In an earlier post, we talked about how L&I already has the authority to prevent tragedies like the Market Street building collapse, yet it chooses not to use that authority. Yesterday, the Plan Philly posted a story about L&I doing just the opposite – requiring something they have no authority to require.
The story involves a town home development at 3rd & Reed Streets in the Pennsport section of Philadelphia known as Constitution Court. The developer apparently obtained a height variance from the zoning board. However, neighbors claimed that the development as constructed was 22 inches higher than allowed by the dimensional variance. Therefore, neighbors alerted the Department of Licenses and Inspections who apparently measured the structure and found that it was indeed higher than the variance permitted. What L&I did next is where things get concerning to not only real estate developers but anyone interested in the rule of law. It issued a “stop work order” and demanded that the developer remove 22 inches in height from the structure, which the developer plans on doing by jacking the framed out structures and removing 22 inches from the base — at great expense no doubt.
Why is this a concern to the rule of law crowd? Because under Philadelphia Code (otherwise known as the Law) L&I lacks neither the authority to issue a stop work order because a building is higher than permitted by zoning nor to order the height of the structure reduced. Under Philadelphia Code, L&I can only issue Stop Work Orders “directing that erection, construction, alterations, installation, repairs, removal, demolition and other activities cease immediately” when: (a) there is a “dangerous or unsafe condition due to inadequate maintenance, deterioration, damage by natural causes, fire, or faulty construction that it is likely to cause imminent injury to persons or property; or (b) work is being performed “contrary to accepted construction practices or in a dangerous or unsafe manner which imperils life, safety or property, constitutes a fire or health hazard, or will interfere with a required inspection.” As you can see, neither (a) nor (b), cover a situation when a building is out of zoning compliance.
Moreover, the Code is completely silent on whether L&I has the authority to require alterations to a structure for it to comply with a dimensional variance. Even if it did, there would still be a little issue with something called “due process” which is right granted by the 14th Amendment to the Constitution. But apparently not to Constitution Court.