Jonathan Farnham’s response to Frank Matero’s commentary on the Hillman Medical Center

To: Matt Golas, PlanPhilly Editor
From: Jon Farnham, Executive Director, Philadelphia Historical Commission
Re: “Hillman Center’s demise will signal larger problem with architectural legacy here”

Date: 1 July 2009

On June 24, PlanPhilly published Frank Matero’s “Hillman Center’s demise will signal larger problem with architectural legacy here,” an editorial about the Philadelphia Historical Commission’s recent approval of the demolition of the Sidney Hillman Medical Center at 2116-2132 Chestnut Street. Although I certainly agree with Matero, the eminent professor and outgoing chair of the University of Pennsylvania’s Department of Historic Preservation, that our recent past merits our conscientious preservation, I must adamantly disagree with his assertion that the Commission approved the Hillman demolition because it failed to understand the importance of the building. As the record clearly demonstrates, the Commission was fully cognizant of the building’s architectural significance as an unusual example of Mid-Century Modernism and its historical significance as a labor union medical center. Moreover, as the record also clearly demonstrates, the building’s significance rightly played no role in the Commission’s review of the demolition permit application. The Commission approved the demolition of the building only after finding that the building could not be used for any purpose for which it is or may be reasonably adapted. In other words, the Commission found that requiring its preservation would deny the property owner of any reasonable economic value and therefore constitute an economic hardship, a critical fact that Matero failed to mention, much less discuss, in his editorial. In fact, a building’s relative historical significance is immaterial in the hardship review process prescribed by the City of Philadelphia’s historic preservation ordinance.

Philadelphia’s historic preservation ordinance authorizes the Commission to approve the demolition of a building that is either individually designated or contributes to an historic district in two instances only: when the demolition is necessary in the public interest, or when the building cannot be used for any purpose for which it is or may be reasonably adapted, in other words, when its retention would constitute a financial hardship. Mr. Matero mistakenly asserts that the Hillman Medical Center “would clearly qualify for full protection as a significant example” if it were “re-evaluated today,” 14 years after it was first designated as part of the Rittenhouse-Fitler Residential Historic District in 1995. The medical center, which is classified as Contributing in the historic district, has the highest level of the Commission’s protection. No re-evaluation could have provided it with more protection than it held during the review of the demolition permit application.

The hardship provision in Philadelphia’s historic preservation ordinance is a critical component of the law. The landmark court case that forms the basis for this provision, and provisions like it in nearly every American municipal preservation law, is worth reviewing. From its establishment in 1956 to the adoption of the current preservation ordinance in 1985, the Commission, like most municipal preservation agencies, was authorized to postpone but not prevent demolitions. The Commission could not deny demolitions outright because the prevailing legal opinion held that the denial of a demolition would constitute a taking without just compensation and, therefore, be unconstitutional. In 1978, the US Supreme Court issued a landmark decision in the Penn Central vs. City of New York case that fundamentally changed that opinion. The New York City Landmarks Preservation Commission had denied two Penn Central proposals to build on top of Grand Central Station. Penn Central appealed the denials, alleging that New York’s preservation law was unconstitutional because the denials deprived the owner of its full use of the property and therefore constituted a taking without just compensation under the Fifth and Fourteenth Amendments. Rejecting Penn Central’s claim, the Court found that government regulation to preserve historic resources is a valid exercise of police power and that a substantial economic burden caused by a preservation law is constitutional as long as the property retains reasonable economic value. With its ruling, the Court established the legal basis for preservation agencies to deny demolitions outright in certain cases. Following the Penn Central decision, municipalities across the country revised their preservation laws, authorizing preservation agencies to deny demolitions of historic buildings in instances when the buildings could be feasibly reused and thereby retain reasonable economic value. Availing itself of Penn Central, Philadelphia rewrote its ordinance, authorizing the Commission in 1985 to deny demolitions outright unless the owner proves that the historic building cannot be reasonably reused. With the new authority came new responsibility. To avoid the takings claim and the concomitant constitutional challenge, the Commission’s hardship process must be reasonable and must allow for the demolition of a historic building, regardless of its significance, when the denial of the demolition permit would deprive the owner of any reasonable economic value. Unreasonably requiring the retention of a historic building, for example, because of its outstanding architectural significance, would constitute a taking without just compensation, thereby violating the owner’s constitutional rights and placing the preservation ordinance in legal jeopardy. The fear of a constitutional challenge is not an academic one; it is very real. Between 1992 and 1994, the Commission operated in limbo after the Pennsylvania Supreme Court decided United Artists Theater Circuit, Inc. vs. City of Philadelphia, finding that the designation of the Boyd Theater was an uncompensated taking and therefore invalidating the Philadelphia historic preservation ordinance. In 1994, the court reheard the case and reversed itself, restoring the validity of the historic preservation ordinance and the Commission’s authority.

The Commission did not reach its decision regarding the Hillman Medical Center demolition permit application lightly. It was not ignorant or cavalier, as Mr. Matero implied in his editorial. Nor did the Commission merely succumb to development pressure. Instead, the Commission diligently complied with the preservation ordinance, thereby protecting it from a constitutional challenge. The hardship review alone extended over more than two months and included seven hours of review during four public meetings. At those meetings, the property owner presented extensive factual evidence demonstrating that the building could not be used for any purpose for which it is or may be reasonably adapted, while the protestants offered no cogent contradictory evidence. Several historians including David Brownlee, David De Long, and William Whittaker, all associated with the University of Pennsylvania, presented written and oral testimony regarding the architectural significance of the building. Rightly, the Commission disregarded that testimony and did not allow the building’s significance to influence its decision. For the hardship process, the provision that ensures the constitutionality of the historic preservation ordinance, to function properly, historical significance must not be a factor. To comply with the US Supreme Court’s Penn Central decision, the Commission cannot deny a property owner all reasonable economic value, even if the property holds great historic significance. Mr. Matero painted a compelling portrait in his editorial, but he failed to provide his readers with the most salient details of the review. The Commission’s demolition review was not a referendum on the Hillman Medical Center’s architectural significance, but a regulatory review predicated on findings of fact and conclusions of law.

Since its establishment, the Commission has valued and endeavored to protect historic resources that document our recent past. It designated Howe & Lescaze’s PSFS building in 1968, less than 40 years after it was constructed. In 1999, it classified Society Hill’s redevelopment era buildings of the 1950s, 60s, and 70s including I.M Pei’s towers and townhouses as Contributing to the historic district. In the last few years, the Commission designated Louis Kahn’s Richards Medical and Goddard Biology Buildings and Montgomery & Bishop’s Greenbelt Knoll, a racially-integrated community of Modernist houses. I myself authored the nomination for Robert Venturi’s Guild House. And earlier this year, the Commission designated Kahn’s Margaret Esherick House and Richard Neutra’s Hassrick House. I congratulate Mr. Matero on his recordation program for Modernist buildings and invite him and his preservation students to nominate landmarks from our recent past for designation to the Philadelphia Register of Historic Places.