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Rufo v. Board of License and Inspection Review

Commonwealth Court of Pennsylvania

December 22, 2016

Anthony M. Rufo and TR Getz, LP
Board of License and Inspection Review and City of Philadelphia Appeal of: The City of Philadelphia

          Argued: October 18, 2016



          ROCHELLE S. FRIEDMAN, Senior Judge.

         The City of Philadelphia (City) appeals the September 29, 2015, order of the Court of Common Pleas of Philadelphia County (trial court). The trial court reversed the September 30, 2014, decision of the City's Board of License and Inspection Review (Board) that affirmed the Department of License and Inspection's (Department) issuance of a violation notice to Anthony M. Rufo. We affirm.

         Rufo is the owner of TR Gretz, LP, which owns the Gretz Brewing Building (Property) located at 1524 Germantown Avenue in the City. (Board's Decision at 1.) On May 14, 2012, the Department conducted an investigation and inspection of the Property. (Board's Findings of Fact, No. 1.) As a result of the Department's investigation and inspection of the Property, the Department issued Rufo a violation notice on May 15, 2012. (Id.) The violation notice stated that the Property was vacant, lacked doors and windows with frames and glazing, and constituted a "blighting influence" as defined by section PM-202 of the Philadelphia Property Maintenance Code (Property Maintenance Code).[1] (Id., No. 2(e); Violation Not. at 3.) The violation notice further stated that 40 of the Property's windows did not comply with section PM-306.2 of the Property Maintenance Code, which both parties refer to as the "Windows and Doors Ordinance." (Board's Findings of Fact, No. 2(e); Violation Not. at 3.) The Windows/Doors Ordinance states:

The owner of any vacant building shall keep the interior and exterior of the premises free of garbage and rubbish. The owner of any vacant building shall keep all doors, windows and openings from the roof or other areas in good repair. Where such doors or windows or entrance to openings are readily accessible to trespassers, they shall be kept securely locked, fastened or otherwise secured. The owner shall take any other measures prescribed by the Department to prevent unauthorized entry to the premises by closing all openings with materials approved by the Department. A vacant building, which is not secured against entry, shall be deemed unsafe within the meaning of Section PM-307.0. The owner of a vacant building that is a blighting influence, as defined in this subcode, shall secure all spaces designed as windows with windows that have frames and glazing and all entryways with doors. Sealing such a property with boards or masonry or other materials that are not windows with frames and glazing or entry doors shall not constitute good repair or being locked, fastened or otherwise secured pursuant to this subsection.

(Emphases added).

         On June 8, 2012, Rufo appealed the violation notice to the Board. Rufo argued that the Windows/Doors Ordinance is unconstitutional "because its purpose is to compel a property to be aesthetically pleasing, rather than safe, which is not a proper use of the municipalities' [sic] police power."[2] (Rufo's Appeal to Board at 2.)

         The Board held hearings on Rufo's appeal of the violation notice on May 13, 2014, and July 22, 2014. Rufo testified that he had installed windows in three of the Property's window spaces. (N.T., 5/13/14, at 36-37.) However, Rufo testified that the three windows were either broken or missing within two weeks of their installation. (Id. at 37-38.) Rufo also testified that someone had sprayed graffiti all over the exterior of the Property within that two-week period. (Id.)

         Rebecca Swanson, Policy and Communications Director for the Department, testified on behalf of the City. Swanson testified that she is familiar with the Windows/Doors Ordinance and that the City Council passed this provision in 2003 and began enforcing it in 2011 "with an eye towards reducing blight." (Board's Findings of Fact, No. 12.) Swanson also testified that "[i]t has been determined, through numerous studies, that properties with boarded windows and doors without the actual operable window and door contribute to blight within the neighborhood, all sorts of problems." (Id., No. 13.)

         On September 30, 2014, the Board affirmed the Department's violation notice. The Board found that, at all relevant times, the Property was vacant (id., No. 7), and lacked operable windows and doors. (Id., No. 19.) The Board found that the Department has a process for determining whether a vacant property is a blighting influence under section PM-202(2)(a)-(e) of the Property Maintenance Code and followed that process in determining that the Property was a blighting influence. (Board's Findings of Fact, No. 18.) The Board also found that Rufo could install windows and doors on the Property as required by the Windows/Doors Ordinance and put masonry or wood behind the windows and doors if he was concerned about people breaking into the Property. (Id., No. 17.) The Board credited Swanson's testimony and discredited all other testimony and evidence to the extent that it was inconsistent with the Board's other findings of fact or conclusions of law. (Id., No. 20.)

         The Board concluded that the Property was a blighting influence and was in violation of the Windows/Doors Ordinance's requirement that blighting influences have operable doors and windows. (Board's Conclusions of Law, No. 3.) The Board also concluded, without specifically referring to Rufo's argument that the Windows/Doors Ordinance has a purely aesthetic purpose, that Rufo's constitutional arguments were meritless. (Id., No. 5.)

         Rufo appealed[3] to the trial court, which reversed the Board's decision on September 29, 2015, determining that the Windows/Doors Ordinance has "a purely aesthetic goal." (Trial Ct. Order, 9/29/15, at 4.) The trial court stated:

The essential implementation of this ordinance in this case appears to be concerned more with aesthetics and the appearance of occupancy rather than blight, safety and security. Such a purely aesthetic goal has a minimal relationship to reducing blight (which is a complicated integration of economics, poverty, crime, aesthetics and social issues) requiring a cost to the property owner that is completely ...

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