Argued April 23, 2014
Appealed fro No. S.A. 13-000097. Common Pleas Court of the County of Allegheny. James, J.
Jonathan M. Kamin, Pittsburgh, for appellant.
James G. McLean, Pittsburgh, for appellee The Buncher Company.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE LEADBETTER. Judge Brobson did not participate in the decision in this case. CONCURRING AND DISSENTING OPINION BY JUDGE McCULLOUGH.
Allegheny Valley Railroad Company (Railroad) appeals from the order of the Court of Common Pleas of Allegheny County (common pleas), denying its land use appeal. In that appeal, Railroad sought to invalidate a recently enacted ordinance amending the City of Pittsburgh's (City) Zoning Code, which created a new Specially Planned District (SP District), designated SP 8/Riverfront Landing, on a parcel where Railroad asserts it has an easement. Railroad asserted that its easement rendered the parcel ineligible for the new zoning classification. Noting that rezoning constitutes a legislative act subject to limited judicial review and that Railroad had failed to raise either a procedural due process or a substantive validity challenge to the ordinance, common pleas concluded that it lacked authority to review the matter and denied the appeal. In doing so, common pleas also opined in dicta that there was no merit to the contentions underlying Railroad's challenge. After review, we affirm for different reasons.
In this matter, The Buncher Company (Buncher), submitted a Zone Change Petition to the City, seeking to amend the zoning regulations and map to add a new SP District. The proposed rezoning sought to change the zoning on approximately 37 acres of riverfront property from, inter alia, Golden Triangle and Urban Industrial, to SP 8/Riverfront Landing, thereby permitting Buncher to move forward with plans to redevelop the property for residential and commercial uses in accordance with a proposed land use plan. Following notice and public hearings, the City enacted an ordinance (Ordinance), amending Title Nine of its Zoning Code (particularly Chapter 909, pertaining to SP Districts) by adding the new SP District, SP 8/Riverfront Landing. Relevant to the instant dispute, Zoning Code Section 909.01.D.1, which applies to all SP Districts, provides:
Criteria for Establishment of an SP District
(a) Land Area
An SP District shall comprise a contiguous area of land of not less than  acres, except as separated by public streets, public ways, rivers or railroad tracks; shall comprise a reasonable unit for planned development; shall not be less than  acres, the calculation of which shall exclude land with slopes greater than [25%] and areas of water with a designated harbor line.
(b) Unified Control
One hundred (100) percent of the land in an SP District shall be controlled by the applicant for the SP District at the time of application through ownership or sales options. A final land development plan shall not be approved and rezoning of an SP District shall not become effective until proof of ownership of the land or proof of control of the land through sales agreement has been submitted by the applicant.
Zoning Code Section 909.01.D.1 [Emphasis added].
According to Railroad, it advised the City by letter prior to enactment of the Ordinance that it owns a rail easement across the Buncher property in the proposed SP 8 District, which prevented Buncher from satisfying the Section 909.01.D.1 requirement that the applicant control 100% of the land. Following enactment of the Ordinance, Railroad appealed to common pleas, again asserting that in light of its easement across the Buncher property, Buncher failed to establish at the time of application that it had 100% control of the land in the SP 8 District. According to Railroad, Buncher's failure to meet the unified control requirement constituted a procedural defect in the Ordinance enactment, such that Council's decision enacting the Ordinance was " not in accordance with law, [in violation of] the statutory provisions governing practice and procedure before local agencies, [and] contain[ed] necessary findings that were not supported by substantial evidence and/or contrary to the ...