IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Bloomfield Citizens Council, :

Inc., a Pennsylvania Corporation, :

and Victoria and Justin Huston, :

:

Appellants :

:

v. : No. 774 C.D. 2015

:

Zoning Board of Adjustment of the : Argued: November 16, 2015

City of Pittsburgh and City of :

Pittsburgh and UPMC Shadyside :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COHN JUBELIRER FILED: December 14, 2015

The Bloomfield Citizens Council, Inc. (Citizens Council) and Victoria and 

Justin Huston (together, “Objectors”) appeal from an Order of the Court of 

Common Pleas of Allegheny County (trial court) dismissing Objectors’ appeal 

from the Decision of the Zoning Board of Adjustment (ZBA) of the City of 

Pittsburgh (City). The ZBA denied, as untimely, Objectors’ protest appeal alleging 

that the site plan approved by the City’s Bureau of Building Inspection (Bureau)

for the installation of a transformer to power the Luna Parking Garage (Garage) 

constructed by UPMC Shadyside (UPMC) as part of its Institutional Master Plan 
2

(Master Plan) violated the City’s Zoning Code. The ZBA further found that 

UPMC had a vested right in the approvals and permits issued by the City for the 

installation of the transformer. On appeal, Objectors argue that the installation and 

location of the transformer violates the City’s Zoning Code and that their appeal 

was timely; therefore, UPMC does not have a vested right to install the 

transformer. Because we conclude that substantial evidence supports the ZBA’s 

finding that Objectors’ protest appeal was untimely filed and that UPMC had a 

vested right in the approvals and permits issued for the installation of the 

transformer, we affirm.

The facts in this matter, as found by the ZBA, are as follows. UPMC owns 8 

acres (Property) on Baum Boulevard, which is located in the Educational/Medical 

Institutional (EMI) zoning district in the City’s Bloomfield neighborhood. The 

Property is located between Cypress Street and railroad tracks, adjacent to a 

residential zoning district, and includes steep slopes which descend to the lower 

level of the Property from Cyprus Street and Baum Boulevard. In January 2013, 

after UPMC sought community input, the City approved certain changes to 

UPMC’s Master Plan, which included construction of the Garage. On August 1, 

2013, the Bureau approved the development plans for the necessary building 

permits for the Garage. The development plans contained approximately 100 

detailed sheets, one of which was the Electrical Site Plan depicting the location 

along Cypress Street of the transformer “that would provide electrical service to 

the [G]arage.” (ZBA Decision, Findings of Fact (FOF) ¶ 10.) The Bureau 

“approved each plan sheet individually, including the Electrical Site Plan on sheet 

E2.” (FOF ¶ 9.) 
3

As identified in the Electrical Site Plan, the transformer will be: (1) encased 

in a grey metal cabinet measuring eight feet in width and length and four feet in 

height; (2) placed on a 20 by 20 foot flat concrete slab; and (3) surrounded by a six

foot ornamental opaque fence with screening on three sides. The access gate will 

face Cypress Street, six foot evergreen trees will surround the three-sided fencing,

and evergreens will also be located along Cypress Street. Duquesne Light owns 

the transformer and requires that it be accessible by crane. The proposed site along 

Cypress Street is the only flat part of the Property that will accommodate the 

requirements for the transformer. Relocating the transformer would cause UPMC 

to incur additional costs of about $150,000.

UPMC’s Project Manager met with the President of the Citizens Council in 

February 2014 to discuss the transformer installation along Cypress Street. The 

Project Manager informed the President that UPMC “was not willing to relocate 

the transformer from the identified Cypress Street location.” (FOF ¶ 27.) After the 

February 2014 meeting, UPMC spray painted the exact location on the Property 

along Cypress Street where the transformer would be located and put a stake in the 

middle of the marking. UPMC then spent $40,000 to construct the transformer pad

and the “pad was installed in a manner consistent with the plans” as approved by

the City. (FOF ¶ 30.)

On May 5, 2014, after the President of the Citizens Council visited the 

City’s zoning office and reviewed the site plans for the proposed Garage and 

transformer, Objectors filed a protest appeal challenging the location of the 

transformer. On May 7, 2014, the Bureau issued a stop work order. On May 22, 
4

2014, the President of the Citizens Council presented a written request to the City’s 

Office of Open Records pursuant to the Right-to-Know Law1(RTKL) seeking a 

copy of the site utility plan for the Garage, including the Electrical Site Plan that 

was submitted to the Bureau. On June 26, 2014, the City’s Office of Open 

Records denied the RTKL request on the basis that “the requested information was 

not public because it constitutes a building plan or infrastructure that exposes or 

creates vulnerability through disclosure.” (FOF ¶ 35.)

On June 12, 2014, the ZBA held a hearing on Objectors’ protest appeal. 

