Suit seeks to derail deal in Oakland office project
An Oakland community group and three residents have gone to court to try to overturn a settlement that advanced a controversial ForbesAvenue office project.
In an Allegheny County Common Pleas Court complaint filed thisweek, the Oakcliffe Community Organization, Marjory Lake, Mark Oleniacz and Elena Zaitsoff decried the consent order settling the case as “secret” and unlawful and asked ajudge to declare it null and void.
They also questioned a community benefits agreement with Oakland Planning and Development Corp. that was part of the deal and involved an estimated $1.22 million in payments from the developer for variousneighborhood initiatives.
“This case presents the important public policy issue of whether variances are for sale in the City of Pittsburgh, and whether the city can lawfully bea party to an illegal contract and consent order between developer and former objector OPDC which allows developer to purchase a variance from the City of Pittsburgh by paying OPDC $1.22 million,” the complaint alleges.
The settlement was reached in January between Baltimore developer Wexford Science and Technology, OPDC and the city.
It stemmed from an appeal to Common Pleas Court that Wexford took after the city’s board of adjustment denied the developer a variance and two special exceptions it needed to build an office tower 188 feet high. OPDC fought Wexford over the height.
As part of the settlement, Wexford agreed to reduce the height of its proposed building at 3440 Forbes Ave. to 153 feet(10 stories) down from 188 feet (13 stories).
The deal also involved a community benefits agreement with OPDC that the group had been trying to negotiate for more than a year. It included a grant of $400,000 that would be paid to OPDC at the completion of construction.
Wexford also agreed to an annual outlay estimated at up to about $35,000 based on the building’s leased square footage with the money going intothe Oakland Community LandTrust.
It further pledged to contribute $100,000 to a program to help senior residents with home repairs and to put $2,500 a year toward residential permit parking enforcement.
At the time, OPDC stated that it decided to settle the case after calculating the risk to the community if Wexford had prevailed on the appeal. It described that risk as “significant.”
Oakcliffe; Ms. Zaitsoff, Oakcliffe’s vice president; Ms. Lake, vice president of the Coltart Area Residents Association; and Mr. Oleniacz, vice president of the South Oakland Neighborhood Group, had testified against the project at the zoning board hearing, according to the complaint.
When the plaintiffs learned in April that a settlement could be in the works, they petitioned Common Pleas Court Senior Judge Joseph James to intervene in the Wexford appeal pending before him.
The request was denied, prompting the plaintiffs to appeal to the state’ s Commonwealth Court.
In their complaint, the plaintiffs argued that under Pennsylvania appellate procedure rules, the court had no jurisdiction to issue the consent order settling the case while an appeal was pending before Commonwealth Court.
They contended that they are “adversely and grievously affected” by the order, claiming it granted Wexford a “variance by contract” and a “spot zoning” at 3440 Forbes for a 153-foot-high building.
The plaintiffs also maintained that the city, in agreeing to the settlement, had a vested interest in doing so. The city had been representing the zoning board in the Wexford appeal.
It also charged that the city “colluded with developer and OPDC to ignore the zoning board order and ‘consent’ to developer’s153-foot building.”
Timothy McNulty, a spokesman for Mayor Bill Peduto, declined to comment, as did OPDC executive director Wanda Wilson. The group’s attorney, Jake Ore sick, and Andrea Geraghty, s attorney, had no immediate comment.
The lawsuit also accused OPDC of reversing its position regarding the office project “in exchange for developer’s promise of $1.22 million payment.”
If the order is not reversed, it “destroys all opportunity” for the plaintiffs and the public to obtain redress in the courts and “ends this case forever with a 153-foot building now ‘permitted’ by agreement of defendants,” it contended.
Part of the OPDC settlement also has come under fire from Mr. Peduto, who recently questioned the “idea that any neighborhood group would ask for financial assistance to pay for their operations” — an apparent reference to the $400,000 grant.
However, OPDC has defended the payment, saying none of the money would be usedto pay for operations. Ms. Wilson has said the group would steward the funds in a distinct account separate from its operations and would seek public input to determine theuse of the money.
The benefits agreement says the $400,000 would be used for neighborhood amenities and public improvements, as well as youth programming at School to Career and in south and west Oakland.
It also would be funneled to economic and mobility services for residents, such as employment counseling, local hiring, small-business development, access to and subsidies for affordable home ownership, and financial coaching.