PITTSBURGH – The City of Pittsburgh’s Zoning Board of Adjustment and one of its members have denied allegations they had a conflict of interest which caused a real estate development group to incur seven-figure losses.
East Ohio Capital, LLC first filed suit in the U.S. District Court for the Western District of Pennsylvania on April 25 versus the City of Pittsburgh Zoning Board of Adjustment and LeShawn M. Burton-Faulk. All parties are of Pittsburgh.
“In 2017, plaintiff began plans to develop combined residential and commercial real estate located at 404, 406, and 408-410 East Ohio Street, Pittsburgh, PA 15212, owned by plaintiff’s partner at that time, Northside Leadership Conference. The plan involved incorporating a six-foot strip of land from the rear adjoining property, 706 Cedar Ave., Pittsburgh, PA 15212, owned by plaintiff, into the properties located at 404-410 East Ohio at rear egress, which would require a planning commission hearing to change the lots and a zoning variance meeting to seek relief for a number of variances. A hearing was scheduled for May 17, 2018 with the City of Pittsburgh Planning Commission seeking to redraw the property lot lines and seek the necessary variances of the aforementioned properties,” the suit said.
“Defendant LeShawn M. Burton-Faulk was a member of the three-member Zoning Board panel which heard and allowed the request for redraw and variances. At that time, Ms. Burton-Faulk was also a member of the NSLC Board of Directors. Two residents of the neighborhood where the properties were located, Stephen Pascal and Chris Gates, attended the hearing and objected to the redraw and variances. After submission of written proposed findings of fact and conclusions of law, the Zoning Board issued its final decision granting the redraw and variances on Aug. 23, 2018. Thereafter, Pascal and Gates initiated a lawsuit against the Zoning Board to prevent the property lot line redraw and variances raising in the course of litigation an issue of conflict of interest of Ms. Burton-Faulk for sitting on the Zoning Board panel which granted the variances while simultaneously sitting on the Board of Directors for NSLC, for whom the variance was awarded.”
The suit added that in Pascal v. City of Pittsburgh Zoning Board of Adjustment, the Supreme Court of Pennsylvania “agreed with Pascal and Gates’s contention of conflict of interest, citing clearly established law that ‘a governmental body charged with decision-making authority [is required] to avoid even the appearance of possible impropriety, and that no actual harm caused by the conflict need be established.”
“In holding for Pascal and Gates, the Court in Pascal explained that ‘[Burton-Faulk’s] participation in ruling on the property of zoning application brought by an organization on whose board she sat at all relevant times, so clearly and obviously endangered the appearance of neutrality that her recusal was required under sell-settled due process principles that disallow a person to be judge of his or her own case or to try a matter in which he or she has an interest in the outcome.’ The Court in Pascal reversed in part and remanded for a new hearing on NSLC’s zoning application before a newly constituted panel of the Zoning Board without conflict. The Zoning Board has yet to set schedule a new hearing as ordered by the Supreme Court of Pennsylvania,” the suit stated.
“There is no support at law requiring the objectors of an original hearing of a Zoning Board to consent to or express an intention to object to a new hearing that has been ordered by a court of appeals before the new hearing may be scheduled. Such a requirement would amount to some kind of preemptory objection to a proceeding that has not yet happened. East Ohio Capital no longer has any partners in the development project and owns 100% of the above-mentioned properties and bears 100% of the losses resulting from the project. The conduct of defendant Burton-Faulk in failing to recuse herself from the Zoning Board hearing on the zoning application from NSLC unjustifiably harmed plaintiff East Ohio Capital. The conduct of defendant Zoning Board in failing to have a process to rehear the zoning application of NSLC, in compliance with the order from the Supreme Court of Pennsylvania, unjustifiably harmed plaintiff East Ohio Capital.”
The suit continued that as a result of defendant Burton-Faulk’s failure to recuse herself and defendant Zoning Board’s failure to have a process to rehear the NSLC zoning application, the plaintiff has suffered total losses exceeding $1,055,297, consisting of the following and which continue to accrue:
• Monetary losses of $130,277;
• Depreciation of real estate value of $466,000;
• Lost revenues of $459,000;
• Legal expenses of more than $20,000.
UPDATE
On July 19, the defendants filed a motion to dismiss the case for failure to state a claim upon which relief could be granted.
“Plaintiff commenced this action by the filing of a complaint on April 25, 2023, alleging a due process violation. In this action, plaintiff alleges that City of Pittsburgh Zoning Board of Adjustment member LeShawn Burton-Faulk’s failure to recuse herself from the May 17, 2018 hearing violated plaintiff’s constitutional right to due process. Plaintiff’s complaint should be dismissed with prejudice because it is untimely and was not filed within the statute of limitations,” the dismissal motion stated.
“Plaintiff’s complaint should be dismissed with prejudice because plaintiff alleges only Fifth Amendment due process claims that apply only to federal officials. Ms. Burton-Faulk is not a federal official. Plaintiff’s claim is not ripe for federal court, as plaintiff has failed to exhaust all other judicial remedies, Plaintiff incorrectly relies on a ruling from the Supreme Court of Pennsylvania. Lastly, plaintiff failed to state a claim for a due process violation, as the required burden was not met.”
For a count of violating the plaintiff’s due process rights through 42 U.S.C. Section 1983 and the Fifth Amendment to the U.S. Constitution, the plaintiff is seeking unspecified damages and such further and other relief as this Court may deem proper.
The plaintiff is represented by Gregory H. Teufel and Robert Cowburn of OGC Law, in Pittsburgh.
The defendants are represented by Hillary Weaver, Julie E. Koren and Krysia Kubiak, of the City of Pittsburgh’s Law Department.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-00681
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com