Objectors and UPMC presented testimony and documentary evidence in support of 

their respective positions. Community members and a City Councilwoman 

testified in support of Objectors’ protest appeal and two community organizations 

submitted letters in support of the appeal. After the close of the hearing and the 

record, the ZBA granted Objectors’ motion to supplement the record to include the 

June 26, 2014 denial of the RTKL request, which the ZBA reviewed in reaching its 

Decision. (FOF ¶¶ 48-49.) Based on the testimony and evidence presented, the 

ZBA denied Objectors’ protest appeal because: (1) Objectors’ protest appeal was 

filed more than 30 days after they were aware or should have been aware of the 

transformer’s location; and (2) UPMC has a vested right in the City issued 

approvals and permits. The trial court affirmed.2

 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 – 67.3104.

2 Our review in a zoning case, where the trial court has taken no additional evidence, “is 

limited to determining whether the [ZBA] committed a manifest abuse of discretion or an error 

of law.” Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 639 (Pa. 

1983). The ZBA will be found to have “abused its discretion only if its findings are not 

(Continued...)
5

The issue that first must be addressed is whether the ZBA abused its 

discretion by finding that Objectors’ protest appeal was untimely. Objectors argue 

that their protest appeal was timely because it was filed less than 30 days after 

learning of the approval for the transformer. Objectors assert that although they 

knew that the transformer would be located along Cypress Street, the exact

proposed location was not disclosed by UPMC’s Project Manager during the 

February 2014 meeting and he did not mention any approvals for the transformer 

location. Objectors contend that the marking that was made after this meeting was 

spray painted over snow. Objectors argue that there was no way for any member 

of the public to know about the location or approval for the transformer because 

the Electrical Site Plan was under seal with the City until it was introduced at the 

hearing. Objectors contend that their attempt, via a RTKL request, to obtain the 

site plan before the ZBA hearing was rejected. Objectors argue that the President 

of the Citizens Council believed, after the February 2014 meeting, that the location 

was a fluid situation because the transformer was not yet installed. Objectors 

contend that it was only when the President went to the City’s zoning office on

May 5, 2014, that Objectors learned of the exact location of the transformer and 

they filed the protest appeal on the same day. 

Objectors argue further that, pursuant to Section 401 of the “Rules of 

Procedure of the Zoning Board of Adjustment of the City of Pittsburgh,” an appeal 

must be filed within 30 days of when the appellant first had notice of the pertinent 

 

supported by substantial evidence[,] . . . mean[ing] such relevant evidence [that] a reasonable 

mind might accept as adequate to support a conclusion.” Id. at 640.
6

decision or approval. Objectors assert that the ZBA abused its discretion by 

finding the appeal untimely because the standard is not whether an appellant was 

aware of the location, but it is notice of an approval that triggers the 30-day appeal 

period. Objectors contend that there is no evidence that Objectors had notice of an 

approval for the transformer location before May 2014.

Although Objectors rely on the “Rules of Procedure of the Zoning Board of 

Adjustment,” the appeal period for zoning matters is set forth in Section 923.02.D 

of the Zoning Code, which provides in pertinent part: 

Appeals to the Board may be taken by any person aggrieved, or the 

head of any department affected by a decision of the city official from 

whose action the appeal is taken. Each appeal shall be taken within 

thirty (30) days of the determination, action, or decision. 

(Section 923.02.D of the Zoning Code.) As determined by the ZBA, there were no 

appeals filed challenging the Bureau’s August 1, 2013 approval of UPMC’s 

development plans, which included the Electrical Site Plan, “within 30 days of the 

plan approval or within 30 days of the start of construction.” (ZBA Decision, 

Conclusions of Law (COL) ¶ 11.) Objectors do not dispute that they did not 

appeal the Bureau’s approval of the development plans in August 2013. 

With respect to the February 2014 meeting between UPMC’s Project 

Manager and the President of the Citizens Council, a review of the testimony 

before the ZBA supports the finding that Objectors knew or should have known 

that the transformer would be located on Cypress Street during this meeting or 

shortly thereafter. The President testified that she and the community knew at the 

February 2014 meeting that a transformer was coming into the neighborhood and 
7

that UPMC wanted to locate the transformer somewhere on Cypress Street. (Hr’g 

Tr. at 35, 37, R.R. at 53a, 55a.) The President’s testimony reveals further that it 

was Objectors, not UPMC, that wanted the location of the transformer to be 

negotiable. The President repeatedly testified that: (1) it was Objectors who “were 

trying to get it to be negotiable”; (2) the Project Manager “was making that it 

wasn’t negotiable”; and (3) it was Objectors’ “interpretation [that] it was 

negotiable” not the Project Manager’s. (Hr’g Tr. at 39, R.R. at 57a.) 

