United Artists' Theater Circuit, Inc. v. City of Philadelphia

• Decision Date: 09 November 1993
• Parties: UNITED ARTISTS' THEATER CIRCUIT, INC., Appellant, v. CITY OF PHILADELPHIA, Philadelphia Historical Commission, Appellees. . Re
• Court: Pennsylvania Supreme Court

Page 612

635 A.2d 612

535 Pa. 370

UNITED ARTISTS' THEATER CIRCUIT, INC., Appellant, v. CITY OF PHILADELPHIA, Philadelphia Historical Commission, Appellees.

Supreme Court of Pennsylvania.

Reargued Oct. 23, 1991.

Decided Nov. 9, 1993.

Richard A. Sprague, J. Shane Creamer and Hugh J. Bracken, Sprague, Higgins & Creamer, Philadelphia, for appellant, United Artists Theater Circuit, Inc.

Maria L. Petrillo, Chief Asst. City Sol., Charles W. Bowser, Philadelphia, for appellee.

Thomas A. Leonard, Philadelphia, Katherine L. Niven, Brenda Barrett, Harrisburg, for amicus curiae, Pa. Historical and Museum Com'n.

Frank M. Thomas, Jr. and Mark P. Edwards, Philadelphia, for amicus curiae, Nat. Trust for Historic Preservation, et al.

Mary K. Conturo, Pittsburgh, for amicus curiae, City of Pittsburgh.

Keith Welks, Harrisburg, for amicus curiae, Comm., D.E.R.

Kenneth M. Jarin and Robert C. Drake, Philadelphia, for amicus curiae, Pa. League of Cities.

Gregory R. Neuhauser, Walter W. Cohen, Harrisburg, for amicus curiae, Attorney General of Pa.

Anthony Green, Washington, DC, for amicus curiae, Congressman Thomas M. Foglietta, et al.

Henry Ingram, Pittsburgh, for amicus curiae, Pa. Builders Assoc., et al.

Nancie G. Marzulla, Defenders of Property Rights, Washington, DC.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION

NIX, Chief Justice.

FACTS

On July 10, 1991, this Court found that the Philadelphia Historic Preservation Ordinance "which authorize[d] the historic designation of private property ... without the consent of the owner, [is] unfair, unjust and amount[s] to an unconstitutional taking without just compensation in violation of Article I, Section 10 of the Pennsylvania Constitution." United Artists' Theater Circuit, Inc. v. City of Philadelphia, Philadelphia Historical Commission, 528 Pa. 12, 26-27, 595 A.2d 6, 13-14 (1991). ¹ This result stands in contrast to the result reached by the United States Supreme Court in Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), in which that Court held that historic designation without the consent of the owner is not a "taking" under the Fifth and Fourteenth Amendments to the United States Constitution.

The City of Philadelphia filed a petition pursuant to Rule 2543 of the Pennsylvania Rules of Appellate Procedure requesting this Court to hear reargument and reconsider our July 10, 1991 ruling that the designation of a building as historic is a "taking" under our Constitution and requires "just compensation." We granted reargument on August 23, 1991, and on October 23, 1991, the parties reargued the sole issue of whether the designation of a building as historic is a "taking" under our Constitution, requiring just compensation. United Artists requests that we reaffirm our July 10, 1991 decision, and hold that a designation as historic is a taking which requires just compensation. The City of Philadelphia and the Philadelphia Historical Commission ("Commission") argue that the rights afforded by the takings provision in our Constitution mirror those of the United States Constitution; moreover, our Environmental Rights Amendment empowers the state and local governments to protect the historic resources of our Commonwealth. For the reasons that follow, we hold that under the Constitution of Pennsylvania, the designation of a building as historic without the consent of the owner is not a "taking" that requires just compensation; however, because the Commission acted outside of its statutory authority, we vacate the Commission's designation of the Boyd Theater as historic.

