PA Court Affirms Demolition Approval Despite Historic Property Nomination Because Demolition Application was Filed First

This post was authored by Amy Lavine, Esq.

A Pennsylvania case decided in April affirmed the approval of demolition permits for five downtown properties that a developer wanted to tear down and rebuild as a mixed-use residential and commercial project. The demolition was challenged by the Preservation Alliance for Greater Philadelphia, which had nominated two of the properties for historic designations, but the court held in the developer’s favor because its permit applications were filed prior to the historic nominations. Preservation Alliance of Greater Philadelphia v. City of Philadelphia Board of License Inspection Review, 2018 WL 1933493 (4/20/18).

The particular properties at issue did not have historic designations, but they were located close to three historic rowhouses and had some historical connections to these structures. After the city had issued zoning permits for the proposed demolition and new construction, however, Preservation Alliance submitted nominations to add two of the properties to the Philadelphia Register of Historic Places, and the Historic Commission sent notice of these nominations 33 days after the developer had applied for its permits. Despite the pending historic designations, the Board of License and Inspection Review affirmed the demolition approvals. Preservation Alliance then appealed.

Preliminarily, the court found that Preservation Alliance had standing to appeal the demolition permits. The board had concluded otherwise, finding that the Preservation Alliance had “failed to demonstrate that it or any of its individual members is an aggrieved party with standing to appeal.” As the court explained, however, the denial of standing disregarded the Pennsylvania Historic Preservation Act, which specifically provides standing to any person or entity bringing an action to protect the state’s historic resources. Preservation Alliance satisfied this provision, the court further explained, because it was “attempting to protect what it considers historic properties under the City of Philadelphia Historic Preservation Ordinance.”

The court ruled against Preservation Alliance on the merits, however, because it failed to submit its nominations for historic designations prior to the date when the developer filed its application for demolition permits. As the court noted:
Section 14-1005(6)(f) explicitly prohibits [the board] from issuing any building permit when the property at issue is being considered for historic designation and the building permit application was filed on or after the date that notices of proposed designation were mailed. Logic dictates that, conversely, [the board] is not prohibited from issuing building permits when the applications for those permits were filed before notices of proposed designation were mailed…. Nominations for a historic designation do not operate to void building permits where the nominations were mailed after the filing of the building permit applications.

Preservation Alliance also argued that one of the parcels slated for demolition was originally included on the Historic Register, as it had previously been part of the same lot as one of the nearby historic rowhouses. The evidence showed that the rowhouse’s historic designation was never intended to be carried over to the other parcel, however, and the property had also undergone substantial renovations that eliminated its historic value. As a result, the court rejected this argument as a basis for stopping the demolition.

In its final argument, Preservation Alliance contended that the demolition permits were issued in error because eight of the board’s 34 findings of fact were unsupported by substantial evidence. The court found, however, that Preservation Alliance did not actually demonstrate a lack of evidence for any of the board’s findings; rather it “merely quibbled” with the board’s result. Moreover, even if Preservation Alliance was correct that substantial evidence was lacking for certain findings, the court emphasized that it had still failed to provide any explanation as to how these findings were material.

Preservation Alliance of Greater Philadelphia v. City of Philadelphia Board of License Inspection Review, 2018 WL 1933493( PA Ct Comn Pleas 4/20/18)