IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chris Gates and Stephen Pascal, :

Appellants :

 :

v. : No. 495 C.D. 2019

 : Argued: October 3, 2019

City of Pittsburgh Planning :

Commission, City of Pittsburgh and :

East Ohio Capital Group, and East :

Ohio Capital LLC :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER1 FILED: June 12, 2020

Chris Gates and Stephen Pascal (Objectors) appeal from the Order of the 

Court of Common Pleas of Allegheny County (common pleas) that affirmed the 

City of Pittsburgh Planning Commission’s (Commission) October 12, 2018 

approval of East Ohio Capital LLC’s (East Ohio Capital) proposed lot 

consolidation and subdivision plan (Plan). On appeal, Objectors argue that the 

Commission erred and abused its discretion in approving the Plan because East 

Ohio Capital did not establish all of the requirements needed for the Plan’s 

 

1 This opinion was reassigned to this author on May 8, 2020.
2

approval and a Commission member should have recused herself from considering 

the Plan. Discerning no error or abuse of discretion, we affirm.

I. Background

A. The Plan

East Ohio Capital owns parcels located at 706-712 Cedar Avenue in the City 

of Pittsburgh’s (City) East Allegheny neighborhood that are improved with singlefamily residential buildings and are zoned R1A-VH (Residential Single Family –

Very High Density). (Comm’n Decision, Finding of Fact (FOF) ¶ 8; Reproduced 

Record (R.R.) at 165.

2

) A local organization known as the Northside Leadership 

Council (NLC) owns the parcels located at 406-410 East Ohio Street that are 

improved with two, three-story commercial buildings and are zoned Local 

Neighborhood Commercial (LNC). The Plan proposed to consolidate and 

subdivide these eight lots into five lots, with a 5.6-foot strip of land from one of the 

R1A-VH properties being incorporated into the rear of the LNC property at 406-

410 East Ohio Street. The Plan rearranged the parcels’ dimensions as follows: Lot 

1, covering 3246 square feet, would have 50.15 feet of frontage along East Ohio 

Street and 118.82 feet of frontage along Moravian Way;3 Lot 2, covering 1456 

square feet, would have 15.01 feet of frontage along Cedar Avenue and 11.33 feet 

of frontage along Moravian Way; Lot 3, covering 1500 square feet, would have 

15.27 feet of frontage along Cedar Avenue and 11.33 feet of frontage along 

Moravian Way; Lot 4, covering 1549 square feet, would have 14.4 feet of frontage 

 

2 The reproduced record does not use an “a” after the page numbers as required by 

Pennsylvania Rule of Appellate Procedure 2173, Pa.R.A.P. 2173.

3 Moravian Way is an alley that runs parallel to Cedar Avenue and perpendicular to East 

Ohio Street.
3

along Cedar Avenue and 11.33 feet of frontage along Moravian Way; and Lot 5, 

covering 1886 square feet, would have 15.6 feet of frontage along Cedar Avenue 

and 20.67 feet of frontage along Moravian Way. (FOF ¶¶ 1-6.)

B. Proceedings Before the Commission

On April 17, 2018, the Commission held a public hearing, at which the 

City’s Zoning Administrator set forth the Plan’s details, advised the Commission 

of the status of related zoning proceedings reflecting that some of the relief had 

been granted and the other was pending before the City’s Zoning Board of 

Adjustment (ZBA), and indicated that the City’s staff recommended approval of 

the Plan. (R.R. at 143.) Nathan Hart, East Ohio Capital’s architect, explained the 

Plan and the need to incorporate the 5.6-foot strip of land into Lot 1 to enable safe 

access to and from the rear and interior of Lot 1’s buildings and to allow East Ohio 

Capital to incorporate rear-facing windows into the apartments it was 

reconstructing. (Id. at 147-49.) According to Mr. Hart, the incorporation of the 

strip of land was important because it would provide emergency access to the rear 

of Lot 1, which is “a significant life safety feature,” as well as to provide a 

secondary way of egress for the apartments. (Id. at 148.) Part of the Plan, Mr. 

Hart testified, was to construct detached garages for the single-family residences 

on Lots 2 through 5, which had been rental properties and were “run down.” (Id. at 

149.) Art Perkins, representing East Allegheny Community Council (Community 

Council), a local organization, spoke in favor of the Plan, stating that Community 

Council’s members believed that it would benefit the area. (Id. at 150-51.) He 

explained that the prior owner or landlord of the Lots “was quite negligent,” the 

Lots “had been nuisance properties,” and the neighborhood wanted the project to 

move forward. (Id. at 151.) Mr. Perkins submitted a letter from Community 
4

Council, reflecting its members’ unanimous support of the Plan. (Id. at 35.) 

Pictures, both current and historic, reflecting the condition of the parcels were 

offered. (Id. at 39-44.)

Prior to the hearing, Objectors, who own properties on Cedar Avenue,

submitted letters to the Commission, expressing their opposition to the Plan. Mr. 

Gates indicated he “fully support[ed] the uniting of the front and rear lots and

proper separation of the adjoined houses along Cedar Avenue,” but felt that it was 

premature for the Commission to consider the Plan, as he believed that more 

community input and governmental review was necessary in order to properly 

understand the Plan’s potential long-term effects. (Id. at 93-96.) In addition, Mr. 

