Friday, May 30, 2008

The Pat Ford Post Agenda Series, Part III: Who's Running Things?

Mr. Kraus: Who do you report to in the administration, I guess is what I'm asking? Who gives you direction? Who's your direct supervisor?

Ms. Ismail: It would be Pat Ford.

Mr. Kraus: Pat Ford would be your direct supervisor.

Bruce Kraus paused as though he did not expect to actually hear it.

But Pat Ford is not a City employee?

Ms. Ismail: Yes.

Mr. Kraus: He is the director of the URA?

Ms. Ismail: Correct.

Mr. Kraus: Do you know who was giving the planning department direction at the time the LED sign negotiations were taking place?

Ms. Ismail: I was not involved in the discussion.

Mr. Kraus: Ms. Tymoczko, I'm going to ask you some question about your chain of command as well. Do you answer to the mayor's staff directly?

Ms. Tymoczko: Well, I believe the zoning administrator does answer to the mayor.

Mr. Kraus: Being that Ms. Ismail said that she answers directly to Pat Ford and the URA as opposed to someone directly in the administration, would you say then that you too as well answer to Pat Ford and not someone in the administration?

Ms. Tymoczko: Yes, I would agree.

Mr. Kraus: Do you find that to be unusual?

Ms. Tymoczko: Not necessarily...


The Comet is not convinced that it is somehow illegal or impossible for a Mayor to appoint a figure like this -- a close confidant who is highly involved in at least three city authorities -- to a position of strategic command over the long-term agenda of city departments like City Planning. That may be a kosher practice.

Yet to do so while cutting the actual department head so far out of the loop it seems like she is not even allowed to know about certain things -- that reveals a lack of confidence in Ms. Ismail (for one thing). Certainly in comparison to Ms. Tymoczko.


Mr. Kraus: In 2004 there was a negative recommendation from the planning commission for similar signage at the same location. Are you familiar with that decision?

Ms. Tymoczko: No; I am not.

Mr. Kraus: I have it here somewhere. This comes from the Department of City Planning, and it says, "A review of the Grant Street Transportation Center." It's from the Design Review Committee...

There is all kinds of confusion over what the review ought to mean to anybody.

It has been alleged that City Planning never issued an actual negative recommendation -- it simply warned of a negative recommendation if changes were not made to the development plan.

Changes that included the removal of the LED sign. Changes that were made.

Mr. Kraus: Knowing the normal process and that there was a previous negative recommendation from the planning department, why as the zoning administrator did you agree to approve the sign without going through the proper process?

Ms. Tymoczko: Again, I believe it was a separate issue from anything to do with the building itself. I wasn't involved with the review of the building at that time and the design review committee. I believed the application for a sign was a separate issue.

And even had I been aware of that, I don't believe it would have -- it would not have changed my interpretation.

Even if she knew that specific history, she would not have changed her opinion about the "minor" nature of the alterations being proposed.

Hey. New mayors, new administration.

Tymoczko felt inclined to allow Lamar to put the sign up. Since the rules about making "minor" changes were vague, and she had an ostensible reason for disregarding the applicable case history, she felt empowered to approve the sign permit all by herself, without any public hearings or public votes.

So she did.

The Mayor was acting through his agents to institute a strategic, long-term agenda to find ways to put up new advertising signs in the City of Pittsburgh -- both to demonstrate that we are "open for business" and to display some "cool new technology" -- and to enforce the basis of a Memorandum of Understanding between Lamar Advertising and someone involved with the City of Pittsburgh.


Mr. Kraus: We are stewards of the public purse, and I never take that lightly, and I am afraid that this will possibly then go to the courts to hear, and I would have liked to have seen something like that been avoided at the cost of the taxpayer had we just been a little bit more prudent in laying the foundation for this. I find it to be highly irresponsible on someone's part that a legal opinion was not sought before permits were issued and licenses were signed.

Mr. Motznik: If you guys would just let Pat come to the table.

Reverend Burgess: Mr. Motznik, we are going to follow this form. I do hear you. I understand your interest, and I understand that you perhaps--

Mr. Motznik: Is there actually a councilmember who didn't want Pat to come to the table at its first round?

Reverend Burgess: At this time -- yes, at this time, yes.

Mr. Motznik: Who was that? Can I ask, Mr. Chair?

Reverend Burgess: We will talk about it during the break. Right now Mr. Kraus has the floor. Let him finish his line of questions. You are out of order. I'm sorry.

