By Hannah Dean, Juris Staff Writer
Photo courtesy of Tyler Rutherford on Unsplash
The Builders Association of Metropolitan Pittsburgh (BAMP) recently filed an amended complaint challenging the expansion of Pittsburgh’s inclusionary zoning policy into a specific section of the Oakland neighborhood.[1] BAMP filed the original complaint against the City of Pittsburgh in federal court in May 2022, alleging that the city’s inclusionary zoning ordinance constituted a taking of developers’ property without compensation in violation of the Fifth Amendment.[2] It also alleged that the ordinance violated Pennsylvania law by imposing local restrictions on businesses in Pittsburgh.[3] The inclusionary zoning policy challenged in the original complaint requires that new residential developments of more than 20 units in the neighborhoods of Lawrenceville, Polish Hill, Bloomfield, and Oakland set aside 10 percent of those units for rent at a price affordable to those earning 50 percent of the Pittsburgh metropolitan area’s median income (AMI) or for sale at prices affordable to those earning 80 percent of the AMI.[4][5]
The amended complaint expands the original challenge to include a new zoning regulation that only applies to a five-block section of Fifth and Forbes Avenue in Pittsburgh’s university district.[6] The regulation establishes a district called the “Urban Center Employment (UC-E),” intended to “support life sciences, healthcare, and other industrial sectors that benefit from locating together and provide employment for a variety of workers and educational levels.”[7] It was adopted into Oakland’s zoning code as part of a lengthy zoning overhaul project for the neighborhood completed earlier this year.[8] The zoning code specifies that the UC-E’s priority is on employment over residential uses of developments in this area, and therefore it places strict restrictions on residential developments.[9] Any proposed development that includes residential use in the UC-E district must either be mixed-use and have residential housing in less than 50 percent of the Gross Floor Area of the structure or price 100 percent of the units at an affordable rate for low-income residents.[10] BAMP specifically challenges this policy in its amended complaint, alongside its broader challenge to inclusionary zoning.
BAMP, a trade organization founded in 1938 in response to concerns about government control of the housing industry, seeks to “promote homeownership and the improvement of the residential building industry in Western Pennsylvania.”[11] Its membership includes real estate developers, construction companies, and materials manufacturers.[12] In this lawsuit, BAMP argues generally that the inclusionary zoning requirements imposed by the City’s updated zoning code constitute a taking because they limit the potential development of the land affected.[13] The original complaint also claims that inclusionary zoning “shifts the burden to fund low and moderate-income housing from the general public to a select population, namely residential real estate developers.”[14] The amended complaint adds Dr. Randy Warrin, a dentist who owns four buildings on Fifth Avenue within the UC-E zone, as a new plaintiff.[15] BAMP contends that Dr. Warrin’s buildings are undevelopable under the UC-E zoning rules.[16] Dr. Warrin is also a BAMP member, which may help resolve standing issues for the organization as the case proceeds.[17] Before adding Dr. Warrin, BAMP did not have any members with planned development projects in the neighborhoods affected by the inclusionary zoning ordinance.[18]
Community organizations such as the Oakland Planning and Development Corporation disagree with BAMP’s characterization of the UC-E zoning regulation. Oakland Planning and Development Corporation interim director Andrea Boykowycz noted that the stakeholders involved in Oakland’s zoning overhaul intentionally sought to save space for commercial development in the UC-E district, with the motive to foster collaboration between the universities and hospitals and provide space for neighborhood-serving businesses.[19] She acknowledged the ongoing need for affordable housing in Oakland, among many other Pittsburgh neighborhoods, and noted that the UC-E regulation was designed to ensure that any housing constructed in this district would be accessible to employees hired by the institutions involved in the life sciences hub.[20]
[1] https://www.wesa.fm/development-transportation/2023-10-19/local-builders-group-expands-a-legal-challenge-to-pittsburgh-housing-policy.
[2] https://www.law360.com/articles/149264.
[3] Id.
[4] https://www.wesa.fm/development-transportation/2022-05-09/pittsburgh-affordable-housing-inclusionary-zoning.
[5] As of 2022, a family of four at 50% of the AMI earns $47,400 a year and $75,850 at 80% of the AMI. https://www.ura.org/media/W1siZiIsIjIwMjIvMDQvMjgvNWMzamtqbGlhM18yMDIyX0FNSV9TdW1tYXJ5LnBkZiJdXQ/2022%20AMI%20Summary.pdf.
[6] https://www.wesa.fm/development-transportation/2023-02-21/pittsburgh-city-council-prepares-to-make-final-changes-to-a-plan-to-rezone-oakland.
[7]https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances?nodeId=PIZOCO_TITNINEZOCO_ARTIIBAZODI_CH904MIUSZODI_904.09URCEEM.
[8] https://www.wesa.fm/development-transportation/2023-02-21/pittsburgh-city-council-prepares-to-make-final-changes-to-a-plan-to-rezone-oakland.
[9]https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances?nodeId=PIZOCO_TITNINEZOCO_ARTIIBAZODI_CH904MIUSZODI_904.09URCEEM.
[10] Id.
[11] https://pghhomebuilders.com/about/.
[12] https://pghhomebuilders.com/directory/.
[13]https://storage.courtlistener.com/recap/gov.uscourts.pawd.289533/gov.uscourts.pawd.289533.1.0.pdf.
[14] Id.
[15] https://www.wesa.fm/development-transportation/2023-10-19/local-builders-group-expands-a-legal-challenge-to-pittsburgh-housing-policy.
[16] Id.
[17] https://www.post-gazette.com/business/development/2023/10/18/bamp-pittsburgh-gainey-inclusionary-zoning-oakland-lawrenceville-bloomfield-polish-hill/stories/202310180131.
[18] https://www.law360.com/real-estate-authority/articles/1521191/pittsburgh-calls-builders-inclusionary-zoning-suit-unripe.
[19] https://www.wesa.fm/development-transportation/2023-10-19/local-builders-group-expands-a-legal-challenge-to-pittsburgh-housing-policy.
[20] Id.
