25 Pa. Commw. 154 | Pa. Commw. Ct. | 1976
Lead Opinion
Opinion by
The First Presbyterian Church of York, Pennsylvania, has appealed from an order of the Court of Common Pleas of York County sustaining the action of the Council of the City of York refusing to certify
So far as we are aware, this is the first case occasioned by the Act of June 13, 1961, P.L. 282, as amended, 53 P.S. §8001 et seq. Although the appellant raises no question as to that enactment’s general validity, we believe that a brief description of its provisions would be helpful to an understanding of this litigation. Section 2 of the Act, 53 P.S. §8002, provides in full: “For the purpose of protecting those historical areas within our great Commonwealth, which have a distinctive character recalling the rich architectural and historical heritage of Pennsylvania, and of making them a source of inspiration to our people by awakening interest in our historic past, and to promote the general welfare, education and culture of the communities in which these distinctive historical areas are located, all counties, cities, except cities of the first class, boroughs, incorporated towns and townships, are hereby authorized to create and define, by ordinance, a historic district or districts within the geographic limits of such political subdivisions. No such ordinance shall take effect until the Pennsylvania Historical and Museum Commission has been notified, in writing, of the ordinance and has certified, by resolution, to the historical significance of the district or districts within the limits defined in the ordinance, which resolution shall be transmitted to the executive authority of the political subdivision. ’ ’
Section 3, 53 P.S. §8003, authorizes the municipal governing body to appoint a Board of Historical Be-view of not less than five members, consisting of a registered architect, a licensed real estate broker, a building inspector, and the remaining members persons “with knowledge of and interest in the preservation of historic districts.” The function of the Board
At a time not disclosed in the record, York City Council adopted an ordinance pursuant to the Act of 1961 creating and defining a historic district in the central part of the City. York House, the building which the appellant Church wishes to demolish, is located within this district. The lot containing about 15,000 square feet on which York House rests, and which adjoins the appellant’s Church ediface, was acquired by the appellant from the Historical Society of York County in 1959.
It is here appropriate to note that the Church concedes not only the historical and architectural value of York House, but also the facial constitutional validity of the Act of June 13, 1961 and York City’s ordinance adopted pursuant thereto. Its contention is that the City’s refusal to permit it to demolish York House is, in the circumstances, confiscatory and a deprivation of its property rights without due process of law.
The Church’s application for permission to demolish York House was made May 1, 1972. The York Board of Historical Architectural Review, after hearing, recommended refusal of the application and City Council followed the Board’s recommendation. The Church appealed Council’s action to the Court of Common Pleas of York County pursuant to the Local Agency Law, Act of December 2, 1968, P.L. 1133, 53 P.S. §11308. The lower court, by the late President Judge Atkins, remanded the record for further hearing and findings by the Board of Historical Architectural Review sufficient for the application of the test
The test of Trustees of Sailors’ Snug Harbor v. Platt, supra, referred to by Judge Atkins and still proposed by the Church for application here, goes as follows: “The criterion for commercial property is where the continuance of the landmark prevents the owner from obtaining an adequate return. A comparable test for a charity would be where maintenance of the landmark either physically or financially prevents or seriously interferes with carrying out the charitable purpose. In this instance the answer would depend on the proper resolution of subsidiary questions, namely, whether the preservation of these buildings would seriously interfere with the use of the property, whether the buildings are capable of conversion to a useful purpose without excessive cost, or whether the cost of maintaining them without use would entail serious expenditure — all in the light of the purposes and resources of the petitioner.”
Upon remand, the Board of Historical and Architectural Review conducted a further hearing at which the Church adduced evidence tending to show that the costs of renovating York Honse for use by the Church would be $29,900, that the cost of repairing fire damages sustained in a fire in 1972 would be an additional $17,000 (against a still unspent insurance recovery of $10,000) and that annual maintenance costs, including about $4500 for janitorial services would be about $12,500. Persons opposed to the demolition were able to demonstrate that the Church’s annual budget was about $254,000, that the Church had provided little or no maintenance after it decided to raze the building for campus or parking use, that the Church had used a substantial portion of the lot on which York House is located for the construction of a new parish house and that the Church had refused offers by public
The Board again recommended denial of the Church’s application, City Council followed the Board’s recommendation, the Church again appealed. The court below, by Judge Shadle, again upheld Council’s action and this appeal followed.