Mr. Kraus: I'm also increasingly concerned about the amount of time always being questioned that we spend at this table. This is the job we do. We are charged to represent the people of the City of Pittsburgh. I don't find it difficult to spend time to do the job in which I was elected to do.

Mr. Motznik: But we have someone who can answer you question sitting in the audience. You are wasting our time. He can answer your questions. Bring him to the table! [This was real yelling.]

Reverend Burgess: Gentlemen, point of order. This process may be -- this process was decided upon to try to eliminate any [pauses, makes disgusted face] adversarial activity. What I would like to do is Mr. Kraus will finish, then Mr. Dowd.

So when Bruce Kraus objected that the Law Department ought to have been consulted at some earlier point, Jim Motznik erupted to suggest that Pat Ford can explain why that was not necessary or desirable.

Thursday, May 29, 2008

The Pat Ford Post Agenda Series, Part II: The Problems Surrounding Mr. Specter

Weeks after the post agenda, Solicitor Specter would unravel the history of these LED approvals, in the form of a legal opinion that arrived too late to do the city much good.

In that opinion, he agreed that although for roughly three years, zoning administrators like Ms. Tymoczko had occasionally been approving these signs for Lamar under similar circumstances to the one being discussed...

Nevertheless, we have concluded further that the practice was not in accord with applicable provisions of the Zoning Code ... and should be terminated prospectively.

"Should be terminated prospectively" is somewhat redundant. It means, don't do this anymore. On what to do about the Grant Street Transportation Center, Specter was, and remains, silent.

Further down:

Lamar's legal position was that they were entitled to administrative approvals without any public process for the reason that under Pennsylvania law they were entitled to modernize non-conforming signs. I did not agree then, and do not now, that elimination of non-conforming constitutes a basis for erection of new LEDs. There was not then nor now anything in the Code or decisional court precedent in support of that theory.

Specter opined then (and reaffirms now) that LEDs are not an "improved" form of billboard -- they are a different animal. Nonetheless, Lamar in 2003 threatened to sue for the right to "modernize" at least 56 existing billboards -- or later, possibly 100.

Apparently, former Mayor Murphy was afraid of the lawsuit. For some reason.

So a deal emerged to allow Lamar to put up six new LED signs, in exchange for taking down 36 existing standard billboards.

(What did Lamar get out of the deal, if it was their position that they were entitled to 56 new LEDs? Presumably, the right not to have to deal with pain-in-the-ass public hearings, public decision making, and unreliably public officials. To exempt themselves from the law.)

Oh, and yes. The deal was negotiated by Pat Ford, as Zoning Administrator under Murphy. So we see a lot of the same faces.


The agreement was consummated in a document called a "Memorandum of Understanding" between Lamar Advertising and the City of Pittsburgh.

It looks something akin to an official document:

3. The Parties agree that the City's issuance of said Permits will not have a precedential effect on any future applications which Lamar may file with the City for the erection of LED billboard faces within the City.

So even by the terms contained within this agreement that supposedly trumps city law -- this is not supposed to justify doing something like it again in the future.

4. Lamar and City also agree that any future applications involving the erection of an LED billboard face will be evaluated on a case by case basis with the Zoning Administrator. Each Party recognizes that the erection of subsequent LED faces with be a negotiated process which will be negotiated between Lamar and the City.

"A negotiated process which will be negotiated." Who wrote this?

Moreover, what can that mean? That the City reserves for itself the right to circumvent the law again, if it wants to in the future?

There are lines for signatures for Lamar Advertising Company and for the City of Pittsburgh. The Comet would be interested to know who, if anyone, actually signed this "Memorandum of Understanding" representing the City.

Specter writes of it now:

The Memorandum was not acceptable to me, and by e-mail of November 20, 2003, I advised mr. Ford that I had serious problems with it. A copy of that e-mail is attached hereto as Exhibit B. Without reviewing the Memorandum at length in this letter, I did not believe it was consistent with the Code, or that anyone had the authority to sign it.

Of course, Specter's knowledge and misgivings about Ford's soon-to-be-landmark sign deal would not come out during our Pat Ford Post Agenda. That had to come later.


Back to the post agenda itself, it was Doug Shields' turn when we left off, remember?

During his questions, we learned yet again, and more fully, about how Planning Director Noor Ismail was entirely out of the loop. We learned again that the city Law Department was never officially consulted. We learned again that many of Zoning Administrator Susan Tymoczko's answers seemed either to contravene plain English, or to relate in some murky way to the agreement outlined in this "Memorandum of Understanding".

