IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wexford Science and Technology, :

LLC : 

:

v. : No. 1316 C.D. 2021

: Argued: May 16, 2022

City of Pittsburgh Zoning Board :

of Adjustment :

:

Appeal of: Coltart Area Residents :

Association, Marjory Lake, Oakcliffe :

Community Organization, Mark Oleniacz, :

South Oakland Neighborhood Group and :

Elena Zaitsoff :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge 

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION

BY SENIOR JUDGE LEAVITT FILED: August 1, 2022

Coltart Area Residents Association, Oakcliffe Community 

Organization, South Oakland Neighborhood Group, Marjory Lake, Mark Oleniacz, 

and Elena Zaitsoff (collectively, Intervenors) have appealed an order of the Court of 

Common Pleas of Allegheny County (trial court) that granted the zoning appeal of 

Wexford Science and Technology, LLC (Developer). The trial court reversed the 

decision of the City of Pittsburgh Zoning Board of Adjustment (Zoning Board),

which denied Developer’s application to construct a 13-story office building on 

Forbes Avenue in the City of Pittsburgh (City). On appeal, Intervenors argue that

the trial court erred in holding that the height of an adjacent hotel determined the 

permitted height of Developer’s proposed building. Intervenors also argue that the 

trial court lacked jurisdiction over Developer’s claim for a 20% increase in that 
2

permitted height by virtue of its sustainable building design. Upon review, we affirm 

the trial court.

Background

Developer owns three adjacent lots on Forbes Avenue that are located

in the Oakland Public Realm Subdistrict-C Zoning District (Oakland District). 

Developer’s lots are bounded on the west by Coltart Street and on the south by 

Iroquois Way. The fourth lot on this block has been developed with a 12-story, 128-

foot-tall hotel building. The hotel’s address is 3454 Forbes Avenue, but its entrance 

is on McKee Place, which provides the eastern boundary of the block. 

Developer proposed to consolidate its three lots and construct a 13-

story, 188.6-foot-tall building thereon. The new structure was planned to have nine

floors of office and laboratory space; three floors of parking; and one floor of retail 

space on the ground floor. 

In the Oakland District, Section 908.03.D.3(c) of the Zoning Code1

limits a building’s height to 85 feet and regulates the ratio of the building floor size. 

Because its proposed building would exceed the applicable dimensional standards, 

Developer applied to the Zoning Board for, inter alia, a variance 

[f]rom the permitted height of 128’ (portion of the building 

where residential compatib[ility] standards don’t apply) and 60 

feet (with LEED[2] Bonus where residential compatib[ility] 

standards do apply) to the requested height of 188.6’. 

1ZONING CODE OF THE CITY OF PITTSBURGH, PENNSYLVANIA (ZONING CODE), §908.03.D.3(c), 

effective June 4, 2002.

2According to the United States Green Building Council, Leadership in Energy and Environmental 

Design, or LEED, 

certified buildings save money, improve efficiency, lower carbon emissions and 

create healthier places for people. They are a critical part of addressing climate 
3

Zoning Board Decision at 1; Reproduced Record at 181a (R.R.____). The 

“permitted height of 128 [feet]” was based upon the height of the adjacent hotel, 

which provided the so-called contextual height for Developer’s proposed building. 

See ZONING CODE, §925.07.D.

After a hearing, the Zoning Board denied Developer’s request for a 

variance to construct a 188.6-foot-tall building. The Zoning Board held that the 

height of the adjacent hotel did not establish the permitted, or “contextual,” height 

for Developer’s building under the Zoning Code. Section 925.07.D states that “the 

contextual height may fall at any point between the (zoning district) maximum 

height limit and the building height that exists on the adjoining lot that is oriented 

on the same side of the street as the subject lot.” ZONING CODE, §925.07.D

(emphasis added). The Zoning Board concluded that because the hotel’s public 

entrance is on McKee Place, the hotel did not have the same orientation as 

Developer’s proposed building. Accordingly, the Zoning Board held that Developer 

could not use the height of the hotel to determine the permitted height of its proposed 

building. 

As to Developer’s claim for a LEED height bonus, the Zoning Board 

agreed that Developer’s building will meet LEED sustainable building design

standards. This would allow Developer a total building height of 102 feet, i.e., a 

change and meeting [environmental, social and governance (ESG)] goals, 

enhancing resilience, and supporting more equitable communities. 

