AVK Enters., Ltd.
v.
Borough of Sewickley

This case is not covered by Casetext's citator
COMMONWEALTH COURT OF PENNSYLVANIADec 11, 2014
No. 2046 C.D. 2013 (Pa. Cmmw. Ct. Dec. 11, 2014)

No. 2046 C.D. 2013

12-11-2014

AVK Enterprises, LTD, Appellant v. Borough of Sewickley and Sewickley Borough Council


BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN

AVK Enterprises, Ltd. (AVK) appeals from the October 11, 2013, order of the Court of Common Pleas of Allegheny County (trial court), which affirmed the decision of the Sewickley Borough Council (Council) granting the conditional use request and approving the land development plan (Plan) filed by One Thorn Street, L.L.C. (One Thorn). We affirm.

One Thorn submitted a conditional use request and the Plan to the Borough of Sewickley (Borough) proposing to construct a three-story office building in a C-1 zoning district of the Borough. After giving notice, the Borough's Planning Commission (Commission) held a public hearing on March 6, 2013. (Council's Findings of Fact, No. 4.) Only Clifford Krey testified in opposition to the Plan. Krey argued that: (1) it was inappropriate to grant conditional use approval for new office space when 20,000 to 30,000 square feet of vacant office space already exists within the Borough; (2) One Thorn should provide parking for the proposed office building on One Thorn's adjacent property; and (3) the Commission had a conflict of interest because it was considering buying 24 of the parking spaces on One Thorn's adjacent property. (N.T., 3/6/13, at 26-29.)

The record indicates that Krey has been AVK's counsel of record since at least August 5, 2013. Previously, Kirt Huckabee was AVK's counsel of record.

The Commission passed a resolution recommending that the Council approve One Thorn's Plan. On March 18, 2013, after giving notice, the Council held a public hearing. Krey again testified in opposition to the conditional use and Plan, and he reiterated the three arguments he had made before the Commission. Krey also argued that the Council's seeking of a tax increment financing option to develop the area of One Thorn's proposed building would "slander" the surrounding area as being blighted. Krey gave no indication that he was testifying on behalf of AVK. On March 18, 2013, the Council approved One Thorn's conditional use and Plan subject to four conditions. (Council's Findings of Fact, Nos. 4, 8-12.)

The Borough also argues that AVK does not have standing because Krey did not indicate at either hearing that he was testifying on behalf of AVK. However, we need not decide this in order to efficiently dispose of this case.

On April 17, 2013, AVK filed a notice of land use appeal with the trial court. On October 11, 2013, the trial court entered an order affirming the Council's decision and dismissing AVK's appeal. On November 8, 2013, AVK appealed to this court.

In a land use appeal where the trial court takes no additional evidence, this court's review is limited to determining whether the governing body committed an error of law or abused its discretion. Morris v. South Coventry Township Board of Supervisors, 836 A.2d 1015, 1018 n.3 (Pa. Cmwlth. 2003).

On appeal, AVK argues that the trial court committed an error of law in dismissing AVK's appeal because One Thorne failed to execute a final landowner and/or developer's agreement (Agreement) before the Council approved One Thorn's conditional use and Plan.

Specifically, AVK argues that One Thorn failed to execute a shared parking agreement that is part of the Agreement.

We need not address the merits of AVK's argument, however, because AVK waived the only issue it raised on appeal to this court. An objector's failure to raise an issue before the governing body in a conditional use or development hearing waives the issue on appeal. In re McGlynn, 974 A.2d 525, 534 (Pa. Cmwlth. 2009). Although AVK raised several objections before the Commission and Council, the present issue, i.e., One Thorn's failure to execute an Agreement, was not one of them. Therefore, because AVK failed to raise the present issue at the Commission and Council hearings, the issue is waived.

We also note that AVK waived this issue because it failed to raise the issue with the trial court. Newtown Square East, L.P. v. Township of Newtown, 38 A.3d 1008, 1017 (Pa. Cmwlth. 2011) aff'd, (Pa. No. 14 MAP, 2013, filed September 24, 2014), 2014 WL 4745695. --------

Accordingly, we affirm.

/s/_________


ROCHELLE S. FRIEDMAN, Senior Judge

ORDER

AND NOW, this 11th day of December, 2014, we hereby affirm the October 11, 2013, order of the Court of Common Pleas of Allegheny County.

/s/_________


ROCHELLE S. FRIEDMAN, Senior Judge