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John J. Turchi, Jr. and Mary E. Turchi v. Philadelphia Board of License and Inspection Review and Concerned

April 18, 2011

JOHN J. TURCHI, JR. AND MARY E. TURCHI, APPELLANTS
v.
PHILADELPHIA BOARD OF LICENSE AND INSPECTION REVIEW AND CONCERNED CITIZENS IN OPPOSITION TO THE DILWORTH DEVELOPMENT



The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Argued: February 8, 2011

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE COHN JUBELIRER

John J. Turchi, Jr. and Mary E. Turchi (Landowners) appeal from the May 19, 2010, Order of the Court of Common Pleas of Philadelphia County (trial court) affirming the November 9, 2008, decision of the Philadelphia Board of License and Inspection Review (Board) that reversed the November 19, 2007, decision of the Philadelphia Historical Commission (Historical Commission) approving a permit for the renovation and development of a historically designated building, the Dilworth House, located at 223-25 South Sixth Street within the City of Philadelphia's (City) Society Hill Historic District (the Project). Based on its interpretation of the Historic Preservation Ordinance, Philadelphia Code (Code) §§ 14-2007(1)-(10), the Historical Commission approved the Project and concluded that: (1) the renovations proposed in the Project were not a "demolition in significant part" and, therefore, the Project was an "alteration"*fn1 and not a "demolition"*fn2 under Section 2(f) (Minutes of Meeting of the Historical Commission, September 8, 2006, at 32, R.R. at 341a; Minutes of Meeting of the Historical Commission, November 9, 2007, at 14, R.R. 366a); and (2) the Project's renovations were "appropriate" under Section 7(k) of the Historic Preservation Ordinance. (Minutes of Meeting of the Historical Commission, September 8, 2006, at 35, R.R. at 344a; Minutes of Meeting of the Historical Commission, November 9, 2007, at 14, R.R. at 366a; Code §§ 14-2007(2)(f), (7)(k).) Concerned Citizens in Opposition to the Dilworth Development (Concerned Citizens) and the Society Hill Civic Association appealed to the Board. The Board disagreed with the Historical Commission's interpretations of "demolition in significant part" and "appropriateness" of the Project under the Historic Preservation Ordinance and disapproved the permit. (Board Op. at 1-9.) Landowners appealed to the trial court, which affirmed the Board on the basis that neither the Philadelphia Home Rule Charter (Home Rule Charter), nor the Code, contains any language requiring that the Board grant deference to the Historical Commission. Landowners now appeal to this Court.*fn3

This appeal arises from Landowners' application to the Historical Commission for a permit to develop the Project pursuant to Section 7 of the Historic Preservation Ordinance, Code § 14-2007(7) (establishing the procedures for obtaining a permit to alter or demolish an historically-designated building).*fn4 The Project consists of the renovation and preservation of the brick-clad main portion of the Dilworth House and the removal of the side and rear wings, which would be replaced with a sixteen-story condominium structure that would connect to the Dilworth House. Because the Project requires the removal of the side and rear wings, along with integration of the condominiums into this historically- designated property, Landowners must comply with the permitting procedures of the Historic Preservation Ordinance. Additionally, because the Project requires the removal of a portion of an historically-designated property, the Historical Commission must first determine, pursuant to Section 2(f), whether this removal constitutes a "significant part" of the building because, and if it does, Section 7(j) prohibits the issuance of a permit unless the Historical Commission finds that the removal is in the public interest or that the building, structure, site, or object cannot be used for any purpose for which it may reasonably be adapted. (Code §§ 14-2007(2) (f), (7)(j), R.R. at 316a, 323a.) If the Project constitutes a removal not "in significant part," the removal is considered an "alteration," not a "demolition." (Code §§ 14-2007(2)(a), (f), R.R. at 316a.) The characterization of the Project as either an "alteration" or a "demolition" determines the factors that a permit applicant must satisfy to obtain a permit. Where the Historical Commission has no objection, the Board shall grant the permit subject to other applicable requirements, including, inter alia, those found in Section 7(k) regarding "appropriateness."

(Code §§ 14-2007(7)(g), (k), R.R. at 322a-324a.)

In this case, upon Landowners' application for a permit to renovate the Dilworth House,*fn5 the Historical Commission initially referred the application to its Architectural Committee.*fn6 After hearing testimony that the wings, which Landowners sought to remove, were not a defining feature of the Dilworth House because they were service areas, were not architecturally significant portions of the Dilworth House, and were not visible parts of the Dilworth House, the Architectural Committee determined that the Project: (1) was not a "demolition in significant part" pursuant to Section 2(f) of the Historic Preservation Ordinance and, therefore, was an "alteration" pursuant to Section 2(a); and (2) was "appropriate" pursuant to Section 7(k) of the Historic Preservation Ordinance.

Next, the full Historical Commission bifurcated its consideration of the Project. The Historical Commission first voted unanimously to approve the Project in concept, with one abstention. (Minutes of Meeting of the Historical Commission at 35, September 8, 2006, at 35, R.R. at 344a.) The Historical Commission granted final approval on November 9, 2007, after the Project was again discussed in an open public meeting, unanimously approving it as "not a 'demolition in significant part'" and, therefore, an alteration. (Minutes of Meeting of the Historical Commission, November 9, 2007, at 14, R.R. at 366a (emphasis added).)