In the interval of time between the lower court’s order of remand and the Church’s second appeal, Maher v. City of New Orleans, 371 F. Supp. 653 (E.D. La. 1974), had been decided. Whereas in Trustees of Sailors’ Snug Harbor v. Platt, supra, the requirement of the permit for demolition was one imposed with respect to individual properties designated as historic landmarks and was not one imposed on all properties within a district declared to have architectural or historic interest, the questioned local legislation requiring such a permit in Maher v. City of New Orleans, supra, as does that of York City here in question, defined an area or district in which every building was subject to its requirements. The Federal district court in Maher held the ordinance there in question to be a proper exercise of the police power because it advanced the desirable public end of preserving buildings in the historic vieux carre section of New Orleans; that the ordinance was a zoning regulation; and that the test of constitutionality to be applied to a particular property for which a demolition permit was refused was not that of whether the detriment to the individual landowner outweighed the benefit conferred on the public, but that of whether the ordinance went so far as to preclude the use of the property for any purpose for which it was reasonably adapted. The district court concluded that Maher, the landowner, had not proved that the refusal of his application
Shortly after the instant appeal was filed in the Commonwealth Court, the United States Court of Appeals filed its opinion on Maher’s appeal from the district court’s order. The circuit court affirmed, declaring with respect to the claim that the property in question was taken without just compensation that: “As the ordinance was applied to Maher, the denial of the permit to demolish and rebuild does not operate as a classic example of eminent domain, namely the taking of Maher’s property for governmental use. Nor did Maher demonstrate to the satisfaction of the district court that a taking occurred because the ordinance so deminished the property value as to leave Maher, in effect, nothing. In particular, Maher did not show that the sale of the property was impracticable, that commercial rental could not provide a reasonable rate of return, or that other potential use of the property was foreclosed. To the extent that such is the theory underlying Maher’s claim, it fails for lack of proof.” Maher v. City of New Orleans, 516 F.2d 1051, 1066 (5th Cir. 1975)'.
Judge Secadle in this case noted the factual dissimilarity between the single property designation of Sailors’ Snug Harhor v. Platt, supra, and the area designation of Maher v. City of New Orleans, supra, and concluded that the Maher test was therefore applicable, although expressing his conviction that the Church had not met even the more stringent test of Sailors’ Snug Harhor v. Platt, supra. We agree with Judge Shadle that the test to be applied is that of whether the refusal of the permit to demolish went so far as to preclude the use of York House for any purpose for which it was reasonably adapted; and with
. . . [The Church] offered evidence merely that it had no desire to use it for religious purposes, but that it is incapable of such use.”
Reverting to the test of Maher v. City of New Orleans, supra, applicable to district historic zoning, that the property owner must establish that the regulation precludes use of the property for any purpose for which it is reasonably adapted, pertinent reference may be made to familiar Pennsylvania cases employing substantially the same test to applications for use variances — that is, that such a variance must be granted if the property in question cannot be used or sold for any purpose permitted by the applicable zoning-regulations but that it should be denied if the showing is merely that the property could be more gainfully used or sold for a purpose not allowed by such regulations. Peirce v. Zoning Board of Adjustment, 410 Pa. 262, 189 A.2d 138 (1963); Crafton Borough
Order affirmed.
The lot seems (by a deed not of record) to have been conveyed either to the appellant or to another religious body in 1785 subject to a restriction of use to religious activities. Since the appellant used the house for other than religious purposes after 1959, its suggestion in argument here that it may not do so in the future is not impressive.
Concurrence Opinion
Concurring Opinion
I concur in the result because the Church failed to carry its burden of proving by substantial evidence that its property had been confiscated or that the use of its property had been unreasonably restricted so as to constitute a taking or application of its property for a public use. The Church failed to prove that the ordinance in question was unduly oppressive to it, or that it was inordinately burdensome, or that as a result of the application of the ordinance the value of its property was so diminished that for all practical purposes nothing of value remained. The Church did not prove that the denial of a permit to demolish York House precluded the Church from using that property for any purpose for which it was reasonably adapted. It is for these reasons that I concur.
Because of the importance of the constitutional issues which have been raised, I feel constrained to note my reservations concerning the result we have reached in this case. My reservations are made in full recognition of the constantly developing and broadened principles established by the federal judiciary under concepts of the police power. I have noted with interest the language of the Circuit Court in Maher v. City of New Orleans, 516 F.2d 1051, 1059 (5th Cir.
These very basic private property principles have been eroded during the past fifty years especially through, inter alia, the application of zoning laws and urban redevelopment laws. As zoning law developed, the courts held, in the interest of protecting the public health, welfare and safety, that a private property owner could not use or build on his property in certain ways. But under all the zoning laws and cases,
It seems to me that with the advent of historical district statutes, such as those involved in this case, in opinions such as Maher, supra, Gaebel v. Thornbury Township, 8 Pa. Commonwealth Ct. 399, 303 A.2d 57 (1973), and in the decision in this case, the legislatures and courts are adding a new dimension which may do violence to constitutional private property rights, for now we hold that a private property owner must make his property available without compensation for public view. In effect, he must dedicate his property without compensation for public historical, aesthetic, educational, and museum purposes, which in reality are public uses. Under the provisions of the ordinance in question, the Church can permit the interior or rear portions of its property to rot or deteriorate in a burned condition in any manner it sees fit, but it can’t touch that portion of its property viewable from the street without permission of the local governing body, which uses vague standards founded on aesthetics and historical values, two concepts upon which reasonable men can disagree. There are no state health or safety standards involved whatsoever, rather the standards are based solely upon the feelings or observations of people interested in protecting neighboring properties in the historical district in the name of public welfare. I am concerned that we have reached a constitutional precipice and that an advancement of even a fraction of an inch will result in excessive governmental encroachment upon private property rights.