To achieve LEED certification, a project earns points by adhering to prerequisites 

and credits that address carbon, energy, water, waste, transportation, materials, 

health and indoor environmental quality. Projects go through a verification and 

review process by [the Green Business Certification Inc. (GBCI)] and are awarded 

points that correspond to a level of LEED certification: Certified (40-49 points), 

Silver (50-59 points), Gold (60-79 points) and Platinum (80+ points).

See https://www.usgbc.org/leed (last visited July 29, 2022).
4

20% addition to the maximum 85-foot height. ZONING CODE, §915.04.D.3 

However, the Zoning Code also provides that “bonuses may not be applied” in the 

context of a variance or special exception. ZONING CODE, §915.04.B. Because 

Developer sought a variance to allow construction of a 188.6-foot-tall building, it 

could not also claim the height bonus. The Zoning Board explained that Developer 

“can utilize the bonuses, or it can seek variances and special exceptions, but it cannot 

do both.” Zoning Board Decision at 6, Conclusions of Law No. 16; R.R. 186a.

Developer appealed to the trial court.4 Developer did not challenge the 

Zoning Board’s denial of its variance to construct a 188.6-foot-tall building. Instead, 

Developer reduced the height of its proposed building to 153 feet, which Developer 

believed did not require a variance. Specifically, Developer used the 128-foot height 

3Section 915.04.D of the Zoning Code permits a 20% height bonus for LEED certified buildings. 

It states:

If floor area ratio and density bonuses are permitted pursuant to Section 915.04.E, 

the maximum floor area ratio and height may exceed the amounts specified for the 

applicable base zoning district, but shall not exceed an additional twenty (20) 

percent of floor area ratio and height.

ZONING CODE, §915.04.D. As such, the Zoning Board reasoned that Developer would be allowed 

to claim 20% of the 85-foot height limit for the Oakland District, or 17 feet, as its height bonus. 

Adding a 17-foot height bonus to the 85-foot height limit results in a total permitted height of 102 

feet. 

4 By way of background, on April 10, 2020, Intervenors moved to intervene in Developer’s land 

use appeal. The trial court denied the motion to intervene, and Intervenors appealed to this Court. 

While the appeal was pending, the trial court approved a consent order based on a settlement 

agreement reached among Developer, the Oakland Planning and Development Corporation, and 

the City, which modified the Zoning Board’s decision to reduce the height of the building to 153 

feet and marked the case closed. On July 23, 2021, this Court vacated the trial court’s order 

denying the motion to intervene and remanded the matter for further proceedings. See Wexford 

Science and Technology, LLC v. City of Pittsburgh Zoning Board of Adjustment, 260 A.3d 316

(Pa. Cmwlth. 2021). On remand, Developer no longer opposed the intervention, and the trial court 

granted Intervenors’ motion to intervene. Developer’s Brief at 9.
5

of the hotel as the “base height” for Developer’s building, to which it added the 20% 

sustainability height bonus. Developer’s Trial Court Brief at 3; R.R. 343a. 

Trial Court Decision

The trial court did not take evidence. By opinion and order dated 

October 19, 2021, the trial court reversed the Zoning Board and permitted Developer 

to construct a 153-foot-tall building. 

The trial court held that Section 925.07.D of the Zoning Code refers to 

the orientation of the “adjoining lot,” not the building thereon. ZONING CODE, 

§925.07.D. Here, the hotel is located on “the only other lot on the subject block of 

Forbes Avenue and it is 128-feet high. All of the lots on the block are oriented to 

Forbes Avenue.” Trial Court Op. at 3. The trial court reasoned that because the 

term “oriented” is not defined in the Zoning Code, it must be given “its common and 

approved usage,” id. at 4, and concluded that the hotel’s height of 128 feet 

determined the permissible height of Developer’s proposed building. Further, 

Developer was entitled to add the 20% LEED height bonus to the contextual height 

of 128 feet, for a total of 153 feet. 

Intervenors appealed to this Court.

Appeal

On appeal,5Intervenors raise two issues for our consideration. First, 

they argue that the trial court erred in ruling that Developer was permitted to use the 

height of the adjoining hotel as the base height for its proposed building. Second, 

they argue that the trial court lacked subject matter jurisdiction over the 20% LEED 

5Where, as here, the trial court takes no additional evidence, our standard of review determines

whether the Zoning Board committed an error of law or abused its discretion. Hamilton Hills 

Group, LLC v. Hamilton Township Zoning Hearing Board, 4 A.3d 788, 792 n.6 (Pa. Cmwlth. 

