Developer’s “Hardship” Claim To Be Made Easier Under Proposed New Historical Commission Rules

March 6, 2013 | by Christopher Mote


400 S. 40th Street, an Italianate mansion designed by Samuel Sloan | Photo: Peter Woodall

The Levy-Leas Mansion at 400 S. 40th Street, an Italianate mansion designed by Samuel Sloan | Photo: Peter Woodall

Update (March 7, 11AM): proposed action postponed. See our report HERE.

The Philadelphia Historical Commission is considering revisions to its rules and regulations that would modify its criteria for approving the demolition of historic properties on the basis of financial hardship.

The revisions omit the requirement that the applicant seeking demolition must make a good-faith attempt to sell the property in order to prove that it cannot be reasonably adapted for reuse. Instead, the applicant would have to fulfill the more general criterion that a sale of the property is impracticable.

In addition to minor updates corresponding to the City’s new zoning code, the Commission will also consider replacing its policy of amending the rules and regulations through a five-sevenths vote (that is, 10 out of 14 Commissioners) with a simple majority vote, at its monthly public meeting on Friday, March 8.

The proposed changes come in the wake of several hardships approved by the Commission that were then appealed to the Board of L&I Review–the most recent being the Levy-Leas Mansion at 400 S. 40th Street–on the basis that the Commission erred by not following its own rules concerning attempts of sale.

In a memo addressed to the Commissioners last Friday, executive director Jonathan Farnham explained that the Commission has interpreted the attempt-of-sale clause in a non-literal way because “the selling of the property is not an end in and of itself, but is instead part of a test to determine whether a building can be reasonably adapted.” Removing the attempt-of-sale clause altogether, according to Farnham, would reinforce the Commission’s broader reading of “impracticability of sale” and limit the power of appellate bodies to reverse its decisions.

“Ultimately, the Historical Commission, a body of experts with more than 50 years of practice and a trained staff, should establish and implement the city’s historic preservation policy, not the Board of License & Inspection Review,” Farnham wrote. “The proposed revision will shift the decision-making authority back to its appropriate location.”

Critics of the proposed changes assert that “impracticability” is itself a term without a clear definition. In a statement released Wednesday, the Preservation Alliance for Greater Philadelphia cautioned that the changes “could have the dual effect of weakening the standards for demonstrating financial hardship while simultaneously exposing the Commission to more challenges of its decisions, not fewer.” The Preservation Alliance has circulated a petition and asked for the Commission to table the revisions to allow for more review and public discussion of their significance.

The advocacy group also took issue with the repeal of the five-sevenths rule: “Clearly the supermajority clause was intended to prevent hasty or capricious changes to the Rules and Regulations; if removed, it must be replaced by other mechanisms to ensure broad consensus before the adoption of future amendments.”

Farnham stated that the five-sevenths rule was found by the Law Department to be in violation of City statutes and was not originally proposed for discussion at Friday’s meeting.

Photo: Nathaniel Popkin

Photo: Nathaniel Popkin

The preservation ordinance in the City’s zoning code protects buildings that are on the Historic Register from demolition. The Historical Commission is permitted two exceptions in which it can approve demolition: when demolition is necessary in the public interest, and when a building cannot be used for any purpose for which it can be reasonably adapted–the so-called hardship test. This is the claim that was made in both the Church of the Assumption and the Levy-Leas cases.

To prove hardship, the owner of a historic property must fulfill three criteria: “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.” In addition to this requirement, Section 9.4 of the rules and regulations currently states that the owner “has an affirmative obligation in good faith to attempt the sale of the property, to seek tenants for it, and to explore potential reuses for it.”

The proposed revision removes this part and replaces it with: “the applicant has an affirmative obligation in good faith to 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.”

The Commission’s authority to interpret its own ordinances was affirmed by the Pennsylvania Commonwealth Court in Turchi v. Board of L&I Review. In that case, John and Mary Turchi, the owners of the former home of Mayor Richardson Dilworth on Washington Square, were appealing the L&I Board’s reversal of the Historical Commission’s approval to construct a condominium tower behind the house. The Commission had determined that the plan, which would require removing the rear portion of the house, was not significant enough to constitute a demolition. The L&I Board disagreed, ruling that it was a demolition based on its reading of the preservation ordinance.

