Turchi v Philadelphia Board of License and Inspection Review

Commonwealth Court of PA, 1273 C.D. 2010, 1274 C.D. 2010, April 18, 2011: City Board of License and Inspection Review must defer to the Historical Commission’s interpretations of words in city Historic Preservation Ordinance.

The Philadelphia Board of License and Inspection Review (Board) reversed a decision of the Philadelphia Historical Commission (Commission) approving a permit for the renovation and development of a historically designated building. The Board’s reversal was based in part on its overriding the Commission’s interpretation of the terms “alteration”, “in significant part,” “demolition,” and “appropriateness” under the Philadelphia Historic Preservation Ordinance. (Code §§ 14-2007(2)(a), 2(f), (7)(k), R.R. at 316a, 323a-24a.)

Accordingly, we must remand this matter to the Board for further review and for the Board to issue a new determination based on the evidence presently before it, with deference being given to the Historical Commission’s interpretation of the Historic Preservation Ordinance and the application of the principle that the Historical Commission’s interpretations “become[] of controlling weight unless [they are] plainly erroneous or inconsistent with” the Historic Preservation Ordinance.

The Court wrote that this case should be guided by how the US Supreme Court decided an analogous matter in Martin v. Occupational Safety and Health Review Commission, 499 U.S. 144 (1991), i.e., it (1) “applied a presumption against the adjudicative actor;” (2) “concluded that [the Legislature] did not intend the adjudicative actor to play a policy-making role;” and (3) concluded that the legislative body “intended to invest” the administrative actor with “authoritative interpretive powers.”

The Court found the Board to be the adjudicative actor that should defer to the Commission’s reasonable interpretations as the administrative agency, unless they are plainly erroneous or inconsistent with the Ordinance. “When the Board replaced the Historical Commission’s definitions with its own, transforming the interpretation of phrases into credibility determinations, the Board exceeded its appellate scope of review.”

Decision available at http://www.pacourts.us/OpPosting/Cwealth/out/1273CD10_4-18-11.pdf.

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