I. TAKING

A. UNITED STATES CONSTITUTION

Before we turn to the Commission's actions in this case, we must first examine the constitutionality of historic designation. The United States Supreme Court has ruled that the Fifth and Fourteenth Amendments to the United States Constitution do not prohibit a state or municipality from designating a building as "historic" and placing restrictions on the owner's use of the building. In Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), the Supreme Court examined a claim that the New York City Landmarks Preservation Law constituted a "taking" under the Fifth and Fourteenth Amendments of the United States Constitution. The Appellants presented "a series of arguments, which, while tailored to the facts of [that] case, essentially urge[d] that any substantial restriction imposed pursuant to a landmark law must be accompanied by just compensation if it is to be constitutional." Id. at 128-29, 98 S.Ct. at 2661-62, 57 L.Ed.2d at 651. The Supreme Court rejected these arguments, and upheld the New York City Landmark Preservation Law. The Court found that there was no taking, that the restrictions imposed were substantially related to the general welfare, and that the regulation permitted a reasonable beneficial use of the landmark site. Id. at 138, 98 S.Ct. at 2666, 57 L.Ed.2d at 657.

The issue which confronted the United States Supreme Court mirrors the question before us today: "whether the designation of a property as historic without consent of the property owner constitutes a taking" pursuant to Article I, Section 10 of the Pennsylvania Constitution. Likewise, we are examining many of the same arguments which were raised by the Penn Central Transportation Company. It is without question that this issue, if framed as an examination under the federal Constitution, is answered by the decision of the United States Supreme Court in Penn Central. Here the parties urge that we examine the rights afforded to property owners under the Constitution of this Commonwealth, to determine if the rights under our Constitution are more expansive than those rights guaranteed under the federal Constitution.

B. PENNSYLVANIA CONSTITUTION

This Court has recognized that our Constitution can provide greater rights and protection to the citizens of this Commonwealth than are provided under similar provisions of the federal Constitution. We have stated:

[T]he federal Constitution establishes certain minimum levels which are "equally applicable to the [analogous] state constitutional provision." However, each state has the power to provide broader standards and go beyond the minimum floor which is established by the federal Constitution.

Commonwealth v. Edmunds, 526 Pa. 374, 388, 586 A.2d 887, 894 (1991) (quoting Commonwealth v. Sell, 504 Pa. 46, 63, 470 A.2d 457, 466 (1983)). In Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), this Court examined the state and federal Constitutions in an appeal which challenged the acceptance of a "good faith" exception to the exclusionary rule. In Edmunds, we held that the Pennsylvania Constitution did not incorporate a good faith exception to the exclusionary rule for the violation of the constitutional requirement that search warrants accompany any search or seizure. Mr. Justice Cappy, writing for the majority of the Court, established the following four-part framework for analyzing our state Constitution:

litigants [must] brief and analyze at least the following four factors:

1) text of the Pennsylvania constitutional provision;

2) history of the provision, including Pennsylvania case law;

3) related case law from other states;

4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

Depending upon the particular issue presented, an examination of related federal precedent may be useful as part of the state constitutional analysis, not as binding authority, but as one form of guidance. However, it is essential that courts in Pennsylvania undertake an independent analysis under the Pennsylvania Constitution.

Edmunds, 526 Pa. at 390-91, 586 A.2d at 895. Therefore, in accordance with Edmunds, we will undertake this four-part analysis.

II. EDMUNDS

A. TEXT

The first element to be examined is the text of the Pennsylvania Constitution. It protects the citizens of Pennsylvania from deprivations of property or takings for public use in the following provision:

[N]or shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.

Pa. Const. art. I, § 10.

Similarly, the federal Constitution protects all citizens of the United States from deprivation of their property:

No person ... shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

U.S. Const. amend. V.

Both provisions contain two elements. The first element is that no property may be taken without due process of law or authority of law; the second element requires that just compensation accompany any taking for public use. Therefore, the texts of both constitutional provisions are almost identical for our purposes.

B. THE HISTORY OF THE PROVISION

The second element of the Edmunds analysis is an examination of the history of the provision, including Pennsylvania case law.

Section 10 of Article I has its origins in Clause VIII of the Declaration of Rights in the 1776 Pennsylvania Constitution. This original clause allowed the owner's legal representative, i.e., the state legislature, to authorize the taking of property without compensation. After the federal Constitution had been ratified, Pennsylvania added a just compensation requirement to its Declaration of Rights in 1790. Since 1790, the relevant provision has remained unchanged. See Pa. Const. art. I, § 10 Historical Note (Purdons 1969).

An examination of our case law reveals that this Court has continually turned to federal precedent for guidance in its "taking" jurisprudence, and indeed has adopted the analysis used by the federal courts. In Best v. Zoning Board of Adjustment, 393 Pa. 106, 141 A.2d 606 (1958), this Court was...