Amie Courtney, left, and Krista-Ann Staley, right, of Babst Calland Clements & Zomnir.

Philadelphia has won the right to prohibit properties identified as “blighting influences” from boarding up doors and windows, and municipalities, community activists, property owners and developers should take notice.

The Pennsylvania Supreme Court on Sept. 13, unanimously issued a decision in Rufo v. Board of License and Inspection Review, 2018 WL 4355212, __ A.3d __, upholding Philadelphia's Windows and Doors Ordinance (the ordinance). The ordinance requires all vacant buildings that are “blighting influences” to have frames and glazing on all windows and doors on all entryways. It explicitly prohibits sealing windows and doors with boards or masonry.

The case began when the city issued a notice of violation to Anthony Rufo as the owner of the Gretz Brewing Building in North Philadelphia. William Gretz and Leonard and Frank Rieger constructed a series of brick buildings that comprised a brewery between 1885 and 1950. The building has remained vacant since the 1960s and have fallen into disrepair, collecting trash and graffiti. Rufo's company TR Gretz, LP purchased the property in 2003 but, for reasons not identified in the court's opinion, could not demolish or repair and develop the building. While the owners had installed some windows in the building, the bulk of the building's windows and doors were boarded up or secured with structural materials, such as masonry and steel.

The city's Department of License and Inspection inspected the property and issued a notice of violation in 2012. The notice declared the property a “blighting influence”, thus triggering the ordinance's requirements for windows and doors. The owners appealed the notice of violation to the city's Board of License and Inspection (the board), arguing that the ordinance was unconstitutional and not a proper use of the city's police power. The owners maintained that the sole purpose of the ordinance was to compel them to maintain aesthetically pleasing property, which is beyond the city's police power to regulate health, safety and welfare. The board disagreed and affirmed the notice of violation.

The trial court reversed the board, finding that the city failed to present evidence that the ordinance's window and door requirements increased the building's safety. The board agreed with the owners' position that the goals of the ordinance were purely aesthetic. The Commonwealth Court upheld that decision on appeal, see Rufo v. Board of License and Inspection Review, 152 A.3d 400 (Pa. Commw. Ct. 2016).

The city appealed to the Pennsylvania Supreme Court, which overturned the Commonwealth Court decision and upheld the ordinance as a valid exercise of the city's police power. The Supreme Court agreed with the city's argument that the Commonwealth Court erroneously placed the burden to prove the constitutionality of the ordinance on the city. Instead, the Supreme Court reiterated long-standing Pennsylvania law that a municipal ordinance is presumed to be constitutional and can only be overturned if a challenger meets the heavy burden of proving to the contrary. Upon examination of the record, the Supreme Court concluded that the owners failed to prove that the ordinance is aimed exclusively at improving aesthetics, stating “it is unassailable that the city, through the exercise of its police power, has the inherent right to attack blight within its confines.” The court went on to find that the ordinance would assist the city in doing so.

By issuing its decision in Rufo, the Pennsylvania Supreme Court clarified the scope of police power as including the right to combat blight. This adds blight-specific property maintenance codes like Philadelphia's Windows and Doors Ordinance to the tools municipalities may use to address vacant and poorly maintained properties. However, because “blight” is not a standalone issue, but rather, as described by the trial court in Rufo, is “a complicated integration of economics, poverty, crime, aesthetics and social issues,” a municipality looking to prevent, remediate and, ultimately redevelop blighted properties may consider a doors and windows ordinance as one part of a comprehensive blight strategy.

The existing tools a municipality may use to address blight include zoning, code enforcement and conservatorship. For example, Section 604 of Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (MPC), the state zoning enabling legislation, includes blight prevention among the permissible purposes of a zoning ordinance. Under this authority, municipalities seeking to address blight should proactively plan for the reuse of vacant or blighted properties when they enact, review and revise their zoning text and maps. This could include permitting new or different land uses in areas suffering from blight and reconsidering zoning regulations that may impede redevelopment or adaptive re-use.

A comprehensive blight strategy may also draw on the authority of the Neighborhood Blight Reclamation and Revitalization Act (NBRRA) (Act 90 of 2010). Under the NBRRA, a municipality may deny municipal permits, including zoning approvals, to owners of other properties in the municipality with state law or municipal code violations. A municipality may also deny a permit for delinquent taxes or other delinquent municipal accounts. The NBRRA also permits in persona actions against owners of property with serious code violations or that is determined to be a public nuisance. The failure to address a violation within a defined time allows the municipality to initiate an action against the owner for fines and costs, including any costs incurred by the municipality in abating dangerous property conditions. The municipality may also request a lien against the personal assets of the property owner.

The Abandoned and Blighted Property Conservatorship Act (the Conservatorship Act) (Act 135 of 2008) authorizes neighbors, nonprofit organizations, municipalities, school districts and redevelopment authorities to petition the court for the appointment of a third-party conservator. The conservator may take temporary possession of a blighted property and make necessary improvements to restore the property or demolish the property when the property owner is unavailable or refuses to act.

Municipalities eager to address blighted properties now have one more tool to consider as part of a diverse approach to blight prevention and remediation. However, as municipalities continue to develop and enact strategies to promote productive uses of properties, they should be mindful to ensure that their regulatory efforts are a valid use of their powers; regardless of the specific enabling legislation, municipal ordinances must always be clear and properly enacted to be enforceable. Furthermore, property owners and developers should be aware that properties deemed “blighted” may be subject to enforcement if not remediated, even if they are slated for eventual redevelopment.

Krista-Ann M, Staley is a shareholder and Amie L. Courtney an associate in the public sector services and energy and natural resources groups of the Pittsburgh law firm of Babst, Calland, Clements & Zomnir. In these capacities, Staley focuses her practice on representation of diverse private and public sector clients on land use and other local regulatory matters. Courtney focuses her practice on zoning, subdivision, land development, and code enforcement matters. Contact them at [email protected] and [email protected].