UPMC’s Project Manager testified that he informed the President of the 

Citizens Council and others in attendance at the February 2014 meeting that 

UPMC was “not willing to relocate the transformer.” (Hr’g Tr. at 58, R.R. at 76a.) 

The Project Manager testified further that, after the February 2014 meeting, UPMC 

moved forward with the Garage project, which included the location of electrical 

service and the transformer. (Hr’g Tr. at 59, R.R. at 77a.) This included installing 

the pad upon which the transformer would be located at a cost of $40,000. (Hr’g 

Tr. at 59, R.R. at 77a; FOF ¶ 29.) Finally, the Project Manager testified that he 

volunteered at the February 2014 meeting to physically mark the site where the 

transformer would be located; therefore, shortly after the meeting, UPMC spray 

painted the area and put a stake in the ground marking where the center of the 

transformer would be located on the Property. (Hr’g Tr. at 60-61, R.R. at 78a79a.) 

This testimony supports the ZBA’s determination that Objectors were aware

or should have been aware in February 2014 that the transformer would be located 

along Cypress Street. Objectors’ assertion that they did not know the exact 
8

location on Cypress Street or did not have notice of the approval for the installation 

of the transformer until May 2014 does not negate the fact that they were aware in 

February 2014 that UPMC was firm in its intention that the transformer would be 

placed on Cypress Street in accordance with the Electrical Site Plan that was 

approved by the Bureau on August 1, 2013.

Notwithstanding our conclusion that the ZBA did not abuse its discretion in 

finding that Objectors’ protest appeal was untimely, we now turn to the issue of 

whether UPMC satisfied the criteria for a vested right in the approvals and permits 

issued by the City for the installation of the transformer. Objectors contend that 

UPMC did not satisfy all the requirements for a vested right; specifically: (1) 

UPMC did not exercise due diligence in attempting to comply with the Zoning 

Code because it did not have a fixed final location for the transformer; (2) there 

was no good faith since UPMC misrepresented the location; (3) UPMC did not 

expend substantial funds; and (4) the evidence shows that individual property 

rights are adversely affected by granting UPMC permission to place the 

transformer along Cypress Street.

In the seminal case of Petrosky v. Zoning Hearing Board of Upper 

Chichester Township, 402 A.2d 1385 (Pa. 1979), our Supreme Court set forth five

factors for determining whether a vested right has been acquired in a permit:

1. [permit holder’s] due diligence in attempting to comply with the 

law;

2. [permit holder’s] good faith throughout the proceedings;

3. the expenditure of substantial unrecoverable funds;
9

4. the expiration without appeal of the period during which an appeal 

could have been taken from the issuance of the permit;

5. the insufficiency of the evidence to prove that individual property 

rights or the public health, safety or welfare would be adversely 

affected by the use of the permit.

Id. at 1388. The property owner is not required to establish all five factors in order 

to be entitled to the vested right. Mirkovic v. Zoning Hearing Board of Smithfield 

Township, 613 A.2d 662, 667 n.2 (Pa. Cmwlth. 1992). 

Here, the record supports the finding that UPMC met the criteria for a vested 

right to locate the transformer along Cypress Street in accordance with the

approved Electrical Site Plan. First, as we have concluded, Objectors’ protest 

appeal was untimely; therefore, there were no timely appeals challenging the 

issuance of the permit for the transformer’s installation. Second, UPMC exercised

due diligence and good faith. It presented its Master Plan to the community prior 

to approval and completed the steps necessary to acquire approval by the City. 

(COL ¶¶ 5-6.) Third, UPMC relied upon the approvals and permits issued by the 

City and expended funds to install the transformer. (COL ¶ 7.) Although the fact 

that $40,000 appears to be a small amount to expend when the cost of the entire 

Master Plan is considered, it is still a large sum to spend to begin the process of 

completing one facet of the project. 

Finally, Objectors were unable to prove that the installation of the 

transformer at the Cypress Street location would adversely affect their property 

rights or the public’s health, safety, or welfare. As determined by the ZBA, 

Objectors “did not demonstrate with any degree of probability that the transformer 
10

would represent a dangerous condition as compared with the many other 

transformers . . . that safely exist in the vicinity of the Subject Property and 

throughout the City.” (COL ¶ 12.) The ZBA also concluded that “Objectors’

aesthetic concerns in regard to the location of the transformer also did not address 

its limited visibility within the . . . protective cabinet, fencing and landscaped 

screening.” (COL ¶ 13.) Thus, the ZBA did not err by concluding, based on its 

findings, that UPMC obtained a vested right in the approvals and permits issued by 

the City for the installation of the transformer on Cypress Street. 