The subject turned to the genesis of the deal for the Grant Street Transportation Center itself.

Mr. Shields: Does anybody in front of us right now know who negotiated on behalf of the city [with the Parking Authority and with Lamar] in that regard? Nobody knows?

Oddly, there was silence.

Ms. Noor, would it be your responsibility as director of planning to be involved in the negotiations such as that, or would you expect the planning department to be consulted throughout those negotiations in any way?

Ms. Ismail: Most certainly yes, but I have stated that I was not part of that negotiations.

Fair enough.


Mr. Shields: In going to Mr. Specter, I did request from your office a legal opinion, and I am not in receipt of it yet. Is your office conducting a review pursuant to the request from my office?

Mr. Specter: Let me say I did not see your request until some time yesterday morning. And quite frankly, it's a good thing that I didn't rush to get it out, because I have learned more about the whole background since that time.


Mr Shields: It is unfortunate that we don't have that, because it makes this discussion all the more difficult, and I do expect someone to have a legal opinion in the hands of council by the end of this week, I really do.

Mr. Specter: That's not going to happen, Mr. Shields.

Mr. Shields: All right. When will we want to see that?

Mr. Specter: I think in response to Councilman Dowd, I said a couple of weeks. Let me say this.

Mr. Motznik [interrupting]: Take your time so you can get it right.

Mr. Specter: I have got it right. Oh, you mean the opinion?

Mr. Motznik: Yes.

[What did Specter think Motznik was talking about? Getting the story straight?]

Mr. Specter: Absolutely. You sent me that request late Monday afternoon. I did not see it until some time between nine and ten o'clcok yesterday morning. It would have been a horrendous mistake, maybe almost bordering on malpractice, I wouldn't go that far, for me to have set down, rushed out an opinion in six hours because you asked for it at the end of the business day.

Good thing he pulled short of calling it "malpractice", because...

Mr. Shields: That's interesting, and I hate to do this to you, George, because I got you, because that's exactly what happened when the first vehicle contract review was done...

So the Law Department has proven itself capable of performing with much greater speed -- an unseemly overabundance of speed, at times -- when it is duly motivated to speak to a subject.

Shields asked just one more time just when this particular legal opinion would be ready, in light of the fact that Council really, really wants to be advised of it quickly.

Mr. Specter: I would say a couple of weeks.

Mr. Shields: [Pauses, and then dryly:] Two weeks?

Mr. Specter: [Hesitates] The only reason I'm hesitating on that one, I'm certainly going to do my absolute positive best, but I'm going to be away for about four or five days...

... but I'm still going to try to do it within that time frame.

Mr. Shields: Well, I would hope that we hurry it up. We need it sooner than two weeks. It is a matter of great importance to this council. We would not be here otherwise.

No one can say Doug Shields didn't try to go through the city's own legal department. No one can say he didn't try to do it the easy way.


So our City Solicitor showed up to the post agenda anxious to definitively refute three of the stated concerns about the sign permit -- but to be absolutely silent on other obvious concerns, to decline to discuss his own rather extensive knowledge of these Lamar LED deals, and to refuse to come forward with a legal opinion in a remotely timely or useful manner, even considering that personal experience.

Not an encouraging performance.

Why the pressing need for a legal opinion, anyway? Let us jump abruptly to Councilman Dowd, who eventually put that question best:

Mr. Dowd: Mine is merely a procedural question. So if someone were to file an appeal against the permit that was issued, they would have thirty days from some point. We could debate that point, but they would have thirty days from some point. That is one thing. So if this decision that you should render that council does, in fact, have an administrative / adjudicative function in the conditional use question of this particular sign, where then are we, especially if that decision is rendered, you know, some number of days past that thirty day frame of time?

[Specter's legal opinion, due in two weeks plus maybe a four or five days worth of vacation, would fall just outside of what most observers believed to be outside the 30 days.]

Where are we as a body and as a government? Are we exposed in any way? I mean, what will happen at that point? What could happen? Nothing? Anything?


Mr. Specter: Well, maybe everything.

That would turn out to be correct.

Wednesday, May 28, 2008

The Pat Ford Post Agenda Series, Part I: Introductions, Legalese and Anticipation

"Can I ask the chairman why Pat Ford is not at the table?", interrupted Jim Motznik.

The special meeting, or "post-agenda" session of City Council on the whole Lamar billboard issue, had just gotten underway.

