, designated by category. 4 Pa.C.S. § 1301. Each category permits an entity or person to apply to the Board for a license, and upon issuance, authorizes the placement and operation of slot machines at a licensed facility. Id. Under the Gaming Act, one Category 2 licensed facility is to be located by the Board within a city of the second class. 4 Pa.C.S. § 1304(b). The City of Pittsburgh ("Pittsburgh" or "City") is by statutory designation a city of the second class.
The material, undisputed facts as set forth in the parties' submissions are as follows. PITG, a Pennsylvania limited liability company, was created to apply for a license to operate a gaming casino. In 2005, PITG applied to the Board for a Category 2 slot machine license in Pittsburgh. In its application, PITG proposed to develop the Casino on Pittsburgh's North Shore Drive. On December 20, 2006, the Board voted unanimously to award PITG the Pittsburgh Category 2 slot machine license. On February 1, 2007, the Board issued an Order and Adjudication granting PITG the license. On July 17, 2008, this Court affirmed the Board's Order. Station Square Gaming L.P. v. Pennsylvania Gaming Control Board, 927 A.2d 232 (Pa. 2007).*fn2
Under the Zoning Code of the City of Pittsburgh ("Code"),*fn3 the Casino is a "Gaming Enterprise"*fn4 and a permitted use in Pittsburgh's Downtown Riverfront district. Code, §§ 910.02, 911.02. As such, the Casino is subject to the Code's provisions regarding project development plan review and approval. Code, § 910.10. According to Section 922.10.A of the Code, the purpose of a project development plan is "to provide a vehicle for evaluating individual development proposals within the broader context of development and plans for areas of regional significance, including the . Downtown Riverfront areas." Id. § 922.10.A. Therefore, under Section 922.10.B, in each Downtown Riverfront district, "every new or changed use of land, and every structure hereafter erected, enlarged[,] demolished or externally altered" must comply with all relevant regulations set forth in the Code and conform to a project development plan that the Planning Commission has approved. Id. § 922.10.B.*fn5
Under Section 922.10.C, all applicants for project development plan approval are to file an application with the Zoning Administrator. Id. §§ 922.10.C, 922.10.D.1.*fn6 For developments of the Casino's size, an applicant submits a master development plan application to the Zoning Administrator, prior to applying for individual building review. Id. § 922.10.D.2.*fn7 The Planning Commission reviews the master development plan application and approves it, if it meets certain designated criteria. Id. When the requirements of master development plan review have been fulfilled, the Zoning Administrator schedules review of the project development plan application before the Planning Commission. Id. § 922.10.E.1. The Planning Commission then holds a public hearing, reviews the project development plan application to determine whether it complies with thirteen designated criteria, and either approves, approves with conditions, or denies the application. Id. §§ 922.10.E.1, 922.10.E.2.*fn8
In December of 2006, PITG submitted a draft master development plan for the Casino, and in February of 2007, submitted a revised application.*fn9
Thereafter, review proceeded in phases, with PITG submitting several project development plan applications. In March of 2007, PITG submitted its first application, that for PDP No. 0713. PDP No. 0713 sought approval for the demolition of the structures that were then located on the site of the Casino. On May 29, 2007, the Planning Commission approved both PITG's revised master development plan application and its application for PDP No. 0713.
On June 21, 2007, PITG submitted a second project development plan application, PDP No. 0741, which sought approval for site utilities, the construction of foundations, and the erection of structural steel. On August 7, 2007, the Acting Zoning Administrator submitted a Development Review Report on PDP No. 0741 to the Planning Commission, recommending that the Planning Commission approve PDP No. 0741 in accordance with the application and drawings PITG had submitted for PDP No. 0741, provided that a construction management plan was reviewed and approved by the Department of City Planning prior to the issuance of a permit to PITG for foundation construction. At a hearing held on August 7, 2007, the Planning Commission approved PDP No. 0741, as recommended.
In the final months of 2007, PITG filed its third project development plan application, PDP No. 0724A, which sought approval for the building shell of the Casino and garage. On January 14, 2008, the Zoning Administrator recommended that the Planning Commission approve PDP No. 0724A for the proposed building shell in accordance with PITG's submitted application and materials, provided that construction drawings were reviewed and approved by the Zoning Administrator prior to the issuance of a building shell permit. On January 14, 2008, the Planning Commission held a hearing, and approved PDP No. 0724A, as recommended.