Gates believed that if the Plan was approved, it would “usurp” residentially zoned 

land for commercial use, complicate future legal action against the owners of the 

properties, and diminish the size of the adjacent Deutschtown Historic District

(Historic District). (Id.) Mr. Pascal reiterated Mr. Gates’s concerns about the 

Plan’s impact upon the Historic District, as well as about using residentially zoned 

land for commercial purposes, while also averring that the 11.3 feet of frontage 

along Moravian Way for each of Lots 2 through 5 was too narrow to allow vehicles 

to easily maneuver. (Id. at 97-98.) During the hearing, Mr. Gates submitted an 

additional letter and reiterated the arguments from his prior letter to the 

Commission, noting that no one had seen any interior plans regarding the proposed 

renovations. (Id. at 14-19, 152-53.) He believed that existing commercial 

businesses on East Ohio Street rose to the challenge of the limitations on deliveries 

due to their location along East Ohio Street and there was no need for the Plan to 

be approved to reduce the challenges to Lot 1 by incorporating the strip of land to 

allow for rear deliveries. (Id. at 153.) Mr. Pascal did not attend the hearing. 
5

At the end of the hearing, the Commission approved the Plan four to zero by 

voice vote, with one member abstaining, but did not issue a written decision. 

Objectors appealed to common pleas, which remanded to the Commission for it to 

render a written decision in support of its grant of the Plan. The Commission 

issued a written decision, in which it set forth findings regarding the Plan’s 

purpose, the proposed new dimensions of Lots 1 through 5, and an explanation of 

the existing structures on the Lots and the Lots’ zoning. (FOF ¶¶ 1-8.) In addition, 

it found that the ZBA had granted the variances necessary to revise the boundaries 

of Lots 2 through 5, located on Cedar Avenue, and the construction of detached 

garages on those properties. (Id. ¶ 9.) The Commission found that the zoning 

relief for Lot 1 was pending before the ZBA. (Id. ¶ 10.) The Commission’s 

findings noted Mr. Pascal’s and Mr. Gates’s opposition to the Plan’s approval. (Id.

¶¶ 11-12.)

The Commission then set forth its conclusions of law relating to its approval 

of the Plan. It held that the Plan did not change the underlying zoning or historic 

designation of the Lots, as Objectors suggested. (Comm’n Decision, Conclusion 

of Law (COL) ¶ 1.) Further, the Commission concluded that the Plan’s changes 

kept the general character of the surrounding neighborhood, as defined in Section 

1.1 of the City’s Subdivision Regulations,

4 and would not cause negative impacts 

on the neighborhood. (Id. ¶ 2.) The Commission held that the Plan would “not 

impact the provision of adequate light, air, and privacy and will not cause undue 

 

4 Section 1.1 of the Subdivision Regulations explains the purpose of those regulations, 

including “to promote quality growth and development” through “the retention and enhancement 

of the Pittsburgh Character,” and sets forth various considerations for review by the Commission 

in approving a subdivision plan. Subdivision Regulations, § 1.1.
6

overcrowding or congestion.” (Id. ¶ 3.) Based on “these reasons and the 

applicable legal standards,” the Commission approved the Plan. (Id. ¶ 4.)

C. Objectors’ Second Appeal to Common Pleas

Objectors again appealed to common pleas, challenging the Plan’s approval. 

Before common pleas, Objectors first argued that the Commission erred because 

the Plan had not been submitted and reviewed in compliance with the requirements 

for developing major subdivisions, as set forth in the Subdivision Regulations.

(R.R. at 188-91.) In addition, Objectors asserted that several of the Conclusions of 

Law were not supported by substantial evidence, including that the Plan would not 

alter the affected properties’ zoning or historical designations; the Plan would not 

negatively impact the surrounding neighborhood; the Plan was harmonious with 

the general character of the surrounding neighborhood, in keeping with 

Subdivision Regulation § 1.1; and the Plan would not “impact the provision of

adequate light, air, and privacy [or] cause undue overcrowding or congestion.” (Id.

at 191-98.) Objectors next argued that the Plan was not in the necessary state of

“complete compliance” with the Zoning Code of the City of Pittsburgh, 

Pennsylvania (Zoning Code), as the Plan violated the Zoning Code’s requirements 

regarding floor area ratio, loading zones, parking spaces, and restaurant facilities.

(Id. at 198-200.) Finally, Objectors contended that one of the commissioners who 

voted to approve the Plan, LaShawn Burton-Faulk, had a conflict of interest 

because she was also a member of the NLC’s board of directors at the time of her 

vote. (Id. at 200-01.)

Without taking additional evidence and upon consideration of the parties’ 

briefs and oral argument, common pleas issued an opinion and order affirming the 

Commission’s approval of the Plan. Common pleas held that East Ohio Capital’s 
7

evidence established that the Plan would allow for an access lane for Lot 1, provide 

the apartments located on Lot 1 with rear windows, and allow the construction of 

garages to serve the single-family homes on Lots 2 through 5, which are 

dilapidated and in need of renovation. (Id. at 221-22.) Further, pointing to Mr. 