2010). 
6

height bonus because Developer did not follow the procedures in the Zoning Code 

for obtaining such a bonus. We address these issues seriatim.

I. Contextual Height

In their first issue, Intervenors argue that the trial court erred in 

concluding that the 128-foot height of the adjacent hotel provided the permitted

height for Developer’s building because the hotel building is oriented to McKee 

Place, not to Forbes Avenue. The evidence was uncontested that the hotel’s 

“pedestrian entrance, the vehicle entrance, [the] canopy over the front door, the 

prominent signage identifying the [hotel] building and [the] flags are all oriented on 

McKee Place.” Intervenors’ Brief at 17. Because the dictionary meaning of the term

“oriented” is “to align or position in a particular direction” or to be “functionally 

directed,” Intervenors contend that only a building can be oriented. Intervenors’

Brief at 13-14. Here, the hotel is “‘functionally directed’ to serve guests and receive 

mail only via its east main door” on McKee Place, not north on Forbes Avenue. 

Intervenors’ Brief at 20. Intervenors assert that the trial court’s observation that both 

the hotel and Developer’s proposed building have addresses on Forbes Avenue was 

irrelevant because a property owner may change its street address under the City’s

Uniform Street Naming and Addressing Ordinance, No. 20-2009, §§420.01-420.12, 

effective October 31, 2019.

Developer responds that the trial court correctly applied the Zoning 

Code. Contextual height does not depend upon the location of the neighboring 

building’s front door but, rather, on the orientation of each lot. Section 925.07.D of 

the Zoning Code provides that “the contextual height may fall at any point between 

the (zoning district) maximum height limit and the building height that exists on the 

adjoining lot that is oriented on the same side of the street as the subject lot.” 
7

ZONING CODE, §925.07.D (emphasis added). The adjective “oriented” modifies the 

noun “lot,” not “building.” This same wording appears in the Zoning Code’s 

definition of “contextual height” as “the building height that exists on a lot that is 

adjacent to and oriented to the same street as the subject lot.” ZONING CODE, 

§926(58) (emphasis added). In short, contextual height turns on lot, not building,

orientation.

In support, Developer observes that the City’s site map shows that all 

of the lots on the block where Developer’s proposed building will be built face 

Forbes Avenue. R.R. 28a. South of this block, the lot orientations change. The 

smaller residential lots along Coltart Avenue face Coltart Avenue, and lots along 

McKee Place face McKee Place. In every case, the longer lot lines are parallel to 

each other and perpendicular to the street to which the lot is oriented. The long lot 

lines for Developer’s lots and the hotel lot all lie perpendicular to Forbes Avenue.

The interpretation of an ordinance presents this Court with a question 

of law subject to plenary review. Northampton Area School District v. Zoning 

Hearing Board of Township of Lehigh, 64 A.3d 1152, 1157 (Pa. Cmwlth. 2013). In 

reviewing the plain language of the text of an ordinance, we “construe words and 

phrases in a sensible manner, utilize the rules of grammar and apply their common 

and approved usage, and give undefined terms their plain, ordinary 

meaning.” Adams Outdoor Advertising, LP v. Zoning Hearing Board of Smithfield 

Township, 909 A.2d 469, 483 (Pa. Cmwlth. 2006). Further, “ambiguous language 

in an ordinance [must be] construed in favor of the property owner and against any 

implied extension of the restriction; however, such an interpretation is unwarranted 

where ‘the words of the zoning ordinance are clear and free from any ambiguity.’”

Delchester Developers, L.P. v. Zoning Hearing Board of Township of London 
8

Grove, 161 A.3d 1081, 1104 (Pa. Cmwlth. 2017) (citing City of Hope v. Sadsbury 

Township Zoning Hearing Board, 890 A.2d 1137, 1143 (Pa. Cmwlth. 2006)). A 

zoning ordinance is ambiguous “if the pertinent provision is susceptible to more than 

one reasonable interpretation, [] or when the language is vague, uncertain, or 

indefinite.” Kohl v. New Sewickley Township Zoning Hearing Board, 108 A.3d 961, 

968 (Pa. Cmwlth. 2015). Finally, “because the zoning hearing board is the entity 

charged with the interpretation and application of a zoning ordinance, a board’s 

interpretation of its own ordinance is entitled to great weight and deference.” 

Delchester Developers, L.P., 161 A.3d at 1104. However, deference to an agency’s 

interpretation “never comes into play when the statute is clear.” Seeton v. 

