Commonwealth Court affirms Penn can demolish historic property at 40th & Pine

A panel of judges at the Commonwealth Court of Pennsylvania has ruled that the University of Pennsylvania has the right to tear down a historic building at 40th and Pine streets that has been in legal limbo since the Historical Commission first approved a demolition permit nearly three years ago.

The Court’s decision affirmed both the Court of Common Pleas and the Board of L&I Review, the latter of which upheld the permit by a split vote.

Penn bought the building, which was constructed in the 1850s, twelve years ago. Since then, a number of proposals for reuse were explored, but none came to fruition. Penn decided in 2012 that the building had to be torn down, and partnered with developer Jonathan Weiss to build housing for graduate students on the site.

After the Historical Commission approved the demolition permit by a 7-2 vote in May 2012, a group of neighbors appealed the decision to the Board of L&I Review. That appeal was denied in a 2-2 vote nearly a year later. In April of last year, the Court of Common Pleas upheld the Board’s decision.

Currently, a five-story apartment building is proposed for the site. In 2013, the developers presented a plan that would have preserved the mansion, but neighbors did not agree to that plan.

“Every administrative body that we have been through has agreed that our proposal is appropriate and will be an attractive contribution to this thriving neighborhood,” developer Jonathan Weiss told PlanPhilly in an email. “The decision is a little bittersweet, however, because our original proposal was to preserve the historic part of the existing structure.   Unfortunately, our preservation proposal has been opposed by [the appellants]. So we are staying focused on the plan which we believe has the best chance of success.”

In its opinion, the Commonwealth Court ruled that two of the appellants, Maryann Kurmlavage and Constellar Corp., have legal standing because they own properties that abut the property in question. It did not rule on the standing of the Woodland Terrace Homeowners Association. The appellants’ standing had been challenged by Penn and the City.

But the Court upheld the prior decisions on the merits of the financial hardship application. It ruled that Penn had fulfilled the requirements of the historic preservation ordinance and the Historical Commission’s rules and regulations for proving hardship, which property owners must do when they seek to demolish or significantly alter historic buildings.

Paul Boni, an attorney for the neighbors opposing the demolition permit, said on Wednesday that he didn’t know whether they would appeal the decision to the Pennsylvania Supreme Court. If they do, there’s no guarantee that the higher court will hear the case. Appeals up to the Commonwealth Court earn hearings by right, but the state Supreme Court only hears a fraction of its appeals.

Still pending is an appeal of the zoning board’s decision to grant variances for the apartment complex proposed for the site.