Perkin’s testimony, common pleas explained that the community supported the 

Plan. (Id. at 221.) Reviewing the Commission’s conclusions of law, common 

pleas held the Commission’s approval was not erroneous because the 

“Commission confirmed that the consolidation does not alter the Historic[]

District” because only the “Council of the City of Pittsburgh has the power to alter 

historic[] designations.” (Id. at 222-23.) As to Objectors’ argument that the 

consolidation resulted in a partial rezoning, common pleas observed that none of 

the parties had submitted a proposal to City Council for rezoning and no hearing or 

vote on such a change had occurred and, therefore, the Commission properly held 

no change in zoning resulted from the Plan’s approval. (Id. at 223.) Common 

pleas held the Commission found there would be no negative impact on the 

neighborhood, which was supported because the proposed consolidation and 

development would rehabilitate dilapidated properties and improve the area. (Id.) 

Finally, common pleas held, as the Commission had, that approving the Plan was 

not contrary to the City’s Subdivision Regulations, the purpose of which is to 

“promote quality growth and development . . . by the retention and enhancement of 

the ‘Pittsburgh Character,’ as defined by its rivers, hillsides, open spaces, unique 

architecture, neighborhoods and other important physical images.” (Id. (quoting 

Section 1.1 of the Subdivision Regulations).) Common pleas explained “[t]here is 

no evidence in the record of any detriment to the community resulting from the 

consolidation” and “the consolidation would aid in the rehabilitation of several 
8

dilapidated properties and would improve the neighborhood.” (Id.) Therefore, 

common pleas held the Commission’s approval was proper and dismissed 

Objectors’ appeal. Objectors now appeal to this Court.5

II. Discussion

On appeal,6 Objectors argue the Plan does not comply, either procedurally or 

substantively, with the Subdivision Regulations for numerous reasons. Further, 

Objectors argue the Commission’s Decision effectively rezoned the affected 

properties and altered the area contained within the Historic District. Finally, 

Objectors argue that Commissioner Burton-Faulk should have recused herself from 

the proceedings due to her position as a board member of NLC, the entity that 

owned some of the parcels at issue, which created a conflict of interest that 

requires reversal. We will address these arguments in turn.7 

 

5

“Where, as here, a trial court takes no additional evidence, our scope of review is 

limited to determining whether the Planning Commission abused its discretion or committed an

error of law.” Oakland Planning & Dev. Corp. v. City of Pittsburgh Planning Comm’n, 107 

A.3d 873, 881 (Pa. Cmwlth. 2015). “An abuse of discretion is established where the findings are 

not supported by substantial evidence. . . . Substantial evidence is such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.” Collier Stone Co. v. Twp. of 

Collier Bd. of Comm’rs, 735 A.2d 768, 772 n.9 (Pa. Cmwlth. 1999) (internal citation omitted).

6 Common pleas did not direct Objectors to file a Concise Statement of Errors 

Complained of on Appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate 

Procedure, Pa.R.A.P. 1925(b). 

7 The Concurring and Dissenting Opinion would not address Objectors’ arguments on 

appeal for two reasons. First, it would find, sua sponte, that many of Objectors’ arguments are 

waived for having not preserved them at all stages of the proceedings. It is well settled that 

courts may not raise an issue sua sponte except when the issue goes to the courts’ subject matter 

jurisdiction. Russell Minerals Fayette, Inc. v. Zoning Hearing Bd. of Fayette Cty., 634 A.2d 836, 

838 n.1 (Pa. Cmwlth. 1993). Nonetheless, citing Commonwealth v. Butler, 812 A.2d 631, 633 

(Pa. 2002), the Concurring and Dissenting Opinion attempts to analogize the situation in this 

case to the “automatic” waiver set forth in Pennsylvania Rule of Appellate Procedure 1925(b), 

Pa.R.A.P. 1925(b), when an appellant fails to comply with a Rule 1925(a) order. Such an 

analogy is not warranted in this case. There was no Rule 1925(a) Order issued in this case, so

(Footnote continued on next page...)
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A. Whether the Plan’s Submission Complied with the Subdivision 

Regulations’ Procedural Requirements.

Objectors argue the Plan qualifies as a major subdivision plan under Section 

4.14 of the Subdivision Regulations because it proposes to consolidate properties 

that are located in the Historic District, which qualifies as a “Site of Special 

Interest.” For support, they cite language in Section 4.14 that references areas that 

contain “historic features” as meaning that their historic neighborhood is a Site of 

Special Interest. Therefore, Objectors argue, the Plan’s submission was required to 

comply with the requirements for a major subdivision, including the submission of 

a sketch plat, a preliminary subdivision plan, and a final subdivision plan to the 

Zoning Administrator for review, and East Ohio Capital submitted only one plan. 

_____________________________

(continued...)

Rule 1925 is not applicable, and there is no authority that would extend the bright line waiver set 

forth in the text of Rule 1925 to general cases of issue preservation. Thus, Butler, in which Rule 

1925 applied, is inapposite and the waiver the Concurring and Dissenting Opinion would find is 

not “that kind of waiver,” Gates v. City of Pittsburgh Planning Commission (Pa. Cmwlth., No. 

495 C.D. 2019, filed June 12, 2020) (Ceisler, J., concurring and dissenting), slip op. at 2. 

Second, the Concurring and Dissenting Opinion would not address Objectors’ preserved 

issue because it would find that the Commission’s Decision is inadequate and prevents the Court 

from performing proper appellate review; thus, that Opinion would vacate and remand for a new 

decision. Although the Concurring and Dissenting Opinion acknowledges that the 

Commission’s Decision’s factual findings are “objectively accurate,” it states that these findings 

“shed no light on how the . . . Commission arrived at its . . . broadly worded conclusions of law.” 

