PA Commonwealth Court Decision Reinforces and Confirms Philadelphia Historical Commission Authority

May 2011Newsletters In the Zone

On April 18, 2011, the Commonwealth Court of Pennsylvania filed a decision in Turchi v. Philadelphia Board of Licenses and Inspections Review and Concerned Citizens in Opposition to the Dilworth Development, closing one chapter—and starting another—in a long-running dispute regarding the potential renovation and development of a condominium project in Philadelphia.

The Dilworth House was the home of former Philadelphia Mayor Richardson Dilworth and his wife. Located at 223-225 S. 6th Street, across from Washington Square, its construction is considered by some to have started the Society Hill revitalization in the mid-20th century. Since 2005, the current owners, John and Mary Turchi, have been seeking permits for the renovation and development of the historically designated building. While the plans for development have changed since the original application for a building permit was filed on May 16, 2006, the proposed development project currently consists of the renovation and preservation of the main portion of the Dilworth House, removal of certain side and rear wings and their replacement with a 16-story condominium structure that would connect to the Dilworth House.

As the building is historically designated and is located within the Society Hill Historic District, its renovation requires approval of the Philadelphia Historical Commission, which granted such approval in a decision dated November 19, 2007. The decision was appealed by protesting nearby property owners to the Philadelphia Board of Licenses and Inspections Review (the Board), which, on September 9, 2008, reversed the Commission’s grant of approval, determining that the Commission erred in concluding the proposed project was not a demolition under the terms of City’s Historic Preservation Ordinance, and further erred in determining the proposed development was “appropriate” under the Preservation Ordinance. Most significantly, the Board made such a determination without granting any deference to the determination of the Commission.

The landowner appealed to the Philadelphia County Court of Common Pleas, which concluded in a decision issued May 19, 2010, that neither the Philadelphia Code nor the City Charter imposed an obligation upon the Board to grant any specific deference on such matters to a determination by the Commission, and that the Board’s standard of review was de novo.

It was this decision that was vacated by the Commonwealth Court on April 18, 2011.

The Commonwealth Court analyzed the Common Pleas Court decision through the prism of administrative agency law and the general principle that an administrative agency’s interpretation of the statute it has been charged to administer is entitled to deference absent “fraud, bad faith, abuse of discretion or clearly arbitrary actions.” The Commonwealth Court determined the Commission was the local administrative agency charged by City Council with administering the Preservation Ordinance. It is composed of members with specialized knowledge and expertise in the area of historic preservation, so the Commonwealth Court concluded it was the Commission that was vested by City Council with the authoritative interpretive powers to execute and interpret the Preservation Ordinance. Those interpretations were deemed entitled to deference and they “become of controlling weight unless plainly erroneous or inconsistent.”

Since the Board gave no deference to the Commission’s interpretations and exceeded its scope of review, the Commonwealth Court vacated the decision of the Common Pleas Court and remanded to the Board for a new determination in accordance with the decision. This decision significantly reinforces and confirms the authority of the Commission and emphasizes the need for developers to present full, complete and persuasive cases to the Commission when its approval is needed to secure City of Philadelphia permits. The case also, unfortunately, confirms the risks of development in the City when well-financed, motivated opponents to a project exist. In this circumstance, initial permit applications were filed close to five years ago, and a final decision regarding the issuance of permits is still in the future.

For more information, please contact William F. Martin at 215.299.2865 or [email protected].