142 F.3d 582 (3rd Cir. 1998), 97-1615, Sameric Corp. of Delaware, Inc. v. City of Philadelphia

Docket Nº:97-1615.
Citation:142 F.3d 582
Party Name:SAMERIC CORPORATION OF DELAWARE, INC., Appellant, v. CITY OF PHILADELPHIA; Philadelphia Historical Commission, an Agency of the City of Philadelphia; Edward A. Montgomery, Jr.; Richard Tyler, Ph.D.; Chris Cashman; David Brownlee, Ph.D.; David Hollenberg; Barbara Kaplan; Joan Ferrera; and David Wismer, Individually and in Their Official Capacities a
Case Date:April 10, 1998
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
FREE EXCERPT

Page 582

142 F.3d 582 (3rd Cir. 1998)

SAMERIC CORPORATION OF DELAWARE, INC., Appellant,

v.

CITY OF PHILADELPHIA; Philadelphia Historical Commission,

an Agency of the City of Philadelphia; Edward A.

Montgomery, Jr.; Richard Tyler, Ph.D.; Chris Cashman;

David Brownlee, Ph.D.; David Hollenberg; Barbara Kaplan;

Joan Ferrera; and David Wismer, Individually and in Their

Official Capacities as Members of the Philadelphia

Historical Commission.

No. 97-1615.

United States Court of Appeals, Third Circuit

April 10, 1998

Argued March 9, 1998.

Page 583

[Copyrighted Material Omitted]

Page 584

[Copyrighted Material Omitted]

Page 585

Richard A. Sprague, Geoffrey C. Jarvis (argued), Charles J. Hardy, David S. Lubin, Sprague & Sprague, Philadelphia, PA, for Appellant.

Michael F. Eichert (argued), Chief Deputy City Solicitor, City of Philadelphia Law Department, Philadelphia, PA, Robert C. Heim, Arthur Newbold, Diane S. Danoff, Aline Fairweather, Dechert Price & Rhoads, Philadelphia, PA, for Appellees.

Before: GREENBERG, SCIRICA, and ALDISERT, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Sameric Corporation of Delaware ("Sameric") appeals from the district court's order of July 14, 1997, granting summary judgment to the City of Philadelphia (the "City") and various individual defendants. Sameric filed this action in November 1995 alleging that the City violated its federal and state constitutional rights by improperly designating Sameric's theater as an historic building and subsequently denying Sameric a permit to demolish the theater. Sameric's complaint alleged that, as a result of the defendants' unlawful designation of the theater and subsequent denial of the demolition permit, its business was injured and it was forced to sell its properties, including the theater, at substantially less than fair market value.

Page 586

The district court had subject matter jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331, 1367. We have jurisdiction to review the final order of the district court pursuant to 28 U.S.C. § 1291.

II. FACTS AND PROCEDURAL HISTORY

  1. Philadelphia's Historic Preservation Ordinance

    The Philadelphia Historical Commission ("Historical Commission") is an instrumentality of the City which administers Philadelphia's Historic Preservation Ordinance (the "ordinance"). The Historical Commission's primary obligation is to "[d]esignate as historic those buildings, structures, sites and objects which the Commission determines, pursuant to the criteria set forth in Subsection (5) of [Section 14-2007], are significant to the City." Phila. Code § 14-2007(4)(a). The ordinance permits the Historical Commission to designate a building 1 as historic where at least one of ten enumerated criteria is met.

    When a building is proposed for historic designation, the Historical Commission prepares a nomination form, which begins the process by which the Historical Commission considers buildings for designation. The nomination form details information regarding the building's historic, architectural, and cultural features. The Designation Committee of the Historical Commission (the "Designation Committee") is responsible for selecting which nominated buildings the Historical Commission will consider for historic designation. When the Designation Committee recommends a building for preservation, it presents its report and recommendation to the Historical Commission at a hearing on the matter.

    Pursuant to the ordinance, the owner of a building designated as historic may not demolish or alter that building without a permit from the Department of Licenses and Inspections ("Department of Licenses"). See Phila. Code § 14-2007(7)(a). If an owner desires such a permit, it applies to the Department of Licenses, which then forwards the application to the Historical Commission for review. An owner may obtain the permit where it is suffering "financial hardship" or the building "cannot be used for any purpose for which it is or may be reasonably adapted." Phila. Code § 14-2007(7)(f). The ordinance requires the Department of Licenses to grant the application if the Historical Commission has no objection but to deny the application if the Historical Commission does object. See Phila. Code § 14-2007(7)(g). Upon the denial of such a permit, the owner may appeal to the Board of License and Inspection Review (the "Board of License Review"). See Phila. Code § 14-2007(10).