Gates, (Ceisler, J., concurring and dissenting), slip op. at 5. However, the Commission’s 

Decision includes findings of fact and conclusions of law that explain why it approved the Plan. 

And, while the Commission did not make express credibility determinations, given the limited 

amount of evidence, it is apparent that the Commission credited the evidence that supported the 

Plan’s approval and did not credit Objectors’ evidence attempting to establish that the Plan 

would be detrimental to the neighborhood. As the Court stated in Fisler v. State System of 

Higher Education, California University of Pennsylvania, 78 A.3d 30, 44 (Pa. Cmwlth. 2013),

“where the [] decision itself implicitly provides a clear indication of which witnesses [were] 

credited” explicit credibility determinations are not required. Finally, none of the parties have 

argued that their ability to make arguments on appeal have been hindered by the Commission’s 

Decision. For these reasons, the Commission’s Decision is sufficient to allow this Court to 

perform appellate review.
10

Objectors further assert that, even if the Plan is a minor subdivision, the Plan’s 

submission did not comply with minor subdivision requirements because East 

Ohio Capital did not submit an application or a sketch plat to the Zoning 

Administrator. 

The City and East Ohio Capital respond that the Plan is not located in a Site 

of Special Interest and does not otherwise meet the standard for a major 

subdivision. They note that Section 4.14 of the Subdivision Regulations identifies 

particular districts within the City that qualify as Sites of Special Interest, and the 

properties here are not within one of those districts. The City and East Ohio 

Capital further argue that the Plan complied with the minor subdivision 

requirements because the Plan was presented to City officials, who recommended 

its approval, and the Plan submitted contained all of the elements of a sketch plan.

Reviewing the Subdivision Regulations, the Plan is not a major subdivision, 

contrary to Objectors’ contention, because it does not involve new construction 

that creates 10 or more lots, does not subdivide more than 500,000 square feet of 

land, and does not subdivide within a “Site of Special Interest.” See Section 2.7 of 

the Subdivision Regulations. Section 2.7 of the Subdivision Regulations defines 

“Major Subdivision” as

a subdivision where the majority of any development is new 

construction and which involves the creation of ten (10) or more lots 

or the subdivision of more than 50,000 square feet of land, or a 

subdivision within a Site of Special Interest, as provided in Section 

4.14, provided the subdivision is not located within a Planned 

Development District.

Subdivision Regulations, § 2.7. Objectors contend the Plan affects a “Site of 

Special Interest,” because they read the first paragraph of Section 4.14 of the

Subdivision Regulations as describing, generally, the requirements for an area to 
11

receive that designation. However, to be a “Site of Special Interest” requires a 

designation and it appears only three specific districts have been so designated. 

The properties at issue are not located in any of those districts. Section 4.14 

provides

The following areas of the City shall be designated as “Sites of 

Special Interest” by the Planning Commission. An area shall 

receive such designation if it is an area of City-wide public 

importance, with a character that is unique to the City, based on its 

architectural, natural, cultural, or historical features, and therefore 

substantially contributes to the “Pittsburgh Character” as defined in 

Section 1.1.

Any subdivision within a Site of Special Interest shall be considered a 

Major Subdivision, as defined in Section 2.7, and shall follow the 

procedures for major subdivision outlined in Section 3.0.

4.14.1 Oakland Institutional-Civil District

4.14.2 All lots abutting Grandview Avenue

4.14.3 That area bounded by Fifth Avenue on the north, Shady 

Avenue on the east, Wilkins Avenue on the south, and Murray 

Hill Avenue on the west.

Subdivision Regulations, § 4.14 (emphasis added). Accordingly, the Plan does not 

involve a major subdivision.

The minor subdivision requirements apply here, and the Plan meets those 

requirements. Per Sections 3.0 and 3.1 of the Subdivision Regulations, a minor 

subdivision requires the filing of an application with the Zoning Administrator, the 

submission of a sketch plat, and a final subdivision plan. Subdivision Regulations, 

§§ 3.0, 3.1. Although Objectors contend East Ohio Capital did not file an 

application with the Zoning Administrator, it is apparent from the record that East 

Ohio Capital filed its plan with the Zoning Administrator because he testified as to 
12

its submission and review by City staff, resulting in its recommended approval. 

Further, a sketch plat “is a drawing, or map, which may be freehand, which 

illustrates the applicant’s plan for a proposed subdivision, and which is submitted 

to the Zoning Administrator for approval” and “shall contain that information 

required in the Subdivision Site Plan.” Subdivision Regulations, § 2.17.2. A 

“Subdivision Site Plan is a drawing or map” “illustrat[ing] precisely the lot or lots 

to be subdivided and all land within one hundred (100) feet of the proposed 

subdivision area.” Subdivision Regulation, § 2.27. This plan is to include 

information regarding the location of buildings, roads, utility easements, open 

space, natural features on the site, natural water courses or drainage areas, large 

trees, and building setback lines. Id. The detailed Plan East Ohio Capital 

submitted to the City officials contained the relevant requirements of a sketch plan, 

given the already developed nature of the Lots, and allowed City officials to 

review the Plan. (R.R. at 165.) Finally, to the extent that Objectors argue the Plan 

did not show “a detailed description” of the “proposed uses and magnitude of 

development,” as is required by Section 2.25 of the Subdivision Regulations, the 

Plan involves the consolidation of existing lots on which existing structures are 

located, the use of which is not changing, and then resubdividing them into 

different sized lots. Lots 2 through 5 will continue to be single-family residences, 

and Lot 1 will continue to be for commercial and apartment use. Therefore, these 

are not reasons to reverse.

