Cleckner v. Harrisburg

10 Pa. D. & C.3d 393, 1979 Pa. Dist. & Cnty. Dec. LEXIS 320
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedJune 25, 1979
Docketno. 377
StatusPublished

This text of 10 Pa. D. & C.3d 393 (Cleckner v. Harrisburg) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cleckner v. Harrisburg, 10 Pa. D. & C.3d 393, 1979 Pa. Dist. & Cnty. Dec. LEXIS 320 (Pa. Super. Ct. 1979).

Opinion

CALDWELL, J.,

— This is an appeal from a decision of the City Council of Harrisburg denying appellant a permit to demolish two vacant houses located at 125 and 127 Pine Street. The houses were originally purchased by appellant and his brother, one in 1950, the other in 1956, with appellant acquiring the full interest in both properties in 1975.

In 1974, the City of Harrisburg, pursuant to enabling legislation, created by ordinance the Historic District of Harrisburg.1 Appellant’s properties are located within the Historic District and had been in a state of decay since before the adoption of [395]*395the Historic District ordinance. On December 5, 1975, appellant applied for a permit to demolish the buildings and thereafter received an order from the city to either tear down the structure at 127 Pine Street or repair it so as to bring it into conformity with safety regulations.

The application for the demolition of the structures was initially considered by the Board of Historical Architectural Review of the City of Harrisburg on December 15,1975. On March 1,1976, the board recommended to the Harrisburg City Council that a demolition permit be denied and city council concurred. The appellant appealed this decision to this court and the case was remanded for reconsideration. Additional testimony was taken, and the Board of Historical Architectural Review again recommended that the demolition permit not issue. The city council again concurred, and Mr. Cleckner again appealed.

This appeal is under the recently enacted Local Agency Law, which provides for review where, as here, a complete record has been made:

“After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law ... or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence ...” 2 Pa.C.S.A §754(b) [See Purdon’s Pa. Legislative Service, No. 3-1978, page 183.]

Appellant’s central argument is that the denial of the demolition permit constitutes an unconstitutional “taking” of his property. The argument would appear to have two facets: one being con[396]*396cerned with history and aesthetics, the other with economics.

A. HISTORIC/AESTHETIC

The testimony concerning the historic and aesthetic significance of the properties is conflicting. Martin L. Murray, an architect, testified for appellant that the buildings had no architectural significance. Further, he pointed out that there was no consistent scale, architectural character, or historic nature on the Pine Street block to which the buildings could relate. In a similar vein, Mr. Evan J. Miller, a local real estate broker and a recognized local historian, testified for appellant that the two properties were of no particular historic interest or significance.

On the other hand, there was testimony to the effect that the two buildings were both architecturally noteworthy and historically valuable. For example, Mr. Duryea Cameron, a Harrisburg architect, testified for the city that 125 Pine Street was “a miniature McCormick mansion” and “a unique Victorian structure in Harrisburg.” He testified that both structures were “very much a part of the fabric of the historic district.” Similarly, Mr. John Wick Havens, Jr. testified on behalf of the Historic Harrisburg Association that the properties were, in the opinion of the association, “architecturally significant” and “essential to retaining the general historic character and nature of their neighborhood.”

Thus, it appears that there was evidence to support a finding that the two buildings were historically significant. It may be argued that the buildings have no compelling individual characteristics, [397]*397but even if this were true it would not be determinative. An historic district is described by the National Register of Historic Places as:

“[A] geographically definable area, urban or rural, possessing a significant concentration, linkage, or continuity of sites, buildings, structures, or objects which are united by past events or aesthetically by plan or physical development. A district also may be comprised of individual elements which are separated geographically but are linked by association or history.” National Register of Historic Places, How to Complete Register Forms 8 (1975).

When considering “historic district” matters the emphasis is on linkage among buildings in the entire district, not, as in landmark legislation, on the individual significance of a particular structure. The buildings at 125 and 127 Pine Street are, at the least, typical nineteenth century structures, and are thus linked historically to other nineteenth century structures in the district. It has been pointed out by appellant that the block of Pine Street on which the buildings are located also contain several modem stmctures, and it is argued that the buildings referred to are thus out of place. Apart from the fact that there are contiguous historic houses on Pine Street, the suggested frame of reference is too narrow, and the review board properly considered more than simply the impact of a proposed demolition on a single block:

“Any governing body in determining whether or not to certify to the appropriateness of the erection, reconstruction, alteration, restoration, demolition or razing of a building, in whole or in part, shall [398]*398consider the effect which the proposed change will have upon the general historic and architectural nature of the district. ...” 53 P.S. §8004(b).

On balance we conclude that the Board of Historical Architectural Review could reasonably find the demolition of appellant’s buddings detrimental to the preservation of the fabric of the historic district in which they are situate.

Historic district legislation is a subject bound to arouse divergent emotion. The public perceives a valid interest in preserving the past, while the owner of real estate is aggrieved by his inability to deal with his property as he sees fit. The balancing of these conflicting interests will usually prove to be a delicate problem and this case is no exception. Depending upon how one views the evidence the scales could swing in either direction. In this case the board’s findings of fact are supported by testimony and evidence in the record.

While the witnesses for the contesting parties were in sharp disagreement as to the architectural and historical significance of the buildings involved, there is no basis for our concluding that the board committed an abuse of discretion in relying on appellee’s evidence. Our proper function is only to insure that there is substantial support for the board’s conclusions in the record, and we may not substitute our judgment for theirs. The board chose to accept the testimony of appellee’s witnesses and we are not at liberty to dictate that appellant’s version is correct or more reasonable. Given the constitutional validity of the ordinance, the board’s decision must be upheld in this instance.

B. ECONOMIC

The second prong of the appellant’s constitu[399]*399tional attack focuses on economic considerations — that is, the alleged “taking” of appellant’s property. Again, the testimony is in conflict.

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10 Pa. D. & C.3d 393, 1979 Pa. Dist. & Cnty. Dec. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleckner-v-harrisburg-pactcompldauphi-1979.