Pittsburgh developer Walnut Capital is asking the city’s zoning board to allow it to build a new apartment complex in Oakland without earmarking any units as affordable housing.
Oakland is one of several neighborhoods — along with Lawrenceville, Bloomfield and Polish Hill — where Pittsburgh’s inclusionary zoning ordinance mandates that developers set aside 10% of their housing units as affordable for low-income residents.
The policy has been controversial. Supporters argue it will ensure no one is priced out of desirable neighborhoods and force developers to create much-needed affordable housing. Detractors argue it can deter development altogether.
Jonathan Kamin, an attorney representing Walnut Capital, on Thursday asked the Pittsburgh Zoning Board of Adjustment to let an apartment complex now under construction in Oakland move ahead with zero affordable housing units. The city’s inclusionary zoning policy would mandate 16 affordable apartments in The Caroline at University Commons, a 159-unit building on McKee Place near UPMC Magee-Womens Hospital. Walnut Capital describes the development as “a student-friendly apartment community.”
If Kamin loses his plea with the zoning board, he’ll just pick up the matter again in federal court. Walnut Capital is part of the Builders Association of Metropolitan Pittsburgh. The organization in 2022 sued the city over its inclusionary zoning law, arguing it violates constitutional due process and Pittsburgh’s Home Rule Charter.
U.S. District Judge Robert J. Colville in November dismissed the lawsuit, saying the builder’s association had not received a final decision from the city on whether they could skirt inclusionary zoning rules, since they had not attempted to seek variances or exceptions.
Kamin told the zoning board Thursday that he was before them “to go ahead and to request a variance so we can essentially tick off that box.”
During his presentation, Kamin argued The Caroline should be except from inclusionary zoning because it is student housing. He suggested the city’s zoning code ought to treat student housing differently from other apartment buildings, though he acknowledged that wasn’t a change the zoning board has authority to make.
He also argued that inclusionary zoning hurts developers’ bottom lines, indicating that the project would lose over $4 million in equity if Walnut Capital couldn’t charge market rate for every unit.
Kamin questioned why the city’s inclusionary zoning rule requires that affordable units be available for people making no more than half of the area median income, rather than allowing some units to be designated as “workforce” housing, affordable to people making slightly more.
He said the developer was not opposed to affordable housing but felt the city did not have the authority to implement its inclusionary zoning mandate.
If the zoning board would approve the variance for Walnut Capital, Kamin acknowledged, other members of the Building Association of Metropolitan Pittsburgh would likely line up to ask for similar exceptions.
Dave Breingan, executive director of Lawrenceville United, raised concerns that if the zoning board allowed Walnut Capital to skirt the inclusionary zoning rules, it would undermine inclusionary zoning more broadly across other neighborhoods where such rules are in place.
“Their only purpose for being here today is to be deliberately denied so they can file a lawsuit in federal court,” Breingan told board members.
Breingan and Lawrenceville United have been staunch supporters of inclusionary zoning, backing an effort by former Mayor Ed Gainey to expand the policy citywide. Gainey’s push for a blanket inclusionary zoning rule was halted when City Councilwoman Erika Strassburger sponsored sweeping amendments that made inclusionary zoning voluntary, rather than mandatory. The measure is awaiting a vote from the planning commission.
The zoning board did not rule on Walnut Capital’s request Thursday. It gave Kamin — as well as detractors — two weeks to submit further written arguments. After that deadline, the board will have 45 days to render a decision.
Andrea Boykowycz is executive director of the Oakland Planning & Development Corp., an advocate for affordable housing. She said Walnut Capital undertook the Oakland project “with full knowledge” that it would be subject to inclusionary zoning requirements. She criticized the developer for moving ahead as though it would comply with the rule and then seeking an exception after construction was underway.
“They can absolutely make this project work without a variance,” she argued, a point that Kamin himself acknowledged.
Inclusionary zoning “just compels Walnut to offer a small percentage of the project’s units at prices their tenants might actually, theoretically be able to afford,” Boykowycz said.