B. Whether the Plan Complied with the Subdivision Regulations’ 

Substantive Requirements.

Objectors next argue East Ohio Capital did not meet the criteria for the 

Plan’s approval because it did not establish: the public use or interests to be served 

by the Plan; how the Plan would enhance the “Pittsburgh Character” of the 
13

neighborhood; or what the impacts would be on the public health, safety and 

general welfare of the neighborhood, particularly issues of congestion and privacy 

related to an increase in the number of apartments on Lot 1. They maintain the 

Commission was obligated to question East Ohio Capital regarding these factors 

and did not. Objectors also argue the only evidence regarding the impact of the 

Plan was their own, which showed that the Plan did not meet the requisite criteria 

for approval because there would be increased traffic and congestion. Objectors 

further assert the Plan is not in complete compliance with the Zoning Code because 

it does not provide all of the parking spaces required by the Zoning Code.

The City responds that Objectors’ arguments are based on their own 

interpretation of what “Pittsburgh Character” means and that Objectors did not 

present evidence of detriment to the neighborhood beyond their own speculations. 

According to the City, the approval of the Plan allows for the rehabilitation of 

dilapidated properties and for emergency access to the rear of Lot 1. The City 

points out that the Plan was supported by Community Council, showing that the 

consolidation of the Lots retained the “Pittsburgh Character” in accordance with 

the Subdivision Regulations. East Ohio Capital argues its Plan met the 

requirement for approval because it demonstrated that the Plan would, among other 

things, rehabilitate nuisance and run-down properties, and provide for emergency 

access and an additional access point to the rear of the structure on Lot 1. Such 

changes, it asserts, improves the public health and safety for the tenants and area.

Section 1.1 of the Subdivision Regulations states:

The purpose of these Subdivision Regulations is to promote quality 

growth and development in the City of Pittsburgh, by the retention 

and enhancement of the “Pittsburgh Character,” as defined by its 

rivers, hillsides, open spaces, unique architecture, neighborhoods and 

other important physical images. In concert with the City’s Zoning
14

Ordinance, the Long Range General Land Use Plan, area plans and 

various plans and policy documents adopted from time to time by the 

Planning Commission, these regulations are intended:

1.1.1 To provide for adequate light, air, and privacy, to secure safety 

from fire, flood, landslides and other danger, and to prevent 

overcrowding of the land and undue congestion of population.

1.1.2 To protect all areas of the City and their character the social and 

economic stability of all land, and to minimize the conflicts among the 

uses of land and structures.

1.1.3 To guide public and private policy and action in order to provide 

adequate and efficient transportation, water, sewerage, schools, parks, 

playgrounds, recreation, and other public requirements and facilities.

1.1.4 To provide the most beneficial relationship between the uses of 

land and the circulation of people and vehicles throughout the City, 

having particular regard to the avoidance of pedestrian and vehicular 

congestion, the pedestrian traffic movements appropriate to the 

various uses of land and structures, and to provide for the proper 

location and width of streets.

1.1.5 To establish reasonable standards of design and procedures for 

subdivisions and resubdivisions, in order to further the orderly layout 

and use of land; and to insure proper legal descriptions and 

monumentation of subdivided land.

1.1.6 To insure that public facilities are available and will have a 

sufficient capacity to serve the proposed subdivision.

Subdivision Regulations, § 1.1. Sections 3.7 and 3.9 set forth the requirements for 

the Commission’s review of subdivision plans. Section 3.7.2 provides

The Commission shall inquire as to the public use and interest 

proposed to be served by the establishment of the subdivision. It shall 

consider all relevant facts to determine whether the public interest will 

be served by the subdivision and if it finds that the proposed 

subdivision plan makes appropriate provisions for the public health, 

safety and general welfare and for open spaces, streets and drives, 

water supply, sanitary wastes, fire protection, playgrounds, school 
15

sites, and other important public facilities, and that the subdivision 

promotes the enhancement of the “Pittsburgh Character” as defined by 

Section 1.1 of these regulations, then it shall approve the proposed 

Subdivision Plan.

Subdivision Regulations, § 3.7.2. Section 3.7.3 states that “[i]f any of the above 

findings are not made, then the Commission shall disapprove the subdivision, or 

shall approve the subdivision with modifications or conditions based on the 

provisions of these regulations.” Subdivision Regulations, § 3.7.3. Section 3.9.4 

of the Subdivision Regulations limit approval only to those plans that “are found to 

be in complete compliance with the provisions of the” Zoning Code. Subdivision 

Regulation, § 3.9.4.

We first address Objectors’ argument that the Plan does not completely 

comply with the Zoning Code. Issues relating to the Plan’s compliance with the 

Zoning Code are not within the Commission’s jurisdiction. See Rickert v. 

Latimore Township, 960 A.2d 912, 918-19 (Pa. Cmwlth. 2008) (holding that 

approval of a subdivision plan “relates only to subdivision and land development 

matters and not to zoning matters” and approval of the one “does not extend to any 

zoning approvals needed to effect the development”). Here, the Commission 

acknowledged that other approvals had been obtained or were being considered. 

