An unusual legal challenge is shaping up in the Indiana County Court of Common Pleas.
Indiana Borough council has asked the court to allow the borough to intervene in and participate in a hearing on an appeal from a group of property owners opposed to a decision made by the Indiana Borough Planning Commission. The twist is that the borough wants to side with the property owners.
Members of the borough’s planning commission are appointed by council, and several years ago council delegated to the commission’s five members the authority to approve or disapprove certain land use projects. The two bodies do not always agree on some elements of development projects.
Following a hearing before Indiana County Judge Thomas Bianco on Monday, Indiana Borough Manager Bill Sutton and council President Nancy Jones said a majority of council members feel the planning commission acted contrary to the borough’s zoning ordinance in May when the commission granted final approval for a controversial high-density student housing project at 931 Oakland Ave.
B&L Properties, of Pennsburg, proposes to tear down the bed-and-breakfast at that address and build in its place a two-building complex that will accommodate 64 Indiana University of Pennsylvania students.
Since early spring, neighboring property owners have been attending planning commission and council meetings, arguing that the proposed student housing project deviates substantially from allowable design standards. Those in opposition contend the two connected four-story B&L buildings will not be appropriate for the Oakland Avenue site and that the dozens of tenants living there will cause traffic and parking congestion for nearby residents and in other ways will be detrimental to the safety, welfare and rational development of the neighborhood.
In July, neighboring property owners Deborah Ames, George and Joanne Stewart, David Moore and Carl Bish filed an appeal and asked the court to reverse the planning commission’s approval of the project. In their appeal the neighboring property owners also contended that borough council never granted to the planning commission the jurisdiction to interpret, apply, disregard or modify the provisions of the borough’s zoning ordinance or authority to grant zoning variances.
Among their objections, the appellants contend the proposed B&L buildings do not meet the requirements for fronting toward public streets; do not meet some required setback distances; provide no entrances for the disabled; and do not have faade offsets to break up the appearance of the monolithic buildings into small components.
Over the summer there were indications from some council members that they, too, had reservations about the Oakland Avenue housing project specifically and generally about the ordinance the project was designed under, the traditional neighborhood development overlay zone.
The TND overlay was enacted in 2006 with incentives for developers to build high-density housing projects close to the IUP campus. The idea was to attract students back to the area immediately around the university and away from off-campus rental units scattered throughout every residential neighborhood in the borough.
But the plan was flawed, in the opinions of some council members, because the TND overlay ordinance allowed high-density structures to be built in some R-2 residential zones near the campus, and that triggered some conflicts between the concentrations of students living in the new structures and their neighbors, who want a return to traditional residential settings of single-family dwellings.
Council in April placed a moratorium on future high-density student housing projects under the TND while the overlay zone ordinance was evaluated, and then on July 2 council repealed the TND ordinance.
Council further signaled its disagreement with the planning commission’s ruling when a majority of council, on July 29, hired Neva Stanger, of Cranberry Township, to represent the borough as a special land use attorney during the appeal.
Jones said Monday that hiring an outside attorney for the appeal was necessary to avoid a conflict of interest since the borough’s solicitor, Wayne Kablack, initially took steps on behalf of the planning commission to respond to the property owners’ appeal. The planning commission does not have its own solicitor and does not have a budget to hire legal counsel.
Jones said that because the majority of council does not agree with the planning commission’s approval of the housing project plans, council would not pay for the legal representation to defend it.
Jones also said it’s possible that council will make provisions in the borough’s 2014 budget for a full-time planning director and that council may take steps to reclaim for itself the authority to make final decisions on major land development projects.
Jeff Grim, the planning commission’s chairman, said Monday the commission was “operating under the rules that existed” when it approved the plans for the Oakland Avenue housing project. And, he added, the commission members were challenged in reaching a decision because of the very limited staff assistance from the borough.
Grim said it’s his opinion Indiana needs a professional planning staff because of the borough’s complicated zoning ordinance and the large size of development projects being undertaken in the borough.
B&L labeled the appeal “frivolous” and noted the neighboring property owners who filed it are landlords in the student rental business, too. The B&L attorneys contended the appeal was filed “to curtail competition.”
B&L’s plan is to have the proposed housing project ready for occupancy by the fall 2014 semester, and over the summer the developer asked the court to require the appellants to post a bond to cover additional construction costs if the work was delayed by the appeal and pushed into the winter. The bond request has been withdrawn.
Judge Bianco said Monday he would rule quickly on borough council’s request to intervene in the appeal hearing.
No court date for the hearing has been set.