Riverlife filed this Petition on February 12, 2008, under Section 1506 of the Gaming Act, 4 Pa.C.S.A. § 1506,*fn10 from the Planning Commission's January 14, 2008 decision to approve PDP No. 0724A. The focus of Riverlife's Petition is the height of the Casino's garage. Riverlife asserts that the garage depicted in PITG's master development plan was an approximately 100-foot high structure, which included two underground floors of parking, but that the garage the Planning Commission approved will stand 119 feet high with no underground levels. Riverlife complains that the height disparity that will exist between the Casino and the garage is unacceptable, having increased substantially from that reflected throughout project review. Riverlife argues that the Planning Commission's decision to approve PDP No. 0724A is invalid because the Planning Commission failed to comply with applicable notice and hearing requirements; violated the Code by not processing a single project development plan for the Casino; disregarded the criteria the Code requires it to consider when reviewing project development plans; and violated Code provisions as to allowable heights for the garage as an accessory structure. Riverlife further argues that a building permit issued for the core and shell of the Casino was contrary to Code provisions to the extent that the permit is inclusive of the garage. Riverlife requests that this Court reverse the Planning Commission's decision to approve PDP No. 0724A and enjoin the issuance of building permits for construction of the garage, or alternatively, that this Court appoint a master under 4 Pa.C.S. § 1506.
On March 28, 2008, the Planning Commission and PITG filed a Joint Application for Summary Relief, contending that Riverlife did not file a timely appeal, that Riverlife lacks standing, and that Riverlife has no right to appeal the Planning Commission's project development plan approvals.*fn11
The contention by the Planning Commission and PITG that Riverlife's appeal was untimely is a threshold question that implicates this Court's jurisdiction. Day v. Civil Service Comm'n of Carlisle, 931 A.2d 646, 651-52 (Pa. 2007) ("The timeliness of an appeal involves jurisdiction."). As we have stated, "[t]ardy filings go to the jurisdiction of the tribunal to entertain a cause, and thus cannot be lightly dismissed. The establishment of jurisdiction is of equal importance as the establishment of a meritorious claim for relief. Jurisdiction is the predicate upon which consideration of the merits must rest." Robinson v. Commonwealth, Pa. Bd. of Prob. & Parole, 582 A.2d 857, 860 (Pa. 1990) (citations omitted). Therefore, we will address this contention first.
Riverlife's appeal is governed by a 30-day appeal period. Rule 1512 of the Pennsylvania Rules of Appellate Procedure states: "A petition for review of a quasi-judicial order or an order appealable under 42 Pa.C.S. §763(b) (awards of arbitrators) or under any other provision of law, shall be filed with the prothonotary of the appellate court within 30 days after the entry of the order." Pa.R.A.P. 1512(a). See 42 Pa.C.S. § 5571(a) ("The time for filing an appeal, a petition for allowance of appeal, a petition for permission to appeal or a petition for review of a quasi-judicial order, in the Supreme Court.shall be governed by general rules.."). Moreover, as a general rule, this Court may not extend Rule 1512's time-frame. Pa.R.A.P. 105 states in pertinent part that "[a]n appellate court. may not enlarge the time for filing a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for review." Pa.R.A.P. 105(b).
The Planning Commission and PITG argue that Riverlife's appeal was untimely because it was not taken within 30 days after the entry of the decision Riverlife is actually challenging. The Planning Commission and PITG do not dispute that Riverlife filed this Petition within 30 days of the Planning Commission's January 14, 2008 decision approving PITG's third project development plan application, that for PDP No. 0724A. Rather, they assert that given the focus of Riverlife's appeal -- the height of the Casino's garage -Riverlife's appeal should have been brought within 30 days after the Planning Commission's August 7, 2007 approval of PITG Gaming's second project development plan application, the application for PDP No. 0741. According to the Planning Commission and PITG, this is so because the height of the garage was approved when the Planning Commission approved the application for PDP No. 0741, not when it subsequently approved the application for PDP No. 0724A. Since Riverlife did not file this Petition until February 12, 2008, well beyond 30 days after the entry of the Planning Commission's August 7, 2007 decision, the Planning Commission and PITG assert that Riverlife's appeal was untimely.