(FOF ¶¶ 9-10.) As such, it did not err or abuse its discretion in approving the Plan 

despite the ongoing proceedings before other administrative authorities. Notably, 

this Court recently addressed, and rejected, Objectors’ challenge to the ZBA’s 

ultimate grant of zoning relief to Lot 1 in Pascal v. City of Pittsburgh Zoning 

Board of Adjustment (Pa. Cmwlth., No. 496 C.D. 2019, filed February 28, 2020). 

Thus, this is not a reason to reverse the Commission’s Decision.
16

We now turn to Objectors’ other arguments for why the Plan did not comply 

with the Subdivision Regulation’s substantive provisions, which focus on the 

detrimental impact to the neighborhood they believe will be caused by the Plan’s 

approval and the fact that the Plan does not promote the enhancement of the area’s 

“Pittsburgh Character.” East Ohio Capital presented evidence that supports the 

Commission’s Decision that the Plan met the necessary requirements for approval. 

East Ohio Capital offered the Plan itself, which showed via drawings the specific 

changes proposed to consolidate the parcels. (R.R. at 165.) Mr. Hart testified that 

the consolidation would create access to the rear of Lot 1 to allow for deliveries, 

emergency and secondary egress points where none had been before, the addition 

of rear windows to the apartments on that parcel, and garages for the existing 

single-family homes on Lots 2 through 5, which had been rentals and were in rundown condition. (Id. at 147-49.) On this latter point, Mr. Gates’s letter reflected 

that he actually supported the consolidation of the front and rear lots on Lots 2 

through 5 because it would allow the single-family homes to have alley access. 

(Id. at 12.) Mr. Perkins, on behalf of Community Council, testified that the 

properties being consolidated had become nuisances due to the prior owner’s 

negligence and the organization wanted the Plan to move forward. (Id. at 150-51.) 

The letter submitted on behalf of Community Council reflects its members’

decision to support the Plan’s approval was unanimous. (Id. at 35.) In addition, 

photographs showing the poor condition of the properties were presented. (Id. at 

39-44.) In response, Objectors did not present any specific evidence establishing 

detriment to the community, only generalized concerns regarding potential 

congestion of an adjacent alleyway, increased traffic, and a reduction in parking. 

See Morris v. S. Coventry Twp. Bd. of Supervisors, 836 A.2d 1015, 1025 (Pa. 
17

Cmwlth. 2003) (holding that a local agency is without power to deny subdivision 

approval based upon generalized concerns). 

Ultimately, in approving the Plan, the Commission implicitly credited East 

Ohio Capital’s evidence and rejected Objectors’ contrary evidence. Ohio Capital’s

evidence supports the Commission’s determination because it showed that the Plan 

would not cause a negative impact on the neighborhood where the Plan allowed for 

the rehabilitation of properties that had become dilapidated and nuisances. (R.R. at 

40-44, 151). The lack of negative impact is reflected by Community Council’s 

unanimous support of the Plan and, at least as to the consolidation of Lots 2 

through 5, in Mr. Gates’s letter to the Commission. Further, the evidence and 

unanimous approval of the Plan by Community Council supports the 

Commission’s determination that the Plan promotes or enhances the area’s 

“Pittsburgh Character.” Although Objectors are disappointed that the Commission 

did not accept their evidence or their version of what “Pittsburgh Character” 

means, this does not require reversal of the Commission’s Decision. 

For these reasons, we discern no error or abuse of discretion by the 

Commission in finding that the Plan met the substantive requirements for approval.

C. Whether the Plan’s Approval Rezoned and Removed Property from the 

Historic District.

Objectors argue that the Plan’s approval effectively rezoned the strip of land 

consolidated into Lot 1 from R1A-VH to LNC. This rezoning, they assert,

improperly converts residential land to commercial use by using the strip of land to 

provide access to the rear of Lot 1. This consolidation, Objectors argue, is contrary 

to the purpose of the LNC District, which is to promote and enhance the quality of 

life of adjacent residential districts. Objectors further assert that the Plan 

improperly expands a “nonresidential nonconforming structure” in violation of the 
18

Zoning Code. (Objectors’ Brief at 25.) Similarly, Objectors maintain that 

consolidating the strip of land, which is located in the Historic District, into Lot 1 

alters the historic designations of the properties. The City and East Ohio Capital 

argue that the approval of the Plan’s lot consolidation does not rezone or change 

the historic designations because no application to alter the zoning or Historic 

District was filed, and the Commission does not have the authority to make such 

changes.

Reviewing the City’s regulations, the authority to change zoning or historic 

designations within the City lies with entities other than the Commission. Per 

Section 922.05.E of the Zoning Code, applications to amend the boundaries of the 

City’s Zoning Map are presented to and approved by City Council, not the 

Commission. City of Pittsburgh Zoning Code, § 922.05.E. Further, it is City 

Council that has the authority to designate historic districts per Section 1101.03(a) 

of Title 11 of the City of Pittsburgh, Pennsylvania, Code of Ordinances (Historic 

Preservation Code). Historic Preservation Code, § 1101.03(a). Thus, the 

Commission’s approval of the Plan cannot alter the existing zoning and historical 

designations, which remain the same as they were before the Plan’s approval, as 

determined by the Commission. Accordingly, these are not reasons to reverse the 

Commission’s Decision.

