In Assumption Case, Hardship Precedent Raises Legal Questions

 

Photo: Nathaniel Popkin

With the clock ticking on the Church of the Assumption, preservationists are hoping for a stay of demolition from the Commonwealth Court to allow for their appeal to be heard. (For our photo essay on the church, published this morning, click HERE.)

Their case has also brought several key legal issues into sharp focus, chief among them the precedent of the Historical Commission allowing a hardship ruling and demolition approval of the church–a registered historic building–to transfer to a new owner without the new owner being required to submit to a new review. That ruling, in effect granting hardship to a registered historic building (and not to the owner of the building), could have widespread ramifications for the regulation and protection of historic buildings deemed to be economically worthless or in neighborhoods considered to have weak real estate markets.

John Wei of MJ Central Investments, the owner of the church, requested a permit through the Department of Licenses and Inspections to demolish the historically designated church at 1123 Spring Garden Street–an action that required the approval of the Philadelphia Historical Commission.

The Historical Commission had originally granted demolition approval to the previous owner, Siloam, on the basis of financial hardship, a decision that was reinstated by the Court of Common Pleas in October.

We now know that Historical Commission consulted the City’s Law Department to confirm that the appellate court’s ruling still held for the church, regardless of the change in ownership. The City’s answer was effectively yes, the ruling remained with the property. Thus, L&I was cleared to issue the permit to Wei.

That move–granting a permit for a historic property to a new owner without a financial hardship review–would appear to be unprecedented. Still, Jonathan Farnham, the Historical Commission’s executive director, maintained that the Commission’s initial finding of hardship for Siloam was the result of an investigation of the feasibility of the church’s reuse by any potential owner.

“The Historical Commission conducted a very thorough review in full compliance with the law and determined that the building cannot be reasonably reused before it approved the demolition permit,” Farnham said. A financial hardship review, he explained, “is designed to determine whether any owner, not the particular owner at the time, can reasonably or feasibly reuse the building. The Historical Commission’s determination was not based in any way on the former owner’s financial capacity or circumstances. It was based on the building itself and its feasibility for reuse by any potential, reasonable owner.”

Farnham confirmed that to his knowledge this is the first case in which a financial hardship ruling has carried over to a new owner seeking demolition.

Further complicating legal matters is the fact that the neighbors’ appeal of the Common Pleas Court ruling was docketed with the Commonwealth Court before the City issued the permit. Deputy solicitor Andrew Ross confirmed the Law Department’s reading of the case, that “the ruling follows the land,” to the Inquirer’s Miriam Hill last week. However, Ross added that John Wei would be tearing down the church at his own risk should the Commonwealth Court rule in favor of the appeal.

Nonetheless, demolition opponents contend that the lack of precedent leaves the ruling of hardship open to interpretation. Andrew Palewski, the Callowhill resident who spearheaded the movement to protect the church, said that the City acted irresponsibly in approving the permit while knowing that the appeal was already on the docket.

“An easier and safer approach, in my opinion, would have been for the Historical Commission to table the application until the issue could be addressed by the Commonwealth Court,” Palewski said.

The appeal to the Commonwealth Court, and subsequent stay of demolition request, were filed by attorney Samuel Stretton representing the Callowhill Neighborhood Association. Stretton has also appealed the demolition permit to the Board of L&I Review.

About the author

Christopher Mote covers stories of preservation, planning, zoning and development. He lives in South Philadelphia and has a special fondness for brownstone churches and mansard roofs.

Send him a message at: motecw[at]hotmail[dot]com



2 Comments


  1. The test for hardship is not simply whether the property can be reused. That’s part of it but there’s more. Specifically, the owner also has to show that the property cannot be sold. According to the Ordinance, “the owner must demonstrate that the sale of the property is impracticable, that commercial rental cannot provide a reasonable rate of return and that other potential uses of the property are foreclosed.” §14-2007(j). Here, the Commission found that these three demonstrations were made. However, as it turns out, the sale of the property was not just practicable, it actually happened.

    • Your belief that municipal law is relevant here or that the Historical Commission is somehow bound to follow it is as charming as it is outmoded. It’s as though you’re still living in the reality-based community rather than in Philadelphia.

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