The chairman of the Planning, Zoning and Land Use committee, Ricky Burgess, had given a little preamble. Bill Peduto had been granted the first turn at questions, which would be rotated from right to left. The first group of city officials were brought to the table and introduced for the record.

Peduto was just getting into his questions ... did the mayor talk to you about it, no, did Pat Ford talk to you about it, yes ... and the gentleman from Beechview decided this would be a good time to interrupt.

So why was Pat Ford not at the table?

Chairman Burgess responded like C-3P0:

"Because at this point, these were the three names that had unanimous consent by members of council. At this point that's why these three are at the table."

"I think that later after these three are discussed, I think Pat Ford will have an opportunity to come to the table."

This would happen a few more times during Act I of the Post Agenda. Right now, complaints about Pat Ford's absence were only fueling the drama of his entrance.

In the meanwhile, we had to make do with Susan Tymoczko, the Zoning Administrator who approved the permits without votes or hearings; Noor Ismail, the Director of City Planning who is Tymoczko's boss; and George Specter, City Solicitor (the city's lead attorney).


Bill Peduto had six or seven different problems with the process:

921.02.A.1 -- A nonconforming use may not be enlarged, expanded, or extended.
921.02.A.3 -- A nonconforming use shall not be moved.
919.02.N -- Nonconforming advertising signs shall not be moved
922.10.B -- Alterations to buildings from the approved development plan in excess of $50,000 shall have to go through the re-approval process.

Zoning Administrator Susan Tymoczko easily dispensed with these several concerns. No existing sign or "use" was being made bigger. No existing use or sign or "use" was to move. This was a new sign, on a new building.

So this was not even an alteration to an existing building.

Thus 922.10.B begat 922.10.F:

The procedure for amending an approved Project Development Plan shall be the same as required for a new plan under this section, provided that the Zoning Administrator may approve minor amendments to approved Project Development Plans without the refiling of a new application. Nothing shall preclude the Zoning Administrator from approving minor amendments.

The addition of the sign was considered by Tymoczko to be a minor amendment, despite its great size -- and brilliance.

910.01.D.2 also got them into trouble:

Electronic Sign Messages shall be permitted as a Conditional Use in the [Golden Triangle District] in accordance with the following standards:

(1) The top of the sign shall not extend more than thirty (30) feet above grade and shall not exceed more than five hundred (500) square feet in sign face area;

(2) All spacing provisions relative to Advertising Signs (Chapter 919) are met;

These were bad enough. It says that these kind of signs shall be permitted as Conditional Uses. That means they can only go up after they are submitted to the Planning Commission and the Zoning Board for public hearings for approval -- and to Council if it wants to get involved.

In other words, people get to bitch. That really is going to be the moral of the story.


Susan Tymoczko said she considered the Lamar LED to be not an electronic message sign that would need to go before the Planning Commission because it was not used for the same purposes as previous Downtown electronic message signs -- building identification, artwork and convenience information like time and temperature. This was an advertising sign.

Electronic advertising signs were as yet free to be considered separate and different, she said.

Bill Peduto was taken aback.

He said he found it "very interesting to note" that the Commonwealth Court of Pennsylvania seemed to have very recently disagreed with this definition of an electronic sign, in a case just concluded in Monroeville.

Tymoczko was quick to point out that the timing was a coincidence.

Curiously, that is what set Bill Peduto off.

Mr. Peduto: Here is where it's not a coincidence. When you spend tens of thousands or hundreds of thousands of dollars on attorneys to find out that you lose because your definition is wrong before the Commonwealth Court of Pennsylvania, and then you go to the City of Pittsburgh the next day and file an application and try to do the same thing all over again.

Mr. Motznik: I don't think Ms. Tymoczko is representing Lamar here. You don't have to answer questions on Mr. Lamar's behalf.

Reverend Burgess: First of all, Point of Order, I think that I do hear, you and the people who are testifying feel free to answer questions that deal with their own knowledge of the issue. she does not know Lamar's intent. I agree with you on that. She can only state what she knows and her experience. I think the point is well taken.

Score two for Jim Motznik.

Mr. Peduto: I agree too. I just didn't think that it's incidental when you lose in Commonwealth Court you know you lost.

Mr. Motznik: I agree. The first three times you said it I've agreed, and I'm sure she has too.

That was only Peduto's second iteration of the subject.

Reverend Burgess: You just want to move on?

Mr. Motznik: That would be nice.

Touchy about the subject.


