Stay of demolition in place for 4046-48 Chestnut until October, pending appeal and designation hearings

In an opinion issued July 20, Court of Common Pleas Judge Linda Carpenter ordered that the stay of demolition for 4046-4048 Chestnut Street is to remain in effect until October 15, pending an administrative appeal of demolition permits issued for the site. Her decision also allows for the Historical Commission to review a pending application to nominate the properties to the Philadelphia Register of Historic Places. 

Judge Carpenter found the demolition permits issued to be invalid because they were neither issued nor amended according to the procedures delineated under the Philadelphia Administrative Code.

The code stipulates that if a permit application is made by a person other than the owner, that application “shall be accompanied by an affidavit of the owner or the qualified applicant or a signed statement of the qualified applicant to the effect that the proposed work is authorized by the owner in fee and that the applicant is authorized to make such an application.” In the case of 4046-48 Chestnut, a demolition contractor initiated the demolition permit applications in March, but no evidence was presented to the Court to show that the applications to the Department of Licenses and Inspections (L&I) were accompanied by any supporting documentation attesting to the owner’s approval of the permit application.

The twin rowhouses at 4046-48 Chestnut were sold to a new owner on March 1, 2016. The demolition permit applications were submitted to L&I on March 17 and permits were issued on May 26 to the previous owner. L&I then reissued the permits on June 15, but no evidence was provided to the Court that the city reissued these permits in response to any additional filing with L&I by the owner or its authorized representatives, as specified under code.

“The re-issuance of the permits appeared to be based on the verbal directives of someone within L&I and not upon the submission of additional paperwork,” Judge Carpenter wrote.

With regard to the issue of the stay pending the potential designation of 4046-48 Chestnut Street, Judge Carpenter made room for that process to proceed.

The nomination to designate 4046-48 Chestnut Street was received on May 10, and on May 16 the Historical Commission sent notice that a nomination was accepted and under consideration by the Commission. Official consideration marks the point when the Historical Commission’s jurisdiction over permits begins. On the matter of the Commission’s jurisdiction over permits for properties that are being considered for designation, city code states:

“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, except that L&I may issue a building permit if the Historical Commission has approved the application or has not take final action on designation and more than 90 days have elapsed from the date the permit application was filed with the Historical Commission. Where the Historical Commission takes final action on designation within the time allotted herein, any building permit application on file with L&I shall be deemed to have been filed after the date of the Historical Commission’s action…”

Judge Carpenter called particular attention to the last sentence of that paragraph of code, finding that it provides retroactive power to the Commission over any permit applications on file. In other words, once the Commission takes final action, then any permit applications get new filing dates and therefore a new timeline. If a property were designated as historic, that decision would trigger normal permit application review by the Historical Commission.

“There would be no need to ever retroactively determine the filing date of an application unless, in a situation like this one, the nomination to the Historical Commission is meant to trump the first filed doctrine,” Judge Carpenter wrote, questioning why else that clause would it be in the code.

At its July 8 meeting the Historical Commission tabled its consideration of the application to nominate 4046-48 Chestnut Street to the Philadelphia Register of Historic Places, though the nomination was determined to be a correct and complete, meeting the standards for designation. Without clarity about the validity of the building permits commissioners opted not to take final action. The next meeting of the Historical Commission is August 12.

A hearing to appeal the permits will likely go before the Zoning Board of Adjustment next. 

The Historical Commission did not respond to PlanPhilly’s inquiry on Wednesday. Karen Guss, spokeswoman for L&I, said via email only that “the City is reviewing the decisions and evaluating its options.”

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