For the foregoing reasons, the trial court’s Order is affirmed.3

 

3 Although not necessary for the disposition of this appeal, we further conclude that the 

ZBA did not err by finding that the location of the transformer did not violate certain sections of 

the Zoning Code. First, Objectors contend that the location of the transformer violates Section 

922.04.E.6.g.ii because it is visible from the Property line. Section 922.04.E.6.g.ii of the Zoning 

Code provides that “[a]ll utility equipment including . . . transformers and electrical switches 

shall not be visible from a property line . . . or should be located inside of the principal structure 

except where specifically prohibited by the utility.” (Emphasis added.) Objectors argue that 

screening a transformer via fencing and landscaping does not satisfy the requirement that the 

transformer not be visible from a property line. This is a matter of interpretation. It is well 

settled that, “[d]ue to their expertise and experience, ‘a zoning hearing board’s interpretation of 

its own zoning ordinance is entitled to great weight and deference.’” Hamilton Hills Group, 

LLC v. Hamilton Township Zoning Hearing Board, 4 A.3d 788, 792 (Pa. Cmwlth. 2010) 

(quoting City of Hope v. Sadsbury Township Zoning Hearing Board, 890 A.2d 1137, 1143 (Pa. 

Cmwlth. 2006)). The ZBA determined that the transformer satisfied the requirement that it

“[shall] not be visible from the property line” in Section 922.04.E.6.g.ii because the transformer 

will be within a protective cabinet that will not be visible because it will be screened by fencing 

and evergreens. (COL ¶ 21B.) (Emphasis added.) The ZBA did not interpret the Zoning Code to 

require that a surrounding property owner must not be able to see the area at all where the 

transformer is located. This is a reasonable interpretation. If the Zoning Code was interpreted in 

the manner that Objectors request, all transformers would have to be inside buildings or inside a 

structure built to house the transformer. Although Section 922.04.E.6.g.ii provides that a 

transformer should be located inside of a principal structure, there is an exception if such 

placement is specifically prohibited by the utility. Here, Duquesne Light needed to access the 

transformer by crane; therefore, it could not be located inside the Garage.

(Continued...)
11

________________________________

 RENÉE COHN JUBELIRER, Judge

 

Second, Objectors contend that installation of the transformer requires a special exception 

as a “Utility (Limited)” use in the EMI Zoning District pursuant to Section 911.02 of the Zoning 

Code. Section 911.02 of the Zoning Code defines “Utility (Limited)” to mean “services and 

facilities of agencies that are under public franchise or ownership to provide services that are 

essential to support development and that involve only minor structures, such as but not limited 

to poles and lines” (permitted as a special exception in EMI Zoning District). Objectors argue 

that the transformer is owned by Duquesne Light on property located in an EMI Zoning District; 

therefore, it needs to acquire a special exception for its use. This would be correct if the 

transformer was the primary use of the Property; however, the transformer is an accessory use in 

accordance with Section 912.01 of the Zoning Code, which provides that an “accessory use or 

structure” must:

(1) Be subordinate to and serve the primary use or structure; 

(2) Be subordinate in area, extent and purpose to the primary use or structure served; 

(3) Contribute to the comfort, convenience or necessity of occupants of the primary use 

or structure served; and 

(4) Be located on the same zoning lot and in the same zoning district as the primary use. 

Section 912.01 of the Zoning Code. Here, the installation of the transformer to provide electrical 

service to the Garage, the primary use, renders the transformer an accessory use.

Finally, Objectors contend that because the transformer is located on property across the 

street from a residential zoning district, the transformer, as an accessory use, cannot be located in 

the side yard setback area, which must be a minimum of 15 feet pursuant to Section 916.02.A.3 

of the Zoning Code. Resolution of this argument is another issue of interpretation. Pursuant to 

Section 925.06.A.11 of the Zoning Code, “[u]tility lines, wires and associated structures, such as 

power poles” are permitted to be located within the required 15 foot setback for side yards. In 

this matter, the ZBA determined that Section 925.06.A.11 permits the transformer, as an 

associated structure to utility lines, to be located within the 15 foot side yard setback 

requirement. (COL ¶ 20.) This interpretation is reasonable in light of the purpose of the 

transformer, which is to provide electrical service to the Garage. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Bloomfield Citizens Council, :

Inc., a Pennsylvania Corporation, :

and Victoria and Justin Huston, :

:

Appellants :

:

v. : No. 774 C.D. 2015

:

Zoning Board of Adjustment of the :

City of Pittsburgh and City of :

Pittsburgh and UPMC Shadyside :

O R D E R

NOW, December 14, 2015, the Order of the Court of Common Pleas of 

Allegheny County, entered in the above-captioned matter, is AFFIRMED.

________________________________

 RENÉE COHN JUBELIRER, Judge