Riverlife disputes that its complaint concerning the height of the garage obliged it to appeal the Planning Commission's August 7, 2007 decision approving PITG's application for PDP No. 0741. Riverlife asserts that because the garage is to be constructed from pre-cast concrete, not structural steel, and PITG's application for PDP No. 0741 did not include detailed design information on the garage, the Planning Commission did not consider the height of the garage when approving that particular project development plan application. According to Riverlife, the Planning Commission's approval of the height of the garage did not occur until January 14, 2008, when it reviewed and approved the application for PDP No. 0724A, because it was only then that PITG documented the design of the structure. Therefore, Riverlife asserts that its Petition was timely since it was filed within 30 days after the Planning Commission's January 14, 2008 decision.
To assess the parties' respective arguments, we turn to the record and observe the following. The application for PDP No. 0741 plainly describes the Casino as a "Main Structure" that is "2 Stories, 56 Feet" high, and the garage as an "Accessory Structure" that is "9 Stories; 119 Feet" high. See Riverlife's Reply Brief at Exhibit 9. Similarly, the August 7, 2007 Downtown Riverfront Report submitted to the Planning Commission, recommending approval of the application for PDP No. 0741, states in a finding of fact that "[t]he casino building is to be 2-stories and 60 feet in height, including the parapet; and the parking structure is to be 9-stories and 119 feet in height." Id. at Exhibit 13. A letter dated August 10, 2007, sent by the Acting Zoning Administrator to representatives of PITG after the Planning Commission had approved the application for PDP No. 0741 on August 7, 2007, notes the height disparity "between the 119-foot-high parking garage and the bulk of the building 59 feet below" and makes recommendations suggested by the Contextual Design Advisory Panel of the Department of City Planning to ameliorate the resulting "awkward appearance." Id. at Exhibit 12. Notably, at the Planning Commission's January 14, 2008 hearing on PITG's subsequent application for PDP No. 0724A, Wrenna L. Watson, the Chairwoman of the Planning Commission, asked the Acting Zoning Administrator to confirm that the Planning Commission had already approved the garage and that questions regarding its height were out of order. The Zoning Administrator answered: "In terms of height, yes." N.T., 1/14/08, at 81. Also, at the January 14, 2008 hearing, Planning Commissioner Todd E. Reibord stated that "the massing of the garage was already reviewed and approved.in terms of the height and size." Id. at 87. These record representations are supported by the documentation concerning the subject matter that was before the Planning Commission in connection with its prior approval of PDP No. 0741.
Based on the record, we conclude that the height of the garage at 119 feet was a subject of the Planning Commission's decision rendered on August 7, 2007, approving the application for PDP No. 0741. That such is the case is established by the description of the garage as a 119-foot structure in the application for PDP No. 0741 and the references to the 119-foot high garage that were made by the Acting Zoning Administrator in documents that accompanied the Planning Commission's approval of the application. The post-decisional letter from the Acting Zoning Administrator, and the statements made by City officials at the Planning Commission's January 14, 2008 hearing, confirm that the height of the garage had already been approved and was no longer open to challenge. Riverlife's arguments to the contrary fail in light of this record. Thus, the fact that the garage is to be constructed out of pre-cast concrete and the assertion that as of August 7, 2007, the Planning Commission lacked detailed design information on the garage, even if assumed to be true, do not negate the record evidence that the height of the garage was placed before the Planning Commission in the application for PDP No. 0741 and was approved by the Planning Commission on August 7, 2007, when it issued its decision approving that application.
Thus, we conclude that any party aggrieved by the Planning Commission's approval of the height of the Casino's garage was required to appeal the Planning Commission's August 7, 2007 decision approving PITG's application for PDP No. 0741 within 30 days thereafter, that is, no later than September 6, 2007. Riverlife, however, did not file its appeal until February 12, 2008, when it challenged the decision on PDP No. 0724A. Therefore, we hold that Riverlife's appeal was untimely. The Planning Commission's distinct January 14, 2008 decision, which did not include the Planning Commission's approval of the height of the Casino's garage, cannot be used as a means of enlarging Pa.R.A.P 1512's 30-day appeal period as to the Planning Commission's August 7, 2007 decision. Accordingly, we lack jurisdiction to consider Riverlife's appeal.
For these reasons, the Joint Application for Summary Relief filed by the Planning Commission and PITG is granted, and Riverlife's appeal is quashed.*fn12 The Application for Expedited Consideration filed by the Planning Commission and PITG and the Application for Appointment of a Master filed by Riverlife are denied.
Messrs. Justice Saylor, Eakin and Baer, Madame Justice Todd, Mr. Justice McCaffery and Madame Justice Greenspan join the opinion.