In its ruling on Turchi, the Commonwealth Court found that the Review Board must defer to the Historical Commission on such matters of interpretation. (The Dilworth House project remains stalled.) This precedent, according to Andrew Palewski, essentially provides the Commission with “carte blanche” if the hardship revision is adopted.

“The less black-and-white the rules are, the harder it will be to prove that they erred when appealing a Historical Commission ruling,” said Palewski, a preservation architect involved in the appeal of the Church of the Assumption at 12th and Spring Garden Streets.

Farnham was unequivocal about the role of the appeal of the Levy-Leas mansion–an appeal he has characterized as “frivolous” and without merit–in moving to revise the hardship ordinance. (The Levy-Leas house has been on the Philadelphia Historic Register for four decades.) The Board’s decision, issued on February 22, followed a review process stretching over seven months and ultimately turning on the question of whether the University of Pennsylvania, which owns the property, had made a good-faith attempt of sale to demonstrate hardship.

Attorneys for Penn presented an offer for a long-term ground lease on the mansion that the Commission construed as evidence that sale was impracticable. Yet the appellants, led by the Woodland Terrace Homeowners Association, pointed to the attempt-of-sale clause as evidence that the Commission was clearly disregarding its own ordinance and had done so in other cases. Despite the invocation of the Turchi case, the L&I Board was split in its ruling, only affirming the Historical Commission’s approval of demolition because the appellants did not gain a majority.

Others say that the revisions aren’t simply about appeals, but about weakening the standard for approving demolition as more hardship applications are on the rise.

“This is part of the pattern where the Historical Commission appears to seek out the technicality that will permit demolition rather than sticking with a straightforward reading of the law,” said Aaron Wunsch, a professor of historic preservation at Penn. He contended that removing the attempt-of-sale requirement “lowers the bar for any owner of a listed building hoping to exploit the hardship loophole–and does so at a time when changes in real estate assessment policy virtually guarantee that more hardship cases will be coming forward.”

The Commission’s Rules and Regulations were adopted in 1990 and have been revised on five occasions. The last revisions, in 2011, pertained to the designation of the interiors of historic properties.


About the Author

Christopher Mote 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.


  1. Davis says:

    Oh hell, why bother with any historic designation at all in that case ?!

  2. Alex says:

    I’m beginning to think that Farnham is intentionally attempting to drive a wedge between himself and the rest of the preservation community. When you begin to lose support from your fellow constituents and supporters (ie preservationists) you know you have a problem. It would nice to see a commission chair who actually stands up for historic preservation and who actually expresses concern regarding our city’s architectural heritage…Perhaps someone like Aaron Wunsch or Andrew Palewski.

  3. Matt Grubel says:

    It is disappointing that the Commission would prefer to be “right” than face the possibilty that these historic buildings are viable in the open marketplace.

    There is an important difference between the appeals Board and the Historical Commission. The L&I Review Board holds hearings, the Commission holds meetings. While the Commission’s meetings allow for any and all to comment, it is not a forum to produce opposing evidence or question the various speakers. In contrast, the Board of L&I Review conducts a legal proceding where opposing attorneys and the Board can cross examine each witness who speaks. Both sides also have equal opportunity to present evidence, and the Board has the power to subpena relevant material.

    On this basis alone, there will continue be challenges – just as the Alliance has pointed out. In both the Church of the Assumption and the Levy-Leas case, the appeals Board had much more additional information than the Commission and its staff had. The Historical Commission should be glad when it turns out that important buildings like these may be saved.

    Regarding Alex’s suggestion. Just for clarification, the Commission’s Chair is Mr. Sherman, whereas Mr. Farnham is the Exectutive Director. While both are appointees of the Mayor, the Chair simply runs the meetings and the Commissioners make the final decisions. The Director may be influential, but he does not have a vote.

  4. James says:

    To preserve, must find an adaptive reuse. If nobody wants the building, then the owner has the right to file for a demo permit and has to get the permission of the Historical Commission if the building is a historically certified building. For the BLIR to block demo is infringing on the rights of the owner and exposing the city to lawsuits. Were a building blocked from demo by the BLIR to collapse and hurt someone or damage property, the city would be sued by the owner of the collapsed building because demo was held up.

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