Rufo v. Bd. of License & Inspection Review

192 A.3d 1113
CourtSupreme Court of Pennsylvania
DecidedSeptember 13, 2018
Docket22 EAP 2017
StatusPublished
Cited by7 cases

This text of 192 A.3d 1113 (Rufo v. Bd. of License & Inspection Review) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rufo v. Bd. of License & Inspection Review, 192 A.3d 1113 (Pa. 2018).

Opinions

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE BAER

The Property Maintenance Code ("Code") consists of a series of ordinances promulgated by the City of Philadelphia ("City") to regulate the maintenance of properties located in the City. This appeal involves a constitutional challenge to a provision of the Code that requires owners of vacant buildings that are a "blighting influence," discussed infra , to secure all spaces designed as windows with working glazed windows and all entryways with working doors. Appellees, owners of a vacant property that was cited for violating this ordinance ("Owners"), challenged the provision, contending, inter alia , that it is an unconstitutional exercise of the City's police power. The City's Board of License and Inspection Review ("Board") rejected Owners' arguments; however, the trial court agreed with Owners and deemed the ordinance unconstitutional. The Commonwealth Court affirmed, concluding that the ordinance is an unconstitutional exercise of the City's police power because it is concerned with the aesthetic appearance of vacant buildings, not the safety risks posed by blight. For the reasons set forth herein, we hold, respectfully, that the Commonwealth Court and trial court erred in this regard. Consequently, we vacate the orders of the Commonwealth Court and trial court, and remand the matter to the trial court for consideration of Owners' remaining issues.

The record establishes that the building at issue in this appeal, which was previously home to Gretz Brewing Company, is located in the City at 1524 Germantown Avenue (the "Property"). In August of 2003, Appellee TR Gretz, L.P.,1 purchased the Property, which was and continues to be vacant. Appellee Anthony M. Rufo ("Rufo") describes himself as the general managing partner of TR Gretz, L.P. (Again, we will refer to Appellees collectively as "Owners.")

*1115On May 14, 2012, the City's Department of License and Inspection ("Department") conducted an inspection of the Property. The following day, the Department issued an "Initial Notice of Violation and Order." Therein, the Department, inter alia , declared the Property to be a "blighting influence" on the community and in violation of Section PM-306.2 of the Code.2 Section PM-306.2 stated, in full, as follows:

The owner of any vacant building shall keep the interior and exterior of the premises free of garbage and rubbish. The owner of any vacant building shall keep all doors, windows and openings from the roof or other areas in good repair. Where such doors or windows or entrance to openings are readily accessible to trespassers, they shall be kept securely locked, fastened or otherwise secured. The owner shall take any other measures prescribed by the Department to prevent unauthorized entry to the premises by closing all openings with materials approved by the Department. A vacant building, which is not secured against entry, shall be deemed unsafe within the meaning of Section PM-307.0. The owner of a vacant building that is a blighting influence, as defined in this subcode, shall secure all spaces designed as windows with windows that have frames and glazing and all entryways with doors. Sealing such a property with boards or masonry or other materials that are not windows with frames and glazing or entry doors shall not constitute good repair or being locked, fastened or otherwise secured pursuant to this subsection.

Code at § PM-306.2 (repealed and replaced) (emphasis added).

Owners lodged an appeal with the Board, contending, inter alia , that Section PM-306.2 of the Code violates constitutional principles of substantive due process. In this regard, Owners asserted that Section PM-306.2 is invalid and unconstitutional "because its purpose is to compel a property to be aesthetically pleasing, rather than safe, which is not the proper use of the municipalities' [sic ] police power." Addendum to Appeal, 6/8/2012, at ¶ 7. The appeal was continued several times to allow the parties to resolve some of the problems with the Property, but a three-member panel of the Board eventually held hearings to address the parties' remaining issues on May 13th and July 22nd of 2014.

At those hearings, the following witnesses testified in a manner that was generally *1116favorable to Owners: (1) Rufo; (2) Rufo's son, Anthony J. Rufo ("Son"); and (3) Mark Wade, a realtor. One witness testified for the City, namely, Rebecca Swanson, a Policy and Communications Officer for the Department. For ease of discussion, we first will summarize the testimony offered by Rufo, Son, and Wade, followed by a summary of Swanson's testimony.

Rufo acknowledged that the Property continued to be in violation of the Code insomuch as 31 of the Property's 40 windows failed to comply with Section PM-306.2. N.T., 5/13/2014, at 23-26. Rufo, however, testified that within a week of putting three new windows in the Property, they were broken. Id. at 28. Rufo also acknowledged that the parties previously had agreed that Owners could clear the Code violations by either demolishing the Property or obtaining a zoning permit to start to develop the Property. Owners were unable to accomplish either option for various reasons. Id. at 26-31.

During his testimony, Son, who is in business with Rufo, conceded that the Property was in "poor to blighted condition" when Owners purchased it. Id. at 65. Son testified that, since Owners bought the Property, they have had to invest $500,000 to $600,000 into it for maintenance purposes. Id. at 66-67. Son explained that, to secure the Properties' various doors and windows, they utilized "structural materials, such as masonry and steel."Id. at 70. At this point in Son's testimony, a member of the Board asked Son whether he could put structural materials behind a window if he was concerned about people getting into the building, and Son answered, "Technically, yes, I could." Id. at 70-71. Throughout his testimony, Son insisted that the Property is secure and inaccessible to people and that putting windows and doors on the building would invite squatters and vandalism, though he also acknowledged that other occupied properties in the area, such as a mosque, do not have broken windows. Id. at 85.

Owners lastly offered Wade's testimony over the City's relevancy objection. N.T., 7/22/2014, at 2-11. At the time of the hearing, Wade was a realtor with 25 years of experience with real estate in the City. Id. at 11-12. Wade described the Property "as a giant eyesore." Id. at 13-14. According to Wade, the addition of windows and doors to a vacant building, such as the Property, increases the value of the building only by an amount equal to the value of the doors and windows. Id. at 14-16. Wade also asserted that the addition of windows to the Property would not reduce blight. Id. at 21. However, upon questioning from the Board, Owners' counsel conceded that Wade could not testify as an expert on the noneconomic benefits of community cohesion or crime reduction. Id. at 23.

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Cite This Page — Counsel Stack

Bluebook (online)
192 A.3d 1113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rufo-v-bd-of-license-inspection-review-pa-2018.