Pennsylvania Game Commission, 937 A.2d 1028, 1037 (Pa. 2007). Because “a 

zoning board is not a legislative body, [] it lacks authority to modify or amend the 

terms of a zoning ordinance.” Greth Development Group, Inc. v. Zoning Hearing 

Board of Lower Heidelberg Township, 918 A.2d 181, 187 (Pa. Cmwlth. 2007).

With this guidance in mind, we consider Section 925.07.D of the 

Zoning Code, which states, in pertinent part, as follows:

Regardless of the maximum height limit imposed by the zoning 

district standards of this Code, applicants shall be allowed to use 

a contextual height limit. The allowed contextual height may fall 

at any point between the (zoning district) maximum height limit 

and the average height of the buildings that exist on adjoining 

lots that are oriented on the same side of the street as the subject 

lot. If the subject lot is a corner lot, the contextual height may 

fall at any point between the (zoning district) maximum height 

limit and the building height that exists on the adjoining lot that 

is oriented on the same side of the street as the subject lot.

ZONING CODE, §925.07.D (emphasis added). Section 926(58) of the Zoning Code 

defines “contextual height” as 
9

an imaginary line that may be established at any point between 

the maximum building height of the zoning district and the 

building height that exists on a lot that is adjacent to and oriented 

to the same street as the subject lot. 

ZONING CODE, §926(58) (emphasis added). Stated otherwise, a proposed building’s 

contextual height is determined by the height of the building on the adjacent lot.

In both Zoning Code provisions, the word “oriented” modifies “lot,” 

not building. Indeed, the actual term used is “building height” not “building.” It is 

awkward, if not impossible, to apply the adjectival word “oriented” to “building 

height.” Building height is not oriented to a street but, rather, to the sky.

Nevertheless, Intervenors direct the Court to Merriam-Webster’s 

Collegiate Dictionary, which defines the verb “orient,” in relevant part, as follows:

3a: to set or arrange in any determinate position especially in 

relation to the points of the compass

b: to ascertain the bearings of

c: to cause to face or point toward the east

specifically: to build (a church or temple) with the longitudinal 

axis pointing eastward and the chief altar at the eastern end

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY, https://www.merriamwebster.com/dictionary/orient (last visited July 29, 2022). Intervenors contend that 

only a structure can be “set or arrange[d]” in a “determinate position”; a lot has no 

“orientation” until a structure is built thereon. Id.; Intervenors’ Brief at 22. 

We are not persuaded. The City’s site map shows that lot lines 

determine lot orientation. The longer boundary lines of each lot are parallel to each 

other and perpendicular to the street they face. Here, the lines of the hotel lot are 

fixed in the same direction as Developer’s three lots, and all the lots face Forbes 
10

Avenue. The hotel is a rectangular building built out to its lot boundaries, as will be 

Developer’s building. The location of the adjacent building’s door is not mentioned 

in Section 925.07.D of the Zoning Code.

Intervenors point to the contextual setback provisions in Section 

925.06.B, 925.06.C, and 925.06.D of the Zoning Code to support their argument that 

only a structure has orientation. Intervenors’ Brief at 23. Section 925.06.B regulates 

contextual front setbacks and states, in relevant part, as follows:

Regardless of the minimum front setback requirements imposed 

by the zoning district standards of this Code, applicants shall be 

allowed to use the Contextual Front Setback. The Contextual 

Front Setback shall apply only to primary uses and structures. 

A Contextual Front Setback for any lot with street frontage may 

fall at any point between the (zoning district) required front 

setback and the front setback that exists on a lot that is adjacent 

and oriented on the same side of the street as the subject lot. . . .

ZONING CODE, §925.06.B (emphasis added). Section 925.06.C regulates contextual 

side setbacks and states as follows:

Regardless of the minimum side setback requirements imposed 

by the zoning standards of this Code, applicants shall be allowed 

to use a Contextual Side Setback. The Contextual Side Setback 

shall apply only to primary uses and structures. A Contextual 

Side Setback may fall at any point between the required side 

setback and the side setback that exists on a lot that is adjacent 

and oriented to the same street as the subject lot. . . .

ZONING CODE, §925.06.C (emphasis added). Section 925.06.D states:

In the case of corner or irregular lots, the Zoning Administrator 

shall determine which frontages shall be considered the “front,” 

“side” and “rear” setbacks. Criteria to be considered shall 

include but not be limited to orientation of the primary structure, 
11

orientation of the neighboring structures, and the location of the 

entrances to the structure. 

