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applied to the Williamsport Histon.
<br />cal Architectural Review Board
<br />("the Board") for a demolition per-
<br />mit.
<br />The Board, on February 3, 1992,
<br />voted to recommend to the City
<br />Council to deny the application.
<br />The City Council, in turn, rejected
<br />Park Home's request for a demoli-
<br />tion permit on July 16, 1992.
<br />Park Home subsequently filed a
<br />lawsuit in� state court challenging
<br />the City's action, arguing that the
<br />City's denial of the demolition
<br />permit resulted in an unlawful
<br />taking, that the City's preservation
<br />ordinance was unconstitutionally
<br />vague, and that the Board's actions
<br />in denying the permit were arbi-
<br />trary and capricious. The Lycoming
<br />Court of Common Pleas, in a de
<br />novo hearing, ruled against the
<br />property owner, upholding the Ci-
<br />ty's action. See Park Home v. City
<br />of Williamsport, No. 92-01,607 (Ct.
<br />Comm. Pleas Oct. 21, 1993[[12 PLR
<br />1190 (Dec. 1993)]. The Common-
<br />wealth Court, in Park Home v.
<br />City of Williamsport, No. 2742
<br />(Commw. Ct. 19931, affirmed that
<br />decision.
<br />The Court's Decision
<br />The Supreme Court of Pennsyl-
<br />vania affirmed the City of Wil-
<br />liamsport's denial of permission to
<br />demolish the Park Home, finding
<br />that the owner had failed to meet
<br />its burden of proof in establishing a
<br />regulatory taking. The court also
<br />determined, in a decision by Chief
<br />justice Nix, that the state's en-
<br />abling law and the City's preserva-
<br />tion ordinance were not unconsti-
<br />tutionally vague, and that the
<br />Board's failure to include a written
<br />report of its findings to the Coun-
<br />cil, although required by the ordi-
<br />nance, amounted to a "minor proce-
<br />dural defect which was subsequent-
<br />ly remedied."
<br />Takings Claim. In ruling in
<br />favor of the City of Williamsport,
<br />the court first determined that the
<br />City's denial of the demolition
<br />permit did not result in an unlaw-
<br />ful taking. In support of its claim,
<br />the owner had argued that a taking
<br />resulted because it would have to
<br />either refurbish the building "at
<br />great expense" or sell the structure
<br />at a "depressed fair market value
<br />due to the historic designation of
<br />the building."
<br />The court, however, found that the
<br />owner had failed to meet its burden
<br />of proof, as set forth in Pittsburgh
<br />Historic Review Commission v.
<br />Weinberg, 676 A.2d 207 (Pa. 1996)
<br />115 PLR 1087 (May 1996)].
<br />In Weinberg, the Supreme
<br />Court of Pennsylvania ruled that in
<br />order to establish that the denial of
<br />a permit to demolish a historic
<br />building resulted in an unlawful
<br />taking, the owner must demon-
<br />strate "that it would be impractica-
<br />ble or impossible to sell their prop-
<br />erty." In the present case, however,
<br />the President of the Board of Direc-
<br />tors of The Park Home testified on
<br />cross-examination that "the Park
<br />Home had not been offered for sale
<br />since the time that he was a board
<br />member in the late 1980's" and that
<br />"it was board policy that the build-
<br />ing not be sold and that it had pub-
<br />licly stated that the property was
<br />not for sale." According to the
<br />court, "these statements clearly
<br />indicate that the Board of Directors
<br />did not even consider the possibili.
<br />ty of selling the property as an al-
<br />ternative to demolition" and there-
<br />fore the trial court had properly
<br />LAW
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<br />cod that the owner had failed
<br />to establish that "it has been denied
<br />any profitable use of the property."
<br />Vagueness Claim. The Supreme
<br />Court of Pennsylvania likewise
<br />determined that Pennsylvania's
<br />enabling statute and the Williams-
<br />port Historic District Ordinance are
<br />not unconstitutionally vague. In
<br />support of this claim, the owner -
<br />had argued that the lack of specific- a
<br />ity and definite standards in the
<br />statute and ordinance fail to give
<br />property owners fair notice whether
<br />certain uses of their property are
<br />permissible and "invites 'arbitrary
<br />and discriminatory acts as well as
<br />uneven and unpredictable enforce-
<br />ment.'" The court,
<br />however, found that
<br />both laws "possess[ed]
<br />the requisite degree of
<br />specificity such that
<br />they are not unconsti-
<br />tutionally vague."
<br />Turning first to
<br />Pennsylvania's en-
<br />abling law for historic
<br />preservation, 53 Pa.S.
<br />§ 8004, the court ob-
<br />served that "[a] review of the en-.
<br />abling statute sets forth a limited
<br />number of factors that a governing
<br />body may consider in determining
<br />whether or not to certify a struc-
<br />ture for alteration or demolition."
<br />For example, the court stated that
<br />a governing body may consider only
<br />exterior architectural features seen
<br />from a public street or way. More-
<br />over, the court reasoned, factors for
<br />consideration by the governing
<br />body such as the "general design,
<br />arrangement, texture, material and
<br />color of the building or structure
<br />and the relation of such factors to
<br />similar features of buildings and
<br />structures in the district," provide
<br />sufficient notice to property owner—
<br />as to what will guide a governinu
<br />body's decision-making process.
<br />The court likewise determined
<br />that the Williamsport Historic Dis-
<br />trict Ordinance was not unconstitu.
<br />tionally vague or applied in an arbi.
<br />trary manner. The court found that
<br />the distinctions between the Wil-
<br />liamsport ordinance and the en-
<br />abling statute were minimal and
<br />therefore did not justify differing
<br />results and that the owner's "un-
<br />substantiated allegations" failed to
<br />"demonstrate the vagueness of the
<br />provisions at issue or the arbitrari-
<br />ness of the Board's actions."
<br />Procedural Error. Finally, the
<br />Pennsylvania Supreme
<br />court rejected the own-
<br />er's argument that the
<br />Board's decision had no
<br />legal effect since the
<br />Board had failed to file
<br />a written report of its
<br />findings with the
<br />Council as required
<br />under the ordinance.
<br />Agreeing with the trial
<br />court on this issue, the
<br />supreme court observed that the
<br />owner, had failed to object to this
<br />error when the matter was remand-
<br />ed to the Council and that the
<br />owner had "suffered no prejudice in
<br />light of the fact that it was afforded
<br />the opportunity to fully present its
<br />case at a de novo hearing before the
<br />trial court."
<br />Analysis. The Supreme Court of
<br />Pennsylvania's most recent preser-
<br />vation decision, Park Home v. City
<br />of Williamsport, underscores its
<br />prior ruling in City of Pittsburgh
<br />Historic Review Commission v.
<br />Weinberg, 676 A.2d 207 (Pa.
<br />1996)[15 PLR 1087 (May 1996)],
<br />that the burden of proving a regula-
<br />The Board of
<br />Directors did
<br />not even consid-
<br />er the possibility
<br />of selling the
<br />property as an
<br />alternative to
<br />demolition.
<br />reservation Law Reporter Jan. -Mar. 1997 Jan. -Mar. 1997 Preservation Law Reporter 16 PLR 1009
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