D. Whether Commissioner Burton-Faulk’s Vote Requires Reversal.

Last, Objectors argue that Commissioner Burton-Faulk had a conflict of 

interest and should not have heard, participated, or voted on the Plan because, at 

that time, she was on the board of directors for NLC. Objectors assert that, 

because of this apparent conflict of interest, Commissioner Burton-Faulk should 

have recused from the proceedings and her failure to do so requires that the 
19

Commission’s Decision be reversed. The City argues Objectors waived this 

argument by not raising it before the Commission and did not present evidence 

demonstrating any conflict of interest. Both the City and East Ohio Capital assert 

that reversal is not required because Commissioner Burton-Faulk’s vote was not 

outcome determinative where the vote was four to zero with one abstention. 

This Court has held that 

[t]he general rule is that a municipal officer should disqualify [her]self 

from any proceeding in which [s]he has a personal or pecuniary 

interest that is immediate and direct. . . . Our Supreme Court has also 

found that an impermissible commingling of adjudicatory and 

prosecutorial functions occurred when a zoning hearing board was 

advised by a solicitor who was also representing the township in the 

same proceeding. Horn v. Township of Hilltown, . . . 337 A.2d 858 

([Pa.] 1975). There it was held that actual prejudice to the rights of a 

party need not be shown to exist but that in order to fulfill its duties 

properly “a government body charged with certain decision[-]making 

functions . . . must avoid the appearance of possible prejudice, be it 

from its members or from those who advise it or represent parties 

before it.” Id. at . . . 860 (emphasis added).

Borough of Youngsville v. Zoning Hearing Bd. of Borough of Youngsville, 450 

A.2d 1086, 1090-91 (Pa. Cmwlth. 1982) (internal citation omitted). Although 

Objectors claim that Commissioner Burton-Faulk’s participation in this matter may 

give the appearance of possible prejudice, such that she should have been 

disqualified, her potential disqualification does not require the reversal of the 

Commission’s Decision. In Borough of Youngsville, we explained that 

[d]isqualification of [a] member . . . does not in and of itself require a 

reversal of the decision that was reached []. There has been no 

allegation that the member in question controlled or unduly influenced

the other members . . . in any manner which would raise doubts as to 

the validity of their votes.
20

Id. at 1091. Here, the Commission voted four to zero with one abstention to 

approve the Plan, and there are no allegations that Commissioner Burton-Faulk 

controlled or unduly influenced the other Commission members. Accordingly, her 

potential disqualification does not require that we reverse the Commission’s 

Decision.

III. Conclusion 

For the foregoing reasons, we discern no error or abuse of discretion in the 

Commission’s approval of the Plan. Accordingly, we affirm.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chris Gates and Stephen Pascal, :

Appellants :

 :

v. : No. 495 C.D. 2019

 : 

City of Pittsburgh Planning :

Commission, City of Pittsburgh and :

East Ohio Capital Group, and East :

Ohio Capital LLC :

O R D E R

NOW, June 12, 2020, the Order of the Court of Common Pleas of 

Allegheny County is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chris Gates and Stephen Pascal, :

Appellants :

:

v. : No. 495 C.D. 2019

: ARGUED: October 3, 2019

City of Pittsburgh Planning :

Commission, City of Pittsburgh and :

East Ohio Capital Group, and East :

Ohio Capital LLC :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

CONCURRING AND DISSENTING OPINION 

BY JUDGE CEISLER FILED: June 12, 2020

Though I agree, to a certain extent, with the outcome created through the 

majority’s opinion in this matter, I take issue with the majority’s reasoning and, 

therefore, concur in the result in part and dissent in part.

First, I agree with the majority that Appellants Chris Gates and Stephen Pascal 

(Appellants) are not entitled to relief regarding their claims that: Appellee East Ohio 

Capital LLC’s proposed lot consolidation and subdivision plan (Plan) did not 

comply with Appellee the City of Pittsburgh’s (City) Subdivision Regulations’ 

requirements for major subdivisions; the Plan did not completely comply with the 

City’s Zoning Code requirements regarding floor area ratio, loading zones, parking 

spaces, and restaurant facilities; and one of the City’s Planning Commission 

commissioners who voted to approve the Plan, LaShawn Burton-Faulk, had a 

conflict of interest because she was also a board member of the Northside Leadership 

Conference at the time of her vote.
EC - 2

However, unlike the majority, which reaches the merits of these claims, I 

would deem them to have been waived by Appellants. The Pennsylvania Rules of 

Appellate Procedure establish that “[i]ssues not raised in the lower court are waived 

and cannot be raised for the first time on appeal.” Pa. R.A.P. 302(a). As Appellants 

did not previously attack the Plan’s alleged noncompliance with the Zoning Code’s 

minor subdivision requirements, they have not preserved that issue for our review. 

In addition, Section 753(a) of the Local Agency Law,1 which governs the 

statutory appeal process for decisions issued by the Planning Commission, states in 

relevant part that “if a full and complete record of the proceedings before the agency 

was made[, an appellant] may not raise . . . any other question not raised before the 

agency (notwithstanding the fact that the agency may not be competent to resolve 

such question) unless allowed by the court upon due cause shown.” 2 Pa. C.S. § 

753(a). The Court of Common Pleas of Allegheny County (Trial Court) did not 

address whether Appellants had waived any of the issues they sought to raise, nor 

did any of the opposing parties challenge Appellants’ statutory appeal on the basis 

of waiver. 