Peduto had a handful of other gripes. Tymockzo dealt with them. Peduto asked the Planning Director, Noor Ismail, if she knew anything about this situation. Ismail said vaguely that she knew very little, and only from passing conversations. Peduto asked City Solicitor George Specter if he knew anything about what was going on.

Specter said he "heard about the proposal", was not asked for a legal opinion -- and then,

As to these various sections to which you've been referring, I would have to agree with Ms. Tymoczko as the two or three sections relating to nonconformity and moving that they are not applicable in this situation, based upon my knowledge of the facts.

Bill asked him if he meant the sign would not be declared an electronic sign, regardless of the case from Monroeville.

Mr. Specter: No; I didn't say that.

Mr. Peduto: If it is [an electronic sign], then it requires a whole bunch of review.

Mr. Specter: I think the whole story and the background of how this sign came to be there or the approval is going to be unfolding as this hearing goes on. It has a long history going back a number of years as to this policy under three separate mayors and apparently five or six past zoning administrators and, quite frankly, I wasn't aware of some of those positions or decisions, but it has a history...

... and, quite frankly, I'm still trying to unravel most of it.

LOL. "Most of it."

But to answer your specific question...

There was no such specific question, but Specter wanted to make these two points:

I don't think the three to which you referred are applicable here, and I was not asked for an opinion.

Mr. Peduto: There are, just for the record, five sections of the zoning code which are in question. Thank you. That's all I have at this point.

Reverend Burgess: Thank you, Mr. Peduto. Mr. Shields.

That was pretty much all we heard from Bill Peduto at the post agenda. Some of his questions were inelegantly phrased, he lost his cool a bit with some of the answers he was getting, and he got thrown off by Motznik.

Yet by calling for an official investigation with sworn testimony, and gaining significant support for it, he earned the right to stage this rodeo. You can't take that away from him. Council was asking questions, and administration officials were providing answers of a sort.

Those answers would tell a story -- a story the city's lead attorney did not feel comfortable getting into at that time.

Tuesday, May 27, 2008

Bannergate: Pittsburgh's Great Tragedy

From KDKA Radio:

Fred Honsberger: Could city council have passed a resolution overruling the zoning ordinance in this case?

Doug Shields: No, you can't pass a resolution vacating a law. It's as simple as that. And we even looked at ways to amend the zoning code, but unfortunately under the zoning code amendments you have to refer it to Planning Commission and it has to be a public hearing.

FH: Who would have enforced this law? Who would have enforced this law?

DS: Well, presumably the city itself.

FH: So the city could have done it and just not enforced it.

DS: Well, throw that into the context with the Lamar sign and all of a sudden you're opening up another can of worms with a private company.

FH: You know, Councilman...

DS: I'm giving you the laws of the land here, I'm not a king here.

Shields went on to describe some of the ways the city might have gotten it done anyway -- some he talked about, some he didn't -- before the news leaked, and the administration pulled its end of the plug on the operation.

You might also have noted during that interview that Honsberger is of the opinion that our failure to tack up those banners was a TOTAL EMBARRASSMENT that made us the LAUGHINGSTOCK OF THE ENTIRE NATION as some kind of a BACKWARDS HICK TOWN.

In fact, he felt compelled to invoke the clip from the movie Network: I want you to get up out of your chairs and say, "I'M MAD AS HELL, AND I'M NOT GOING TO TO TAKE IT ANYMORE!"

We have not heard Pittsburgh's talk radio personalities so outraged at government since -- well, since Lemieux and Burkle kicked the tires on the Sprint Center in Kansas City one weekend, upon which we were all instructed to TELL THOSE LAZY POLITICIANS TO DO WHATEVER IT TAKES TO KEEP THE PENGUINS IN TOWN -- WHATEVER IT TAKES!!!

What sounds to you like more of an embarrassment? And what sounds more like civic pride?

Reacting in a mass hysterical panic to anything having to do with sports, forcing our politicians to drop all other city business, forgoing all serious financial and legal considerations, so that they can publicly out-sportsfan each other for us?

Or having our civic leaders calmly explain to us that they did everything they legitimately could, and that although so-and-so might have been fun, there is just no legally or financially justifiable way of making something happen?

So far as we could tell, Kevin Miller was interested solely in the back-and-forth political finger pointing. Not the hardest news in the world, but valuable at least in that he was fact-checking claims being made by public officials.

With their hysterical, over-the-top garment-rending over the loss of the banners itself, Marty Griffin and Fred Honsberger contributed directly to the stereotypically Pittsburgh civic embarrassment that was Bannergate -- in fact, they were its chief architects.