Concerned Citizens appealed the Historical Commission's decision to the Board claiming, inter alia, that it committed errors of law: (1) in finding that the Project was not a "demolition" pursuant to the Historic Preservation Ordinance; (2) by not applying the proper Secretary of the Interior's "Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings" (the Secretary's Standards), specifically Standards 1, 2, 9, and 10 of 36 C.F.R. § 67.7 (b); and (3) by not applying the Historic Preservation Ordinance to the Project. Additionally, the Society Hill Civic Association, Matthew DiJulio, and Benita Fair Langsdorf appealed the Historical Commission's decision on similar grounds and also claimed, inter alia, that the decision should be reversed because it was arbitrary and capricious. The Board held six full record hearings, issued findings of fact and conclusions of law, and reversed the Historical Commission. In doing so, the Board disagreed with the Historical Commission's interpretations of the terms "alteration" and "appropriateness" in the Historic Preservation Ordinance and determined that: (1) "the November []9, 2007 approval by the Historical Commission that . . . [the] application 'is not a demolition in significant part' was in error," (Board Op., Conclusion of Law (COL) ¶ 5); and (2) "the . . . approval [of] . [the] application to construct the [Project] was in error," (COL ¶ 6), because the Historical Commission did not define the Project as "appropriate" as the Board would have defined it. (See Board Op., Findings of Fact (FOF) ¶ ¶ 35-44.)

Landowners appealed to the trial court, which affirmed the Board's determination, concluding that the Board "plays a supervising role over the [Historical] Commission subject to [the trial court's] review," and that the Board "has the authority to hear appeals directly from the [Historical] Commission and render a binding decision that affirms, modifies or reverses the [Historical] Commission." (Trial Ct. Op. at 6.) The trial court also concluded that "substantial evidence and testimony" taken by the Board "proved that the [Historical] Commission's decision conflicted with several factors under" the Historic Preservation Ordinance. (Trial Ct. Op. at 6.) The trial court reasoned that the Board has broad powers of review under Section 5-1005 of the Home Rule Charter. Concluding that the Home Rule Charter is clear and unambiguous, the trial court further explained that the Board's standard of review of the Historical Commission's decisions is de novo. The trial court rejected the argument that the Board must grant deference to the decisions of the Historical Commission because "[n]either the Code nor the [Home Rule] Charter has any language that the Board is required to give deference to the [Historical] Commission []or any similar agency." (Trial Ct. Op. at 5.)

Landowners now appeal to this Court. A principal issue on appeal is whether the Board must give deference to the Historical Commission's determinations made pursuant to the Historic Preservation Ordinance, which the Historical Commission is charged with administering, and, if so, how the Board should apply this deference within its own proper scope and standard of review.*fn7

I. The Historical Commission

Under the Historic Preservation Ordinance, the Historical Commission is the City agency empowered to designate buildings as historic and to approve or deny permit applications for alterations to and/or demolitions of historically-designated buildings. (Sections 4(a), (b), and (d) of the Historic Preservation Ordinance, Code §§ 14-2007(4)(a)-(b), (d), R.R. at 317a-18a). The composition of the Historical Commission is mandated by the Historic Preservation Ordinance and is very specific; it consists of various City government representatives and eight members appointed by the Mayor, including "an architect experienced in the field of historic preservation," a historian, an architectural historian, a real estate developer, "a representative of a Community Development Corporation," and "a representative of a community organization." (Section 3 of the Historic Preservation Ordinance, Code § 14-2007(3), R.R. at 317a.) The Historic Preservation Ordinance empowers the Historical Commission to exercise quasi-legislative discretion in designating buildings historic and administrative discretion in reviewing applications for alterations or demolitions of historically-designated properties. (Code § 14- 2007(4), R.R. at 317a-18a.) The administration of the Historic Preservation Ordinance requires reasoned applications of specialized knowledge and experience in the areas particularly affecting historic preservation in order to interpret the operative terms of the Historic Preservation Ordinance, such as those at issue in this case: "alteration," "demolition," "significant," and "appropriateness." (See generally Code §§ 14-2007(1)-(10), R.R. at 315a-26a.) Thus, there are no bright- line standards or mechanical applications similar to those found in ordinary zoning or land use regulations, such as height restrictions or parking ratios; rather, the standards involved here, such as the "appropriateness" of a particular project, must take into consideration the historical importance of a particular property or structure and the design of a project. (Code § 14-2007(7)(k), R.R. at 323a-24a.)

To meet the specialized needs and requirements of administering a specialized ordinance, the Historic Preservation Ordinance empowers the Historical Commission to promulgate regulations and establish committees to assist in its administration of the Historic Preservation Ordinance and in setting the City's historic preservation policy. (See, e.g., Code § 14-2007(4)(e)-(h), R.R. at 318a.)

II. The Board of License and Inspection Review

Like the Historical Commission, the Board is a City agency. The Board was created by Chapter 10 of Article V of the Home Rule Charter. Phila. Charter ยง ...


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