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.
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 ...