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Local builders group expands a legal challenge to Pittsburgh housing policy

The University of Pittsburgh's "Towers" dormitories at the school's Oakland campus.
Katie Blackley
90.5 WESA
At issue is a regulation that aims to limit housing in the heart of Oakland and leave room for a life sciences hub, instead.

The Builders Association of Metropolitan Pittsburgh has widened a court challenge to city laws that require some new developments to include affordable housing for lower-income residents. The association filed a revised complaint in federal court this month, adding to its grievances the expansion of Pittsburgh’s inclusionary zoning policy, or IZ, into Oakland.

At issue is a new zoning regulation that applies in just one part of the city’s university district: the “Urban Center Employment” or UC-E. It’s a roughly five-block run of Fifth and Forbes Avenues that stretches from Carlow University and UPMC Magee-Womens Hospital to the University of Pittsbugh’s Litchfield Towers. If any new development within that district consists of more than 50 percent housing, the code requires that each and every housing unit be priced at a rate that is affordable to lower-income residents.

That is a much more stringent requirement than is found in other parts of Oakland, or in other city neighborhoods with IZ. Oakland is the fourth city neighborhood to be covered by the policy, which generally requires new housing developments with over 20 units to set aside 10 percent of them for people with lower incomes.

The Builders Association sued over that requirement last year. “It’s an ordinance that mandates subsidized housing and puts the burden of financing that subsidized housing from a traditional government support to purely on the private sector,” said Jim Eichenlaub, the association’s executive director.

But Eichenlaub said “the city doubled down” with the IZ expansion to Oakland, particularly in the Fifth/Forbes district. And he said its requirements harm the case’s newest plaintiff, Dr. Randy Werrin, who owns four buildings on Fifth Avenue that the association says have been rendered undevelopable by the new rules.

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In a statement issued by the Builders Association, Werrin said regulations should benefit the city and its residents. “But when ordinances act as barriers, blocking the economic benefit for landowners and hindering the growth of affordable housing options, it's evident that there's an overreach.”

When city officials approved an overhaul of Oakland’s zoning early this year, they preserved or enhanced the ability to develop many types of housing with few restrictions in much of the neighborhood. But the zoning code explicitly seeks to discourage residential development in the Fifth/Forbes district, stating that in that area, “the priority is on employment.”

That’s because city officials and institutions were keen to see changes and growth in the state’s third-largest commercial center, after Philadelphia and Downtown Pittsburgh.

In 2017, a Brookings report found Pittsburgh was well-poised to capitalize on an “innovation economy,” and suggested creating geographic clusters in fields such as advanced manufacturing and life sciences. Andrea Boykowycz, interim director of the Oakland Planning and Development Corporation, said officials wanted to follow that guidance by establishing a life-sciences hub on Fifth and Forbes.

“That can leverage the talent from the universities to supply innovative solutions for the hospitals,” she said.

The market for new development in Oakland is primarily residential, Boykowycz stressed, but it’s important to save space for commercial development.

“If you let all of Fifth and Forbes get eaten up with residential development, you don’t have any space for there to be this kind of cross-fertilization area where the talent from the universities can mix with new entrepreneurship to create innovative solutions,” she said.

She added that Oakland, like many neighborhoods in Pittsburgh, is in dire need of affordable housing. So if housing is built in the middle of the hospital and university district, she argued, it should be accessible to employees at those institutions who earn low and moderate incomes.

“It’s hugely important, if we don’t want to become a whole city of commuters, that there be room for those people and their families to live in Oakland,” she said.

None of that seems likely to impress the Builders Association, which has a history of challenging city housing policies – although inclusionary zoning regulations in other cities have survived similar challenges.

The Builders Association's original complaint argues that affordable-housing requirements violate local and state laws, as well as the U.S. Constitution, which says “private property [shall not] be taken for public use without just compensation.”

That language often governs the use of eminent domain, in which land itself is purchased by the government for some other use. But the association argues that the city’s affordable-housing requirements are themselves “a taking,” because they limit the development potential of the land, and endanger potential resale prospects, even if they don’t seize it outright.

Maria Montaño, press secretary for Mayor Ed Gainey, said the administration believes they “are on firm legal ground when it comes to our ability to use inclusionary zoning to provide affordable housing to the city of Pittsburgh.”

The case is still proceeding through federal court.