However, I believe we must sua sponte consider whether Appellants waived 

any such issues. This scenario is analogous to those involving an appellant’s waiver 

of an issue for failure to mention it in their Pa. R.A.P. 1925(b) statement. Our 

Supreme Court has held that kind of waiver to be “automatic” and, thus, one which 

may considered by a court on its own initiative. Com. v. Butler, 812 A.2d 631, 633 

(Pa. 2002); see Pa. R.A.P. 1925(b)(vii) (“Issues not included in the [s]tatement of 

errors complained of on appeal and/or not raised in accordance with the provisions 

of [Pa. R.A.P. 1925(b)(4)] are waived.”). Like Pa. R.A.P. 1925(b)(4)(vii), Section 

 

1 2 Pa. C.S. §§ 551-55, 751-54.
EC - 3

753(a) of the Local Agency Law places the burden on an appellant to broach their 

issues at the proper juncture, with a failure to do so explicitly penalized by a 

prohibition against raising any other, previously unarticulated or inconsistently 

expressed concerns at a later point. 2 Pa. C.S. § 753(a). Thus, we are obligated under 

the circumstances to determine whether Appellants properly preserved all of the 

issues they present for our consideration, regardless of whether the opposing parties 

themselves claim that waiver has occurred. To do otherwise would ignore the 

dictates of both the Local Agency Law and the Pennsylvania Rules of Appellate 

Procedure, as well as undermine one of the central tenets of appellate review by 

allowing us to address questions of law and fact that were not considered by the 

inferior bodies that first handled this matter.2

When Appellants registered their opposition to the Plan before the Planning 

Commission, they did not mention the Plan’s alleged noncompliance with the 

Subdivision Regulations’ requirements for major subdivisions, the Plan’s putative 

lack of “complete compliance” with the Zoning Code, or Commissioner BurtonFaulk’s alleged conflict of interest. Furthermore, Appellants never sought leave from 

the Trial Court to address these new issues during the course of their statutory appeal 

and, instead, brought them up without even attempting to explain why they had not 

first done so in front of the Planning Commission. Therefore, I would hold that 

Appellants have waived each of these issues, as they did not raise them at the 

Planning Commission level and subsequently failed to make a showing of good 

cause before the Trial Court.

 

2 The City does claim that Appellants waived their conflict of interest argument by failing 

to raise it before either the Commission or the Trial Court. City’s Br. at 26. However, Appellants 

did make this argument in the Brief they submitted to the Trial Court.
EC - 4

As for Appellants’ remaining argument, through which they allege that 

several of the Planning Commission’s conclusions of law are not supported by 

substantial evidence, I would conclude that we are prevented from conducting proper 

appellate review, due to the manifest inadequacies of the Planning Commission’s

October 12, 2018 Decision. The City’s Subdivision Regulations establish the 

following standard for approving or disapproving subdivision plans:

The [Planning] Commission shall inquire as to the public 

use and interest proposed to be served by the establishment 

of the subdivision. It shall consider all relevant facts to 

determine whether the public interest will be served by the 

subdivision and if it finds that the proposed subdivision 

plan makes appropriate provision for the public health, 

safety and general welfare and for open spaces, drainage, 

streets and drives, water supply, sanitary wastes, fire 

protection, playgrounds, school sites, and other important 

public facilities, and that the subdivision promotes the 

enhancement of the “Pittsburgh Character” as defined in 

Section 1.1 of these [Subdivision R]egulations, then it 

shall approve the proposed . . . Subdivision Plan.

Subdivision Regulations § 3.7.2; see id., § 3.9.1. “If any of the above findings are 

not made, then the [Planning] Commission shall disapprove the subdivision, or shall 

approve the subdivision with modifications or conditions based upon the provisions 

of these [Subdivision R]egulations.” Id., § 3.7.3; see id., § 3.9.2. The burden is thus 

on the applicant to prove to the Planning Commission’s satisfaction that a 

subdivision plan comports with these requirements. In addition, Section 555 of the 

Local Agency Law states: “All adjudications of a local agency shall be in writing, 

shall contain findings and the reasons for the adjudication, and shall be served upon 

all parties or their counsel personally, or by mail.” 2 Pa. C.S. § 555 (emphasis added). 

Despite this plain language from both the Local Agency Law and the Subdivision 

Regulations, the Planning Commission’s Decision contains nothing more than 
EC - 5

factual statements which, however objectively accurate they may be, shed no light 

on how the Planning Commission arrived at its aforementioned, broadly worded 

conclusions of law. Indeed, rather than explaining, in any meaningful way, its 

determination that the Plan satisfies the Subdivisions Regulations’ aforementioned 

requirements, the Planning Commission simply jumps from briefly discussing the 

Plan and Appellants’ opposition thereto to flatly stating that approval of the Plan is 

warranted. This is wholly inadequate, regardless of how slim this matter’s 

evidentiary record may be, or how short the Planning Commission’s hearing on the 

Plan may have been. 

Therefore, I dissent to the extent that the majority determines that the Planning 

Commission’s findings of fact and conclusions of law are legally adequate. Instead, 

I would vacate the Trial Court’s March 27, 2019 order and remand to the Trial Court, 

with instructions that it once again remand this matter so that the Commission can 

make proper, sufficiently detailed findings of fact and conclusions of law.

__________________________________

ELLEN CEISLER, Judge