On December 22, 2016, the Pennsylvania Commonwealth Court issued an important opinion that has flown under the radar somewhat. The case Rufo v. Board of Licenses and Inspection Review, invalidates a major portion of Philadelphia’s so called windows and doors ordinance, which requires owners of vacant properties to install glass windows and doors with frames on vacant properties. A copy of the opinion can be found here. (I only learned about the case because of a tweet by a litigator with the pro-freedom group the Institute for Justice.)
The Windows and Doors Ordinance
The case concerns Section 306.2 of the Property Maintenance Code which requires “the owner of a vacant building that is a blighting influence, as defined in this subcode, [to] secure all spaces designed as windows with windows that have frames and glazing and all entryways with doors.” Property owners found in violation of the ordinance can face stiff fines. Property owners are subject to a daily fine for each door and window in violation of the Ordinance. The fine is $300 per window or door. However, because most vacant properties have multiple windows and doors the fines can add up exponentially.
The key part of the ordinance is the term “blighting influence” and how it is determined that a property is a blighting influence. The Ordinance only applies to those properties that are a “blighting influence.” In other words, a property could be missing windows and doors but if it is not determined to be a “blighting influence,” then the property owner is not subject to the fines.
Under the Property Maintenance Code, there are two ways that a property is determined to be a blighting influence. First, there is an objective standard. If the property without windows and doors is located on a block where 80% or more of the properties are occupied, it is a blighting influence. Second, there is the subjective standard. The Commissioner of Licenses and Inspections in consultation with other City officials, can declare a property a blighting influence if it has a significant adverse impact on the community based on variety of factors including, the safety of the surrounding community, community morale, marketability of the property, and the value of surrounding properties.
The Property at Issue
The property at issue is a large commercial property that was formerly a brewery. In 2012, the City cited the property owner for violating the Ordinance – among other things. Because of the number of windows and doors involved, the fines equaled $33,000 per day. Moreover, the cost to replace all of the windows and doors exceeded the assessed value of the property.
The Appeal
The owner appealed the fine. The owner argued that installing windows and doors would not make the property safer. To the contrary, it would make it less safe as vandals could easily enter the building by breaking the glass. The owner pointed out that when he installed three windows at the property they were broken in a matter of days. The owner further argued that the ordinance was concerned with making the property aesthetically pleasing rather than safe. Finally, the owner argued that the ordinance was unconstitutionally vague.
The Board’s Decision and Appeal to the Trial Court
The License and Inspection Review Board upheld the fine. The owner then appealed to the Philadelphia Court of Common Pleas. The trial court overturned the fine. The trial court found that the ordinance had a purely aesthetic goal because it was not aimed at making the property safe and had a minimal impact on reducing blight – if at all.
The Commonwealth Court’s Ruling
The City appealed the trial court’s order to the Commonwealth Court. The Commonwealth Court upheld the trial court. Like the trial court, the Commonwealth Court held that a municipality’s police power may not be grounded solely on aesthetics. Despite the City’s claims that “numerous studies” showed that installing windows and doors reduced blight, the City could not point to any. The Court also found that the owner could install wood and blocking behind the windows and doors to secure the property and still be in compliance with the ordinance. Therefore, the ordinance was purely aesthetic.
Conclusion
There are several takeaways. First, property owners cited for violating the windows and doors ordinance under the subjective standard should challenge the fine. Second, when bureaucrats hostile to private property rights bully property owners, the property owner should first check to see if the ordinance or law is it susceptible to a challenge before he cedes his freedom to the state.
Wally Zimolong
Wally represents contractors (and subcontractors) and developers. His clients build and develop residential, commercial, and industrial properties nationwide. Wally enjoys working with the owners of the businesses he represents because they tend to be entrepreneurs and all around interesting people.