ZONING CODE, §925.06.D (emphasis added). Finally, the Zoning Code defines 

“contextual setback” as 

an imaginary line that may be established at any point between

the (zoning district) required front setback and the front setback 

that exists on a lot that is adjacent and oriented to the same street 

as the subject lot.

ZONING CODE, §926(57) (emphasis added). Intervenors emphasize the references in 

these provisions to “primary uses and structures” and “orientation of the primary 

structure” or the “orientation of the neighboring structures.” ZONING CODE, 

§925.06.B, 925.06.D. 

Intervenors’ reliance on these setback provisions is misplaced. First, 

Intervenors ignore the phrase “a lot that is adjacent and oriented to the same street 

as the subject lot,” which appears in the above-referenced provisions, just as it does 

in Section 925.07.D of the Zoning Code. Second, there is no doubt that setbacks

apply to structures; a lot cannot have a setback. 

Notably, Section 925.06.D provides that “[i]n the case of corner or 

irregular lots,” the Zoning Administrator shall determine the “front,” “side,” and 

“rear” setbacks by considering, inter alia, the “orientation of the primary structure, 

orientation of the neighboring structures, and the location of the entrances to the 

structure.” ZONING CODE, §925.06.D. However, the Zoning Code does not contain 

a similar directive with respect to a proposed building’s contextual height. Where, 

as here, “the legislature includes specific language in one section of a statute and 

excludes it from another, it should not be implied where excluded.” Cherry v. 

Pennsylvania Higher Education Assistance Agency, 620 A.2d 687, 690-91 (Pa. 
12

Cmwlth. 1993). Had the legislative body intended “orientation of the neighboring 

structure” to be determinative in Section 925.07.D, it could have so specified, but it 

did not do so. In short, the permitted height of Developer’s proposed building does 

not turn on the hotel owner’s decision “to greet guests on Forbes Avenue instead of 

McKee Place[.]” Developer’s Brief at 22.

We hold that Sections 925.07.D and 926(58) of the Zoning Code

provide that the permitted height of Developer’s building is determined by the height 

of the hotel “on the adjoining lot that is oriented on the same side of the street as the 

subject lot.” ZONING CODE, §§925.07.D, 926(58). Here, Developer’s three lots and

the adjoining hotel lot are each “set or arranged” in the same “determinate position”

facing Forbes Avenue. The trial court did not err in holding that the hotel’s height 

of 128 feet established the contextual height for Developer’s proposed building. 

II. LEED Height Bonus

Intervenors argue, next, that the trial court lacked subject matter 

jurisdiction over the 20% sustainability height bonus because Developer did not first 

present the bonus request to the Zoning Administrator. As a result, Intervenors 

contend that neither the Zoning Board nor the trial court has jurisdiction to consider 

Developer’s eligibility for the LEED bonus.

The Zoning Code states that the Zoning Board has the power to “hear 

and decide appeals where it is alleged that there is error in any order, requirement, 

decision or determination made by the Zoning Administrator. . . .” ZONING CODE, 

§923.02.B.1 (emphasis added). It also states that “[a]ppeals to the [Zoning] 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.” ZONING CODE, 

§923.02.D (emphasis added). Intervenors argue no city official acted on 
13

Developer’s claim for a LEED bonus, and, thus, the Zoning Board lacked

jurisdiction under Section 923.02.B.1. 

Developer counters that Section 915.04.E of the Zoning Code states 

that the height bonus “may be permitted as an Administrator’s Exception,” but it 

does not mandate that a landowner pursue a height bonus from the Administrator 

before submitting a variance application. ZONING CODE, §915.04.E (emphasis 

added). Even so, Developer’s failure to apply for an exception from the Zoning 

Administrator did not deprive the court of subject matter jurisdiction. Further, 

Intervenors failed to timely raise this procedural objection before the Zoning Board 

and the trial court. Intervenors have waived the issue.

With respect to the LEED bonus, the Zoning Code states as follows:

1) For all non-residential zoning districts, except the [Local 

Neighborhood Commercial (LNC)] Zoning District, the floor 

area and height bonus of this Section may be permitted as an 

Administrator’s Exception.

2) In the LNC Zoning District, the approval of the floor area 

and height bonus of this Section shall require the approval of a 

Project Development Plan by the Planning Commission after a 

public hearing.

