Saving history isn’t cheap in Philadelphia and nearly every road leads to court. When it comes to the cost of historic preservation advocacy, the Preservation Alliance for Greater Philadelphia has long had a special fund to offset fees incurred outside of their annual operating budget. But recent real estate pressures and the building boom has led to a full-blown preservation crisis in Philly, and so has the urgency towards legal matters. To meet these demands, the Alliance has relaunched their funding efforts for outside consultation and help. With the Advocacy and Legal Defense Fund, the organization hopes to secure additional financing for attorneys and experts to combat a city at odds with protecting its architectural and cultural character.
Patrick Grossi, advocacy director for the Alliance, says one of the biggest needs for a more robust fund comes not at the often contentious Historical Commission meetings, but afterwards when the property has already been locally designated as historic. Rather than working through the Historical Commission, an increasing number of property owners and developers have circumvented the process by directly disputing historic designation in court through an appellate process. In such cases the person or entity fighting the designation must prove that the decision made previously by the Historical Commission was in error and this puts the onus on the Commission to defend its decision.
This calculating play was recently taken by the leadership of Trinity Oxford Church parish to dispute the addition of its parish house to the local register. The church is seeking to reverse the designation because they have signed a lease with Royal Farms, a national convenience store chain. Plans include demolishing the parish house in order to build a new store on that corner, which happens to be right across the street from an existing convenience store. At the building’s designation hearing before the Historical Commission in November 2017, attorneys from law firm Ballard Spahr argued against designating the property at 6901 Rising Sun Avenue. The lawyers claimed that the parish house did not merit listing on the local register because it was not a significant or unique example of Colonial Revival architecture and, unlike the church’s sanctuary building, it is not associated with historic persons or events. However, the Historical Commission voted unanimously for historic designation. One month later Ballard Spahr filed an appeal with the Court of Common Pleas to overturn the designation. In January, the Alliance filed to intervene and defend the nomination alongside the Historical Commission. Oral arguments were heard before a judge on July 31, and the Alliance expects a decision by the end of August. In this context, the appellant has the advantage of having their case heard by a judge that is not trained in historic preservation and may be more amenable to arguments against the building’s significance.
**Update 8/17/18: The Court of Common Pleas has ruled in favor of the Historical Commission on the Trinity Oxford case and the property remains on the Philadelphia Register of Historic Places.
Another new tactic that was used to get around the designation process involved Robinson Department Store. In 2017, owners and Market Street developers Pennsylvania Real Estate Investment Trust (PREIT) appealed the building’s protection status on the grounds that the designation would deter future development. The real estate conglomerate did not contest the historical significance of the property. But rather than going through the proper legal channels and filing a hardship claim through the Historical Commission, PREIT appealed the decision before the Licenses and Inspections Review Board (LIRB). The LIRB sided with the developers in this case and voted unanimously to remove the designation from the property. Surprisingly, the decision was not contested by the Department of Planning and Development and the Historical Commission. The Alliance, which sponsored the nomination, has filed an appeal to the decision citing that LIRB lacked jurisdiction to vote on the case. The LIRB typically reviews appeals against violations issued by Licenses & Inspection or other City departments. Issues concerning historic designation fall outside of L&I’s purview and are rarely, if ever, heard by the LIRB. Whether a precedent-setter or a one-off, this loophole may attract other development-minded owners who are looking for their cases to be heard outside of the Historical Commission’s jurisdiction and do not want to go through the legal hurdles required by the Court of Common Pleas.
There are means through the Historical Commission to rescind a designation. However, because the agency’s mission is centered around historic preservation and not real estate development, it is inherently less amenable to reverse a prior ruling. In 2017, appeals by developers to rescind historic designations came up four times before the full Commission and only one was approved. The Historical Commission may vote to remove a property from the local register if one of three thresholds are met–the loss of historic integrity of the building since the designation, new evidence showing that the property does not meet the criteria for designation, or that an error in professional judgement was made by the Historical Commission. In the case of 4054 Chestnut Street in January 2016, legal counsel from Ballard Spahr argued that the property lacked historic integrity at the time of its nomination. Lawyers contended that the nomination was not given adequate consideration by the Historical Commission as it was included with five other properties directly adjacent to it as an intact set of “twins.” Owners of two other properties in the set were free to demolish their buildings because the nominations were filed after a demo permit was filed. Ultimately, the Historical Commission voted to uphold their initial decision to designate the property. Yet, Ballard Spahr filed an appeal of the decision with the Court of Common Pleas on behalf of the property owners. In November 2017, the Court upheld the appeal and the property was removed from the Philadelphia Register. Like the case of the Robinson Department Store, the Department of Planning and Development chose not to dispute the ruling. In all cases, when pursuing existing channels through the Historical Commission failed to work in their favor, property owners bypassed the authority of the Commission all together.
If a property has been nominated, owners can challenge the proposed designation with the Historical Commission during a public hearing. While the Committee on Historic Designation only considers whether a property does or does not meet the criteria for designation, the full Commission has discretion over what factors it takes into account. This means that, while an opponent may not contest the significance of the property, they may argue that the preservation of the property would be financially unfeasible. In these circumstances, opponents are making de facto hardship claims without having to go through official process of doing so and bypassing some of the requirements needed in that route. This happened recently with Armour & Company Stock Depot, where the majority of the evidence brought forth spotlighted the poor structural condition of the building, an argument typically made in hardship appeals.
But, as Grossi points out, this “short circuiting” of preservation cases through the appellate process is merely symptomatic of larger weaknesses in the preservation policy framework that exists today. Traditionally, property owners petition the Historical Commission to rescind a designation if they believe it does not meet the criteria for designation and a hardship claim if preservation is not economically feasible. But owners and developers have found new ways to undermine the authority of the Historical Commission, and more favorable results are being garnered with these new legal loopholes. Grossi says he only sees these types of appeals increasing.
In other cities these work-arounds do not exist. In Washington, DC, the “Mayor’s Agent” has the final authority to rule on such cases, specifically in terms of the publics’ interest. Under DC legislation, this is the Director of the Office of Planning, a person conceivably more familiar with historic preservation policies than a typical judge in appellate court. Pending the recommendations of Philadelphia’s Preservation Task Force, it is conceivable that a clearer appellate process is implemented in the future, but, in the current climate, the appeals at the Historical Commission are the least of the Alliance’s worries.
While the Alliance intends to continue to intervene in these appeals, they are not anti-development. Grossi believes that what’s really needed, in addition to clarity in the appellate process, is incentives to balance the trend of new development. With a tax abatement that drastically favors new construction over rehabilitation and zero incentives at the local level for preservation projects, owners of historic properties are met with “a lot of stick and no carrot,” he says. This affects property owners at all levels, not just large developers, and it makes adaptive reuse and preservation a tough sell across the board. Grossi notes that much could be done at the outreach and education level to combat some of the misconceptions surrounding historic preservation, especially in light of the recent uptick in historic district designations. Municipal resources and financial incentives for property owners could go a long way in keeping our architectural character looking more like Philadelphia and less like every other American city.