The wall clock in Judge Linda Carpenter’s City Hall courtroom is stopped. But in preservation questions, as in life, timing is everything.
Time is the elemental issue in a case before Judge Carpenter, which has thrust an otherwise subdued row of 1870s Italianate rowhouses in Spruce Hill into the preservation spotlight. And demolition is the prompt for all of the attention being paid to the 4000 block of Chestnut Street in recent months.
Last month Judge Carpenter issued a temporary injunction to stay the demolition of a pair of rowhouses at 4046-4048 Chestnut Street. The stay comes as the Philadelphia Historical Commission considers nominations for a row of twins at 4046-4056 Chestnut, prompted by the threatened erosion of this block's historic fabric by demolition. The rowhouses at 4042-44 Chestnut have already been razed in favor of new housing and developers have pursued plans to demolish two more sets of these twins. But the recent demolition applications are not exactly equal – timing is what makes them different – and that’s what landed one demolition case in court.
At issue is when exactly the Historical Commission’s jurisdiction over nominated buildings begins. When it comes to considering permits for alteration or demolition, the city’s preservation ordinance states: The Department of Licenses & Inspections (L&I) “shall not issue any building permit for the demolition, alteration, or construction of any building, structure, site, or object that is being considered by the Historical Commission for designation as historic or that is located within a district being considered by the Historical Commission for designation as historic where the building permit application is filed on or after the date that notices of proposed designation have been mailed..." *
An application to demolish 4050-52 Chestnut Street was submitted on the same day (May 16) that property owners were sent notice that this set has been nominated to the Philadelphia Register of Historic Places. Since notice is what triggers Historical Commission jurisdiction over properties under consideration for nomination, no demolition permits will be issued without its approval.
But a demolition permit for the twins at 4046-48 Chestnut Street is less clear-cut, preservation advocates claim, and that’s the case in court before Judge Carpenter.
After three days of hearings the week of June 13, Judge Carpenter ordered a temporary injunction to prevent demolition of 4046-48 Chestnut Street. In subsequent hearings in late June, Judge Carpenter heard testimony from preservationists, the Historical Commission’s Executive Director Jon Farnham, an L&I plan examiner, and the city’s Director of Planning & Development Anne Fadullon.
An application to demolish 4046-48 Chestnut was filed with L&I on March 17, 2016. Notice of historic nomination came two months later; it was received May 10, 2016, and notice was issued six days later.
The lawyers representing the city and property owner argue that this case is straightforward: The permit came before the nomination notice, and therefore is valid under city code.
“The City believes that this provision of the code at issue is very clear,” said the Law Department’s Andrew Ross. Jurisdiction may begin only after notice has been mailed.
But Hal Schirmer, attorney for the University City Historical Society (UCHS), argued that this case was not so cut and dry.
Schirmer contends that the ordinance may be interpreted differently. He suggests that, as constructed, the ordinance sets up different starting points for the commission's jurisdiction, one for individual properties considered for designation, and another - as signified by "or" - for those located with a district being considered for designation "where the building permit application is filed on or after the date that notices of proposed designation have been mailed." That "or", he says, sets up two scenarios: jurisdiction begins for individual properties "being considered" while districts come under the commission's jurisdiction only after notice has "been mailed". *
The permitting process, Schirmer said, was flawed to the point of inaccuracy and therefore the permit application predating the nomination is not valid. Among the issues: The initial owner information reflected a previous owner, a subsequent permit issued in June showed a different owner and new permit number, and the permit was not properly posted to provide public notice.
The issue of different permit numbers and inconsistent owner information prompted several questions from Judge Carpenter: Are they the same permit or different? Whose information is L&I checking before issuing a permit? Why does L&I accept applications from someone who says they’re the owner but whose information doesn’t match with deed information from the Office of Property Assessment? How does L&I know if a permit is issued to the right entity?
L&I plan examiner Sarah Kaiser testified that amendments to permits are considered part of the original permit application under city code. She also said that a permit application for work may still be correct, but a permit issued may reflect the wrong owner information because of a delay in the computer systems that feed L&I owner information from city property records.
The Law Department and lawyers representing the property owners argued that any permit discrepancies are the result of problems with the way L&I’s records system pulls in property data from other city records systems. If old owner information is reflected, that can be rectified retroactively. There may be sand in the gears of government, they argued, the sequence of events is sound enough to make the permit stand.
Judge Carpenter will decide that matter this month. Meanwhile, the Historical Commission will consider the nominations proposed for 4046-4056 Chestnut Street on Friday, July 8.
*[UPDATED July 7, 2016 9:40pm:] An earlier version of this article linked to and quoted the pre-2012 ordinance, and incompletely characterized the case being made by Hal Schirmer on behalf of the University City Historical Society. PlanPhilly regrets the error.