  2. Historic Designation of the Boyd Theater

    Prior to 1988, Sameric owned the Boyd Theater 2 on Chestnut Street in Philadelphia. The Historical Commission began to consider the Boyd Theater as a candidate for designation as historic in 1984 or 1985 by reason of discussions between members of the Historical Commission and the City of Philadelphia Planning Commission.

    As a result, a staff employee of the Historical Commission prepared a nomination form for the Boyd Theater in January 1986. The nomination form detailed the Boyd Theater's notable features and included photographs and citations to publications concerning the theater. The completed nomination form was forwarded to the Designation Committee, which held a meeting to consider the nomination. The Designation Committee decided unanimously to recommend to the Historical Commission that the Boyd Theater be designated as historic.

    Following this vote, the Historical Commission sent Sameric a letter on March 28, 1986, indicating the Commission's intent to consider designating the theater. The letter

    Page 587

    notified Sameric that a hearing was scheduled for April 30, 1986, to consider the matter. At Sameric's request, the Commission postponed this hearing six times.

    On January 27, 1987, Sameric attempted to prevent the Historical Commission from considering the proposed designation by filing an action in equity in the Court of Common Pleas of Philadelphia County seeking a temporary restraining order against the Historical Commission. The Court of Common Pleas stayed the Historical Commission's consideration of the proposed designation for 30 days. On January 30, 1987, the Historical Commission removed the suit to the United States District Court for the Eastern District of Pennsylvania on the grounds that some of the claims arose under the Constitution. The district court then granted the Commission's motion to dismiss Sameric's complaint. 3 See Sameric Corp. of Chestnut St., Inc. v. Philadelphia Historical Comm'n, Civ. A. No. 87-553, 1987 WL 7636, at * 2 (E.D.Pa. Mar. 5, 1987).

    Following the district court's dismissal of the complaint, the Historical Commission held a hearing on March 25, 1987, to consider the proposed designation of the Boyd Theater as historic. At the hearing, Commissioner David Brownlee, a member of the Designation Committee, presented the committee's recommendation and report. Although, during the hearing, Sameric's counsel repeatedly asked the Historical Commission to postpone the vote so that Sameric could present evidence, the Historical Committee voted to designate the Boyd Theater as historic, with only Commissioner John Street dissenting.

    Later that day, Sameric requested the Court of Common Pleas to vacate the Historical Commission's decision and reschedule the hearing because the Commission did not properly notify Sameric of the hearing and because Sameric was not prepared to present certain evidence at the hearing. The court granted Sameric's request and ordered the Historical Commission to reconvene to hear the matter again. See Sameric Corp. of Chestnut St. v. City of Philadelphia, Civ. A. No. 4525 (Ct. C.P. Phila. County Mar. 25, 1987).

    The Commission held the second hearing on April 2, 1987. At this hearing, Commissioner Brownlee again presented the Designation Committee's recommendation for designation and described the theater as a superb example of art deco. The Commissioner then presented a slide show detailing particular features of the theater, both interior and exterior. The Designation Committee's report emphasized that the building was an authentic example of art deco and that the building was "almost completely intact both on the interior and exterior." App. 54-55.

    The president of Sameric, Merton Shapiro, then testified that many of the features which the Designation Committee emphasized, such as the ticket booth, entranceway floor, glass doors to the main lobby, mirrors, and the lobby ceiling, were not original. Shapiro presented slides of the building which illustrated the original appearance of the theater, both exterior and interior, and narrated the presentation, pointing out all the changes that he and others had made to the appearance of the theater. App. 163-69. Upon the completion of Shapiro's presentation, Richard Tyler, the Executive Director of the Historical Commission, acknowledged that Shapiro's presentation showed that there had been substantial changes to the appearance of the theater. Tyler also urged the Commission members to consider this evidence. App. 192.

    The Historical Commission also heard testimony on behalf of Sameric from a partner of an architectural firm regarding the authenticity of the Boyd Theater's art deco style. App. 183-87. According to the architect, the theater was not an architecturally notable building in either its original or present

    Page 588

    form. App. 184. In addition, the architect testified that of the 18 criteria enumerated in a scholarly treatise which identify the art deco style, the remaining portion of the Boyd Theater's original facade included only five. App. 184.

    At the close of the evidence, the Historical Commission again voted to designate the Boyd Theater as historic, with only Commissioner Street again voting against the...

To continue reading

FREE SIGN UP