ZONING CODE, §915.04.E (emphasis added). Notably, Section 901.07.G of the

Zoning Code states that “[t]he word ‘shall’ is always mandatory[ and that t]he words 

‘may’ and ‘should’ are always permissive.” ZONING CODE, §901.07.G. Developer 

argues that Section 915.04.E.1 authorizes the grant of a height bonus by

Administrator’s Exception but does not require it. We agree. 

In re Borough of Valley-Hi, 420 A.2d 15 (Pa. Cmwlth. 1980),

concerned the incorporation of a portion of a township as a borough, which the trial 
14

court approved. The new borough then petitioned to correct the description of its 

legal boundaries and to decrease the number of its councilmen. After the trial court 

granted the petition, residents of the township moved to set aside the incorporation 

of the borough on the theory that the defective description had deprived the trial 

court of jurisdiction to approve the incorporation. The trial court agreed. This Court 

reversed, holding that the defective description “was merely a procedural error.” Id.

at 17. Nevertheless, “the [trial] court had jurisdiction over the application for 

incorporation and [] any irregularity in those proceedings was waived by the parties 

by their failure to raise an objection in a timely fashion.” Id. Developer argues that 

here any “irregularity” in the proceedings regarding the LEED height bonus was 

waived by Intervenors.

Section 923.02.B of the Zoning Code provides that the Zoning Board 

has the following power:

1. To hear and decide appeals where it is alleged that there is 

error in any order, requirement, decision or determination made 

by the Zoning Administrator or the Chief of the Bureau of 

Building Inspection in the administration of this Code, and, upon 

appeal, to interpret any provision of this Code where its meaning 

or application is in question;

2. To authorize upon appeal, in specific cases, variances from 

the terms of this Code in accordance with Sec[tion] 922.09;

3. To hear and decide, upon appeal from the grant or denial of 

zoning approval with respect to a specific application, issues of 

the validity of any provision of this Code; and

4. To hear and decide special exceptions authorized by specific 

provisions of this Code, in accordance with Sec[tion] 922.07 and 

other provisions of this Code that prescribe standards for the 

respective special exceptions authorized.
15

5. The Board, in conformity with this Code, may affirm or 

reverse or modify, wholly or partly, any order, requirement, 

decision or determination appealed, and may make such order as 

it finds to be proper, as if acting with all the powers of the officer 

from whom the appeal has been taken.

ZONING CODE, §923.02.B (emphasis added). 

Under authority of Section 923.02.B, Developer applied to the Zoning 

Board for, inter alia, a variance from the “permitted height of 128’ . . . and 60 feet 

(with LEED Bonus where residential compatib[ility] standards do apply)” to allow

for a height of 188.6 feet. Zoning Board Decision at 1; R.R. 181a. Plainly, the extent 

of the variance needed turned on the LEED height bonus and, thus, was within the 

Zoning Board’s jurisdiction to consider. At most (if at all), the fact the Zoning 

Administrator did not first determine Developer’s entitlement to a height bonus 

constituted an “irregularity” of the type that is waivable. Borough of Valley-Hi, 420 

A.2d at 17. 

In sum, the trial court had subject matter jurisdiction over the issue of 

the height bonus, and “any irregularity in those proceedings was waived by the 

[Intervenors] by their failure to raise an objection in a timely fashion.” Id.

Conclusion

We hold that the hotel’s height provided the base height for Developer’s 

proposed building under Section 925.07.D of the Zoning Code. We also hold that 

the trial court had subject matter jurisdiction over Developer’s assertion that it was 

entitled to a sustainability height bonus. This matter came before the Zoning Board 

as part of Developer’s variance application, over which the Zoning Board had 

subject matter jurisdiction under Section 922.09 of the Zoning Code. ZONING CODE, 

§922.09 (relating to variances). 
16

For these reasons, we affirm the trial court’s order of October 19, 2021.

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wexford Science and Technology, :

LLC : 

:

v. : No. 1316 C.D. 2021

: 

City of Pittsburgh Zoning Board :

of Adjustment :

:

Appeal of: Coltart Area Residents :

Association, Marjory Lake, Oakcliffe :

Community Organization, Mark Oleniacz, :

South Oakland Neighborhood Group and :

Elena Zaitsoff :

O R D E R

AND NOW, this 1

st day of August, 2022, the order of the Court of 

Common Pleas of Allegheny County dated October 19, 2021, in the above-captioned 

matter, is AFFIRMED.

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita